Muslims Divorce Procedure in India - Part 1

Wish you all a very happy new year, most of my previous blog post have procedures on Hindu Marriage Act and the Indian Divorce Act, this blog post is dedicated to all my fellow Muslim brothers and sisters in India.

Islam is the second largest religion in India, with ~14.5% of the country's population or roughly 200+ million people make the Muslim population in India.  A Muslim is someone who follows or practices Islam or Mohamaden religion. A Muslim can be by birth or by conversion. Sharia, Sharia law or Islamic law is a set of religious principles which form part of the Islamic culture. The Sharia law is applicable to all Muslims, Ahmadis, Shias, Sunnies, Cutchi Memons, Khojas, Bhoras, Meos, Moplahs, and various other sub categories of Muslims.

In India, the Muslims are governed by

• The Muslim Personal Law (Shariat) Application Act, 1937: This law deals with marriage, succession, inheritance and charities among Muslims

• The Dissolution of Muslim Marriages Act, 1939: This law deals with the circumstances in which Muslim women can obtain divorce.

• The Muslim Women (Protection of Rights on Divorce) Act, 1986: This law deals with the rights of Muslim women who have been divorced by their husbands and to provide for matters connected therewith

Unlike the Hindu Marriage Act which has only two ways to seek divorce (Mutual Consent or Contested) the Muslim Male and Female has many ways to seek separation from the marital bonds both judicially and extra judicially.

If a Muslim male and female get married and the Marriage is registered under the special marriage act than the procedure followed for divorce need not follow the Muslim Personal law. The procedure can be understood by going thru my blog post on divorce by mutual consent visiting the link here http://lawyersonia.blogspot.com/2017/02/how-to-get-divorce-by-mutual-consent-in.html 

If the Marriage is registered as per the provisions of Muslim law, the divorce too will be governed under the procedures of and as per the provisions of Muslim Law.

Below image is a quick representation of various ways a Muslim Male / Female residing in India can dissolve their marriage and seek divorce as per the Muslim Personal Laws

Dissolution of Muslim Marriage in India - Muslim Personal Law  

The Divorce under Muslim law is provisioned in the mosque with the Maulvi completing all formalities and registering in the mosque register hold good and valid divorce as per the Sharia law and the divorce can be of any of the means mentioned above.

Beyond the above means of any Muslim woman can obtain divorce under the following 8 grounds of which are applicable to any Muslim woman of India as per the Dissolution of Muslim Marriage Act, 1939 which are as follows

• Husband absconded and not heard for at least four years

• If a Husband fails to provide the wife with maintenance for 2 years. It may be due to poverty, ill health, imprisonment and on such ground the wife can claim dissolution of marriage. The Wife cannot claim dissolution if she refuses to live with the husband with no fault of his.

• Husband sentenced for 7 years imprisonment or more

• Husband Failing to perform marital duties for 3 years without any reasonable cause

• Insanity of husband for 2 years or suffering from Leprosy or any Venereal disease.

• For legal cruelty inflicted upon the wife, e.g. beating, ill treatment compared to other co-wives, forcing her to immorality etc.., are instances of cruelty.

• Of the ground that she had been given in marriage before the age of 15 and she can repudiate the marriage before her 18^th year, and the marriage was unconsummated.

• Wife can also claim divorce under any other valid ground recognized under Muslim law like Lian, Ila and Zihar.

The position of marriage women is improved under the act of 1939 and she is not entirely under the control of her husband. She can exercise her legal rights and power and obtain divorce from her husband.

As per the Muslim Women’s Protection of Rights on Divorce act 1986 a divorced Muslim woman is entitled for the following

•  Reasonable maintenance within period of Iddat. Iddat in case of divorced women is:

a.    Three menstrual courses after her divorce, if she is subjected to menstruation

b.    If she is not subjected to menstruation, that three lunar months after divorce

c.     If she is pregnant at the time of divorce, the duration from divorce till delivery

• If the divorced woman maintains her children born either before or after divorce, the former husband should provide a reasonable maintenance for two years from the birth of such children.

a.  The amount of dower or Maher agreed to be paid to her during marriage or after that should be paid to her.

b.  All the properties given to her before or after her marriage by her relatives, friends, husband or relatives and friends of the former husband should be given to her.

Remedies for the Divorced Muslim Woman in case of failure to get maintenance

• The Divorced Muslim Woman or her duly authorized person may make an application for payment of such amount to the Magistrate

• The Magistrate after ascertaining the claims has the power to dispose the matter within one month or a justifiable period of time and order the former husband to pay such amount

• If the order is not followed by the former husband, the Magistrate has power to issue a warrant for levying the dower or maintenance amount in the manner provided for fines under Cr.P.C.

