Posts

DIVORCE,  MAINTENANCE AND APPEALS UNDER THE HINDU MARRIAGE ACT

/in , /by

DIVORCE,  MAINTENANCE AND APPEALS UNDER THE HINDU MARRIAGE ACT

 

Introduction

 

India is a country with a plethora of ethnicities and religions. Not surprisingly, it has developed different personal laws for communities residing therein. The Hindu Marriage Act was enacted in 1955 with the purpose of codifying and streamlining various religious specific practices that existed among Hindus, Buddhits, Jains, Sikhs and anyone domiciled in India who was not a Muslim, Christian, Parsi or Jew. It defines the conditions for a marriage, establishes the grounds for divorce, provides for maintenance and lays down the laws governing appeal to decrees and orders passed under this act.

This article aims to scrutinise mental cruelty and desertion as grounds for divorce, factors relevant for determining the amount of maintenance and the general rules applicable in appealing a decree passed under the Hindu Marriage Act.List of stages in a contest divorce proceedings and the grounds for divorce - iPleaders

 

Divorce 

 

Section 13 (1) of the Hindu Marriage Act allows for the dissolution of marriage on the grounds of adultery, cruelty, desertion, religious conversion and insanity.

  1. CRUELTY

Cruelty may be mental or physical. Section 12(1)(ia) states 

‘Any marriage solemnized, whether before or after the commencement of this act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty.’

Cruelty is a conduct that inflicts such acute mental pain, agony and suffering that it makes it impossible for the other party to live with the other. It includes, but is not limited to abusive behaviour, humiliation, torture, allegation on the character of the spouse and undergoing a vasectomy or such procedures without the consent of spouse. It necessitates wilful cruel treatment of the party in a manner rendering continued living together of the spouses harmful and injurious.

Mere coldness or lack of affection, trivial irritations, quarrels, normal wear and tear of the married life cannot be adequate to invoke the grounds of mental cruelty. Similarly, mere outings and meetings with the opposite gender cannot be reasonably placed under acts of mental cruelty by inferring adulterous relationships from the same. On the contrary, such uncorroborated and untruthful allegations of infidelity themselves serve as acts of cruelty. 

 

In Vishal singh v. Priya and Anr., the husband alleged his newly wedded wife of mental cruelty through her ‘rude’ behaviour after marriage, her picking up quarrels with family members, keeping herself secluded and showing disinclination to participate in household chores. However, the court held that such conduct can, in no stretch of imagination, be described as cruel treatment. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

 

  1. DESERTION

 Under explanation to Section 13(1), desertion is defined as the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage. It requires two essential elements:

  • Factum deserendi – The presence of the fact of separation. This would be drawn from the facts and circumstances of the case. 
  • Animus deserendi– The intention to bring the cohabitation to an end. This entails the absence of consent of the spouse or the absence of conduct resulting in such a cause of action.

The mere fact that the parties were living separately is not sufficient to establish desertion. There must be a definite intention to put an end to marital obligations. In instances where the wife is maltreated by the husband and lives in a non congenial environment, desertion cannot be inferred from the mere fact that she left the husband’s house. Desertion is a total repudiation of marital obligations and cannot include trivial matters. 

 

 

Maintenance

 

A wife is eligible to claim maintenance post divorce as well as during the divorce proceedings  in order to meet her financial expenditure on basic amenities. A husband may fulfil these obligations either in the form of a lump sum amount or in the form of a fixed monthly amount.Section 25 of the Hindu Marriage Act states that 

‘If an application is made to the court by either the husband or the wife, the respondent shall pay to the applicant for maintenance and support such gross sum or such monthly or periodical sum for a term not extending the life of the applicant and having regards to the respondent’s own income and other property and income and other property of the applicant, it may seem to the court to be just and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.’

 However, this maintenance amount awarded must be reasonable and realistic. Albeit the cort should ensure that it’s not exorbitant and unbearable on the husband, it should not be too meagre that it drives the wife to penury. 

Maintenance should be calculated on the basis of status of the parties, reasonable wants of the claimant, income and property of the claimant, number of persons he/she has to maintain, amount that suffices the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home, non-applicant’s liability, provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant, Payment capacity of the non-applicant.

In Vejendla Sugunamma and Ors. vs. Vejendla Irmeiah and Ors. (15.04.2021 – APHC) : MANU/AP/0453/2021, where the wife did not know any skill and specialised work to earn her livelihood and was given the custody of her daughter, the court fixed the amount of maintenance to be Rs. 8000 per month each. However, the maintenance for the daughter was only until she got married/employed. 

