Consequences if mental cruelty in judgement?

I am answering this based upon your PM to me to answer your questions posted here. 

At the very outset I feel that your advocate has compromised your case. However, it would be inappropriate for me to come to this conclusion without knowing all the details. This is just my prima facie opinion. There is no need to sweat. Be patient and take proper steps now but in a timely manner. Time is of the essence here. Steps to be taken are:

Prepare an application to be filed with the Court asking that you wish to change your advocate and that you have been informed about the judgment date without giving any details in the interim. Provide details that you are currently overseas and that you will be "extremely prejudiced" if the Court issues a judgment at this time without allowing you "due process of law." Send this application by registered and courier and any other form of delivery mechanism to your opponent and her advocate.  As soon as you get proof that it has been served or even before but certainly before the day the judgment is scheduled to be delivered, approach the Court Ex Parte, through another advocate or even through another person and inform the Court about your application and to NOT issue a judgment at this time. List all your reasons for postponing the judgment. Examples of such reasons are: You have not yet filed your affidavit to give your side of the facts - You have not been cross-examined - You have not been given the opportunity to provide evidentiary documents, etc. 

The crux of your application should lead the Court to believe that you will be denied due process of law if a judgment is rendered at this time. 

File another application informing the Court of your intent to change your advocate and to grant you leave to do so, if indeed that is required.

On the day of the next hearing (judgement day), ensure that you or your representative or your new advocate are present there and pursue these applications. Inform the Court (all references to the word "Court" is actually to the "Judge") that other party will not be prejudiced by postponing the judgment and that the Court should have all facts before it to come to a just conclusion. 

These are the minimal steps you must take. Doing so will put you on strong footing in the event you have to appeal later.  Make sure that you keep all proofs of all communications sent and filings made with the Court. 

Once the Court issues judgment, it is usually out of jurisdiction to do anything whatsoever in the matter. This is very different than in the U.S. where Courts get another shot at changing their judgment through a "motion to reconsider" which is usually required to be filed in 10 days of the Order.  What you are referring to reopening the case in India, in your situation will require the filing of an appeal. 

It is better to NOT have mental cruelty by you as the basis for your divorce. It is a stigma that you will have to carry all through your life.  Rarely is divorced granted based upon mental cruelty because the standard of mental cruelty is usually very high.  Of course, if you are admitting to everything, then her petition will be granted. I do not know what and how you have opposed the allegations made by her.

Originally posted by : Ajay
	My wife filed a divorce petition stating mental cruelty with false allegations. As the allegations are baseless and imaginary, I filed a strong counter petition denying all her allegations. Additionally, listed out the costly articles I bought her on her insistence, the tours I have taken her and the luxury she was enjoying during her six months stay with me in USA. Yesterday was her crossing and my lawyer was supposed to do the crossing. As I live in USA , I called him to check the status of the case this morning  and he says that the next date will be judgement (Dec 10). I got really shocked and frustrated as I have not got a chance to provide my side of the story which I was hoping will happen in next hearing. He is blaming me saying that it was because of my non appearance for my wife's trial it went to judgement stage. It sounds ridiculous to me . Even If I dont attend her trial , wont i get a chance to tell my side of the story. He already got 75K for his services and completely cheated me. As the next date is set for judgement ,it is very clear that my lawyer betrayed me playing into  the hands of other party. My wife side has political influence. I live in USA and do not know what to do now. please give your inputs to the below questions. Is there a way to postpone the judgement ? Is there a way to get the judge notice that It's all happening without my consent? Can I reopen the case after judgement?   You should be really out of your mind to reopen case after judgement.  Read on.   As I never liked to live with her again, I did not file a RCR before , does that affect if I file an application to reopen the case?    As I am expecting the judgement would carry ' mental cruelty ' as the ground for the divorce, What are the consequences of it? Since I never wanted to live with her and assuming I will have to travel from USA immediately (which I could not for next two months because of visa issues), is it worth to reopen the case at all to convert that to mutual consent?  Should I be glad that somehow that b*tch is out of my life and forget about reopening the case? Please advice if this judgement will go in any government records or create any issues in the future. Thanks.

Congrats.  You are getting divorce.  Congrats again.  Once decree is passed.  Get certified copy from your lawyer.  Frame it and put it on the wall :-)).

 You are of the worrying kind.  That happen means what to do, this happen means what to do?  What if, what that etc.  For this disease no medicine either in allopathy or ayurveda or homeopathy.  Stop worrying.  Nothing will happen.  You should be more interested in thinking about whether you want to get married again or not.  Just think about it thoroughly.  That matters more than anything else.

In India its very difficult to get divorce by contesting divorce petition.  You are getting divorce, you are really lucky.  Forget implications of what will happen later on.  Just pray that your wife will get remarried ASAP.