• After the Iddat period, if the Divorced Muslim Woman has not remarried and is unable to maintain herself the Magistrate may make an order directing the relatives who will inherit her property or children (grown up and earning) to pay her the maintenance

• If the divorced woman has no relatives or children or parents the Magistrate may order the State Wakf Board to pay the maintenance

Trust this blog post is helpful and the reader has fair knowledge on the procedure for divorce that prevail in India for my fellow Muslim Citizens in India, If you need assistance or need to discuss about your case feel free to reach me at lawyersonia@gmail.com or WhatsApp / Call at 9845944896. 

In Part 2 of this blog post I will highlight the detailed process to seek divorce by Muslim Men under the grounds of Cruelty and various other ways to defend themselves of false charges of domestic violence or matrimonial cruelty

Cheque Dishonored : Cheque Bounce Case Procedure

In my decade long practice, I’ve seen an exponential increase in financial crime related cases, especially the Cheque bounce. As per the RBI Statistics the Cheque transactions in India are growing at a rate of 30% CAGR with at least 2.3% being dishonored for various reasons. In the year March 2011 approximately 3 million (30 Lakh) Cheque bounce cases were pending in the country while in the same year RBI statistics published show 130 million (1,300 Lakhs) Cheques processed. Today we still have approximately 2 million financial fraud cases pending in India that include Bank Scams, Loan Repayments, Cheque Bounce, Insurance Frauds, Money Laundering and Hawala too.

One other statistic analyzed by RBI shows 89% of Cheque transaction are less than 1 Lakh, 5% are between 1 to 5 Lakhs and 4% are between 5 to 10 Lakhs. Less than 1% are greater than 10Lakhs.

Of the Cheque bounce cases filed in India 73% were of the amount between 1 to 5, 22.65% between 5 to 10 Lakhs and rest were greater than 10 Lakh per the data published as on March 2011. 

What does the bank do when the Cheque is Dishonored

-      When a Cheque is dishonored, the drawee bank immediately issues a ‘Cheque Return Memo’ to the banker of the payee mentioning the reason for non-payment.

-      The payee’s banker then gives the dishonored Cheque and the memo to the payee.

-      The holder or payee can resubmit the Cheque within three months of the date on it, if he believes it will be honored the second time.

-      If the Cheque issuer fails to make a payment, then the payee has the right to prosecute the drawer legally.

What legal action can be taken if the Cheque is Dishonored

-      Cheque bounce is a criminal matter and is tried under section 138 of Negotiable instruments act, 1881. the dishonor of Cheque is a criminal offence and is punishable by imprisonment up to two years or with monetary penalty or with both. It takes at least 12 to 18 months for the case to be resolved if one decides to take legal action.

Discussion with your Lawyer

-     Legal action can be taken before 30 days of Cheque bounce date. For example, the Cheque bounced on 10th January then you need to take action on or before 8th February. In case 30 days are passed the case will not stand in the court of law.

-     Research for a good lawyer to represent your case, read thru the act either on the internet or legal journals, seek opinion from friends, family before deciding to proceed.

-     Meet your lawyer and understand the procedure in details, the legal fees involved at every stage of the case starting from Notice to Final orders. Get all your queries answered and be mentally prepared to appear during the court proceedings and co-operate with the legal procedures during the proceedings. There will be situations that may cause unnecessary delays because of Court holidays,

Legal Notice

-     Once you meet a lawyer to represent your case, it begins by sending a Legal Notice to the drawer within 30 days from the Cheque bounce date which clearly mentions that the Cheque amount has to be paid to the payee within 15 days from the date of receipt of the notice by the drawer.

-     If the drawer makes payment of the Cheque amount within 15 days from the date of receipt of the notice, then drawer does not commit any offence. Otherwise, the payee may proceed to file a complaint in the court of the jurisdictional magistrate within 30 days from the date of expiry of 15 days prescribed in the notice.

-     You may wish to read my blog on How to send a Legal Notice and Respond to One    

Filing a Law Suit / Legal Case

-     If the drawer does not make the payment the payee continues to file the case. Following documents are required to file the case, your lawyer will prepare the relevant affidavits, applications, petitions paying the court fees, stamp fees and all clerical and incidental charges as per the procedure.

1. Original Cheque return Memo
2. Original Dishonored Cheque
3. Name of the Payee
4. Copy of the ID Proof of the Payee
5. Copy of the Address Proof of the Payee
6. Name and Address of the Drawer
7. Copy of the Legal Notice sent to the Drawer
8. Copy of the Reply to the Legal Notice received if any
9. Acknowledgement receipt from the Post Office which the Legal notice was sent
10. Agreement document if any for which the Cheque was collected
11. Email / SMS / WhatsApp message to the drawer regarding this issue if any

Note: In case a document is misplaced / lost, there is a procedure to handle this, it starts with filing an FIR, followed with gathering duplicates from the Bank. One can also look at filing a Recovery Suit and there are multiple ways to handle the case. As a best practice one should either maintain a softcopy or a photocopy of all necessary documents to ensure seamless execution.