In Jaiveer Singh vs. Sunita Chaudhary (05.04.2021 – DELHC) : MANU/DE/0621/2021, the wife was unable to sustain herself and needed maintenance from her husband. Looking at the financial state of the husband, the court ordered the amount of maintenance to be fixed at Rs. 17,000/- per month.

In Neelam vs. Yashpal (08.03.2021 – DELHC) : MANU/DE/0493/2021, despite their own earning of Rs. 2000 per month, the party was entitled to permanent maintenance of Rs. 1,16,000/-, keeping in view the increasing prices of essential goods.

 

Appeal to a decree of divorce 

 

An appeal to a decree of divorce should be made within the limitation period. Limitation period refers to a time period within which a legal action can be brought about by a party. It begins when the cause of action arises. 

The limitation period for appealing against a decree under the Hindu Marriage Act was extended from thirty days to ninety days by Act 50 of 2003. This was pursuant to various judgements by courts that pointed out that the time period of 30 days prescribed for filing the appeal are insufficient and inadequate, considering the potential distance, geographical conditions, the financial position of the parties and therefore, a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void.

 

 

Conclusion 

 

Therefore, it is evident that Indian Legal system acknowledges and upholds the sanctity of marriage by setting up a high threshold for establishing cruelty and desertion. Further, it also allows for a reasonable amount of maintenance to be granted to either party in cases where he/she is not able to maintain him/herself. Lastly it provides a 90 months period of limitation to parties for challenging decrees of divorce. The very objective of setting up such a period is that a party cannot ‘sleep over their rights’.Therefore, it is only prudent to initiate legal actions as soon as the cause of action arises. 

 

Written by – Jhanvi Shah 

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate 

APPEAL TO COMMISSIONER OF INCOME-TAX.

/in , , , /by

APPEAL TO COMMISSIONER OF INCOME-TAX

INTRODUCTION.

Appeal refers to an act of referring the case to a higher authority against the order passed by a lower authority in respect of that case or matter. It implies a complaint to a higher authority against the order or judgement (alleged to be erroneous) of an administrative authority or appellate authority. At times it may happen that the taxpayer is aggrieved by an order of the Assessing Officer. In such a case he can file an appeal against the order of the Assessing Officer before the Commissioner Of Income-Tax (Appeals) CIT(A). In this part you can gain knowledge about various provisions relating to appeals to CIT(A).

Procedure For Filing of Appeal to ITAT AKT Associates

PARTIES TO AN APPEAL.

There are following two parties to any appeal :

Appellant. The person filing an appeal is called ‘appellant’ or ‘applicant’. Under Income Tax, the first appeal can only be filed by assesse and—hence only assesse can be appellant in such a case. However, in subsequent appeals (i.e., appeal to ITAT, HC or SC) appellant can be assessed or C.I.T.

Defendant / Respondent. The person against whom the appeal is filed is called ‘defendant’ or ‘respondent’.

WHEN APPEAL CAN BE FILED ?

As per Section 246 A The CIT(A) is the first appellate authority. Section 246A specifies the orders against which an appeal can be filed before the CIT(A). The list of major orders against which an appeal can be preferred before the CIT(A) is given below:

  1.  Order passed against the taxpayer in a case where the taxpayer denies the liability to be assessed under Income Tax Act.
  2. Intimation issued under Section 143(1)/(1B) where adjustments have been made in income offered to tax in the return of income.
  3. Intimation issued under Section 200A(1) where adjustments are made in the filed statement.
  4. Assessment order passed under Section 143(3) except in case of an order passed in pursuance of directions of the Dispute Resolution Panel
  5. An assessment order passed under Section 144.
  6. Order of Assessment, Re-assessment or Re-computation passed after reopening the assessment under Section 147except an order passed in pursuance of directions of the Dispute Resolution Panel
  7.  An order referred to in Section 150.
  8. An order of assessment or reassessment passed under Section 153A or under Section 158BC in case of search/seizure.
  9. Assessment or reassessment order passed under Section 92CD(3).
  10. Rectification order passed under Section 154 or under Section 155.
  11.  Order passed under Section 163 treating the taxpayer as an agent of a non-resident.
  12. Order passed under Section 170(2)/(3) assessing the successor of the business in respect of income earned by the predecessor.
  13. Order passed under Section 171 recording the finding about partition of a Hindu Undivided Family.
  14. Order passed by Joint Commissioner under Section 115VP(3) refusing approval to opt for tonnage-tax scheme to qualifying shipping companies.
  15. Order passed under Section 201(1)/206C(6A) deeming a person responsible for deduction of tax at source as assesse-in-default due to failure to deduct tax at source or to collect tax at source or to pay the same to the credit of the Government. Order determining refund passed under Section 237.
  16. Order imposing penalty under Section(s) 221/271/271A/271AAA/271F/271FB/272A/272AA/272B/272BB/275(1A)/158BFA(2)/271B/271BB/271C/271CA/271D/271E/271AAB
  17. Order imposing a penalty under Chapter XXI.

