Legal Question in Family Law in India

One of my friend�s son has very recently filed a case of divorce on mutually consented case (Wife is the Petitioner No-1 and the boy has only seconded the proposal). Actually their married life was not all happy due to temperamental incompatibility. Motion 2 has not yet been moved

A) The joint application clearly mentioned that both the petitioners have no claim from each other regarding monetary/marriage gifts/personal belongings including ornaments(Diamond/Gold/Silver or otherwise).It also mentioned that the petitioners shall not make any claim regarding these in future against each other. And return of gifts were made with documentation PRIOR TO FILING the joint petition

Now it is seen in papers that a new Clause 13F (Probably Hindu Marriage Act) is going to be introduced that gives B) women share in husband�s inherited or INHERITABLE MARITAL property even after divorce

C) Quantum of compensation left to court�s discretion

D) To grant divorce by mutual consent (after 3 years) even if one of the partners NO LONGER seeks it

My humble question against Point No (B) and (C) is that as per Point No-(A) above the petitioners have no claim. In that case whether the court can still give concession to the girl, particularly when she has moved the petition probably out of hatred towards her husband. Actually the marriage failed mainly because the boy (only child) refused to leave his ailing old parents who needed the son�s physical support, Probably NO INDIAN LAW CAN DEBAR A DUTIFUL son to discharge his duties to his parents (Particularly when the father had to be nursed very frequently as the breakdown of marriage caused the father�s psychiatric problem as well).Of course the parent in laws also cannot ALSO behave rudely with the daughter in law who was not intended to give any space to her in laws

Against Point No (B) is there any compulsion that the father is bound to give his property to his son, even if does not look after his parents in their old age to satisfy his wife (may be) as per court directive.

Again against Point No-(D) so far during the cooling off period (6 to 18 months) if one of the petitioners withdraws the consent then no divorce can be granted by the court. But if Point (D) is implemented the total thing has to be amended first

Also if the girl has left on her own whether any compensation can be claimed. In a Calcutta High Court case there was a ruling that the girl cannot claim any compensation, as she has left her husband on flimsy grounds (The boy lost the case in lower court). Section 125 in The Code Of Criminal Procedure, 1973 says No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. In this case the girl has left without sufficient reasons

Actually if husbands are victimized in this way only the better halves will prevail.In most of the cases there is something else in reality. Please offer your comments

2 Answers from Attorneys

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