-     On the date of filing, the payee accompanies the lawyer to the court, signs all the affidavits, applications and copies of the petition. The lawyer gets the documents notarized and proceeds to file the case with copies of the Cheque return memo and Dishonored Cheque

Sworn Statement and Summons

-     After filing the case the payee will appear to the court, stand in the witness box and has to give a sworn statement mentioning that all information presented in the petition is true to the best of his knowledge and abides by the same, the sworn statement process may occur on the same day of filing or  the court will provide a date on which the Payee appears along with the lawyer and complete this procedure.

-     A sworn statement is a legal document that your lawyer prepares stating all the facts that are relevant to this case. This document is very similar to any other type of affidavit, except that sworn statement is not signed or certified by an official such as a notary public. Once the sworn statement is completed, the court will send the summons (notice) via RPAD to the defendant (drawer) ordering to appear to the court on the given date quoting that a law suit is filed against him/her due to Cheque bounce.

-      If the accused (drawer) does not appear on the given date, your lawyer following the process will request to resend the summons (notice), the second notice is sent via RPAD to the accused (drawer) asking to appear to the court on the next date.

-      If the accused (drawer) does not appear on this date too, your lawyer will exercise the powers of the court and request hand summons to be issued. The court issues the hand summons and the same will be provided to the Payee who has to visit to his jurisdiction police station and accompany a police official to the address where the accused (drawer) resides to personally hand the summons. The summons will be handed over by the police to the accused and order him/her to appear to the court on the given date. If the accused (drawer) is not available to receive the hand summons, the same will be pasted on his door. This will be documented by the police official in his dairy and an acknowledgement will be provided either to the payee or to the court.

Arrest Warrant

-      If the accused (drawer) remains absent from successive hearings in connection with this case, the court will issue an arrest warrant, this is non-bailable in nature. Based on this warrant, the police will hunt the accused and arrest him/her.

-      As of today the Cheque bounce case is a Bailable offence, the accused (drawer) if carries an anticipatory bail will not be arrested. If not the accused will be arrested and produced to the court.

-      The accused may with the help of his lawyer, file an application for bail and seek one. After the Bail is obtained, the accused should be present for all subsequent hearings. Although the accused has a right to file an exemption application to be present for all hearings, its depended on the judge to either pass or reject the same.

Plea

-      The accused will be brought before the court and the Magistrate will ask the accused if he/she pleads guilty in this Cheque bounce case.

-      If the accused accepts that he/she is guilty and the offence is committed than the case proceeds to evidence stage.

-     If the accused does not accept the offence and pleads not guilty than he will be given an option to raise the defense and the accused will have to appoint a lawyer to defend the case. "I  will shortly write a Part II of this blog that covers a detailed procedure on How to Defend a Cheque Bounce Case"

313 Statement

-      At this stage the court will directly ask the accused a few questions about the offence and will be given an opportunity to present his defense.

-      Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfulness or otherwise of the case of the prosecution and it is not an evidence.

-      Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, the said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. The appellants have not chosen to examine any other witness to support this plea and in case none was available

Evidence

Note: The information below is detailed, may not imply applicable for all cases, only in cases that are complex the evidence and cross examination is detailed requiring eyewitness etc…, I am penning it down for the reason that the readers case may be complex, otherwise few steps will not occur in the practical course of the law suit

-      Your lawyer will assist you in presenting the evidence either in oral or through an affidavit (preferably) and produce all documents (original and copies) supporting your claim to the court.

-      Any document submitted to the court goes thru at least three stages, Filing of documents, marking and tendering documents to the court for evidence, and finally the documents that are held by the court as “Proved – Not Proved or Dis Proved”

-      Your lawyer following the procedure as per the evidence act will complete marking the documents as exhibits and  tenders them for next stage. The law laid down by the Supreme Court in Sait Taraji Khimechand VS. Yelamarti Satvam is :- 'The mere marking of an exhibit does not dispense with the proof of documents'. The Opposite party has rights to challenge the documents and only after sufficient deliberation and arguments laid down by your lawyer the court accepts or rejects the document as proof, and once proved its formally tendered in evidence. It’s in this stage the court will decide whether they should be admitted or rejected.

-      There is a possibility while submitting all relevant documents, a primary evidence is not available, lost or misplaced, in that case a secondary evidence can be submitted. A secondary evidence as a general rule is admissible only when the primary evidence is absent.

-      Also note The Supreme Court in M/s Mandvi Co-op Bank Ltd. v Nimesh B. Thakore ruled that in Cheque bouncing cases, the right to give evidence on affidavit, as provided to the complainant under section 145 of the Negotiable Instruments Act, is not available to the accused for expeditious decision in such mounting cases which are chocking the administration of criminal justice system in the country unless until the accused is punished with Imprisonment.

