Legal Query on Arrest without proper inquiry, annulment of marriage reasons marriage not consummated since 3 years, prove marriage is consumed

Q1.  Early Morning at 5.20 am Police has arrested entire family without any warrant as I said by around 3'O clock the Judicial Magistrate had remanded them based on the complaint received. Here, Police has filled up FIR around 1'O clock. But in the FIR they have mentioned that the complainant has come to PS and given the complaint at 8.30am. There is no investigation or no prior notice to the family. Here, No death or grave injurious or fights. The wife mentioned that only demand of dowry. But the family had spent 15 days in jail. The wife side had filed intervene petition that if they came out jail they would flew to abroad. Based on that JM has refused the bail application thrice.

Is there any rule for the arrest and refusal of bail applications? Due to the corruption, that family has suffered a lot. Is there any remedy for them? -  Mks

Ans. If JM has refused, you can go in appeal before the Higher Court and even file a writ to quash the proceedings before the High Court, you can also complaint to the Superintendent of Police for  mal-practices and harassment by the police, as there is a clear direction that, it is mandatory to conduct inquiry in any 498A complaint prior to any arrest.

Q 2.  Marriage can be annulled under the special marriage act if it is not consummated due to the willful refusal of the respondent. Please suggest me I have one query on this, Applicant seen the 3-year wait, Now Applicant realized respondent willfully deserted. At this situation Annulment is possible because I learned annulment must be file within 1 year. Please suggest. -GVD

Ans. You do not come under the preview of annulment of marriage, as in India the mandatory requirement is to file a petition on the prescribed ground, is within one year of completion of marriage. Now you can only file a petition for divorce taking the ground of desertion.

Q 3. Consummation may be proved by medical evidence but how if consummation has not occurred and bride was not virgin before marriage?

Dear expert's, how could a medical examination may prove that the hymen which was broken is broken by none other than her husband only If a marriage been not consummated and bride is telling that it has been consummated but the original rupturing of her hymen was not from her husband? In that case how can husband prove that a marriage is never consummated? Please throw some light on this topic. -DF

Ans. Well, proving this point in the Court of law is rather difficult, as there can be n number of reasons resulting in this condition. However, if you think she is having an extra marital affair, please focus on this issue.

Legal Query on maintenance by wife under HMA Sec 125 of Cr.PC and DV Act, husband with physical disability can she get petition transferred

Q1. Initially, interim order under HMA 24 was passed under her RCR case for Rs 2500. My interim order under sec 125 was passed today in family court for Rs 1000

I wanted to ask:

Now that two orders are passed, is my understanding correct, that I will have to pay a total of Rs 3500 only, and inform the other court that such order under HMA 24 was already passed and now I will be paying Rs 2500+1000=3500?

Will I have to inform in the 125 case or in the HMA 24 case?

Also, since DV is also going on, where she has again demanded maintenance, damages, one time compensation, stridhan and rental, along with a rented house.

I wanted to know, now will the DV court also pass a separate order for the rental amount? Right now she is staying with her mom since last 1 and half years. Since she has asked for a rental amount along with a separate residence, will the rental component be added to the amount of Rs 3500 that I will be paying? Or does the amount under HMA 24 and 125 include the component of rent (shelter) for the woman.

I would like to take this opportunity to thank each and every one of you to continuously guide me all this while, due to which this amount has been reduced to rs 3500, as I was expecting more than rs 6000 to fall on my head, but only due to the guidance of experts like you, I am able to guide my own lawyer (who has openly admitted that I indeed have much knowledge than himself!)  - KS

Ans. Well, a married woman has a right to claim maintenance under all the provisions of law and if such order is passed, her husband has to pay her. This means you will have to pay the total of Rs.3500/- per month to your wife towards maintenance. Also I feel there is no harm in informing the Family Court (where your HMA petition is pending) about the other proceedings and vice-a-versa. This will help the Family Judge to take a proper view and pass orders accordingly.

