Top 5 Reasons your Wife fell out of love with you / cheating on you

lawyersonia@gmail.com | 9845944896 | Divorce Lawyer | Image Source : GQ - Tara Jacoby

Women in India are turning licentious towards infidelity --- In one such survey and research conducted by Gleeden across Bangalore, Mumbai, Delhi, Chennai, Hyderabad, Pune and Kolkata

• 41% of them admitted of having had regular sexual encounters with someone other than the spouse, against 26% men.
• 53% of Indian married women admitted having already had an intimate relationship outside their marriage, against 43% men
• Surprisingly, 69% of women also believe they will be forgiven by their partners

In my past decade and half practicing Family law, I have seen a raise in the divorce’s cases especially in the last 3 to 4 years filed by men citing Adultery by their wife as a reason.

Although Adultery under section 497 of IPC does not attract punishment its still a strong ground for divorce. Men who have evidence in the form of electronic records, telephone calls, WhatsApp Chats more so where women have exchanged selfies and videos in compromising situations have been strong evidences submitted in the court of law and without second doubt the divorce gets granted.

If Adultery is proven the husband need not pay maintenance, no matter the wife is working or has no source of income.

This blog is more towards the discoveries I have had during the counselling sessions with my clients, there are many spouses who wish to forget and forgive the past and restart a fresh relationship and here are top 5 elements I have discovered during the counselling sessions with my clients which I summarize for the benefit of all readers …

1. Communication Gap

a. Working husbands of wives who are homemakers often knowingly or unknowingly neglect the importance of communication, they often are so very tied up with work and other priorities of parents and children that they are unable to give quality time to listen to their wife. The home maker wife is reduced to that of a domestic help taking care of the household chores, parents, in-laws, children and does not get the attention from her spouse.

b. Homemaker wife’s have admitted to me during the counselling sessions that they get a listening ear in a friend (men) and tend to talk to them because the husband is busy, such talks slowly drift into a relationship without the knowledge of the wife and the bonds go beyond the barriers of the society

c. Another complaint from the wife typically is the love and care the husband showers towards his parents and siblings or children is not how the husband communicates with the wife, which causes the wife to feel worthless and depletes her self-esteem.

2. Apprehensive Husband (Giving No Space to Wife in a Relationship)

a. “Couples after marriage are two bodies and one soul”, but this does not mean the husband does not give the wife her personal space.

b. Being insecure, possessive, jealous, suspecting her always, not giving her own space are other few reasons cited often during the sessions I here as reasons why the wife fell out of love with her husband.

c. Another important element is that of her Identity… she is not Mrs. XXXXXXX she also has her own identity. Often the wife is identified by her husband’s title, designation, position, and sometimes its aggravated when the in-laws taunt her and deprive her of her own identity. She finds herself being respected by someone else drifts her away from the husband.

d. This is often a complaint from the working women too, who complain that the husband suspects for no reason, such suspicion further results into domestic violence and financial abuse too, sometimes issues escalate due to in-laws.

3. Wrong Marriage (Marriage by Force)

a. It is very much possible in India, its unfortunate though, but I have dealt in many cases where an Annulment is sought just a few weeks after marriage because it was a forced marriage.

b. The girl was not willing to marry, maybe she loved someone else, but due to family pressure, prestige of parents, society etc… has ended up in this relationship (Arranged Marriage). Coercion is one such element which makes the relationship break, no matter the husband has put a 100% into the relationship but she may have not seen him as a partner of choice.

c. Sometimes, the relationship continues long and after few years its discovered that she lived with the husband only because of a promise she made to her ailing parent, and after the death of her parents she too wants freedom from such relationship she is got into, the husband may be 100% committed but is completely unaware of her intentions.

d. There are few cases I have dealt with where Same Sex attraction is another possible cause where the bonds and marital ties are falling apart, the partner in the relationship was not inclined or prepared for this marriage. Unable to express her/his true orientation has forced them into this relationship and as they gather courage to express themselves often seek divorce and move out of the marital ties.

4. Prince Charming is no more Handsome

a. I too was surprised in one such mediation session where this girl walked up and said my husband is no more the one, he used to be. Maybe the husbands are too busy to take care of themselves and have put in all the efforts working day and night to keep one and all in the family happy and healthy.

b. While doing so, the husband ends up having grey hairs not dyed, he has gained extra pounds, has no time to pick a new pair of shoes or did not find time to buy good clothes for himself. The wife sees her husband as her hero and wants him to be her handsome prince charming no matter the age.

c. Physical attraction is a very crucial and important element, one should forget to pamper oneself and give a chance for the partner to look out at someone else.

d. The Husband is no more the active and energetic like he was before marriage, after marriage he turned into a boring, grumpy, uninteresting person. That interesting man she fell in love with became a snooze fest she had no respect for and very little feelings of love towards him.

e. There are instances when women have admitted that they have tried many things to impress and seduce their husbands, being romantic, good food, seductive dresses but husbands have not appreciated them for the efforts they put in.