And try not to commit same mistakes one more time which lead you to this divorce, if you have any plans to remarry.

Nobody will go check allegations blah blah if you want to remarry, they just ask you divorce decree.  For a woman they do all checking, ask case number, that this, check whether they filed dowry case 498a on husband, filed DV case on husband and his parentage, but as you are male you cannot actually file anything against wife other than perjury, that a prospective customer [wouldbe bride] would ask.  Haan, chances are, they might ask whether your wife filed a 498a or DV on you, or if you got convicted for it.  That much the girl or girl side will ask from you, As there is no hint of any, you are safe.  

And dont use unparliamentary words in public forum, thats not good.  All the best.  Congrats again, you are getting divorce.

If you dont take my advice, you will next time come here with one query, which starts like this, I used to live in USA now I live in India..........

@ Samir N (2HelpU) ,

Thank you very much for the elaborate response and the procedures need to be followed.

Regarding " I do not know what and how you have opposed the allegations made by her",

There were no specific instances defined in the petition, just saying i treated her badly, insulted infront of friends , did not buy anything for her etc. Those are all false allegations and I specified the itemized things I did for her in my counter petition. Then the trial started and now the lawyer says the next hearing is judgement date without providing me any opportunity to explain my stand, which got me frustrated. Hence this thread.

@Helping Hand !,

Thanks for your opinion. Agree I should refrain from using unparliamentary words in public forum. The disappointment and frustration of my lawyer getting bought off and the source of all this issue being that girl, my temper took over my senses.

Thanks.

Divorce based upon mental cruelty is not easily granted unless there are specific allegations, with precise details on dates, witnesses, etc. But a bad advocate can easily screw up your case by not arguing properly in the written/oral final arguments. On a different note, you keep talking about "counter-petition." Are you referring to the written statement (WS) filed by you in response to her petition or did you actually file a counter-petition? If you filed a counter-petition, what have you prayed for (i.e. what relief have you asked the Court to grant you)? Your WS ought to counter all allegations, para for para. That should suffice as the first line of defense.  Hope you have at least done that because on appeal, you have to show that the trial court erred in the judgment given, and not that you or your advocate erred in your filings. 

@ Samir N (2HelpU),

Yes, I am referring to the written statement filed in the court as a response to the original petition as counter. I denied all the allegations in the WS and provided more information as what i have done for her and how she was enjoying the luxury while she was with me. Below is the court activities after I filed the WS.

1 hearing - she filed an affidavit I guess

2 hearing - cross for her. That's all happened.  My lawyer appeared but  did not even cross examine the girl and I dont know what he screwed up , now the next date is judgement.

3 hearing (next week)- judgement . 

My lawyer is saying that he has done me a favor as I was not interested in living with her so he finished the case and he claims there will not be any issue in the judgement which I don't believe at all.  of course i did not want to live with her, but why would I want to take the blame when the fact is otherwise and never wanted him finish off the case. I asked him to get a hearing date after a month or two so i can appear in person in the court . He screwed up everything playing into the hands of other party. They have no evidence to prove that I have been cruel to her in any circumstances , knowing this they used their political power to buy off my lawyer. 

BTW if the judgement is passed, the appealing time period is within 30 days or 90 days of the judgement date? please clarify.

Thanks.

Your advocate has either adopted the right strategy wrongly or is a lazy crook. Here's why: There is no better way to get divorce than to admit allegations so that the Court has unfettered ability to grant divorce and is disabled from using its own discretion to arrive on factual conclusions. Admissions are good as long as they do not have any long-term ramifications on your record. Perhaps he is thinking along those lines with you not readily available. Typically, in your situation, the wife would have alleged desertion and cruelty. The better option is to expressly admit desertion over a period of more than 2 years and be done with the divorce. Both parties get what they want and move on. Then you are stuck only with the maintenance litigation.

It is not too late. Whether she has alleged desertion or not, you can state during your arguments and specifically in written arguments, even if it was not alleged, that you have deserted your wife and do not intend to be with her in the future. However, to do this, you must refute the cruelty allegations in toto, both in your WS as you have done and also through an affidavit and even go to the extent of admitting desertion in your affidavit. This may sound ridulous but would be a good legal strategy, or so I think.

You will have to be cross-examined on the affidavit to give it some evidentiary weight unless the opposing party wants to relinquish its right to cross you. This is precisely what your advocate has done with her affidavit and thereby implicitly admitted the allegations in her affidavit. This is a wrong approach, in my humble opinion. You may end up admitting to bizzare allegations. Also, if the allegations themselves were innocuous and do not tantamount to cruelty in the legal sense, then you will still not get divorce despite admitting them!  Until judgement is rendered, it is not too late to rectify yours or your advocate's procedural mistakes.

DISCLAIMER: I am NOT an advocate.

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