Dated 16.11.2003
Questions & Answers.
Q 1. My marriage took place in a family that was known to my maternal grandparents for years together. I was not given enough time to think about the proposal and everything i.e engagement and marriage took place within a short span. However, with each passing day I found many differences in what were told to me about the family and the boy, further other differences arose since their family belonged to a status conscious small village group and that I had been brought up in a more open environment like a city. I felt as if I have been cheated and couldn’t adjust nor tolerate with this alliance. After 20 days of marriage my husband left for his job assignment out of country. I was left behind with my mother-in-law, father-in-law and a married sister-in-law who was staying in close proximity, as my visa was yet to come. Within few days of association with them I realized that this is not the life I was looking for and in a spur of the moment decided to get out of the wedlock. On some pretext, I called my widowed mother and I left the matrimonial home to join her. Immediately thereafter, I took up a job to get busy. It’s almost a year now, but there has been no communication between both the families, initially my husband called me to know what was wrong but since long he too has stopped calling. I wish to remarry, as my mother is getting worried and old too. I would like to know; 1) Whether I can get married without seeking a legal divorce, since my in-laws and my husband are far away and not in touch with me, further, I heard the divorce process is too tedious? 2) If I have to file a divorce petition under what grounds I have to file and how long it shall take to get a divorce?
-V.M.V, JNR.
A 1. Answering your first question, a legal divorce is a must, even though your in-laws or your husband are far away and are not keeping contact with you. In absence of a legal divorce from your 1st husband, your second marriage shall have no sanctity under the prevalent law and shall amount to be a void marriage under the Hindu Marriage Act. Answering your 2nd question, as you hardly have any strong reason like cruelty, desertion etc. for seeking a divorce, you may have to convince your husband and can go for a mutual consent divorce and if your husband is ready for seeking a divorce you both can jointly file a Petition under section 13 B of the Hindu Marriage Act. Normally it takes about one year to one and a half for a divorce petition to be heard and disposed off.
Dated: 23.11.2003
Questions & Answers.
Questions & Answers:
Q1. I am to be married soon. All my friends are insisting that I have a pre-nuptial agreement. I do not want to upset my in-laws and fiancé by asking for this. What should I do? Is it necessary?
-I.N, Jayanagar.
Ans. In our country and under our laws, there is no provision for making a pre-nuptial agreement (except under the law prevalent in Goa
Q2. My sister has recently separated from her husband on the grounds of adultery. He spends a lot of amount on his mistress depriving my sister of all the normal needs. How can we get him to pay my sister a better amount?
Ram, J.P.Nagar.
Ans. Your sister should file a case against her husband, prove her husband’s income and the amount he is spending on his mistress and ask for adequate maintenance for herself. The Court will consider his financial standing and award maintenance accordingly
Dated: 30.11.2003
Questions & Answers:
Q1. Is a joint will valid? Can I make a joint will with my wife?
-J.S, Jayanagar.
Ans. Yes, a joint will is valid. Both the husband and wife can jointly execute a single Will, where each can bequeath their respective share in the property in favour of their children or any other beneficiary.
Q 2. I am 61 years old woman. As per the Will of my husband the house where I live with my 2 married sons is given to me. My younger daughter in law has rich habits and always trying to pick up fights with the other members of the family spoiling the peace in the house. Can I ask my younger son to live separately with his family? What legal remedy I have, if my son refuses to move out of the house?
-P.S.K, J.P Nagar.
Ans, As the house where you are living belongs to you, you surely can ask your son to vacate and live separately with his family. However, if he refuses to do so, you may have to file a suit for injunction against your son for this you may have to consult a good lawyer and take proper legal advice.
Dated: 7.12.2003
Questions & Answers.
Q1. I am old and ailing, aged about 75 years. I am staying in an ownership flat with my wife and my unmarried physically disabled daughter. I also have a small vacant site registered on my wife’s name. Ten years back, I had registered a will secretly, in favour of my wife giving away my flat to her for her use in her lifetime and then after her death to my daughter. However, since, both my wife and daughter do not have any income source looking at the present circumstances; I wish to provide for their future a regular cash flow, while I am still alive. My query is (1) Can I sell this flat where I am residing though I have willed the same flat to my wife and use some of the sale proceeds to construct a small structure on the vacant site and keep the rest in the bank? (2) Can I gift this flat to my wife, whereby if she needs money she can immediately sell it and use the same for both of their needs?