5. Poor Sexual Relationship and Lack of Romance

a. If husband is ignoring and rejecting the wife’s sexual needs and advances are a serious no-no in a good marital relationship. If the husband has a low libido or suffer a medical condition, ensure he communicates to his wife or ensure he finds a cure for the same.

b. Romance and Sexual bonding forces intimacy, it’s a stress buster, Sex releases endorphins which are essential to feeling good, lowering irritability and fighting off periods of depression. The hormone oxytocin released during sexual stimulation helps in bonding and the feeling of security and connectedness.

c. Many couples have also complained, it’s not the frequency but the quality of sexual life, some women complain the husbands to be rough, and they experience sex more as a marital rape, and in few such instances the women complains her husband to be a vegetable in the bed not showing any interest towards her.

When a woman is falling out of love with her man, she rarely comes right out and says it. Instead, the signs will be made clear to him in a series of behavior changes. Lack of intimacy, Lack of time, Talking about other men etc…

Husband’s especially in an arranged marriage have admitted that they fail to tap into a woman’s heart. Marriage is just another set of family responsibilities

Couples who go for counselling sometimes see results but the return to bliss is rare and short-lived and relationships end up in Divorce. It’s good for the couples to understand the challenges, know the legal frameworks and amicably resolve the matter, maintenance is not awarded to a cheating spouse but if there is a child involved it becomes a complex lawsuit, intervention at the right time, preparedness, evidence and various other court room arguments come to the rescue.

Trust this blog has helped open avenues to take corrective actions, though reasons are seen from a Women’s standpoint, they are gender agnostic and in today’s changing family dynamics, the first step is to accept the fact instead of fighting the thinking traps. a


Reach out to me if you wish to discuss your matter or seek counselling and legal advice at lawyersonia@gmail.com or +91 9845944896

What is Revenge Porn : Legal Remedies for Cyber Crime Driven by Vengeance

 

 

lawyersonia@gmail.com | 9845944896 | Revenge Porn | Non-consensual Sharing of Intimate Images and Videos

90% of Revenge Porn victims are either Women or people in the LGBTQ community. 93% reported not only the person but the family members too underwent severe trauma. 49% of such people surveyed said they are harassed or stalked online by users who saw their material. 27% of Indians in the age group of 13 to 45 in the sample surveyed were subjected to such instances of Revenge porn and this age group is most vulnerable.  

National Crime Records Bureau of India reports 157% increase year on year in the number of cases reported for sharing obscene content on the internet.  Unfortunately, some are accidental, but many are driven by vengeance from the ex-partner to settle scores with either the boy who has moved on or the girl who is now happily married concealing and forgetting her past.  

Revenge Porn is a global phenomenon, in India its now catching up but less than 5% of cases get reported. The taboo and stigma associated is such which is also a raising concern for many suicide cases, job loss, matrimonial disputes leading to divorce and many more repercussions. 95% of Cyber-Crime victims do not even lodge a complaint as the victims, who are usually women, fear they will get identified and labelled in society, alas the prevalence of victim shaming. Also comes with it an embarrassment of showing their content to the person seeking help from which could be the police, lawyer, parents, siblings, counselor etc…

The First ever case State of West Bengal v Animesh Boxi in the year 2018 sets precedence with punishment for 5 years and a fine of INR 9,000. Also, the judgement gives directions to the state government to treat the victim of Revenge Porn as a Rape Survivor and provide her appropriate compensation.  

“ Revenge porn is defined as sexually explicit images of a person posted online without that person’s consent especially as a form of revenge or harassment. Unfortunately, the perpetrator and the victim shared an intimate relationship in the past ”

 What should you do if you are a victim of Revenge Porn

-         While you will want the guilty to be punished, first thing first, as soon as you identify immediately report to the platform where you saw such image / video either yourself or through your legal counsel and request removal of such online content.

-         Facebook, Instagram, YouTube restrict nudity, but some medical videos continue to be available in these platforms usually are that of breast feeding or cancer detection guides, no matter how intelligent the platforms are some photographs or videos cannot be detected automatically, reporting will help remove the content.

-         Blogs often may not be monitored, and such platforms may carry your images / videos posted by the offender and as a victim reporting to the platform provider gets these removed immediately.

