Family and Matrimonial Matters, Indore

Family matters are heard at Indore by the Family Court established under the Family Courts Act 1984. Proceedings before it are conducted with a statutory emphasis on settlement, and the court is required to attempt reconciliation before proceeding to trial.

Divorce

By mutual consent, Section 13B. Both parties present a joint petition stating that they have been living separately for a year or more and have agreed to dissolve the marriage. The first motion is recorded, and the second motion follows after an interval of six months and within eighteen months. The Supreme Court has held that the six month interval is directory rather than mandatory and may be waived where the separation is long standing, the settlement is complete and there is no prospect of reconciliation.

Contested, Section 13. On the grounds the Act specifies, which include cruelty, desertion for a continuous period of not less than two years, conversion, unsoundness of mind, and others. Each ground has its own ingredients that must be pleaded and proved.

Maintenance

Maintenance arises under several provisions and the choice of provision affects both the forum and the timeline.

• Section 24, Hindu Marriage Act. Maintenance pendente lite and expenses of the proceeding, available to either spouse during the pendency of the main petition.
• Section 25. Permanent alimony and maintenance at the time of or after the decree.
• Section 144, Bharatiya Nagarik Suraksha Sanhita 2023, which replaced Section 125 of the Code of Criminal Procedure. A summary remedy before the Magistrate for a wife, children and parents unable to maintain themselves.
• Protection of Women from Domestic Violence Act 2005. Monetary relief under Section 20, in addition to protection, residence and custody orders.

A person may be entitled under more than one of these. The courts adjust so that there is no double recovery, but the applications themselves are not mutually exclusive.

Custody and guardianship

Custody is decided on the welfare of the child as the paramount consideration, not on the comparative rights of the parents. Applications lie under the Guardians and Wards Act 1890 and, where the parties are Hindus, under the Hindu Minority and Guardianship Act 1956. Interim custody and visitation are commonly ordered while the main matter is pending, and the Family Court at Indore frequently uses its mediation facility for arrangements of this kind.

Domestic violence

An application under the Protection of Women from Domestic Violence Act 2005 is made to the Magistrate and may seek a protection order under Section 18, a residence order under Section 19, monetary relief under Section 20, custody under Section 21 and compensation under Section 22. The proceeding is civil in nature, although breach of a protection order is an offence under Section 31.

Restitution and judicial separation

A petition for restitution of conjugal rights lies under Section 9 where one spouse has withdrawn from the society of the other without reasonable excuse. Judicial separation under Section 10 is an alternative to dissolution where the parties do not wish to end the marriage.

Frequently asked questions

How long does a mutual consent divorce take at Indore?

The statute contemplates a first motion, an interval of six months, and a second motion within eighteen months. In practice, where the settlement is complete and both parties appear, the matter can conclude shortly after the second motion. The Supreme Court has held that the six month interval may be waived in appropriate cases, so an application for waiver is often made where the separation has already been long.

Can maintenance be claimed while the divorce case is still going on?

Yes. Section 24 of the Hindu Marriage Act provides for maintenance during the pendency of the proceeding along with the expenses of the proceeding, and it is available to either spouse. A separate application under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, formerly Section 125 of the CrPC, may also be maintained before the Magistrate.

How does the court decide custody of a child?

The welfare of the child is the paramount consideration, and it outweighs the claims of either parent. The court considers the age and wishes of the child, the capacity of each parent to provide care, the stability of the environment, and the child's schooling and existing routine. Custody orders are not final in the sense that they may be varied if circumstances change.

Is a case under the Domestic Violence Act a criminal case?

The proceeding itself is civil in nature, even though it is heard by a Magistrate and follows criminal procedure in parts. The reliefs available are protection, residence, monetary relief, custody and compensation. Breach of a protection order made under the Act is a separate offence under Section 31 and is dealt with as such.

Does a wife have a right to reside in the matrimonial home?

Under Section 17 of the Protection of Women from Domestic Violence Act 2005 every woman in a domestic relationship has a right to reside in the shared household, whether or not she has any right, title or beneficial interest in it. A residence order under Section 19 may restrain dispossession or direct alternative accommodation. The extent of the right in a particular property depends on the facts and on who owns it.