Supreme Court Allows Parents Having Visitation Rights To Maintain Contact With Children Via Electronic Means During Lockdown.

The Supreme Court was hearing the grievance of the petitioner that because of lock­down, the children are unable to interact with their parents even though they have visitation rights for the purpose.

Supreme Court in its order dated 30.04.2020 in case titled Tanuj Dhawan Vs. Court In Its Own Motion has directed that Parents Having Visitation Rights To Maintain Contact With Children Via Electronic Means During Lockdown.

In India, courts mostly award custody of minor children to mothers while granting visitation and vocational rights to fathers in a soured marriage. 

A PIL in the Supreme Court on Thursday sought resolution of the difficulty faced by the parent who has not got custody of children.

Petitioner V Srinivas Rao requested a bench of Justices N V Ramana, Sanjay K Kaul and BR Gavai to lay down guidelines for many parents who are unable to meet and interact with their children because of the lockdown. The bench, which was hearing the PIL through video-conferencing, told the petitioner, "if you have visitation rights, we suggest that electronic contact instead of physical visits can be substituted in these times."

The bench said estranged couples could move the family court to work out a arrangement to permit virtual meetings.

Read Full order below:-

HOW TO FILE FOR MUTUAL DIVORCE

HOW TO FILE FOR MUTUAL DIVORCE

 

Mutual Consent Divorce is the Simplest Way to Obtain a Divorce decree in India. Mutual Consent Divorce is Granted by The family Court when Both parties to marriage i.e. Husband and Wife Mutually agree to Divorce.

Advantages of Mutual Divorce:

No need to give reasoning for Divorce , No washing dirty linen in Public, Your privacy is well Guarded.

This form of Divorce is Quick and Cost effective and

If all papers submitted are satisfactory the hon'ble court Grants it Without Delay.

Peaceful way of Obtaining Divorce.

Laws Governing Mutual Divorce:

In India we have separate personal laws depending upon which Religion One belongs, therefore your religion determines which law shall govern your marriage and Divorce Procedure.

Therefore:

The Hindu Marriage Act, 1955 applies to Those belonging to Hindu, Sikh, Buddhists, and Jains Religion.

Special Marriage Act: applies to Those Couples who have opted for Court marriage or Couple belonging from Different Religions.

Divorce Act, 1869: Applies for those belonging from the Christian Religion.

The Muslim Marriage Act, 1939 Governs the laws Related to Marriage and Divorce for Muslim Couples.

Section of each Act Dealing in Mutual Divorce:

Hindu Marriage Act, 1955:

Section 13B of The Act has given both husband and wife a right to get their marriage dissolved by Mutual Consent Divorce.

13-B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Special Marriage Act:

Section 28 of the Special Marriage Act, 1954 provides for Divorce by mutual consent for those who have registered their Marriage under Special Marriage Act. Special Marriage Act applies to Inter-Religion Marriages and Court Marriage.

Divorce Act, 1869:

Those married Under Christian Laws can Obtain a mutual consent divorce under Section 10A of the Divorce Act, 1869

What are the Advantages of Filing Mutual Divorce

Since Divorce By Mutual consent is the fastest and simpliest way to obtaion Divorce therefore it saves time, money and energy.

Unnecessary quarrel amongst Couple is avoided.

Privacy is safeguarded of the Couple.

Essential Requirements For Mutual Divorce are as follows:

1. Husband and Wife has to be living Separately For One year.

2. In case of Christian two years separation is Prescribed.

This separation means no Congenial Relationship for the prescribed period; and

Husband and wife mutually agreed to the desire to dissolve their marriage.

To File for mutual Divorce The Couple have to Mutually agree upon certain facts Before Filing the petition they are:

1. Custody of child;

2. Alimony (lump sum maintenance to be decided between parties;

3. Return of items i.e. dowry, streedhan, etc;

4. Litigation expenses

Facts To Know before filing Mutual Consent Divorce:

One year separation period Must before Filing The petition and two years in case of Christians.

The couple can Submit a Joint petition For mutual Divorce in the family Court or District Court where:

i. Where they Last Resided

ii. Where the marriage took Place

iii. Where the Wife Resides

iv. The entire Process takes 6 Months.

v. Couple can extend the period of second motion till upto 18 months

vi. This period can be Shortened to within 3 months by Filing a separate application to waive off Cooling period of Six months. (This entire Depends on the Discretionary powers of the Judge)

Documents Required to File a Mutual Consent Divorce:

1. Proof of Address of Both parties i.e. Aadhaar Card/Passport/Electricity Bill/Ration Card (either one of them)

2. Marriage Certificate

3. Wedding Card

4. Marriage Photograph

5. Passport 

6. Four Passport size Photographs

This is an exhaustive list and depends on the grounds of filing the divorce petition.

Procedure to File Mutual Consent Divorce Petition:

Petition to file for Mutual divorce:

The First step is to File a Joint petition in the family Court/District Court in the Correct Jurisdiction mentioned in the Graph given above. the petition should contain that both are unable to live together and have mutually agreed to dissolve the marriage and that they have been living seperately for a period of one year or more. the petition is to be duly signed by Both parties.