-         Unfortunately, if the content is removed from or the URLs are deleted, the material may still be on the hosting website.

-         While these images or videos are in the process of being removed do consult your legal counsel and identify the options you wish to pursue to both defend your self and punish the accused.

-         You may also approach a clinical psychologist and during this tough time seek counselling. I do volunteer for such activities as time permits and as a practicing advocate work closely with the cyber crime police in assisting victims and standing for justice. I can be reached at lawyersonia@gmail.com for any guidance or legal assistance.

-         Gather evidence of the material, while you have written to the platforms to remove the content, take screen shots which will form the evidence if you wish to file a legal suit against the offender.

-         Consider the source of images, identify if you have accidently shared or someone has intentionally hacked from your personal devices. File a report with the police. You may directly approach the women’s cell, if you are a resident of Bangalore do reach the Shivajinagar women Police Station either directly or with your legal counsel and get the FIR registered and the stage

Legal Remedies for Revenge Porn

Many law makers globally agree that a definitive law needs to be defined with the quantum of punishment and the procedure for trail. While law making agencies in few countries have initiated such bills in their parliaments, In India acts of Revenge Porn often called as Non consensual pornography or Non consensual sharing of intimate images under the Section 66E, 67, 67A, 72 IT ACT. Such offences are also tried under section 4 and section 6 of Indecent Representation of Women (Prohibition) Act (IRWA), beyond the above acts the offender can be tried depending on the gravity of the case and parties involved under various sections of IPC not limited to IPC 292,354, 354 A, 354 C, 120 B, 406, 499, 509.

Conclusion

While there are legal remedies, we need to create a mass awareness and educate the people, especially adolescents and the youth not to encourage sharing nude pictures over the internet or engage in virtual intimate relationships online. While technology is a boon such acts of violating cyber privacy either accidentally or intentionally is a bane.

Trust this information compiled in this blog post is of help. Reach out to me if you are a victim of such cyber-attack at lawyersonia@gmail.com if you need counselling and legal assistance. 

 

Covid19 - Legal Remedies for Intimate Partner Violence (Domestic Violence)

Legal Remedies for Intimate Partner Violence (Domestic Violence | 498A | Divorce) 

Domestic Violence today is gender agnostic. What was once considered only women to be victims of such domestic violence today's society has accepted any intimate partner irrespective of gender and orientation can be a victim to domestic abuse. 

A multi country study conducted by UN with available sample size at 90% confidence level shows that 35% of partners have been subjected to domestic violence in some form or other by their intimate partners. 26.4% Men, 43.8% Women and 61.1% LGBTQ community reports intimate partner violence. Women and LGBTQ community has reported a higher percent of sexual and physical abuse while the Men have reported mental abuse and to a greater extent financial abuse. 

One such estimate and the study conducted in 2017 showed 57% women whose death was unnatural like death due to physical assault, accident, suicides, homicides, drowning, falls etc… had an history of intimate partner violence.

Covid19 has brought a situation where people are unable to go outside and locked down. The conflicts between intimate partners have seen raising exponentially, as the quarantine takes effect world wide the intimate partner violence is now become an “intimate terrorism” such is the term used by many experts, lawyers, counselors etc… globally … such grave is the situation today. 

Before we figured out the possible legal remedies to overcome the abuse lets define who is an Intimate Partners and what are the broad categories of intimate partner violence.

Who is an Intimate Partner ?

An intimate partner is a person with whom you have or had a close personal or sexual relationship. Such partner may be heterosexual or homosexual or of any sexual orientation. 

What is Intimate Partner Violence ?

The World Health Organization (WHO) defines intimate partner violence as "any behavior within an intimate relationship that causes physical, psychological or sexual harm to those in the relationship". The WHO also adds controlling behaviors as a form of abuse. 

What are the types of Intimate Partner Violence ?

- Physical Violence : is the intentional use of force with a potential of causing life threatening condition, disability, severe injury, grievous hurt, and the milder forms of physical abuse like scratching; pushing; shoving; throwing; grabbing; biting; choking; shaking; slapping; punching; burning etc.. .

- Psychological Violence : Acts of emotional torture, constraining and restraining someone from performing an act, curtailing the freedom, stalking, nagging, passing comments, taunting, using nonphysical form of violence, using abusive language, humiliating a person, isolation, invading the privacy, unauthorized access to passwords and social media content or private content etc…

- Financial Violence : Acts done by an intimate partner which causes severe financial threats, use of force either physical, or psychological and control another person’s finances against the will, further examples of financial abuse include steeling money or property, financial mischief, intentional fraud, Coercion to sign documents, forcefully taking away money or salary earned, misuse of possessions by intimate partner or his/her family members, control over bank transactions, credit card and debit cards, restraining some one to spend money on his/her parents, restraining one to spend money on his/her will, unpaid bills, unpaid EMIs and forcing the partner to pay, unnecessary subscriptions to various goods / services etc..