Q2. I am an Indian Hindu-Male, 34, was married 4.5 years ago, have a son 3 years old, who was born in USA, and I have following points to discuss: I have filed for divorce 5 months back, but to harass me more my wife has applied for a petition to transfer the case to Bangalore (her Hometown), saying that she is employed and have to take care of her old parents as well as take care of our 3 year old kid.

·     MY PHYSICAL DISABILITY: I am “Unemployed” for last 1 year, so if she will make me travel from Mangalore to Bangalore every time just to take revenge, it is not financially possible. ABOVE ALL- I had an accident in USA and was in hospital for 7 months (+ 6 months recovery in India). I had a By-Pass surgery for broken ribs + Aneurism and now have an artificial graft attached to my heart, which gives pain all the time (and if unfortunately “God Forbid”, if the artificial graft leaks blood, then I have to be rushed to ICU immediately). Also I have a Titanium Rod in my right leg, and injuries on my left leg. Due to my head injury I lose balance many times.

·     NO MONEY: I am having hard time with money, with no job, so it will be a burden on me and my widow mom (bed-rest after knee surgery) to travel + hotel…etc. whereas she always travels through flight and as a Class-1 officer she get accommodation easily in Circuit House in every city in Karnataka.

·     My wife (also Hindu) left me for her job in India after our son was born in USA (after 7 months of his birth). She is a Class -1 officer with Karnataka Govt. (salary: Rs 7.5 Lacks + 4 – 7 Lacks under the table)!

·    We have been separated for almost 3 years now. We were married in my hometown: Mangalore.

·    My QUESTION: Will her petition for the transfer of the case to Bangalore can be contested in the court? She is just taking revenge from her Handicap husband!!!!

K RS

Ans. Well a wife has a right to apply for transferring the petition, where she is presently residing or living. However, you have strong grounds for opposing the transfer of your petition, you may do so or you also have a chance to settle all your issues in this transfer petition with the help of mediation. Another advice is if you are actually disabled and not earning a living, you may also file for maintenance against your wife. However, be sure, you are truthful enough and not merely fooling around.

Legal query on applying for divorce after moving to boyfriends home, marrying elder girl, wants 2nd marriage but not ready to divorce 1st wife, wife dragging divorce proceedings

Q1.  Please somebody help me to find legal problems to be faced to marry an elder one. Myself 27 and she is 33 is there any additional requirement to register our marriage. -VR

Ans. There is no problem marrying a girl who is elder to you. Both of you are majors and as per law the girl above the age of 18yrs and boy above 21 yrs can marry. You can also register your marriage with the Sub jurisdictional marriage registrar. However, physical and mental compatibility between you both must be verified for a fruitful marital life.

Q 2. My friend is in love with a married man, and they want to get married and live together. The problem is that her boy friend is willing to marry her but not willing to divorce his first wife. Is it possible to marry again without divorcing his first wife? My friend does not mind her boy friend not divorcing his first wife. All she wants is that he marries her and lives with her that’s all. Is it possible to have a legally valid marriage?

Ans. legally it’s not possible to perform the marriage as the marriage will be an illegal marriage. Further the first wife can file a criminal case for bigamy against the husband. Hence it is advisable to first take divorce and then perform the marriage. Certainly there are cases where a man has performed two marriages and continuing with both the relation. This can be only possible if the first wife is having no objection of having second wife. Consent has to be obtained in writing.

Q 3. My friend has been in an abusive marriage. Some time ago she lost her 18 yrs son to road accident. She now wants a divorce as her husband is blaming her for the loss. Her boyfriend too lost his wife soon after and they gradually became mutually dependent. They wish to get married after her divorce. Can she move in to his house and then file for the divorce? How should she proceed? Her boyfriend has a married daughter and a 20 yrs old unmarried son who lives with him.  YH

Ans. Your Friend should first for mutual divorce, if it fails than; she may file for divorce against her husband on grounds of cruelty before district judge with appropriate jurisdiction. She may do so even while residing with her husband. She can seek restraining orders against her husband if the need arises. She could also lodge a complaint with the local police station against him before filing for divorce. Moving to her boyfriend's place before the divorce will not only weaken her case, it could also invite criminal charges of adultery against her boyfriend.