First Motion:

After the petition is filed and accepted by the Court a date for First motion is give (in some places same day of Filing)

Respective lawyer will present the Mutual petition before the Hon'ble judge.

After Critically examining the documents and the petition presented in the court. The Hon'ble judge may upon being satisfied direct the court to record the statements of parties, then the parties have to both sign and give thumb impression in the petition (party's statements to be recorded on oath) and submit it before the Judge. The Court will than grant the first motion.

Cooling-Off Period

After the Completion of First motion a Cooling period of six months is given, before the Second motion can be filed.

This period is given to the couple to reconsider their descision. If they aggree upon to co-habit, give each other a chance, the couple may appeal before the court to cancel the mutual Divorce petition, which the court will happily do so.

Second Motion:

After six months of the first motion or at the end of the reconcile period/colling off period If both parties still don't agree to live together and desires to go for second motion. they may file for second motion between a time frame of six to eighteen Months.

The second Motion also known as Final hearing of a Mutual Consent Divorce includes parties having to appear and record their statements before the Family Court.

Judge Grants Decree of Divorce:

Finally before Granting Divorce Decree the hon'ble court will satisfy itself that both parties have settled matters related to alimony, custody of a child, maintenance, property, and such other things amicably and that there remains no disagreements between the parties the court will finally grant a Divorce Decree.

Mutual Divorce is Non-Appealable:

Once the Court Grants a Divorce Decree in Mutual Consent it cannot be Challenged nor can you file for appeal in Higher Court Challenging the Decree at a later date, It is the Final Order and nothing can change it. This is Because Mutual Divorce is a Consenting Decree of Divorce.

By Adv. TAPAN CHOUDHARY

The Supreme Court has held that the rule under Mitakshara law that whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him would get an equal right as coparceners in that property will apply in cases of succession which opened before Hindu Succession Act 1956.

The Supreme Court has held that the rule under Mitakshara law that whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him would get an equal right as coparceners in that property will apply in cases of succession which opened before Hindu Succession Act 1956.

Applying this rule, the bench of Justices Justices U U Lalit and Indu Malhotra allowed an appeal filed by one Arshnoor Singh, to set aside the sale deeds executed by his father Dharam Singh in 1999. As per the impugned sale deeds, Dharam Singh alienated joint family property to the respondent Harpal Kaur, whom he subsequently married as second wife.

Dharam Singh got the properties as per the partition deed executed by his father Inder Singh in 1964. Inder Singh had got the property by way of inheritance from his father Lal Singh when he died in 1951.

The sale deeds were challenged by Arshnoor Singh in a suit filed in  2004, after he attained majority in 2003. He claimed that the properties were coparcenary properties, which were alienated by Dharam Singh without any legal necessity and without receiving any consideration from the respondent.

The trial court decreed the suit. This was confirmed in appeal filed by the respondent.

However, the Punjab and Haryana High Court set aside the decree in second appeal, on the reasoning that the property ceased to be coparcenary property after Inder Singh effected partition in 1964. Therefore, Arshnoor Singh had no locus to challenge the sale deeds, the High Court held.

Challenging this, he came in appeal before the apex court.

The top court noted that the in the case, succession opened in 1951 at the time of death of Lal Singh, the great grand father of appellant. Since it was before the commencement of Hindu Succession Act, Mitakshara law applied to the succession. This meant that the property devolved from Lal Singh will retain the character of coparcenary property upto male descendants three degrees below him - Inder Singh, Dharam Singh and Arshnoor Singh.

"If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis­à­vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956", observed the judgment authored by Justice Indu Malhotra.

After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post – 1956, if a person inherits a self­-acquired property from his paternal ancestors, the said property becomes his self-acquired property, and does not remain coparcenary property(Section 8 of HSA).

"In the present case, the succession opened in 1951 on the death of Lal Singh. The nature of the property inherited by his son Inder Singh was coparcenary in nature. Even though Inder Singh had effected a partition of the coparcenary property amongst his sons in 1964, the nature of the property inherited by Inder Singh's sons would remain as coparcenary property qua their male descendants upto three degrees below them", the Court added.

The suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son Arshnoor Singh, who became a coparcener in the suit property on his birth in 1985, said the Court.

The respondent had placed reliance on the decision in Uttam v Saubhag Singh(2016) 4 SCC 68, which held that after partition, property will lose character of joint family property. But this was distinguished by SC on the ground that succession in that case had opened after 1956

The SC held that it was settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate. The onus for establishing the existence of legal necessity is on the alienee.

It had come out in evidence that there was no monetary consideration for the sale deeds executed by Dharam Singh to Harpal Kaur.

"The very fact that the Sale Deeds dated 01.09.1999 were executed without any consideration, would itself show that the suit property was sold without any legal necessity. Being coparcenary property, it could not have been sold without legal necessity, or for the benefit of the estate", the Court observed.

Therefore, the appeals were allowed, restoring the decree of trial court.