Author Archives: Prashant Ghai

He is a Mutual Consent & Contested Divorce Lawyer in New Delhi practicing before the Supreme Court of India, Delhi High Court, Delhi District Courts and Tribunals. His area of practice include Matrimonial Cases, Criminal Cases, Bail Applications, Cheque Dishonor, Writ Petitions, Consumer Protection and all type of Civil and Criminal matters.

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Do Yourself A Favor By Preparing Your Case Really Well

Most probably, this would seem like a no-brainer and an obvious thing for any Lawyer to do even before entering the Courtroom, but it’s NOT. I’ve seen far too many instances where a Lawyer appearing before a Court, is shockingly not really prepared with his case that well. He is busy flipping pages back and forth, often referring back to the index again and again in order to ascertain the pages of relevant documents. When you think he finally has a grip on things, the moment a new query comes his way, the vicious cycle of flipping pages repeats itself…AGAIN.

You know what the Judge is really thinking at that particular point of time?

“You had one job!”

I don’t think I need to make it more obvious, but this situation really creates a bad impression about that Lawyer. The Judge probably thinks that either the Lawyer is not interested in pursuing the case hence the lack of preparation, or maybe he is just not a good Lawyer to begin with. That, I can say, is the most damaging thing for a Lawyer and his career. Continue reading

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Why Adultery Is Not An Offence For Women In India

It may seem a little bizarre but it’s true that women in India can’t be prosecuted for an offence of adultery. I’ll try to answer this with the help of the discussions, suggestions and recommendations on record. Now first let’s look at the exact definition of Adultery under Section 497 of the India Penal Code:-

Section 497. Adultery –

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

For a complete understanding of the offence of adultery, a reading of Section 198(2) of the Code of Criminal Procedure, 1973 is also important, which reads as under:-

198. Prosecution for offences against marriage:

(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that— …

(2)  For the purpose of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

On a careful reading of the above provisions, you can see that Section 497 of the Indian Penal Code perceives a “consensual” sexual intercourse between a man, married or unmarried, and a married woman without the consent or connivance of her husband as an offence of “adultery”. Which also means that the offence of adultery is committed only by a man who has sexual intercourse with the wife of another man, without his consent or connivance, and that the wife is not punishable for being an “adulteress”, or even as an abettor of the offence for which the man can be sent to jail for 5 years.

On a slightly deeper level, it also means that a sexual intercourse between a married or unmarried man, and an unmarried woman or a divorcee or a widow, does not come within the ambit of “adultery”. Continue reading

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Understanding Cruelty – Grounds For Divorce In India

The expression “cruelty” has not been defined, however Section 13(1)(ia) of the Hindu Marriage Act 1955, provides:

13 Divorce — 
(1) Any marriage solemnised, 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;
(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty;

Cruelty can be physical or mental

Cruelty, which is a ground for dissolution of marriage, may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, and environment in which they live.

If from the conduct of the spouse, an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare, then this conduct amounts to cruelty. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty, there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effects of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

Cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the inquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.

Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be inquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. Continue reading

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Understanding Adultery – Grounds For Divorce In India

In a survey conducted by Ashley Madison, a global dating website, it was revealed that 76% of Indian women and 61% of Indian men don’t think that infidelity is a sin or immoral. People may not find infidelity a sin or immoral, but I would like to remind you that adultery is illegal as per Section 497 of the Indian Penal Code, 1860 which reads as under:

497. Adultery 

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Adultery is also one of the valid grounds for divorce in India under Section 13(1)(i) of the Hindu Marriage Act, 1955 which reads as under:

13 Divorce  
(1) Any marriage solemnised, 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;
(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;

With the legal provisions out of the way, allow me to explain as to how exactly the concept of adultery is understood as a ground for obtaining divorce before Indian Courts. Continue reading

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Grounds for Divorce as per Hindu Marriage Act in India

The Hindu Marriage Act provides a lot of grounds for divorce, which a spouse can seek in order to obtain divorce in India. Although marriage, according to Hindu Law, is a holy sacrament and not a contract, and that the husband and wife are considered one in law. Despite that, problems and tensions may develop between husband and wife and may escalate to such an extent that separation by way of divorce may seem to be the only option left. Seeking a divorce is no doubt a big and bold step for either of them, but at times, it may be the only solution to a long term problem.

What is the Procedure for Divorce in Delhi?

Marriages solemnized under the Hindu Marriage Act, 1955 can also be brought to an end by following the conditions laid down under the same Act. You may wish to go through my earlier blog post on Applicability of Hindu Marriage Act, 1955 to determine whether the Act is applicable to you or not.

Procedure for seeking Hindu divorce as per Hindu Marriage Act, 1955 is provided under Section 13 of the Act, which states that any marriage solemnized whether before or after the commencement of the Act, may, on a divorce petition presented by either the husband or the wife, be dissolved by a decree of divorce. You may also wish to go through my earlier blog post on Conditions for a Valid Marriage under the Hindu Marriage Act, 1955 to determine whether your marriage is governed by the Act or not.

The procedure for legal contested divorce in Delhi starts by either the husband or wife engaging a Lawyer, who will draft a divorce petition as per the facts narrated by the person and on the basis of the grounds provided under Section 13 of the Hindu Marriage Act, 1955 before a Family Court Judge as per the territorial jurisdiction. Pursuant to the reply filed by the other side, trial will begin and both the parties would lead evidence in support of their claims and arguments. Finally, based on the arguments and evidence on record, the Judge will pass appropriate orders. Continue reading