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LEGAL PICKLE
Que: Incompatibility is still not a ground in India. However, my husband has got an ex-parte divorce decree against me while I am in India. Am I still married?
Ans: If 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). A decree of divorce granted by a foreign court is not valid in India if the ground (incompatibility) is not recognised by Indian law. Further, the wife should not subject herself to the jurisdiction of the foreign court.
Que: My husband is refusing to give maintenance to me on the grounds that I am working. Can he still refrain from paying the maintenance?
Ans: The general defence of men to avoid paying alimony to wife is the fact that either she is earning or he is jobless himself. However, the Court may take into these factors while determining alimony:
a) Marriage Duration
b) Recipient Age
c) Financial capacity of either spouse
d) Health
e) Respective marriage laws
Court may provide for Interim maintenance while the case of divorce is pending and which shall be valid till the permanent maintenance order is given by the court during the divorce. Irrespective of whether wife is earning or not, court will try to put the wife to the same position as she was while being married. However, the quantum shall depend on case to case basis.
Que: I want custody of my child. My husband does not want to take any responsibility of her but I want him to pay for her expenses.
Ans: While deciding custody cases, the court will majorly consider as to which parent can provide a safe and congenial environment for the healthy growth of child. Interest of the child is paramount. Therefore, in your case, if your child is very young, in all likelihood, irrespective of whether contested or not, the custody shall be given to the mother in most of the cases. If the child is slightly older, the Court may even ask for preference from the child as to with whom she would like to stay post separation. Visitation rights are given to the estranged parent. Irrespective of whether the father wants to take custody of the child or whether you are earning, Court may direct your husband to pay maintenance of the child.
Que: I was forced to get into a marriage when I was sixteen. Now after six months, I don’t wish to stay with my husband.
Ans: Child marriage can be defined as a marriage solemnised between two people where either the female is below the age of 18 years, and the male is below the age of 21 years. Child marriage in India is not void ab initio (void since initiation) but voidable unless the bride is less than 15 years. According to Prohibition of Child Marriage Act, 2006, you may