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Divorce litigation is a long winding process: Fazaa Shroff-Garg

IBNLive.com
Jul 04, 2013 at 04:16pm IST

How do I file for divorce in India? How do I identify a good lawyer? What are the grounds on which I can file for divorce? What goes into deciding who gets custody of the children? How much alimony will I have to pay? How much does it cost? Divorce is usually painful and complex. 'Breaking Up: Your Guide to Getting Divorced' answers every question you might have on the subject. Mrunalini Deshmukh and Fazaa Shroff-Garg have handled some of the most high-profile cases in the country. Using their experience and expertise, they have put together this book on understanding divorce law. Fazaa Shroff-Garg joined IBNLive readers for an interaction on her book 'Breaking Up: Your Guide to Getting Divorced'.

Q. My wife has epilepsy (Fits) which was not disclosed during marriage. I want divorce from her. Can that be possible or will it come under the grounds under cruelty? Can I get divorce or it will be long and pain full one. Asked by: Kunal

Divorce litigation is a long winding process: Fazaa Shroff-Garg

Fazaa Shroff-Garg joined IBNLive readers on her book 'Breaking Up: Your Guide to Getting Divorced'.

A. What is your religion? If you are Hindu, Christian, Parsi or married under the Special Marriage Act you can file a Petition on the grounds your spouse is suffering from a Mental Disorder/Mental illness. You would need extensive medical proof to prove the mental disorder. These are usually difficult to prove and also long winding - it would be better if you could settle the matter amicably with the help of an intervention from family and friends.

Q. What can a woman do against her in laws if they emotionally torture her, though the husband supports her? Asked by: Sneha

A. The Woman's remedy and reaction totally depends upon what her intentions are. If she seeks divorce she could file a contested divorce petition under the grounds of mental cruelty. Since the husband is supportive, maybe she should talk to him and consider moving out of the in-laws home and living separately to make their marriage work. If the in-laws are torturing her, it would not be a bad idea to file a police complaint at your local police station.

Q. What are legal rights of a working taxpaying woman when all assets are in mother-in law's name & husband is self employed with no white income or assets? Does the women have to pay maintenance to husband? What she should do now that on breaking up she gets the share of the property and husband pays her maintenance on divorce? Asked by: Sneha

A. There are certain situations that lead to the court probing deeper into finding out whose investments have gone into purchasing the assets. For financial security reasons perhaps the husband and his parents have purposely not kept any assets in his name, but he must be working either on his own or with his father, he must have an income, he must have drawings, salaries, bonuses or at the very least his share of expenses. These matters have to be looked into very carefully by your lawyer to determine how best to get you to the negotiating table and get what you are looking for. As a wife you can file a maintenance petition without filing for divorce as well as along with a divorce proceeding - accordingly if you set out your expenses, the husband will be directed to pay what the court is convinced is for your necessity and to maintain you at the lifestyle that you have been used to/ accustomed to.

Q. I want to divorce my wife but my wife is not ready. She's asking for too much alimony? Also she keeps torturing me. Can you please tell me how much time does it take in India to get a divorce? What will be the cost of it and also is there any way I can expedite my matter as I cannot take the torture any longer. Asked by: Rajput Singh

A. Due to the overburdening of the courts and the sheer volume of cases, for new matters a court date comes up once in 3-4 months and for older matters (in order to expedite them by the High Court's directions) the court dates come once a month. It can take anywhere between 2/3 years - to 6/7 years. Litigation is surely a long winding process. But if she is not agreeing and you are being tortured, file a contested divorce petition on the grounds of Cruelty, ask your lawyer to draft it well with all the incidents of cruelty. If somewhere down the road, a few months or years later, she is willing to compromise then you can convert it to a mutual consent petition and get your divorce immediately.

Q. How the idea came about? Asked by: Anu

A. I don't get the question.

Q. Can we write an affidavit at the time of marriage that no alimony will exchanged during divorce? Asked by: Nandan Mishra

A. Well you could, what you are essentially talking of is a Pre-Nup. However, this cannot be enforced in a court of law. The maximum that can happen is that it can be used to convey the intent of the parties at the time of divorce.

Q. The law in India favors women and keeps a man in disadvantage owing to the past cases. However, today, people often misuse these rules. What are the legal rights of a man who wants a divorce from his wife after 4 years of failed marriage. The wife doesn't want divorce and they may even go to the depths of filing a false harassment/dowry case against the husband. Though the husband has done his bit and even has photographs other things that prove otherwise? Also, how long do these cases take for settlement? Asked by: Vip

A. It is not true that one sex is favoured more than the other although it may seem that way in certain situations. File a Petition for Divorce on the grounds of Cruelty. It can take anywhere between 2/3 years- 6/7 years or can happen mutually in 6 months.

