Procedure
kamal
(Querist) 06 October 2016
This query is : Resolved
My wife filed divorce petition in family court under section 13 1(i-a & i-b) of Hindu Marriage Act.She has filed an application u/s 25 of HMA for permanent alimony.
Query :- Ancestral property also considered by court while deciding alimony amount. Property is stand registered on my father name.
Guest
(Expert) 06 October 2016
Mr. Kamal,
As per your description it does not seem to be a real problem, rather an academic query.
Anyhow, please clarify the following points:
1) What is the opinion of your own lawyer on your query;
2) What charge of cruelty she has leveled on you in her petition?
3) Have you really deserted her and living separately? If so, since when you are living in separation with your wife and why you deserted her?
4) In her petition u/s 25, what is her demand and on what basis of income or property she has asked to be granted.
Kumar Doab
(Expert) 06 October 2016
The presiding officer can look into the earning/estate.
Advocate M.Bhadra
(Expert) 06 October 2016
No,property belong to father or grandfather of the husband would not be considered for quantum of alimony.
Moreover, wife has no property and residence right after divorce,new marriage laws has not been yet passed, but wife has maintenance right after divorce even after settlement of alimony on mutual divorce she can claim maintenance if she has no independent income.
Rajendra K Goyal
(Expert) 07 October 2016
If the court has considered the property in the name of father, should go for appeal.
Agree with the expert Advocate M.Bhadra.
dr g balakrishnan
(Expert) 04 June 2017
All properties will be considered, to give alimony.
Guest
(Expert) 04 June 2017
@ Dr. G Balakrishnan,
Your brief reply needs clarification, whether the term "all properties," as you stated, would include property of living parents and ancestors also in addition to immovable property of the respondent?
dr g balakrishnan
(Expert) 04 June 2017
Law and law makers are very terror in india as is said in constitutional studies it goes for on and on since the Romans but Roman law was very strict followers of principles but Greeks were a little slac.
the detailed statement can be posted from several studies from 1215 on from Britain, and American constitution, as we follow Roman laws, but we have a jumble of hindu laws not well read - in india we have two main hindu schools thought - Dayabhaga and Mitakshra schools, then our own law makers behave like some schools of thought - obviously most ignorant lot is our law makers they get elected by one means or the other, sorry to tell about those scoundrels, i call them most respectfully scoundrels - but more stronger words could be used on those shameless fellows.sorry.
today law makers don't understand constitutional proprieties, they don't understand some great Articles like Art 365 or 124(4), and the basic difference between Part III and Part IV of the constitution - besides these law makers do not understand how British parliamentarians behave with lot of limitations in an environment of unwritten British constitution. i will post an article on the aspects of important aspects of matrimony and properties ...if published by your club you may know several aspects - my artices appear on wordpress.com web.
Guest
(Expert) 04 June 2017
Dear Dr.G Balakrishnan,
I can understand your emotions & sentiments with specific reference to law makers.
More so, we can't blame solely the law makers, as they constitute our own elected members, as voters. We can blame ourselves, who elect even criminals to act as law makers.
But your emotional post has not cleared my own doubt with reference to your previous post, as my question remains unanswered.
To be frank, I am least concerned with the Romans or Greeks laws or the Britisher's unwritten constitution. That has no concern with my question in the perspective of the Indian law in real life situation.
We can't compare other country's laws, procedures and practices vis-a-vis the India's cultural, environmental and circumstantial requirements.
In my views, following others without applying our mind is just showing attitude of aping. Doctoral research is something else, which can be least concerned with the real lives in Indian perspectives.
So, I wanted clarification with respect to the legal angles of the Indian laws with specific reference to your reply, say, "All properties will be considered, to give alimony," irrespective of whether the Indian laws be the old wine in new bottle (British laws adapted by as Indian laws after independence), but still we have to see what are the provisions and what should or should not be with reference to our own laws.