Cross Examination

-      Just before the date for cross examination, your lawyer will have a detailed sitting with you and prepare you with the possible questions that may come across your way from the opposite counsel, the sitting for each case is unique and a set of possible if – else scenarios will be shared by your lawyer while you prepare yourself to appear on the day of cross examination.

-      The cross examination will focus on the need to establish an evidentiary foundation to admit a document or other exhibit in evidence by the witness and discredit the testimony given on direct examination. The opposite party lawyer may ask you many leading questions to which the answer is usually an “yes”, you need to be well prepared to tackle such questions and in such cases your lawyer may raise objections.

-      Many a times its nor required for your lawyer to include both the banks as witness. The law very clearly says that Bank dishonor slip is sufficient proof of dishonor, a statement in the affidavit and properly stamped dishonored slip is sufficient, unless un till it is agitated by accused. The banks should only be called if accused agitates this slip during cross examination, not otherwise.

-      In some situations, the opposite party lawyer tries to undermine and impeach the credibility of the witness, and call upon accusing the witness carrying a stake in the outcome, or is under undue influence or also go to an extent to call upon dishonesty. Your lawyer then raises certain objections which are sustained or overruled by the judge.

-      The Cross – Examination is like a point scoring game which usually will be used in the closing arguments.

Final Arguments

-      Final Arguments will be presented by both lawyers representing you and the opposite party and will reply each other as need be. Post the final arguments both the lawyers rest their case and the case moves to the judgement stage.

-      Depending on the availability of the time the Judgement may be given on the same day or a date is given by the court on which the judgement will be announced.

Judgement

-      If the accused is found guilty he/she will be punished for the offence with imprisonment extending up to two years, or with fine which may extend to twice the Cheque amount or both. The court may also award interest on the amount and also accept the prayer to cover all the expenses incurred during the proceedings as relief.

-      If the accused is found not guilty he/she will be acquitted in this case.

Appeal in higher courts

-      Depending on the judgement either party have the provision to appeal within a period of 30 days in the higher courts and fight for their rights. There are multiple scenarios depending on the judgement given may restrict further appeal too.

Footnotes

-      Its mandatory for the person or his representative to be present during the proceedings. If he/she is unable to attend the proceedings he/she can grant a GPA for someone who an represent him/her during the proceedings

-      Its mandatory to adhere the timelines to issue the notices and file cases on time, failing which the payee may not be able to proceed with the case, nonetheless he/she can file a recovery suit which is a civil case and not criminal in nature, the recovery suit can be filed within 3 years.

-      At any above mentioned stage both parties have the rights to settle the matter out of court.

Tentative Timelines from Start to Finish of the Case

Meeting With Lawyer : 1 Day

Preparing the Legal Notice and Sending to the Party : 2 – 3 Days

Awaiting For Reply : 15 Days

Filing the Case : Between 16th Day to 44th Day (30 Days)

Sworn Statement : Same day of filing or the next date given by the court (7 to 15 Days)

Summons sent by court and time given for the accused to appear : 30 Days

Second Notice / Summons send by court and time given for the accused to appear : 15 Days

Hand Summons Procedure and time given for the accused to appear before the court : 15 Days

Warrant : 10 – 15 Days (may get delayed if the party is absconding)

Plea : 1 Day

Evidence : 1 Day ( depends on the dates given by the court … usually a week to 10 days if the opposite party wants to defend his case and has a lawyer representing him)

313 Statement : 1 Day (one has to wait for few days to get the dates from the court)

Defense of the Case … depending on the opposite party lawyer and the evidence he/she presents followed with multiple cross examinations the case may be prolonged for few months

Cross Examination : 1 to 5 appearances in the interval of 10 to 15 days each

Final Arguments : 1 Day (one has to wait for few days to get the dates from the court)

Judgement : 1 Day (one has to wait for few days to get the dates from the court)

Appeal if not satisfied with the judgment : 30 days

I believe the reader of this blog post now will be clear on the procedure, timelines and carries a vivid picture of the steps that one will practically experience. I have put across this information so that the lay man understands all the details before approaching his/her legal counsel. My advice always is to settle the matter out of court, seek your legal counsels assistance to call up the opposite party and negotiate the matter.

Dear friends and readers of my blog post, please feel free to ask questions in the comment section below or email me to lawyersonia@gmail.com and I will respond them if you need further clarifications and suggestions. 

All the best 😊

How to get Divorce by Mutual Consent in Bangalore

Cosmopolitan Bengaluru (formerly Bangalore) is one of India's most progressive and developed cities, blessed with a benevolent climate and very nice surroundings it’s recognized as Silicon Valley of India. The past decade has seen a mad surge of development, coupled with traffic congestion and rising pollution levels and more alarmingly RISE IN DIVORCE RATES too, at this pace be no surprised after Mumbai and Delhi it will be Bangalore that will have the highest number of divorces. Today stress levels have hit the roof creating a wedge between two people, pushing each farther away and they are just a memory to each other… some common reasons I have heard from my clients are unable to give time to each other, no sexual intimacy, communication problems, alcohol and drug abuse, small apartments to live in with In-Laws (Infrastructure challenges), lack of trust, infidelity, adultery, impotency and sexual orientation.

