Best Advertising Lawyers in Shimla. Connect and Consult the Top Advertising Advocates in Shimla!

Based on the Hindu Marriage Act, 1955; filing a petition for a 'mutual divorce' would be appropriate if both you and your spouse are having to deal with marital issues and it has gotten to a point that both of you are looking for legal separation. You as a spouse can file for divorce even if the other spouse is unwilling to be divorced - this is known as, 'Contested Divorce'.What is the meaning of Divorce by Mutual Consent?According to the Hindu Marriage Act, 1955 both the spouses have the right to dissolve their marriage through a decree of divorce on several grounds specifically itemized in Section 13.Section 28 of the Special Marriage Act, 1954 as well as Section 10A of the Divorce Act, 1869, permits divorce by mutual consent as well.The necessary conditions under section 13B of the Hindu Marriage Act are as follows:(i) The separation between husband and wife for at least a year or more.(ii) It's impossible for both spouses to live together. (iii) Both the spouses are of the opinion and in fact, have mutually agreed that the marriage cannot be salvaged at all and therefore ought to be dissolved. Under these circumstances,  filing a Divorce by Mutual consent would be appropriate.According to the Indian legal system, with the filing of a divorce petition, a divorce procedure fundamentally begins.The place for filing a divorce petition:1. The court in the location of the last residence of the couple before they got separated would have jurisdiction. 2. The court in the location of solemnization of the marriage would also have jurisdiction.3. The court in the location of the wife’s current residence would have jurisdiction as well.   Based on The Hindu Marriage Act, 1955 both spouses have the right of dissolving the marriage if there are marital issues and either spouse can initiate divorce proceedingsThe starting point of divorce proceedings in its entirety in India begins with the divorce petition filed by the concerned parties related to the divorce process and notice of the petition served to the other party.Based on the Hindu Marriage Act, 1955; a 'mutual divorce' petition can be filed if both the spouses are going through marital issues and want to part ways legally.Anyone of the spouses could file for divorce even if the other spouse is unwilling to be divorced - this is known as 'Contested Divorce'.Step by step procedure in case of Mutual DivorceMutual Divorce Procedure to be followed Step 1: Divorce Petition to file At the outset, a petition for dissolution of marriage has to be presented to the family court by both spouses for a decree of divorce on the basis of not being able to stay together and therefore both spouses have consented to dissolve the marriage or they have been separated for at least a year or more.This joint petition has to be signed by both parties.Step 2: Court appearance and petition inspection Both spouses would have to make an appearance before the family court after the petition has been filed and at the same time the spouses would have to present their counsels/lawyers. Upon critical observation of the petition along with all supporting documents by the court, the court may even try and reconcile the marital issues of the spouses. If that fails then the matter proceeds to the next level for even further follow-ups. Step 3: Decree for a recording of statements on oathOnce the court analyses the petition and it's satisfactory, it may decree the statements of the parties be recorded under oath. Step 4: Between the passing of the first and the second motion a period of six months elapsesWith the statements of the parties to the suit already recorded, the court passes a decree on the first motion. Thereafter, both the parties to the divorce suit get a period of six months prior to filing the second motion. At most, it would take 18 months from the presentation date of the divorce petition in the family court. Step 5: Second Motion and the Final petition hearing The penultimate step is that once the parties have made a mutual decision to pursue the proceedings and be there for the second motion, final hearings may ensue which includes recording of statement of parties in front of the Family Court.The Supreme Court recently has maintained that the period of 6 months allocation to the parties can be negated at the decision of the court. In other words, it’s the court’s discretion to override the six months’ time period. Hence, the parties genuinely intending to reconcile their marital issues including alimony, child custody or any other outstanding issues, it can be waived off in these six months.Even if the court’s opinion is that the longer the waiting period the parties would suffer more, in this case also the six months can be waived off.Step 6: Divorce DecreeWhen the divorce is mutual, the consent is from both parties and therefore contentious matters related to alimony, child custody, maintenance, property, and so on are all taken care of or have been agreed upon by both parties. Therefore, a complete and absolute agreement between the parties is needed for finally deciding on dissolving the marriage.After hearing the parties if the court is satisfied that what has been alleged in the petition are in fact true and that isn’t any possibility of the parties reconciling and cohabiting at all, the decree of divorce gets the court’s seal of approval, and the divorce is final. This blog is all about the divorce procedure explained step by step. Anyone reading this blog would be able to clearly understand the divorce process.If you’re filing for a divorce and haven’t got a clue as to how long it might take, or what might be the steps or procedures involved. Get in touch with Vidhikarya who would find the expert divorce lawyers for you.