So, hope, you would like to clarify provide clarification to your reply to the query of the author of the problem!
dr g balakrishnan
(Expert) 04 June 2017
i am not emotional sir. i am practical lawyer, i know you need to improve your legal scholarship, law is a big tyrany all over the world, which fact you really don't understand, that shows how much real legal knowledge you are bestowed with you need to know.
so, you are only emotional with your great knowledge, any way sir,truth of facts are very much varied, that is why Mr Karnan s born as a judge of a high court, and avoiding arrest and jail sentence for he knows some chakravyuga of entering but is highly confused how to come back, he may meet what Abhimanyu faced in mahabharat war.
This kind of complications is putting all law makers in super confusion and make crazy laws that will sooner or later claw them liger tiger claws on them as it happened in Egypt/Libya ,,,,
any way ....
you better find out yourself clarification , i am quite senior to you sir in legal profession at least a decade or so.
a lawyer need to research and find out what kinds of positions are there that can put the very same statute in a diametrically opposite positions, that is why law is a tyrrany, if you are a top counsel like Mr Ram Jetmalani and like, i think u want to tell the world that you know all twists and trists of law and stattes that way conflict of laws came into being, yea india is yet to master conflict of laws so it suffers in international arena of laws of contracts as every statute is essentially based on contracts and every kind of contract lands in conflicts zone.
i have a great respect Mr Dingraji, so i talk different aspects. tks. i hope u will yourself clarify what i mentioned in brief note at first, Nothing is so easy - no easy learning sustains sir.
dr g balakrishnan
(Expert) 04 June 2017
practicing law is not some retd man's arm chair profession calls for a lot or reading of several journals apart from AIR, SCR, SCC etc but foreign learned journals and other ld works yes very tiresome indeed - today youth don't spend time in libraries reading but in some gossips if so how will any one rightly guide clients - obviously not , clients end up spending with no meaningful results losing faith on advocacy sir.
but judges work very hard when they are judges, so many retd judges do volunteer job as asst judges after retirement , and giving opinions to judges wh o seek from them like that we have mr KK Matews, Krishna Iyer, and so many but Krishnaier passed away but worked till mid ninties.
If any one wants to enter law he or she need to work more harder than their other professions if they had and retd.
Else by age one can earn moneys not it is a fact they provide right guidance - so many write opinions but why only few work you can know the reasons. i am just sharing thoughts thanks to friendly internet and wi fi. else we would not have met probably.
May be my views some times very direct but pls don't take it amiss i never mean any malice on any.
u might have seen in this side never brushed aside the questions as academic sir, after all learning is possible by interaction a better measure - No real professional misguides clients even if the don't pay for opinions and advice.
Guest
(Expert) 04 June 2017
Dear Dr.G Balakrishnan,
I am really surprised over your evasive reply, "you better find out yourself clarification," instead of providing clarification for your own statement, which in my view is quite hazy and confusing, while you call law as a great tyranny.
Here comes the element of tyranny, when even a law scholar expresses his opinion, but is unable to clear the clouds about his own statement or belief. There is no question of senior or junior for the purpose of clarification by the person, who expressed his belief, as to what can be the legal position, but not anyone else, particularly, who sought the clarification.
About me, I am often misunderstood by people, like you have misunderstood me absolutely. I am neither emotional, nor I have the need to improve my legal scholarship, as I do not prefer to depend upon alms. I believe in my own honest & sincere efforts to fight for the truth and only truth.
I do not also believe in twists, tricks, or trysts, as you assumed. I am a real practical professional, who try to prove a spade a spade that too based only on facts, not on the basis of tricks, twists or trysts, as you assumed, as I have the courage and capability to bring facts before the respective executive or judiciary celebrities.
Rest assured, I am fully aware about the tyranny of law and my and as per firm belief only 5-10% litigants get justice, not all, due to untold restraints.
Now, please don't mind, your confusing advice to the author of the problem can also be squarely classed as tyranny of law, as a layman cannot be able to understand legal position about demand of alimony by his wife, as you have NOT preferred to make clear your own contention/ opinion/ advice.