The fact is that today couples, who are well educated, after realizing that marriage has no future and they are virtually carrying on irretrievably broken down marriage and there is no possibility of reconciliation, after a calm and careful deliberation and taking their respective parents into confidence, couples decide to approach the learned court to seek a divorce by their mutual consent.  

Here are the steps outlined one can refer to…

1.    India is a multi-religion country Divorce my mutual consent carries different process for different religions in India, Hindus are governed under the Hindu Marriage Act,1955, Christians are governed under Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872, Parsis are governed by The Parsi Marriage & Divorce Act-1936, and Muslims under Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986, and finally for NRIs, or Foreign nationals who are married with Indians fall under a secular law called Special Marriage Act, 1954.

2.    Governing rules for couples to seek divorce by mutual consent are as follows

a.    Both Husband and Wife have mutually agreed to dissolve the marriage under no influence / threat

b.    Filing the petition for mutual consent should be done in the jurisdiction where husband and wife live ( document required to prove the jurisdiction is address proof)

c.    Both Husband and Wife are living separately since one year (i.e.. staying in different locations and not under one roof in different rooms, address proof is the document required)

d.    After filing the petition both husband and wife has to wait for 6 months (Cooling Period) to complete the procedure post which they will be declared divorced, but in a recent development in this clause a married couple may not need to wait six months for a separation order in the case of mutual consent and the marriage can be legally terminated in just a week as the Supreme Court on Tuesday 12th September 2017 held that the "cooling off" period in not mandatory and can be waived off.

e.    After the divorce decree is granted, they need to go to the marriage sub-register office and submit a form along with the divorce decree to cancel the marriage certificate

3.    Divorce is filed in the family court of the city; in Bangalore family court is located at H.Siddaiah Road, Sudhama Nagar, Bengaluru, Karnataka 560027. The court operates from 10:00 AM in the morning to 6:00 PM in the evening, Monday to Saturday.

4.    The couple who plan to seek divorce meet a lawyer and share their concerns, post which the lawyer drafts a petition, collects signatures on a few affidavits and applications and depending on a date that suits everyone they decide to file the petition at the family court. Documents required to complete the filing are

a.    Divorce Petition for dissolution of marriage under sections and acts as per the religion

b.    Memorandum of Understanding (in case of child custody, property and assets etc…)

c.    Verifying Affidavits of both Husband and Wife

d.    Joint Affidavit of both Husband and Wife

e.    Application under Section 13 Family Courts Act

f.     Address Proof of both Husband and Wife

g.    Identify Proof of both Husband and Wife

h.    Marriage Invitation Card

i.      Marriage Photograph

j.      Marriage Certificate

k.    Valkalatnama

5.    On the day of filing, both Husband and Wife meet the lawyer at the family court, the lawyer verifies all the documents, prints them on a green colour legal paper of size 8.5” x 14”and aligns them as per the requirements / process outlined by the family court, collects signatures from both husband and wife in the presence of an authorized notary,  affixes the stamps and pays the stamp duty (fees) as prescribed by the court depending on the act and section under which the petition is being filed. This process typically takes not more than a couple of hours and the filing is completed.

6.    The Filing department forwards the case file to the court after verification, If in case there is an error, or any document not as per the prescribed rules, or any other point mentioned does not meet the requirements outlined as per the act and sections the couple are governed, the judge raises an objection.

7.    The Lawyer is notified about the objections and the same needs to be rectified, typically 15 days to 1 month duration is granted by the court to address the objections. The lawyer then reconvenes with the parties (husband and wife) and collects all relevant information / additional documents and submits to the court. In case the objections are not addressed, the case gets dismissed and the procedure needs to be followed all over again.

8.    If there is no error and the filing is done following the correct procedure the court accept the petition, records the statements of both parties and date for next herring is given, this is typically 6 months from the date of filing the petition. There have been some cases where a special prayer is done by the lawyer and parties to wave off the cooling period of 6 months, but this practice is not entertained in all cases. The Supreme Court put an end to this practice in the year 2009, but still in some cases the High Court has granted relief form the waiting period.

9.    During this waiting period / cooling period of 6 months either both Husband and Wife or any one of the party can withdraw the petition, however the courts comedown heavily and wran parties who are withdrawing the consent after filing if the intention is to extort money or draw vengeance, more often than not such instances don’t occur and the process gets completed. The point I am highlighting here is the opportunity.

10.  After 6 months both husband and wife have to present themselves before the court to confirm the mutual consent filed earlier and in this cooling off period as well there has been no reconciliation, in some cases if there is an inclination of saving the marriage counselling can be recommended at the mediation center of the same premises in Bangalore, if nothing works out, the final order is passed and both are declared divorced.