A1. Well, even though you have willed your residential flat in favour of your wife, this registered will take effect only after your death and hence you may sell this flat during your lifetime if you so desire to construct another house and also to make provision for your wife and daughter. Answering your 2nd query, you can gift this flat if you so desire by a registered gift deed either singly to your wife or jointly to your wife and your daughter. Stamp duty on gift deed is nominal but if they wish to sell the same without further reinvesting in construction or purchase of property the money gained shall amount to Capital gains, making them liable to pay tax. It is advisable to seek proper guidance from a tax consultant to manage your capital gains tax
Dated: 14.12.2003
Q 1. My father was a priest in a small village near Chennai. My father provided for my education until I was an engineering graduate, thereafter I got a good employment and days changed. I am the eldest son in the family, having a younger brother and a sister. Both are yet to finish their education. With much religious belief and after matching the horoscope, my father had arranged my marriage with a girl from the same caste. My marriage ceremony was simple and we never asked anything from the girls’ side. My wife is a graduate and is employed with a government department. However, since the day of our marriage my wife was not happy as we all stayed jointly. I felt then, as I was earning well, it was my duty to support my parents and my siblings. My wife picked up fights with me and even with the others in the family on petty grounds. I always tried to explain my concern for my parents and my family, but she refused to understand me and wanted to live separately. I never responded to her demands, as I was torn between my duty towards my family and her demand of separate house. We have a 4-year-old daughter, who is totally confused because of the tensions in the family. Sometime back she went to her parents’ house along with my daughter for few days, never to return back. I have recently been transferred to Hyderabad
Subramanian.
You can file a Petition under section 9 of the Hindu Marriage Act for Restitution of conjugal rights, stating that your wife has withdrawn from your society without reasonable excuse. Upon passing of such a decree for restitution of conjugal rights you can execute legally the decree against your wife. Further if she refuses to join you even after such a decree, you can seek a divorce under section 13(1A) on the ground that there has been no restitution of conjugal rights between you both for a period of one year or more after passing of a decree for restitution of conjugal rights in a proceeding to which you both are parties. Alternately, you can also file a petition directly for divorce under section 13(1) ia of the Hindu Marriage Act, on the grounds that your wife has treated you with cruelty, here cruelty can be defined as mental cruely.
Regarding your daughter, since she is just 4 years old as mentioned in your query, in all probability her custody shall be given to your wife since your daughter is under 5 years of age and that wife is a most natural guardian.
Dated: 21.12.2003
Questions & Answers.
Q 1. I am working for a Multinational Company and I often have to go out of country for an official assignment. I wish to enter into a sale agreement for purchase of a property. The loan sanctioning and other incidental arrangements shall take time, I fear that, in the mean time, I may have to go out of country for few months on an official assignment. I do not want to delay the registration for such a long period. Since I have already paid a good amount at the time of sale agreement,; I wish to know (1) Can my mother sign the sale deed in my absence; (2) How can this be done?
-A.G. Jnr.
A 1. Your mother can definitely act on your behalf in your absence, provided you authorize your mother by executing a Power of Attorney in her favour to do such acts. This Power of Attorney can be general or specific, depending upon the nature of acts you want to assign. Further you must register this Power of Attorney with the jurisdictional Sub-Registrar. Expenses for the same is less as, Stamp duty for a Power of Attorney is Rs.100/- and registration of the same is also Rs.100/-.
Q 2. My Aunty is holding a General Power of Attorney of my mother, who passed away 3 months back. My mother was a divorcee and I am her only child; studying in 2nd PUC, staying with my Aunty. My mother died in an accident and had made no Will. Now my Aunty is planning to dispose of my mother’s property, saying that since the GPA was made with the intention to sell off her property. My Aunty is also forcing me sign on certain papers, contents of which I am not aware. Can you please guide me?
-Malini.
A 2. Your Aunty is clearly taking advantage of your ignorance. After the death of your mother, you are the legal heir to her property. Further, a GPA automatically stands cancelled once the executor of the GPA dies. Hence your Aunty has no authority or power to dispose of your mother’s property, her right to do so is cancelled by the death of your mother.
Dated: 28.12.2003
Questions & Answers.
Q1. I got married on May 2000. My wife was from Palakkad. I belong to Trivandrum Bangalore Trivandrum Cochin Trivandrum Palakkad Sub-Court
1. How much amount will be reasonable for a one-time settlement?
2. Whether any agreement or receipt to be obtained for the payment of the amount?
3. What are the risks involved with regard to the claims from child in future?
4. Whether I can transpose the current Petition filed atTrivandrum
5. If that being the case whether I can get divorce waiving 6 months period?
6. What other points I have to look while going for One Time Settlement? K.B. Jnr.
2. Whether any agreement or receipt to be obtained for the payment of the amount?
3. What are the risks involved with regard to the claims from child in future?
4. Whether I can transpose the current Petition filed at
5. If that being the case whether I can get divorce waiving 6 months period?
6. What other points I have to look while going for One Time Settlement? K.B. Jnr.
A1. Answers to your question are as follows:
1. The Court considers the income of the husband and the standard of living he can provide to his wife. Accordingly a monthly maintenance is determined and granted to the wife. With regards to one time settlement, it is better that the figure comes from your wife, which can be negotiated to a certain extent.
2. Yes, it is better that both the parties sign an out of Court settlement agreement and file it before the Court.
3. You can make it clear in the above said settlement agreement that this payment is made for both the wife and the child, as full and final payment to them for their life time maintenance.
4. Yes, you can do this, provided the stay order from the High Court is vacated and only if the evidence has not began.
5. Yes, you can.
6. Same as mentioned above.
