Revision as of 10:24, 2 July 2013

Divorces: India

Wife can stay with husband till divorce

‘Until divorce, wife can stay with hubby’ The Times of India 22/04/2013 TIMES NEWS NETWORK

New Delhi: A trial court has said that a woman and her child have every right to reside in the household she shared with her husband after marriage, till the disposal of any matrimonial dispute between them.

Metropolitan magistrate Rachna Lakhanpal made these observations while passing interim residence order in favour of a woman who had moved the court seeking directions to her estranged husband to allow her to live in the matrimonial house till a dispute concerning domestic violence was decided.

“Complainant (woman) and her child have every right to reside in the shared household till final disposal of the case and the respondents (estranged husband and his mother) are restrained from dispossessing her from the shared household till final disposal of the case without due process of law,” the court said.

While passing the order, the court held the man’s household is to be shared with the complainant since they resided there together after marriage.

The court also said that the husband and his mother, residing in northwest Delhi, would not create any hindrance to the woman using the facilities of kitchen and toilet or interfere with the supply of water and electricity to the portion of the household she would stay.

The magistrate also directed a protection officer to facilitate the woman’s peaceful entrance in the house while the SHO concerned was asked to provide necessary assistance if required. The court also directed the man to provide a maintenance amount of Rs 4,000 to his estranged wife and Rs 1,500 to the child per month.

In her plea for interim maintenance and residence order, the woman had alleged cruel treatment by her husband, whom she married in 2000, and told the court that she was thrown out of the matrimonial house. The allegations were denied by the husband. The court, however, said allegations of cruelty or counter allegations cannot be decided with the application for interim maintenance and interim residence.

Marriage should not be terminated merely because handsome alimony is promised

Apex court hits gender parity note in divorce case

Dhananjay Mahapatra TNN

The Times of India 2013/07/02

New Delhi: Irretrievable breakdown of marriage, coupled with promise of large amount of money as permanent alimony, has been cited by rich and powerful men to seek divorce from their wives when all was not well in the marital relationship.

Striking a gender equality note, the Supreme Court on Monday turned the tables and asked whether it would have granted divorce to a woman from her husband, who on developing some mental disorder had become completely dependent on her, if she promised a huge sum as permanent alimony.

The case related to Darshan Gupta and Radhika Gupta, who married in 1997 when they were barely out of their teens. Radhika’s first pregnancy was terminated due to medical reasons. The second pregnancy was again a very complicated one and the child had to be delivered through Caesarian section. She remained unconscious for a long time and developed serious mental disorder. The child died eight days after birth.

Though she was treated in reputed hospitals, she allegedly remained mentally ill. The husband claimed separation from her since 2002, breakdown of marriage and offered a large sum of money as permanent alimony to seek termination of marriage.

A bench of Justices P Sathasivam and J S Khehar rejected the husband’s plea and wondered whether a similar request by a woman would have been entertained by the apex court for grant of divorce from a husband who developed some mental disorder. Justice Khehar, authoring the judgment, concluded, “We have no doubt... that on a reversal of roles, the husband... would have never accepted as just the dissolution of his matrimonial ties...”

Ex parte divorce decree by foreign court invalid: HC

‘Irretrievable Marriage Breakdown Not Recognized Under Act’

Smriti Singh TNN 25/04/2013

The Times of India

New Delhi: In what can have serious implications for divorces involving NRIs, Delhi high court has held that a divorce obtained by an NRI from a foreign court without the spouse’s submission to the jurisdiction of that court is invalid.

The court has also held that a divorce granted by a foreign court on the ground of “irretrievable” breakdown of marriage is not recognised under the Hindu Marriage Act and the dissolution of marriage cannot be valid. The court’s ruling came while rejecting the claim of an Indian-origin UK resident that the Ilford County Court, UK, had in 2011 already granted a divorce.