11.  Once the divorce decree is granted the final step is to visit the Marriage Sub Registrar office and get the marriage registration cancelled. This completes the process.

A very important point to remember is during this 6 months waiting period it’s advisable for the (Husband) boy or (Wife) girl not to entertain any second marriage option or engage in a courtship, this is punishable offence and will entertain complications in the proceedings.

Trust this blog was helpful and the reader has fair knowledge on the procedure for divorce by mutual consent that prevails in India, If you need assistance / support or need to discuss about your case feel free to drop a note to me at lawyersonia@gmail.com or call at 9845944896.

Feel free to share your feedback / comment on this post.

Divorce: Husband not bound to maintain a Well-Qualified wife sitting idle

Divorce and Family disputes are at a raise in India and the problem is couples don’t want to solve their problems but are willing to part away without giving a second chance to their relationship. I once heard a comment “Love at First Sight and Divorce at First Fight” which seems to be true these days. In the last couple of years there are multiple instances where women are losing on the alimony claims / maintenance from husband post-divorce. Lawyers arguing and courts agreeing that a well-qualified wife and capable to earn need not fall back on the husband to claim maintenance and the trend seems to be increasingly alarming.

The point of concern is the human angle, women are different than men in many ways, although they are tough enough to face the challenges of time it is practically impossible to simply rule in the favour of husband when the wife is not working and carries no means of income at the time of divorce, first of all the plight in India is women leave their parental home and virtually all relationship ties are killed in the name of kanyadaan ceremony ( a ritual where the kanya (girl) is donated in charity to husband) and the parents bid a good bye to the girl stating now your husband’s home is your home, you will live and die there also we are no more your parents you need to accept your husband’s parents as your parents blah…blah…blah… and then the married women is subjected to various atrocities which push them to seek divorce. The tradition, culture and social stigmas of divorce haunt women more in than men, some cases the judgement in favor of husband have an aftermath making life of divorced women more miserable.

I did some research and gathered statistics of unemployment rate in India that has shot up to a five-year high of 5 per cent in 2015-16, with the figure significantly higher at 8.7 per cent for women as compared to 4.3 per cent for men, says a report by Labour Bureau. According to the fifth annual employment-unemployment survey at all-India level, about 77 per cent of the households were reported to be having no regular wage/salaried person. In rural sector, unemployment rate is 5.1 per cent whereas in urban sector, the rate is 4.9 per cent. The figure was significantly higher among females compared to males.  In urban areas, female unemployment rate was estimated to be 12.1 per cent at pan-India level compared to 3.3 per cent for males. The survey was conducted across all states and union territories during April 2015 to December 2015. A total sample of 1,56,563 households were covered in the survey – 88,783 households in the rural sector and 67,780 in the urban sector.

One very important argument I wish to make to my readers is the importance of siting the facts while filing the maintenance and divorce suits, not all cases are ruled against women, but only those where certain key points are not highlighted why the maintenance is being claimed. An example to quote from one of the cases where the Mumbai Family Court rejected the claim was because the petitioner contended that the respondent is a successful businessman and is doing business not only in India but also in Dubai and other countries, and that his total income per month is more than Rs. 15 lakhs, and therefore considering the status of her husband, she prayed for grant of maintenance of INR 2 lakhs per month. The Court relied on Mamta Jaiswal v. Rajesh Jaiswal, 24^th March 2000, a ruling by Madhya Pradesh high court, where it was held that “well qualified wife is not entitled to remain as an idle and claim maintenance from her husband”.  Now such claims are bound to be rejected… instead if certain facts be strengthened on the current lifestyle of the wife cannot be maintained and her monthly expenses are way beyond INR 2 Lakhs that include rent, home and household expenses, cost of maids / domestic help, cook, driver, health expenses, commutations, loans, parents illness, child and other commitments etc… so all boils down to how things are represented.

I wish to end this blog with a small story on the importance of communication with an anecdote which goes like this

“A blind boy sat on the steps of a building with a hat by his feet. He held up a sign which said: "I am blind, please help." There were only a few coins in the hat. A man was walking by. He took a few coins from his pocket and dropped them into the hat. He then took the sign, turned it around, and wrote some words. He put the sign back so that everyone who walked by would see the new words. Soon the hat began to fill up. A lot more people were giving money to the blind boy. That afternoon the man who had changed the sign came to see how things were. The boy recognized his footsteps and asked,

"Were you the one who changed my sign this morning? What did you write?"

The man said, "I only wrote the truth. I said what you said but in a different way."

I wrote: "Today is a beautiful day but I cannot see it."

Both signs told people that the boy was blind. But the first sign simply said the boy was blind. The second sign told people that they were so lucky that they were not blind. Should we be surprised that the second sign was more effective? 