FEES TO BE PAID FOR APPEAL.

Form 35 shall be accompanied by a fee as under: `

Where the total income/loss of the assesse as computed by the A.O. in the case to which appeal relates is Rs.1,00,000 or less : Rs. 250

Where the total income/loss of the assesse, computed as aforesaid in the case to which appeal relates exceeds Rs. 1,00,000 but does not exceed Rs. 2,00,000 : Rs. 500

Where total income/loss of the assesse, computed as aforesaid in the case to which appeal relates exceeds Rs. 2,00,000 : Rs. 1,000

Where the subject matter of appeal relates to any matter other than specified in clauses (a), (b) and (c) above : Rs. 250

The fee should be credited in a branch of the authorised bank or a branch of the State Bank of India or a branch of the Reserve Bank of India after obtaining a challan from the Assessing Officer and a copy of challan sent to the Commissioner of Income-tax (Appeals).

TIME LIMIT FOR FILING APPEAL.

According to Section 249(2) The a Appeal should be presented within a period of 30 days of the date of payment of tax, where appeal is under Section 248; or the date of service of notice of demand relating to assessment or penalty if the appeal relates to assessment or penalty; or However, where an application has been made under Section 270AA(1), the period beginning from the date on which the application is made, to the date on which the order rejecting the application is served on the assesse, shall be excluded. the date on which intimation or the order sought to be appealed against is served if it relates to any other cases. As per Section 268 the date on which the order complained of is served is to be excluded. Further, if the assesse was not furnished with a copy of the order when the notice of the order (say notice of demand) was served upon him then the time required for obtaining a copy of the order should be excluded, i.e. period taken for obtaining the order shall be added to the time limit of 30 days.

PROCESS OF PAYMENT OF TAX ONLINE FOR APPEALS.

  1. To pay taxes online, login to http://www.tin-nsdl.com > Services > e-payment. You can go and visit following Link – https://onlineservices.tin.egov-nsdl.com/etaxnew/tdsnontds.jsp
  2. Select the relevant challan i.e. ITNS 280
  3. Enter PAN / TAN (as applicable) and other mandatory challan details like accounting head under which payment is made, address of the taxpayer and the bank through which payment is to be made etc.
  4. On submission of data entered, a confirmation screen will be displayed. If PAN / TAN is valid as per the ITD PAN / TAN master, then the full name of the taxpayer as per the master will be displayed on the confirmation screen.
  5. On confirmation of the data so entered, the taxpayer will be directed to the net-banking site of the bank.
  6. The taxpayer has to login to the net-banking site with the user id / password provided by the bank for net-banking purpose and enter payment details at the bank site.
  7. On successful payment a challan counterfoil will be displayed containing CIN, payment details and bank name through which e-payment has been made. This counterfoil is proof of payment being made.

 

PROCEDURE FOR FILING APPEAL FORM 35

 Login in your Account using User credentials

                                  ↓

Go to E-File Link and Choose Income Tax Forms

                                  ↓

Choose Form No- 35 –Appeal to Commissioner

  Appeals.

                                    ↓

Now start Filing Form No 35 Online. You will get some details Pre-filed and fill remaining editable details properly.

                                  ↓

Now provide details of the order to be appealed against.

                                    ↓

Provide details related to Filed ITR, selected for Scrutiny and against which Appeal is to be filed.

                                    ↓

Now Provide details related to Statements of facts, Grounds of Appeal and Additional Evidence related information which is not made available at time of Assessment. This is a very crucial part of Appeal. Adequate attention needs to be paid while preparing Facts and Grounds of Appeal. These are the points on which your case will proceed further. Each matter on which there is controversy/ matter of disputes between assesse and Assessing Officer needs to be explained properly. All facts should be adequately drawn because in case of appeal before ITAT also these Grounds of Appeal play a very crucial role.

                                  ↓

Now provide details, whether appeal is filed within time limit or there is any delay in filing Appeal. As explained earlier, appeal is to be filed within 30 days from the date of receipt of order however; CIT (A) has power to condone the delay in filing appeal within the prescribed time period. In case of delay, please provide the reasons of delay. The reason should be genuine.