A Rape Covered Under The Veil Of Marriage By Ashish Ranjan Samal, Advocate Orissa High Court 1. Introduction Whenever Mahira, who is 25 years old, has a fight or a heated argument with her husband, he takes it out on her in the bed. She is merely a toy for him whom he can use differently every night. He forces himself on her, every single day, even during her periods. Their relationship has never been about 'consent' and 'equality'. Similarly, many women are subjected to dowry harassment and brutal rape which involves inflictions with torch lights leading to serious injuries. These are just a few examples out of the plethora of such cases. These women are all married and they have to go through such kind of violence and forced intercourse. Is a wife merely a tool to vent out sexual and emotional tension and frustration? Marital rape is an oxymoron. Yet marriage and rape have an unfortunate continued relationship in India. Both rape and marriage are considered ways of gaining control over a woman's body since time immemorial. This was also exemplified in the infamous Imrana rape case[1] where back in 2005, 28-year-old Imrana, a mother of five, was raped by her 69-year-old father-in-law. And the Panchayat (local council) declared her marriage to her husband as void since she had had sex with her father-in-law and by virtue of her physical relationship with her father-in-law she was also told to treat her own husband as her son. The dictionary meaning of the word "rape" is "ravishing or violation of a woman" which in its generic term "Raptus" implies violent theft, applied to both property and person. Rape is the word for forced or coerced sex. It is when the woman has not had the opportunity to freely give consent or she is unable to give consent. Marital rape is the non-consensual sex committed by the spouse. It is also known as partner rape or rape in marriage. 2. Indirect laws addressing Marital Rape Marriage in India is considered a holy sacrament between a husband and his wife. When a man marries a woman, it not only brings implied consent of sexual intercourse but also the man's duty to give due respect to the dignity of his wife. When the husband commits unwanted forceful intercourse with his wife, he breaks the confidence of his wife and breaches her trust in him. Lately, Section 498A of the Indian Penal Code i.e. the anti-dowry law is voluminously misused by the women and a considerable number of rape cases reported each year are also false. Proving marital rape and taking bedrooms to courtrooms in such cases is not only a difficult but also a dangerous idea.[2] As per the Indian penal legislation i.e., Section 375 of the Indian Penal Code- "Sexual intercourse" or "sexual acts" by a man with his own wife, the wife not being under fifteen years of age, is not rape." [3] Exception to Section 375[4] of IPC provides immunity to the husband who rapes his wife and declares marital rape as legal and does not consider it as rape. This shows that the concept of marital rape goes beyond the virtues of Article 21[5] of the Constitution of India i.e. right to live with human dignity. Marital rape prima facie violates Article 14[6] of the Constitution as it creates a classification between married and unmarried women and denies equal protection of the criminal legislation to the former.[7] Though marital rape violates basic human rights that are attributed to every human being under the purview of these Articles there are not many remedies available to the victim. Therefore, in India, marital rape can come under cruelty clauses of section 498A of IPC. Cruelty covers physical and mental harassment. Punishment is imprisonment for a maximum period of three years with fine. The remedies for cruelty under the Indian Penal Code take years to reach an outcome. In view of this, victims remain victims. They either give in, or give up. Another remedy available to the wife is under the Protection of Women from Domestic Violence Act, 2005 which deals with protection of women from physical and mental cruelties of all forms, including sexual abuse. Family Courts as well as Magistrates provide counseling to the husband under domestic violence laws. But unfortunately, the provisions of this Act provide civil remedies only and a wife who wants to see her husband (rapist) punished finds no solution to that. Instead she is the one who struggles and suffers especially if she has children or is financially dependent or is without family support. The only lasting solution to the problem of marital rape is legal separation or annulment of the marriage itself. A legally separated wife can only file a complaint for rape against her husband under Section 376A[8] of IPC.[9] 3. Startling Statistics Marital rape is both common and an un-reported crime. A study conducted by the Joint Women Programme - an NGO, found that one out of seven married women had been raped by their husbands at least once. They frequently do not report these rapes because the law does not support them.[10] According to the UN Population Fund, more than two-thirds of married women in India, aged 15 to 49 years, have been beaten, or forced to provide sex.