Advocate Nahush Surendrakumar Khubalkar

Questions Answered by Advocate Nahush Surendrakumar Khubalkar

Q: Marriage with married Girl (Hindu)

I am getting marriage with that girl who are married before one year by forcibly her parents and we getting marriage in court on 1st of April in Court and receiving marriage certificate from court now her parent made complaint in Police station what to do ? We are Hindu and she staying with her parents home from last 1year

Advocate Nahush Surendrakumar Khubalkar answered
One of the conditions of a valid Hindu marriage, according to section 5 (i) of Hindu Marriage Act 1955, is that neither party has a spouse living at the time of the marriage.Your marriage is therefore a void marriage. Void means from it's inception, from the beginning. In this regard Section 11 of Hindu Marriage Act prescribes this: "11 Void marriages. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 11 [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) , (iv) and (v) of section 5."Your wife has married during the lifetime of her husband. Therefore this is a crime under section 494 of Indian Penal Code, which says:"494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."Bigamy is a NON-cognizable offense. It is bailable and compoundable with the permission of court if the offense is committed under section 494 of the IPC. You may opt for compounding of offence. But do this with the advice of, and after discussion with your local lawyer.

Q: My in laws wont me to divorce my husband what to do

mery inlaws divorce dena chahty h wo mjh ko apnay ghar b nahi rakhty plz koi aisa law bataye jis say main waha stay lay sako

Advocate Nahush Surendrakumar Khubalkar answered
If the ingredients are satisfied, "Protection of Women from Domestic Violence Act" may be of help. Under that law you may obtain residence orders. This is just a rough estimation on the basis of what you asked. Whether or not and how much it will help you, will be advised by your lawyer only on knowing other details of your matter.Hope this much suffices.

Q: Husband has remarried without divorce what to do

Poonam, Hindu I have lodged a divorce petition in Jan 2016 till date no progress in a case but my husband remarry & now she is pregant what steps I can take

Advocate Nahush Surendrakumar Khubalkar answered
It appears that your divorce petition still pends. That means the marriage between you and your husband has not broken. It still continues. And under such circumstances your husband has performed marriage with other woman.This is a crime of bigamy, that means marrying again during the lifetime of husband or wife. Section 494 of Indian Penal Code says : "Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."Your husband can be punished by the Court of Law for imprisonment upto 7 years and fine. But this is a non-cognizable offence. That means even if you file FIR with police, the police will not take any action against your husband and will ask you to file a case in the criminal court. You will have to file a private criminal complaint in the court of Judicial Magistrate First Class.

Q: Delay in payments of salary by government department

Sir i am working in a government institution as a teacher on contract basis. The department doesnt pay me regularly.last time it had paid me after long 10 months.now again i havent been paid for almost 1 year.i have given an application to immediate authority for payment before 1 month. Still i have no response from the authority. I dont want to appeal to the hjgher authority as i think they will spoil my annual confidential report (CR) or terminate me from the job.please guide me

Advocate Nahush Surendrakumar Khubalkar answered
The law is settled on the point that it is the duty of the master to make payment of salary to his servant who has performed, and is performing his work. This gives you a corresponding right to recover the arrears of your salary and also claim timely and regular payment of salary in future. Rather this is your fundamental right i.e. right to life and right to live with human dignity, under article 21 of the Indian Constitution. In such a situation you have a remedy of filing a writ petition under article 226 of the Constitution of India before the High Court, for a Writ of Mandamus against your employer/government institution. The High Court has the power to issue a Writ of Mandamus commanding your master /government institution to make payment of arrears of your salary as well as to ensure that salary is paid to you in a timely manner and regularly in future.

Q: seeking divorce after 4 days of marriage

I got married to a girl on September 8 2016. From the day of our wedding she started behaving in a very abnormal way like if she has some mental disorders. This was the girls second marriage as her first marriage failed of which i had knowledge. The reason given to me regarding failure of her first marriage was that the boy was in love with some other girl and he married her due to family pressure. But now i doubt. Observing her Behavior i think she is suffering from schizophrenia. Even the expenses of the whole wedding was borne by me. I didn't have any physical contact with her . She lived with me for just 4 days. Now i am desperate to seek divorce . Please Suggest. I am Hindu by religion and the girl too.

Advocate Nahush Surendrakumar Khubalkar answered
Hello!The situation you described makes your marriage what is called "voidable marriage". That means you can avoid this marriage. But for that you will have to approach the court for annulment of marriage by a decree of nullity by filing a case for that purpose.Section 12 of Hindu Marriage Act prescribes as follows:"(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:(a) that the marriage has not been consummated owing to the impotence of the respondent; or(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent"You haven't had sexual intercourse with her, that means the marriage was not consummated. This is one ground available for you to file the case. But the hurdle you will have to cross is that you will have to plead and establish before the court that the non-consummation of marriage was because of impotence of your wife.Another ground you can raise is that the marriage is in contravention of the condition specified in clause (ii) of section 5, that is to say, at the time of the marriage, your wife though was capable of giving a valid consent, had been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or that she has been subject to recurrent attacks of insanity,Another ground you can raise is that the consent of the petitioner, that means your consent, was obtained by fraud as to any material fact or circumstance concerning the respondent, that means your wife. Such circumstance could be regarding suffering attacks of schizophrenia.Since not even an year has elapsed after solemnization of marriage, a divorce petition under section 13 would not be maintainable, as prohibited under section 14. So also staying separately for one year or more, is the requirement of section 13-B for mutual divorce. So that also seems to be out of question at this time in your case. But there does not appear to be any bar to the case for annulment of marriage by decree of nullity on the ground of voidableness of marriage under section 12 of Hindu Marriage Act.