                                 ↓

Now provide details related to Appeal Fees paid and address on which further communication can be done and save the appeal.

                                ↓

After above process, submit the Form 35 and you will get the Acknowledgement number of this Submission

 

CONCLUSION.

The right to appeal is not the natural or inherent right of the assesse. It is available to him only if specifically granted under Income Tax Act. Thus, it is a statutory right of the assesse and cannot be denied to him by any order of the Central Board of Direct Tax (CBDT). It can be snatched from the assesse only by an express provision provided under Income Tax Act. Where it is possible, the CIT(A)  shall dispose off the appeal within a period of one year from the end of the financial year in which appeal is filed. The order should be issued within 15 days of last hearing.

Author: Mohit Mathur

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

Appeals before the High Court

/in /by

Appeals before the High Court:

The High Court has appellate jurisdiction over both civil and criminal cases. There is a hierarchy of Civil and Criminal Courts in every state subordinate to their respective High Courts to administer civil and criminal law disputes.  It can hear appeal on civil cases tried by the Courts of Munsifs and District Judges. In criminal cases, the jurisdiction extends to cases tried by the Sessions and Additional Sessions Judges. The Courts in hierarchy below to High Courts are called as Trial Courts. Appeals before the High Court

Appeals before the High Court

In what cases an Appeal lies before the High Court?

Right of appeal is a creature of the statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. The right to appeal which is a statutory right can be conditional or qualified.[1] So it is the statutory provision which shall determine where an appeal shall lie and whether it shall lie before High Court or any other forum. Further that, right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications.[2] The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant.[3]

Statutory Appeals that lie before High Court :

  • Section 389 of the Code of Criminal Procedure, 1973
  • First Appeal: Sections 96 to 99A; 107 to 108 & Order 41 of the Code of Civil Procedure, 1908
  • Second Appeal: Section 100 of Code of Civil Procedure
  • Section 260A of the Income-Tax Act, 1961
  • Section 173 of Motor Vehicles Act
  • Section 130 of the Customs Act, 1962.

(List is not exhaustive)

APPEALS BEFORE HIGH COURT IN CRIMINAL MATTERS:

An appeal can be filed against the decision of a Session Judge if the accused has been sentenced for 7 years or more. Capital punishment given by a sessions judge cannot be executed unless it is confirmed by the High Court.

APPEALS BEFORE HIGH COURT IN CIVIL MATTERS:

Appeals arising out of Civil matters are called as Civil Appeals. The Civil Appeals are basically governed by Code of Civil Procedure. Further the High Court may also frame rules and procedures for conducting Civil Appeals. Appeals could be filed either against an order or Judgment.

SECOND APPEAL BEFORE HIGH COURT:

The decree/judgment passed by any appellate Civil Court in the first appeal can be challenged by way of a second appeal before the High Court. If the case involves a substantial question of law, the second appeal can be filed even against an ex parte decree/judgment of the first appellate court.

NO APPEAL:

No appeal can be filed against a decree/judgment which has been passed by the court with the consent of the parties. Again, no appeal can be filed, except on a question of law, from a decree in any suit of the courts of small causes, when the value of the subject matter of the suit is less than Rs. 3000/-.

Furthermore, where a decree/judgment is passed by a single judge of the High Court in second appeal, the said decree/judgment is not appealable.

Further, that 42nd Amendment, 1976 disallowed the High Court to hear appeals against Tribunals and the decisions of various Corporations established under the law of the state. But this restriction on the High Court’s appellate jurisdiction was removed by the 43rd Amendment.

GROUNDS OF APPEAL:

The basis of an appeal must be a reversible error in the application of the law, or appreciation of fact, at the trial court level (i.e., based on the facts, the court clearly misapplied the law). In criminal cases, an appeal can target the conviction itself or just the sentencing portion of the decision without regard to the underlying conviction.  An appeal may be filed only after a final judgment or order has been reached by the trial court.

  1. A judgment/decree can be challenged in the first appeal on varied grounds both on basis of facts of the case and as well the legal interpretation of various legal provisions involved.
  2. For instance a party may raise objections as regards the territorial and pecuniary competence of a court passing the challenged judgment and decree.
  3. If there has been a failure of justice on account of such incompetence.
  4. Equally, in case all the necessary parties were not joined in the original suit, a challenge to the judgment decree of such a court can be maintained.
  5. An appeal may be as well to challenge the interpretation of law as the legal provisions applied by the subordinate court while making the judgment/ decree any error, defect as irregularity in any proceeding before the subordinate court affecting the merits of the case as the jurisdiction of such a court may as well be a sustainable ground while making an appeal.
  6. The second appeal can be filed only if there exists a substantial question of law. In the case the question of law would be substantial if it is of general public importance or which directly and substantially affects rights of the parties.