[11] Bertrand Russell in his book Marriage and Morals saw marriage as one of the most conventional forms of livelihood for a woman where the frequency of undesired intercourse she has to give in to is in all probabilities higher than that endured by a prostitute. [12] ?till the problem of marital rape has received very little attention from the activists, criminal justice system and the society at large. The concept of rape in marriage got recognition only after 1970s. The right of a husband to have sexual intercourse with his wife was considered to be one of the most natural implications of the contract of marriage.[13] International Instruments Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women.[14] Also the unanimous resolution at the UN conference in Beijing, September 1995 guarantees every woman the right to say no to sex as she wishes, specifically wives. In accordance with these Declarations and Conferences many countries have either enacted marital rape laws, repealed marital rape exceptions or have laws that do not distinguish between marital rape and ordinary rape. These States include Albania, Algeria, Australia (in 1991), Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, Mauritius (in 2007), New Zealand (under Crimes Act, 1961), Norway, the Philippines, Scotland, South Africa, Sweden, Taiwan, Tunisia, the United Kingdom (in 1991), the United States, and recently, Indonesia, Thailand (in 2007), Turkey (in 2005).[15] In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition. Lord Keith, compared a marriage of the modern times with a partnership of equals where the wife is no longer the subservient chattel of the husband.[16] 4. Rethinking of the existing law In India, the 42nd Law Commission Report (1972) suggested that marital rape should be criminalized. However, actions were not taken to that effect and the 84th Report (1980) was not in favour of the criminalization. In the year 1996 the Supreme Court of India in Bodhisattwa Gautam v. Subhra Chakraborty[17] classified rape as a crime against the basic human rights and a violation of the victim's most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. However, the Apex Court negated this very pronouncement by not recognizing marital rape.[18] This shows that the Indian courts as well as the law makers have made recommendations and pointed out the need for penalising marital rape several times. Still there has not been any substantial change in this field. 5. The gray areas There are a lot of loopholes in the Indian legal system when it comes to marital rape. It not only provides immunity to the rapist husband but is also silent with regard to a lot of questions. For example, there are no provisions to deal with the cases of rape which are committed by the husband in collusion with a third person or if rape is committed by both the husband and a third person. Whether the third person will only be punished for rape, or whether the husband, would escape punishment for marital rape owing to his relationship with the victim are some of the many questions which the law has failed to adequately answer.[19]  The honourable High Court of Delhi has rightly pointed out in the case of Meena & Anr. v. State & Anr.[20] on 17 October, 2012 where the Court observed that if a girl who is not the wife of the man but is below 16 years of age (15 as per the Criminal Law Amendment 2013) then even the consensual intercourse between the two amounts to rape. But if the girl is above 16 years and is wife of the man, then even the forced intercourse is not rape. This provision in the Indian Penal Code, 1860 is a specific illustration which shows that the legislature has legitimized the concept of child marriage by keeping a lower age of consent for marital intercourse. 6. The deep scars left from the crime Marital rape causes both mental as well as physical trauma which has severe and long-lasting consequences on women. The immediate physical and gynaecological effects of marital rape include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue, vomiting, miscarriages, stillbirths, bladder infections. It may also lead to infertility and HIV. Rape in marriage has a lot of long-lasting psychological consequences also. It causes anxiety, shock, intense fear, depression, sleep problems, suicidal ideation, etc. [21] 7. Conclusion The concept of marital rape is an oxymoron. It is a rape under the veil of marriage. Marriage is not a licence for sex. Just because a woman says "I do" to marriage it does not mean that she has said "I do" to sex whenever, wherever, and however her husband wants it. Sex is not an implied 'right' under the contract of marriage rather it is a clear communication of love, mutual consent, caring and respect between husband and wife. A recent incident of gang rape and murder of a student on a bus in Delhi in 2012 led to a mass outcry. This outrage took place when the girl was raped by strangers. Had she been raped by her husband, would it have the same effect? If rape is the violation of human rights then it would continue to be a violation whether committed by her husband or a stranger. The dignity of women either married or unmarried is alike. She cannot be considered as a property or the subservient chattel of the husband In today's scenario we require generation of awareness along with judicial awakenings. What really needs to be done is to teach both boys and men to not rape and educate them to view women as valuable partners in every aspect of life.