TO BE FRANK, YOU MAY OR MAY NOT ACCEPT THE POSITION, I FULLY DIFFER WITH YOUR OPINION, AS NOT ANY PROPERTY, MAY BE OF HIS FATHER OR ANY ANCESTOR, HAVING NOT YET BEEN INHERITED BY HIM, CANNOT BE CONSIDERED TO GIVE ALIMONY. ONLY HIS OWN PROPERTY CAN BE TAKEN IN TO CONSIDERATION, BUT BY RECIPROCAL CONSIDERATION OF THE PROPERTY OF THE WIFE ALSO.
Guest
(Expert) 04 June 2017
Dear Dr. Balkrishnan,
About your subsequent post, I can only say, nobody can claim to be fully capable of rightly guessing the real capability and capacity of some other person.
About your reference for the services of retired judges, not all are equally helpful. Rather, some try to create controversy more than any useful service. For example, according to retired judge of High Court, peacock is a brahamchary bird and never have sex, which is quite wrong. His orthodox views have very promptly been ridiculed by Indian Express on 1 June 2017 by providing 2-3 videos of peacock sex with peahen at its web page. According to him, peahen gets impregnated by swallowing the tear drops of the peacock.
You may also like to see the following link of the newspaper to verify to what extent the retired judge was right or wrong:
http://indianexpress.com/article/trending/trending-in-india/heres-how-peacocks-mate-with-video-proof-4683896/
A youtube link can also be provided, if you like to verify the claim of the judge.
Law, may be tyranny in itself, does not mean that anybody should overrule its provisions by his own opinions. I hope, you can appreciate well that the provisions of law need correct interpretation and application. Law is made tyranny only by the wrong interpretations by the over smart lawyers. otherwise, law mostly provides justice, if rightly interpreted and applied.
dr g balakrishnan
(Expert) 04 June 2017
over all judges are very hard workers on desk. some peacocks may be. see we had mr. Karnan a fly in the oil.
anyway , it is laid down principle settled that matrimonial home means includes the husband's father is included,
when husband refuses his commitment , the husband's father has to take care of the daughter in law as she trusted the father while negotiating marriage both parents background only supports the very concept hindu marriage that way by tradition and custom marriage takes place - both families are accountable for any wrongs done to the bride , after all bride falls in the category of a suppliant and wife traditional a housewife to uphold the family's greatness not by son alone - if he fails she doesn't that way tradition and custom are admitted so even in Britain - tradition and custom is upheld by all courts and that was followed by British India and they ruled india abt 15- yrs and the very indian constitution is the glorified version of Govt of india act 1935 ; under art 377 we take British indian statutes as absolute ; and indian present law makers just hasty and lose touch with custom and tradition that only binds people , not any irrational statutes that are struck down by constitutional courts by judicial review a most powerful instrument of judiciary as elsewhere in the world as our constitution follows essential tenets of America, UK, Australia, Ireland USSR and Canada . tks
Guest
(Expert) 04 June 2017
Thanks for more inputs.
dr g balakrishnan
(Expert) 05 June 2017
art 142 arms the constitutional courts with powerful judicial review .u could have seen nhow iot powered fresh trial on babri masjid and appoints fresh trial on a stipulated time. power of court is very vast as an independent institution.
dr g balakrishnan
(Expert) 05 June 2017
art 142 simply nullifies any statue of it fails to reasoning and logic . so court vitally independent.
Guest
(Expert) 05 June 2017
@ Dr. G Balakrishnan,
I wonder, if any of your posts after I sought clarification on your reply has any relevance to the alimony case of the author of the question!