- Sexual Violence :  Use of physical force to compel a person to engage in a sexual act against his or her will, sexual violence, unnatural sexual behavior, use of drugs and substance abuse during sexual activity either by will or under coercion, use of derogatory sexual words, forcing to engage in acts of pornography, molestation, passing lewd comments etc… 

What are the Behaviors of people who are subjected to Intimate Partner Violence ?

We live in a society where only one face of a person is seen which he/she is willing the society to know and there exists a hidden life which the world is unaware. Same is the situation with people who are subjected to domestic abuse by intimate partners. 

We will have many friends who surely would have gone through such trauma but appear normal in front of all but suffer in silence, such suffering could be because either they accept that abuse is normal and that’s how the life is, or they may not know how to seek legal remedy. 

Firstly, one needs to identify if that person is suffering violence and you can play a vital role in helping such person by asking him/her if something is wrong, express concern and assurance, offer help and support, listen patiently without deducing inferences or conclusions. While you do so, never try to judge or blame the person. Here are some traits of persons who are subjected to intimate partner abuse …

- Such persons seem extremely anxious to please their partners

- Such persons are also seen visibly afraid of their partners

- They seem to agree with everything their partners tell, although it may not be by their free will

- They call their partners often to report where they are and with whom

- Visible signs of injuries and bruises may be commonly seen, and they may dress to hide them

- These people will be restricted to see the family and friends

- They rarely go out in public and especially they don’t spend money although they are capable of

- They may seek permission from their partners before spending money

- These people although be earning well will have limited or no access to Credit cards, money etc..

- Such persons will carry low self-esteem, you will see them often lost and depressed 

- Typically, an extrovert person will suddenly behave introvert and also carry suicidal tendencies

An observation that should trigger you investigate further or offer support will be when such a person talks about their partner’s jealousy or possessiveness, or even their temper.

What are the legal remedies available for persons subjected to Domestic Violence?

Indian Legal system has various legal remedies that can help the victims of domestic abuse, such laws are gender agnostic and applicable to Men, Women and persons of any gender orientation. 

Some sections in IPC that the abusers can be booked under but not limited to are Section 107, 109, 102A/B, 212, 302, 303, 304, 304B, 306, 307, 314, 323, 325, 341,342, 342, 354, 370, 376, 377, 379, 384, 406, 417, 426, 465, 496, 498, 498a, 500, 506, 511. 

There are many other legal remedies available including DV, Maintenance and Restraining Orders, every individual is unique and ever person who is subjected to abuse has a unique experience, while the sections imposed under law may be common, but the case build up is uncommon. The victim alone knows the challenges he/she has faced and only a learned counsel can understand the situations and draft the legal papers to seek the appropriate remedy. 

Such remedy the victim of intimate partner domestic violence shall receive in the form of compensation and / or punishment of the abuser which can extend from as less as 6 months and depending on the gravity of violence can also be subjected to life imprisonment. In rarest of the rarest cases where a persons modesty is outrages or the intensity of violence is such that has resulted in loss of life a death punishment also can be prayed. 

What should a person or his/her friend / relative parent does if they identify a person is subjected to intimate partner violence ?

- Talk to your friends and keep your near and dear ones appraised about the situation you are in and seek support. 

- Seek help from a Legal Practitioner to initiate the legal proceedings

- Dial emergency / SOS number and seek police intervention 

Very importantly figure out a way to get out of such relationship which is harmful in a long run. Eventually, one fine day the lockdown will end. But as the quarantine drags on, the danger appears likely to deepen. Studies show that abusers are more likely to cause severe life-threatening damage to their partners physically and mentally. 

Such abuse many not necessarily be habitual but also due to  and other variables in the wake of personal crises, including loss of jobs, financial setbacks, and other economic challenges. 

Prevention is better than cure, as you observe any change in behavior of your partner seek counselling in early stages as compared to a legal remedy after the abuse. 

Trust this information is helpful to the reader, feel free to write to me at lawyersonia@gmail.com or call +91 9845944896 and have a discussion. 

As I have mentioned earlier too, every individual is unique and his or her circumstance too is. A one to one discussion will certainly help you adapt to this changed reality and cope with the psychological effects, loneliness, build trust and improve self-esteem.