Life is something similar in the courts too… it all depends on how strong your arguments are and evidence is. If you enjoyed this post do comment, like and share, feel free to reach me at lawyersonia@gmail.com 

20 Practical Tips for Women in India to Negotiate Alimony

Art of Alimony Negotiation for Indian Women

The miscellany and cultural diversity in India is distinctive. The endless varieties of physical features and cultural patterns and many variants of languages make this subcontinent very complex land of multiple religions. The census of 1961 listed as many as 1,652 languages and dialects, the subsequent census regarded them as spurious and recognized 22 major languages. We find in India followers of various faith of which ~80% are Hindus, ~13% follow Islam while other 7% are followers of Christianity, Buddhism, Jainism etc…, wish this country was as simple as the followers of faith but unfortunately there is a wide spread caste system with not less than 3000 sub castes whose hierarchy is graded in different ways in different regions of India.

Right from our childhood we have been reading and learning about Unity in diversity… a concept of "unity without uniformity and diversity without fragmentation" that shifts focus from unity based on a mere tolerance of physical, cultural, linguistic, social, religious, political, ideological and/or psychological differences towards a more complex unity based on an understanding, but alas, I just wish what we studied in the school is actually practiced in the families too. I feel sad to say, per my experience, forget the unity of the country there is no unity in the families today, the disagreement within the family members is growing at an alarming rate, the future generations will end up with antagonism, bitterness and discord which will be the new norm leading but nothing to more crime and social evils. The prominent few social evils faced by married women today are Dowry, Domestic Violence, Outraging the modesty, Sexual Harassment, Marital Rape, Adultery and Men deserting woman, Cruelty by husband and his family members which leads to but nothing Divorce, the guilty is often not punished and those behind bars may not be truly guilty.

88.4% marriages in India are arranged as per the statistics published by UNICEF Human Rights on August 16^th 2016. Approximately 2.3% of marriages end in divorce, at least 78% causes for contested divorce in India are Dowry and Domestic Violence. One other trend I have personally observed is todays modern women wants to move on, the families and parents still hold back some grudge or vengeance and seek for punishment but the educated modern girl today knows that there is a long life and bright future ahead and does not want to waste time in prolonging the case and switches to fasten the proceedings through mutual consent. One of the very important element todays modern girl often ignores is her right for Alimony, either she settles for too less or the earnestness to get out of the suffering is too high that she foregoes her right. Words cannot explain the plight one goes thru the divorce proceedings, taking the first step to consult a lawyer or decide to get out of a relationship itself if practically impossible for the girl no matter how modernized the society is. We still live in a rigid caste based system and the fearing of what neighbours and society will talk about. Each community has its own personal laws derived from religious scriptures, customs and traditions and so the grounds on which a Hindu woman can seek divorce and alimony may not be the same for every community.

The Art of Alimony Negotiation

As per the law of the land, Alimony or Maintenance is a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. In case of contested matters the Court intervenes to decide the matters related to alimony and maintenance to both wife and child on various merits of the case. A survey cited by India Today says 63 per cent of Indian women become dependent on their parents post-divorce, even as 88 per cent of the divorced men continue with the same lifestyle after divorce. Although the rule of thumb says 1/3^rd of the husbands income and assets be taken into consideration there are other governing factors that can make the alimony amount high / low, a recent amendment in the law states the women is entitled for 50% of share in the husbands property acquired before or after marriage. The law is still unclear and ambiguous as it does not clearly define what amount of alimony / who / when / and how is the responsibility shared to up bring the children, often the child custody is granted to women and the struggle continues with raising inflation and cost of education / healthcare and other expenses. Unfortunately in India, there is no concept of joint marital assets, although scriptures call the husband and wife DAMPATI and prescribe to perform all duties and rites jointly when it comes to finances, assets, properties etc… it’s always male dominated.  In Hindu marriage act, both spouses can claim alimony from each other whereas the special marriage entitles only wife to claim the alimony. Alimony is mainly divided into four categories: temporary alimony, rehabilitative alimony, permanent alimony and reimbursement alimony….

I wish to highlight in this blog what Indian women need to in case of alimony negotiation and suggest go for an MOU and settle the matters out of court and seek mutual consent divorce after your needs are met :

1.    Ensure the cause for seeking divorce is very strong, there should be enough evidence on you been subjected to domestic violence and are a victim on cruelty by husband and his family

2.    Length of marriage plays a vital role in deciding the alimony amount, shorter marriages should focus on settling a one-time alimony instead of monthly maintenance

3.    Know what you exactly want, don’t just focus on the amount or assets; showcase your needs and the reason behind the demand (inflation, child’s education, your disability, current status and lifestyle, healthcare expenses etc…). Rank your priorities and put forth the top priority first and keep the meagre ones at the end

4.    Give time, there is nothing called “My Way of High Way”, negotiation process takes time, be patient and if required hire a professional who can negotiate on your behalf, take off your ego from the table. Don’t get into threatening and use the words like “Look what I will do … etc…” don’t label your behavior or offer options / choices for your husband to choose from. Remember buying time builds up tension; use this method very carefully but not often