By the way, in what context you have referred Art.142 and the Constitutional court? Do you intend to say that the author of the question can seek review of the laws pertaining to divorce and alimony, etc., by filing a case in the Constitutional court under the provisions of Art. 142?
dr g balakrishnan
(Expert) 05 June 2017
Alimony is answered as his fathers property will face the issue.wait the court decisions sir. law is not easily settled one - see Golaknath then /kesavananda then Indira Gandhi what it all allowed resurrectionnof Art 13,in form or other as Art 368 never ever permitted any modifications on fundamental rights - so alimony falls under fundamental right of Art 21.
dr g balakrishnan
(Expert) 05 June 2017
if you r still confused read CJI SR Das FB decision in 1951 'c, doraiswamy v st of Madras on Madras code of reservation of medical and engineering seats - it declared madras govt order is void abinitio and set aside. by high lighting on the power of Art 368 after all it granted only limited jurisdiction, no jurisdiction on fundamental rights, sorry sir.
dr g balakrishnan
(Expert) 05 June 2017
Alimony is fundamental right to live for the lady, so has right to go on the father's property , let kamal decide , but truth of fact is bitter , he cannot rejoice by yr great thoughts that is distributed after all courts hear arguments as also invoative arguments so law plays double edged weapon on ever one - no lawyer can claim he is ever right that is the tyrrany of tks
Guest
(Expert) 05 June 2017
@ Dr. G.Balakrishnan,
What is the use of making evasive statements, when you can't establish any useful link with the case of the question.
I ask something and you reply something else.
Instead of establishing any link between the alimony case with Art. 142 and the Constitutional Court, now you have tried to sidetrack the issue by quoting Art.368, 13 and 21, court cases of Gorakhnath, Kesavananda, Indira Gandhi and also advised me to read CJI SR Das FB decision in 1951, etc.
For your information, it may be your habit or need for your research, but I do not prefer to waste my precious time in undue study of one and all of the junk literature, which does not have any remote link with the requirement of the case in question.
To be frank, in fact, I am not confused, rather you seem to be totally confused on the issue and perhaps finding our the weay how to wriggle out of the situation when made a wrong statement.
Sorry to say, when you don't want to understand that neither any case law can override the main provisions of law, nor can be applied universally unless and until the nature, characteristics and the circumstances of the case is found to be similar with that of the case law.
I would like to put you a very simple question, do you know even a bit of the background of Mr. kamal's case and can you establish even any remote link of the case with the provisions of the Articles 142, 368, 13 and 21 of the constitution or with any of your above referred case laws in any way?
Sorry to remind you, there is a remarkable difference between theoretical quoting of the provisions of law and bringing them in to practice in real life situations. If a doctoral level professional cannot understand that reality, what to say of a layman for whom you have quoted the constitutional provisions, when no common man knows what is hidden in the Constitution of India.
Anyway, bye, Not interested to read any more evasive and sidetracking statements.
dr g balakrishnan
(Expert) 05 June 2017
that lady needs to appoint a sensible and innovative lawyer if she does she could alimony from the father of the husband or father needs to add up , the father cannot escape as her husband wants to see that she doesn't succeed; obviously - any way divorce law itself is statutory tyrrany - husband's tyrrany is to be met with by wife's tyrrany that way today every thing is some kind of terror tyrrany . kudos
dr g balakrishnan
(Expert) 05 June 2017
i don't need to know kamal's case. here just subject is alimony only. that way alimony the wife would be from the overall property of that family - if husband is entitled for intestate right naturally his wife shall have a share from it - no husband can fool wife if she is divorced for any reason .
Guest
(Expert) 05 June 2017
@Dr. G. Balakrishnan,
When you say, "I don't need to know kamal's case. here just subject is alimony only," that reveals as if some client comes to you for advice, you prefer to render your advice only to his opponent against your own client.
Mr. Kamal has appeared here for advice to him against the case filed by his wife, but you have preferred to render advice to his opponent, wife that too against Mr. kamal. He has not asked, what his wife should do against him.
What a funny advice, i.e., "that lady needs to appoint a sensible and innovative lawyer if she does she could alimony from the father of the husband or father needs to add up!"
NOT ONLY THAT, YOUR POSTS CLEARLY REVEAL THAT YOU ARE FULLY CONFUSED, WHO ASKED WHAT AND WHAT YOU ARE REPLYING.
