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Article Published in the Express Magazine Dated
December 22, 2002
General Attorney : Rajiv K. Luthra
Due to my wife’s bad character we got separated
in 1999. A few months later she gave birth to our
son. She has illicit relations with several men
from which she is earning a livelihood. Neither of
us has initiated any legal proceedings so far. I
know that she will never give me divorce and if I
initiate divorce proceedings, she will start
getting the monthly maintenance from me. Please
advise what I should do.
Anonymous
Divorcing your wife is clearly a personal decision
that you have to take. You could seek a divorce on
the ground of adultery. This, however, will have
to be proved by you to the satisfaction of the
court. In case you wish to get back with your
wife, you could file a petition for restitution of
conjugal rights under Section 9 of the Hindu
Marriage Act, 1955 (“Marriage Act”) thereby
seeking a decree from the Courts as regards your
conjugal rights and right to be with your wife. If
you succeed in obtaining this decree and if
despite that, your spouse refuses to return then
after passage of one year, the Courts can consider
this ground for granting divorce if you file for
one.
You could also consider filing a complaint with
the police for the offence of adultery against the
person cohabiting with your wife. Adultery is an
offence punishable under the Indian Penal Code
under Section 497. This offence is limited only to
the adultery committed by married woman with a
male offender. This offence of adultery carries a
punishment of a term of imprisonment, which may
extend up to five years. In such cases only the
aggrieved husband can register a complaint with
the police. In such case the wife shall not be
punishable as an abettor.
As regards, maintenance, according to the
provisions of Section 18 of the Hindu Adoption and
Maintenance Act, 1956 (“Maintenance Act”) a Hindu
wife is entitled to be maintained by her husband
during her lifetime. However, if the wife is
unchaste she shall not be entitled to a separate
residence and maintenance from her husband.
Nevertheless, it is the court's discretion to
determine whether any and if so what, maintenance
shall be awarded to the claimant. Even under the
provisions of the Marriage Act, the court is
authorized to grant maintenance to the wife if she
makes a petition to that effect. However, the
court may refuse such a grant if it is satisfied
that the wife is unchaste.
Also according to the Maintenance Act, it is
obligatory to maintain minor children if they are
unable to maintain themselves. Conduct of parties
is taken into account only to decide the quantum
of the alimony not to decide the entitlement to
alimony.
I had purchased a shop in Pune after paying the
agreed price to the builder as per a duly
registered agreement. I had taken possession of
the shop and then started my business in it. All
other shop-owners/flat-owners were also given
possession. Subsequently, a dispute arose
regarding quality of construction-work, etc.
between the builder and some
flat-owners/shop-owners. The builder was to form a
co-operative society of flat-owners and
shop-owners as per the terms of the agreement, but
has now disappeared without forming the same. Due
to the non-formation of the co-operative society
he could not execute a sale-deed/tripartite
agreement between landowner, builder and
co-operative society. In the circumstances, I feel
my ownership of the shop is legally defective and
wish to sell my shop. Is there a problem? What
possible solution is available?
Rajas Gokhale
On the basis of the registered agreement you have
the option of filing a civil suit for specific
performance to complete your title and also for
directions to the builder to form a co-operative
society
Alternatively, you may consider selling the
property to another purchaser vide a power of
attorney sale. By this the intending purchaser,
can exercise your rights by virtue of the power of
attorney in his favour.
You may also consider filing a criminal complaint
against the builder for failure to comply with the
provisions of the Maharashtra Ownership Flats Act,
1963 (“Act”), which requires that the promoter
form a co-operative society and take all necessary
steps to complete his right, title and interest in
the building and execute all relevant documents in
pursuance of the agreement and execute a
conveyance within the prescribed time. If
convicted, he maybe punished with imprisonment for
a term, which may extend to three years or with
fine or with both.
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