Help is just a call away … 😊 

HOW TO FIGHT FALSE DOWRY CASE FILED AGAINST MEN

 

How to File False Dowry Case

Vague allegations made against every member of the family of husband cannot be accepted by any court at their face value and the allegations must be scrutinized by the Court before framing charge.

One of the most common complaints most wives and their parents file against the husband and his parents beyond 498a is that of DOWRY

Furthermore, the intelligent ones will also produce the jewelry bills, money transactions beyond bank in CASH and much more to demonstrate DOWRY is given as and when the boy and his family asked for the same.  

On receiving a call from the Police Station the first thing the husband and his family get into a PANIC STAGE and jump into a compromise situation, anger is a common emotion and thoughts of vengeance and various emotive responses trigger.

The latest report compiled by the Ministry of Home Affairs can be accessed following the link below, the statistics of crime against women is described between Page No. 133 and Page No. 184.

http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Crime%20Statistics%20-%202016.pdf

While the report shows approximately 5.5 Lakh cases of 498a / Dowry are registered at least 70% are acquittals and the wife is unable to prove the charges against them. It’s a misuse of the provision and many people are using this a weapon against men and their family members to settle the scores.

The men who are unable to battle such issues successfully suffer depression an also sometimes take a step of committing suicide.

While there are multiple ways to battle false case, here is one as a case study I can share with the readers of my blog post which they can successfully use.

HOW TO FIGHT FALSE DOWRY CASE

Step 1 : Face the Police without fear, you will not be arrested immediately, only after investigation the next steps will be taken by the Police. Seek intervention from a lawyer if needed.

Step 2 : If you evade the cops, the chances are an FIR will be registered against you and you may get arrested, you can exercise your right for a Anticipatory bail or get a regular bail and be prepared to file the allegations against you.

Step 3 :  Counter Attack is the best defense, in most of the cases I have seen and dealt with the charges against the husband and his family may be fabricated and the jewelry bills submitted will be false. Go back to your financial statements and make a detailed list of items exchanged as gifts, the monetary transactions occurred in Cash / Bank and keep it handy.

Step 4 :  File an RTI and get the bills the complainant has attached to support her claims. Tally them with the statements and list you have prepared to understand how far the claims are true. Also, check your wardrobes / lockers to ensure if you have them or not. Sometimes the ornaments may belong to your wife (Sthreedhan) who would have left it in the home or purchases were made either by you or her own salary. Such purchases are not terms as dowry.

Step 5 :  File an RTI and get the bills the complainant has attached to support her claims.

Step 6 :  If you happen to discover based on your homework that the bills / receipts are false, File a Sales Tax evasion petition with the Trade & Tax department. Chances are the jeweler will be subjected to inquiry and don’t be surprised he too will face the brunt of conspiring in this case

Step 7 :   Furthermore continue the attack, because attack is the best defense you can file a case of submitting false documents to the court under section 156. Not limiting here you can also file multiple cases invoking various section of IPC like 120B (Criminal Conspiracy), 191 (False Evidence), 197 (False certificate), 499/500 (Defamation), 420 (Cheating), Section 9 of CPC for damage recovery, 468, 471,474 etc.. (Forgery of documents against jeweler and other parties)

In my opinion and 12+ years of handling family matters I can broadly classify, the failure of marriage due to the following three reasons

• Infrastructure and Privacy of the couple: In India, especially the metros people living in 2BHK have hardly any privacy for their conjugal life, and the wife for sure feels uncomfortable living in a joint family which the husband needs to realize and work out a win-win plan. Staying nuclear is a good option provided one can afford. Staying in a joint family, the girl needs to be given enough time to settle down, especially its crucial and important for the husband to pay a pivotal role in managing the relationship between his parents and wife, especially the Mother-In-Law, Sister-In-Law and Daughter-In-Law.

• Financial Challenges: Like it or not, expectation management and being realistic is very important in early married days, ensure your finances are managed carefully, credit card bills, and cashflow is critical. Save for a rainy day, and both spouses equally contribute their salaries towards the home they wish to build. It is the duty of the husband to win confidence of the wife and ensure she does not feel insecure parting her earnings towards the common goals.

• Infidelity: No Thanks to social media and online dating apps that lure both men and women towards such activities. What starts as a casual online friendship end up with something serious, many a couples I have counselled and spoken with related to the above two triggers and feel disassociated with their spouse and seek for a friend to share their experiences to begin with but later such episodes turn serious and are the cause for the marriage to break.

Further to the above three, there are many other causes which are less than 25% compared to the above three.

Trust this blog post is helpful and the reader has gained a fair knowledge on the possible steps to follow, nonetheless there are multiple ways to tackle the issues this was just one such. If you need assistance / support or need to discuss about your situation, 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.

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 😊