5.    Statistics and Data are important, collect data on various assets, income doorways etc… of your spouse this will be a very handy piece of evidence during the negotiation process, use the data carefully after you have done all your homework Subtly nudging them toward your choice

6.    Women often are emotional and during the negotiations cry or burst out with anger, take control on your emotions and be cool, don’t get angry or cry, this shows your weakness, maintain the cool / composure during negotiation, keep in mind you are facing the problem and not the people although its people around you

7.    Educate the other party with facts and evidence, don’t simply stick to a number you have decided, showcase with data why you need this amount and the rationale behind the ask. State your case, clearly and completely. Change the benchmarks of good and bad, try Bring up new information you have found

8.    Don’t burn the bridges, keep the communication on… in many a cases women walk out of the negotiation table siting the humiliation, seek help from your counsel to negotiate on your behalf, New person can reset the rules and strengthen your value preposition, I often suggest Persuade one person at a time and then use them as allies

9.    Focus on WIN – win strategy, with a bigger WIN coming your way, discuss with your lawyer and do your complete homework without leaving any stone unturned, remember to brake one deal to smaller multiple deals swaying them your way.  If you just put across one big option then the chances of that ending up into an argument and killing time are high. Offer to agree in the half way position

10.  Don’t open up all options at one go, go slow and put your points and let the opposite party come up with his options before your further open up, remember to keep the process in your control, Offer to phase in or phase out the unpleasant bits and sometimes or act stupid to avoid cleaver stuff, catch the opposite party off the ground not expecting you to behave dumb

11.  Beyond currency or money are other assets too… (Stocks, Bonds, Mutual Funds, Property, Gold, Dividends, etc…) keep options open and don’t stick on a number, refuse to agree on the table immediately, say you are open to such a point but wait for the opposite party to put across more points.

12.  Although you are earning, try prove your point the need is beyond what you can sustain from your earnings, fall back on data and gather information ( for eg: all that you earn may end up paying rent and healthcare expenses of your parents, remember as per the new law amendment women are equally responsible to take care of their parents just like men)

13.  Remember, great negotiation is more about listening then about talking, once someone on the table says YES, then document the point and move on don’t argue further on that point

14.  When someone from the opposite party, it could be the husband or his family members or his counsel objects don’t argue or become defensive, instead ask for clarification, ask a WHY Question, you will be surprised if you ask “WHY” or ask data to prove the objection raised the opposite party will not be able to come up with an answer and you can prove your point then. Human psychology plays a vital role here, ask WHY and you can surprise the best negotiators on the table if they have not done their homework

15.  Remember while negotiation, one the important fact is to bear in mind is to craft your process in such a way that will make your husband defenceless, being with him after marriage you definitely know all his strengths and weakness, you also very well know his emotional buttons that when you press them right he agrees to your wants.

16.  Keep the discussions result oriented, its often seen during the negotiation process, old memories come up and the discussion sways more towards a new quarrel instead of point in focus and this indicates a bad publicity and lead into negative consequences.

17.  Remember to be wise and not smart, you need not show how smart you are, let him feel the pride but you need to be wise to ensure your wants are met, say you understand and empathize but don’t agree as your needs outweigh his situations. Suggest a solution and see if they can bite and push them up against the wall of time.

18.  Put your concerns on the table, in my personal experience I can confidently quote there will always be a family member from your spouse side who will sympathize with you, utilize him/her and try to influence the process by siting your concerns, although it’s your demand showcase as a concern and not ego driving the wants

19.  Avoid using “I” statements and instead use something like “We need to reach a resolution which is in favor of both of us adding speed to the process” One other tip which is very important is when you sit for negotiation is the art of speaking, Effective use of speech pauses is a master technique, the power of silence speaks volumes, don’t blabber your point and speak continuously, pauses convey your emotions, holds the attention of distracted audience and replace filler words. You can pause over a question, impactful sentence or a past memory that you quote. Step out and take a break, especially when you see things are getting out of your control, this will break the heat and the flow, come back and start with fresh mind.

20.  Engage with your body language, the body language and conduct during the negotiation process plays a vital role, many a time although you are enraged and uncomfortable put efforts to make yourself in composure drink water often during the negotiation, this will give your time. Not only will this aid your brain (by providing more oxygen), but your vocal quality will be enhanced by keeping your mouth and throat lubricated. The greatest leaders and influencers who speak often resort to this tip… if you observe our beloved prime minister during the interview process or when he is speaking takes a pause and drinks some water. Another psychology behind pausing and drinking water is to break and distract the thought process of the opposite party, break up their thinking and take charge.

While there is more to this subject, I believe the reader would benefit with the above 20 tips to strengthen your proposition. Feel free to write into me at lawyersonia@gmail.com and comment below on what you feel, You may wish to share your experience and add more tips per your experience by commenting on this post.