The man had challenged the trial court’s order which had declared that divorce invalid. He sought dropping of the divorce proceedings against him on his wife’s plea for dissolution of marriage under the Hindu Marriage Act. The woman, through her counsel, Prashant Mendiratta, claimed that the foreign divorce decree was an ex parte decree which she had been unable to contest. “The said decree is not recognised in India, and as such, the petitioner is not entitled to any relief,” the counsel said.

The court cited a Supreme Court judgment which had held that a decree of divorce granted by a foreign court is not valid in India if the ground is not recognised by Indian law.

“Both parties are Indians and the marriage between them was solemnized at New Delhi according to Hindu rites and both are governed by the Hindu Marriage Act (HMA). Their marriage has been dissolved by a court in the UK on the ground of having broken down irretrievably which is not a ground for divorce under HMA ...” Justice Veena Birbal said.

The court also rejected the man’s argument that the UK court had made the decree “absolute” on the ground of “irretrievable breakdown” of marriage and his wife was also informed about the proceedings there.

Accepting the wife’s argument that the divorce granted by the court in the UK was an ex parte divorce decree, Justice Birbal said, “Respondent (wife) never submitted herself to the jurisdiction of the said (UK) court. On June 15, 2011, she had lodged a representation before the Ilford County Court informing that she was in India and had filed a divorce petition here.

“She also informed (the court) that she was in acute financial difficulty (and won’t be able) to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the UK court not to make the divorce decree ‘absolute” ... In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court,” the court said.

REINING IN RUNAWAY GROOMS: HC RULES

An ex parte divorce by a foreign court is invalid

To get a divorce from a foreign court, both parties have to submit to its jurisdiction

Ground of “irretrievable breakdown of marriage” not a ground under Hindu Marriage Act

STANDING INSTRUCTIONS

When faced with ex parte divorce cases, courts in India rely on a celebrated 1991 Supreme Court judgment

SC has empowered matrimonial courts to issue non-bailable warrants to enforce attendance of parties

In one case, HC prohibited NRI from obtaining one-sided divorce decree from a foreign court

If any NRI ignores court stay on ex parte divorce, it’s considered contempt of court

Alimony: Tax on

No tax on lump-sum alimony: Tribunal

Experts Caution Ruling Comes With Riders, Say Single Payment No Way Out

Lubna Kably TNN 2013/06/30

The Times of India

Mumbai: Marriages are made in heaven, but divorces happen on earth. Thus, tax implications are inevitable.

However, in a recent decision, the Delhi Income-tax Appellate Tribunal (ITAT) has held that a lump sum payment received from a former husband, against relinquishment of monthly maintenance, is a capital receipt which is not taxable.

A Delhi-based resident received a lump sum amount of $99,000 from her ex-husband, who was based in the United States, which she did not offer for tax. Based on today’s exchange rate this sum is approximately Rs 60 lakh.

Under Indian tax laws, any sum of money received by an individual without any consideration (without anything in return), in excess of Rs 50,000 in a year, is taxable. However, if the same is received from a relative, such as a spouse, or on certain occasions such as marriage, it is exempt.

The tax officer, in this case, had held that as the divorce had taken place several years ago, the Delhi-based resident was not a ‘relative’ and hence such payment was not exempt but taxable as “income from other sources” in her hands. This approach adopted by the tax officer was rejected at the first level of appeal — Commissioner of Income-tax (Appeals).

The Commissioner (Appeals) held that the amount was paid by way of alimony only because they were husband and wife. Thus the payment received was from a relative (which includes spouse).

Further it cannot be said that the lump sum amount was received without any consideration — it was received against relinquishment by the wife of her right to receive monthly alimony payments (both past arrears and future payments). Such monthly payments were provided for in the divorce agreement.

Hearing an appeal filed by the tax officer, the Delhi ITAT upheld the order of the CIT (Appeals). It observed: “In this case, the taxpayer was to receive monthly alimony which was to be taxable in each year. As such monthly payments were not received they were not offered for tax as income. The lump sum received by the assessee was a consideration for relinquishing all past and future claims.” It was a non-taxable capital receipt not liable to tax, concluded the ITAT.