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This section is for laypersons who have little or no knowledge of Law. An effort is made by us at OLS to ensure that the answers given to your questions are in easy to understand, simple language, which is free from Legal jargon and technicalities
  , 09 Jan 2017

1. I have never been to the courts but am now faced with litigation filed by my brother regarding our late father’s property. I think I have a good case but how do I choose a lawyer who is good and in whom I can trust.

A1. Dear X. The question is so often asked that we think it requires some elaboration. There is a saying amongst lawyers, that 50% of the fate of your case is decided by what lawyer you choose. Integrity and patience are the two most important virtues that you should look for . If your lawyer is lacking in either one of them, you should seriously think about dropping him . One question that often crops up in our minds is, “do the most expensive and senior lawyers deliver the best results”?. Not at all, but generally speaking senior lawyers are like your fathers, old reliable motor car from which you can expect a minimum level of reliable performance, and which is unlikely to give you any nasty shocks. Some younger lawyers can be excellent, but it is not always easy to identify one. Choosing a lawyer is also a matter of individual temperament. Many a times it is “what clicks”. Some lawyers are very verbose and will go to great lengths to convince their potential clients. Others may be reticent and not too bothered to impress a client. Both categories can be good or both can be bad. A loudmouth of a lawyer can be a poor performer in court while a reserved lawyer can perform excellently. No rule of thumb can be laid down , but we would go by what Alexander Pope said “Words are like leaves and where they most abound much fruit of sense beneath, is rarely ever to be found”. The question still remains what kind of a person should you choose as your lawyer. In our opinion some of the following criteria can be adopted. i) Try going in for a lawyer who has time to hear out your case in detail If a lawyer is not listening to you attentively enough, there is little chance that he will handle your case well. Some senior lawyers are so busy that they have little time to listen to all that you have to say. In litigation a lawyer also has to spend a lot of time to think over and consider what the implications of taking a particular stand can be. ii) A lawyer should be good at drafting your case or defence as the case may be. Not all lawyers have good drafting skills, even though they may be quiet good at chatting up clients. iii) Your lawyer must have a reading habit. It helps a lot if your lawyer keeps abreast of the law by brushing up on the latest rulings of the High Courts and Supreme Court. iv) Unless your case is very simple in nature you should avoid lawyers who are hesitant or cannot argue effectively in court either because of extreme old age, debility or because they are rank freshers. v) The most important criteria for choosing a lawyer is that he should have an impeccable reputation for honesty and integrity. Avoid lawyers who are always telling you that the entire system is rotten and that the only hope of getting justice is to fix it.

  Ankita, 05 Jan 2017

2. I was married to “X” two years ago. We were very happy but in the last six months my husband has been behaving suspiciously and has started coming home late at night. He has stopped spending time with me and I feel very neglected. I soon discovered from common friends that there was gossip in his office that he was having an affair with a colleague of his. When I confronted my husband about this, he abused me for being suspicious and beat me up. I do not want to live with him any more. I feel betrayed and humiliated and want to divorce him. My Query is: My husband is not faithful to me. I have decided to end the marriage but he has categorically stated that he will not grant me a divorce. What can I do legally. What are my chances of getting a divorce, please advise.

A2. We are pained to hear about your situation. Before we advise you about the divorce you seek, you need to be absolutely certain that your husband is indeed having an extra maritial relationship with a colleague of his. Divorce is an extreme step. Once you decide to file for divorce, it generally means that you are shutting the doors to any kind of compromise. Still if you feel that divorce is the only way out, the first step is to engage a good lawyer. Stick to the truth and give your lawyer every detail as sometimes the things we think are inconsequential may turn out to be of the utmost importance. Unlike the “west” where divorce is a simple affair, the courts in India are reluctant to grant a divorce, when one of the parties is unwilling. A divorce will be heard and decided by the court of District or Additional District Judge of the district/area where the parties were married or have last cohabited (lived together). You will not only have to file the case against your husband, but also against the alleged adulterer, as per the latest position of law. Once you file a case for divorce, a notice will be sent to the opposite parties who too will have a chance to reply to the case you have set up. All the parties will then be given a chance to prove their case by leading their evidence, after which final arguments will be heard and the court will pronounce its judgement. A divorce can be obtained on any of the grounds mentioned in section 13-B of The Hindu Marriage Act, such as cruelty, desertion, conversion to another religion etc. Adultery too is one of the grounds for divorce. However, to obtain a divorce, it is not enough to make an accusation. The courts have to be shown credible proof that your husband had an extra martial relationship. For instance a witness may have to depose that he or she has seen your husband with another person in a compromising position or doing an act or gesture that seems to suggest a great degree of intimacy not generally seen between two unrelated persons. Evidence can not only be oral but can also be documentary by way of letters, photographs or phone conversations amongst others. To obtain a decree of divorce, the evidence brought on record must of such a nature that adultery is the only conclusion that can be reached by a person of ordinary prudence. You have stated that your husband beat you up for being suspicious. This of course needs to be deprecated, as no one has the right to hit you, just because he happens to be your husband. However from your query it seems that your husband beating you was one particular incident and not something that was ever repeated again. A single incident of domestic violence not resulting in grievous injury would generally tend to be ignored by the courts in divorce proceedings. However if there have been sustained, repeated assaults and abuse, that has taken place over time, then it would fall under the category of “Cruelty” which by itself is a ground for divorce. You would also have the option of proceeding against your husband under criminal law such as 498 A IPC , or under the protection of women against domestic violence act and other provisions of law. Your primary question was about divorce on the ground of adultery. It is very hard to prove a case of adultery on purely circumstantial evidence. There is nothing in your query to suggest that you have any direct proof of your husband’s infidelity. Hearsay evidence is not good enough in a court of law. There is little point in filing a case in which the chances of success are not good. Sometimes closeness between colleagues can be misinterpreted. For all you know your husband may be true to you. Unless you are very certain otherwise, take our advice and give him another chance.

  Raman, 05 Jan 2017

3. Me and my wife have differences of temperament but nothing really seriously bad has happened like we hear about in the news. We end up having verbal altercations each day, but now she has asked me for a divorce and has threatened to go to court. I still want to remain married to her. What can I do in such a situation?

A3. Dear Raman. A divorce cannot be had for the asking. Courts in India set a pretty high bar for a party seeking divorce before it can be granted. It surprises us no end to discover that in most of the cases relating to maritial discord the genesis of the problem can be most trivial. The tragedy is compounded further when instead of resolving the dispute, it gets further complicated due to sheer ignorance, neglect or force of circumstance. We all know of persons of wisdom who can go to the root of the matter and who with their perseverance and wisdom try and bring about a reconciliation or compromise. Psychologists due to their training and experience also do the same. It is not possible to have a reconciliation in every case, but morality and ethics do demand that where there is the slightest chance of a compromise one must try for it. Many of the lawyers on our panel have had some happy experiences, where in cases where parties that were bent upon getting a divorce ended up having a compromise and started living amicably together again after counselling. The greatest tragedy is when couples who do not really want to divorce their spouses, end up doing just that just because either due to family pressures or force of circumstances they could not bring themselves to speak out and discuss their problems at the right time. Things may not have gone too serious had these persons had the wisdom and courage to speak frankly and discuss matters with their spouse. If your marriage is going through a bad patch but despite all the problems you want to save it, then counselling may just be the thing for you. Counselling not only gives vent to your feelings but provides you with the opportunity and makes your partner know how you really feel.