How are writs and appeals of High Court different?

Writs are extraordinary court orders and only issued when a moving party (the one seeking the writ) has no other options. A writ petition is filed to protect constitutional rights, Legal Rights or fundamental rights. Whereas, an appeal is a motion filed before a judge on which a previous lower court has passed an order or orders as the case may be and the orders are unsatisfactory to the person filing the appeal and so he she files appeal in a higher court. Usually writ petitions are filed first, whereas, appeals are filed after orders or judgment of lower courts. To read more about writs, click here.

I lost my trial because my law made stupid mistakes, can’t I rely on an appeal before High Court to correct them?

Don’t count on appeals to make up for any real or perceived deficiencies at trial. You should put all of your energy into the trial itself, which includes finding the right lawyer to try the case. Successfully appealing a verdict because you had a deficient attorney is an extremely difficult proposition. You can’t appeal because you simply had a bad lawyer. But, we may firstly understand some of the basic concepts pertaining to Appeal.

What is an appeal, when is it filed ?

At the conclusion of a proceeding in a lower court, the party who lost may want to have that decision reviewed by a higher court i.e. District Court, High Court or Supreme Court or concerned Tribunal depending upon the Legislative Scheme, in the hope that it might be reversed or changed.What an appeal is not

An appeal is not:

  • a new trial;
  • a hearing with witnesses or a jury;
  • a chance to present new evidence or new witnesses to a new judge, except in exceptional circumstances; or
  • a way to avoid complying with the trial court’s order.

Does an appeal constitute a new trial?

No. In an appeal there are no new issues presented or witnesses called to testify. The appellate court will only review the Trial Court’s Judgment and evidence presented during the trial to determine whether there were errors in either procedure or application of the law. Even if there were errors, if they’re deemed minor — legally called “harmless error” – the judgment is generally not overturned, nor is a new trial be granted. You must understand that an appeal is not a new trial or a rehearing of your case. The Court of Appeal will not hear an appeal of every case. In some cases, you must ask the permission of the Court to appeal through a process called “leave to appeal”. Even if the Court of Appeal hears your appeal, it will not:

  • re-hear your case from start to finish;
  • change the decision because it seems unfair; or
  • change the decision just because the Court of Appeal disagrees with it. (The decision must be incorrect due to a factual or legal error.)

What is a possible outcome of an Appeal :

  1. Affirm the decision;
  2. Modify the ruling in some way;
  3. Consider new facts or evidence (seldom); or
  4. In extremely rare cases, may throw out the case entirely.

References:

  1. In Anant Mills Co. Ltd. v. State of Gujarat [(1975) 2 SCC 175]
  2. Shri Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. as reported in J.T. 1992 (5) SC 335 at page 351
  3. Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad [(1999) 4 SCC 468] and Vijay Prakash D. Mehta v. Collector of Customs [(1988) 4 SCC 402]

 

What are the remedies against an ex parte decree?

/in , /by

Where the plaintiff appears but the defendant does not appear in the court when the suit is called out for hearing, and if the defendant has been duly served, the court is empowered to hear the suit ex parte, i.e., in the absence of the defendant, and pass a decree against the defendant. Thus, an ex parte decree is a decree passed by the court in the absence of the defendant. See, Order 9 Rule 11 of the Civil Procedure Code (CPC).

Following remedies are available to the defendant against whom an ex parte decree has been passed:

(1) Under the provisions of Order 9 Rule 13 of the CPC, where a decree is passed ex parteagainst a defendant, he may apply to the Court by which the decree was passed for an order to set it aside. In such a situation, if the defendant satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) The defendant may file an appeal against such ex parte decree under Section 96(2) of the CPC.

(3) Alternatively, if no such appeal is available against such decree, the defendant may file a revision against such ex parte decree under the provisions of Section 115 of the CPC.

(4) Under Order 47 Rule 1 of the CPC, the defendant may apply for review, subject to the conditions mentioned therein.

(5) If the ex parte decree has been obtained by the plaintiff by fraud, the defendant may also have the option / remedy of filing a regular suit to set aside such ex parte decree. It should be noted that, ordinarily, a suit to set aside an ex parte decree cannot be filed. However, if such decree was obtained by the plaintiff by fraud, a suit may be maintainable to set aside such decree.