Q. I am a Hindu. If you are saying that it can take 2-7 years for divorce to happen then is it possible that I can convert to Muslim and get married to someone else? Also please answer what will be the cost of the litigation? Asked by: Rajput Singh

A. No you cannot. That would amount to taking advantage of your own wrongs and there are laws in place for that specific reason. You would face worse troubles and legal complications. It depends on what your lawyer will charge. Some people charge for drafting, appearing in court and arguing together as a retainer whereas some people like to take it per month or per date. It would not be possible for me to spell out the amount it would cost you.

Q. During my divorce proceedings, we (me and my ex) were asked to meet the counselor at the court. What strikes me is that the counselor did not even try to counsel us about the process of divorce, the emotional aspect of it, nor did he try to counsel us to stay together. Shouldn't it be the job of the counselor to do so, or should one always engage a private counselor? Asked by: Shashidhar V

A. If re-conciliation is the goal, it's always better to hire a Marriage Counselor privately to work on your marriage.

Q. Ours was a mutually consented divorce. My ex stated that she didn't want any part of the house that we bought in joint name (the payment for which was made by me, loan was taken based on my account statement, and I have been paying the EMIs, only that we felt that the property should be in a joint name) and, accordingly, the lawyer had prepared the divorce document. It has been 5 years since our divorce and she has remarried. Would she still be eligible for a share in the property that we bought together? Asked by: Shashidhar V

A. Depends on the Consent Terms. I would need to see the same before I comment. But after full and final settlement, she cannot come back to claim her share in the house. Unless her name is still listed as a Joint Owner

Q. Who/what inspired you to write this book? Asked by: Deepak

A. My Masi went through a tough divorce and my mentor Mrs. Deshmukh represented her in court. I was offered to write this book by Mrs. Deshmukh and it was to tell the story of countless people and help those in need of a way out that I wrote it.

Q. Hi how are you feeling after the launch of the book? Asked by: Vikas

A. Amazing. It's doing very well. I'm glad I can offer advice to people through my book.

Q. How the idea of the book came about? Asked by: Anu

A. Mrs. Deshmukh offered it to me and I researched and wrote it. It took 2 years for me to compile and put together!

Q. There are irreconcilable differences between me and my wife. She also had an affair after separation which I caught her red handed. I have offered her a decent amount for separation. I am staying separately. But she is not willing to divorce me and not giving me access to my child. I have filed for divorce. How long will this process take? Asked by: Ankush

A. It depends 2/3 years to a longer time. Invest in a good lawyer, get favourable access orders. You will get access and even custody of your child if you show the evidence of your wife's affair to the court.

Q. Can a working women claim maintenance from husband during divorce or while they are together? What are financial rights of a working woman during marriage. Asked by: Gunjan

A. Yes they can. But the income of wife will be taken into consideration to determine the quantum of maintenance she receives from the husband.

Q. My father-in law threatens to throw me & my husband out of the house & from a share of the property if we don't pay them money. What can we both do? We don't want to live separately as we fear that my brother in law & his wife will torture them once we leave. They are the one who creating these fights among us. What is my legal right for staying in the house, I'm a working women. Asked by: seema

A. It depends. Who paid for the house? Is it ancestral property? Does your husband have a share in the property? You cannot claim to be tortured and concerned for your in-laws at the same time. Make a decision. Move out. Start a life for yourself and your family. This is not a matrimonial problem.

Q. How the income of wife is considered for maintenance? What if , a year down the line after divorce she loses job? Asked by: Gunjan

A. That is an eventuality that will have to be looked into.

Q. If all the assets are in my parents and sibling's name, will my wife be entitled to get any share in the property? Asked by: Rajput Singh

A. It depends. Is it ancestral property? What are your earnings? There are ways and means to prove everything.

Q. We live in a joint family house where house is named on my mother in law. What can I do against my brother in law & his wife as they both are constantly creating politics so that I and my husband are thrown out of the house & they get full share of the property? This is self acquired property by my in laws, that what they claim. Asked by: Kamya

A. Not a matrimonial problem.

Q. This is to the first question you answered. I am Hindu and I have medical proof that she has history of medical illness (Fits). Can I win the divorce case? How long it will take? Asked by: Kunal

A. It can take anywhere between 2/3 to 6/7 years or more

Q. My wife had sex chat with a friend of hers on Facebook. I have transcripts of the chat. Can this serve as a ground for divorce? Asked by: Prakash

A. Yes cruelty.

Q. I have been married 32 years and have 2 daughters. My husband has been cheating on me for several years with different women. I do not have any legal/physical proof of the same but it has been a known fact in the relationship. I have put up with it for my children and because anything like this was considered of taboo in society. Now that my children are settled I want to seek divorce. Will I get maintenance or share in property? The house is in my name. Will I have to fight for it? On what legal grounds can I seek divorce? Asked by: Anita

A. You can file for divorce on the grounds of cruelty. The house if on your name only will stay yours. You can file for Maintenance.

Q. Who should read this book? Asked by: Gunjan

A. Students of law, avid readers, men, women, people looking for an interesting read, people who want to know the matrimonial laws in India, people going through divorce, people contemplating divorce, friends of people who are in the process of thinking of getting a divorce.

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