Q 4. I've applied for Divorce, before 3 years and my wife purposely dragged on the case and they also spoke to the Judge in person and so he ordered to change the Court and he started to yell at me in public in the Court during my hearings. So now the Court has been changed and got transferred to another court again there is a Lady Judge, and my ex-in laws went and acted as if they are angels sent from God. She didn’t read any papers of the case or my merits. She got an order from the High Court that the case has to be closed on a specific date. And the Lady Judge dismissed the case in court...having all the merits of the case, my case got dismissed.

The Lady Judge said the judgment in the open court...she said... all the laws are in favour of the female's only in India now I don’t know what to do...its almost 3 years since we have been living separately..I’ve applied for the appeal in the High Court but my friends are asking me “how long will you be going like this for the courts? "And my question is what if the case in High Court also gets dismissed ... my life will be a question mark...now my ex-in-laws are started harassing me. They are giving calls from PCO and telling me that they will lock me up in jail, if I don’t re-unite...I’m so scared and I want to flea away somewhere. Please guide me. -DF

Ans. If your divorce petition is dismissed for some or other reasons, the Ld. Judge must have given her reasons for dismissing your case. Further, you have filed an appeal which is pending in the High Court. If you do not succeed then you can file an appeal in the Supreme Court of India. Please do not loose your hope as you have availed all the remedies available to your for taking divorce. Please retain a good counsel to argue your case in the High Court.

Legal Query on 50% property to wife, alternate accommodation, wife not giving access of child to mother,

Q1. My wife re-entered the matrimonial house few months back and the moment she entered I left the house and went at rent accommodation. So my point is that she herself demanded an alternate accommodation/rent amount under Domestic Violence act when she was living at her parents’ house, but now she says that she doesn't want an alternate accommodation or the rent amount because now she wishes to live in her matrimonial home..whereas on her demand, I have already shifted to a rented accommodation. Please suggest.  –R M

Ans. Well, how would you prove this was a demand from her? Further, she must be having fear of being thrown out of her from your new rented house and that she cannot demand a right in it to stay in such a case. Her only right is to demand a right of residence in your matrimonial home (joint) or your owned flat/house.

Q 2.  Recently a bill has been also passed from Rajya Sabha that at the time of divorce 50% of property of a Hindu husband has to be paid to wife.

If during the divorce procedure or before filing the divorce by the husband, if husband  converted to other religion Muslim, Parsi or Christian at that time will the above amended Hindu marriage act laws will also be applicable to him and he has to provide his 50% assets to his wife at the time of divorce.

Ans. The idea you have thought will not work in this for saving your hard earned money and assets. You have been married by HMA and your wife is still Hindu with all the proofs of marriage then you can't escape.

Better plan your financial strategies before divorce via PF, GPF, LIC, VPF, and EPF and gift your properties to your own blood relations.

Q 3. My wife does not allow my mother or my other family members to see or even speak my kid. But she does visit her home once a year and also talk to them every day. Talks could not resolve the issue. How I can legally get my kid to visit my family or at least my mother?

Any help in this regard is greatly appreciated.

Ans. 1.   Hire an advocate found via reference.

  2.   Let your mother file a Petition under GWA for interim visitation of minor child (ren).

 3. Unfortunately when natural parents are alive for minors there is no such Law whose help grandparents can take for visitation but via slowly building up tempo during granted interim visitation to natural father it is asked under general inherent powers of the GWA to extend the same for grandparents showing overall best interests for the minors best interest.

4.   Don’t get involved in quasi-criminal Laws via your mother in filing DV Act complaint case praying for visitation of minors at this stage.