Advocate Prasanna Mohan

Questions Answered by Advocate Prasanna Mohan (25+ answers)

Q: Filling divorce due to alcohol addiction

It has been around 10 months of my marriage. And he has severe alcohol addiction and this is causing problems in marriage everyday. I want to file divorce and I want to know how long does it take and what is the process.

Advocate Prasanna Mohan answered
As per the facts stated, the marriage has lasted approximately ten months, and the husband’s severe alcohol addiction is allegedly causing frequent disputes and disturbances in the matrimonial relationship. The wife may seek appropriate legal remedies under the applicable matrimonial law in India.Under Section 13(1)(ia) of the Hindu Marriage Act, 1955, a wife may seek divorce on the ground of cruelty if the husband’s conduct, including alcohol-related behaviour, causes such mental or physical cruelty as recognised by law. However, alcoholism by itself does not automatically constitute a ground for divorce; the nature, severity, and consequences of the husband’s conduct must be established through appropriate evidence.Since the marriage has lasted only ten months, a petition for divorce under the Hindu Marriage Act ordinarily cannot be presented before the expiry of one year from the date of marriage. Nevertheless, under Section 14, the competent court may grant leave to present the petition earlier in exceptional cases involving exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.Alternatively, if both spouses mutually agree to dissolve the marriage, divorce by mutual consent may be considered under Section 13B of the Hindu Marriage Act, subject to the statutory requirement of living separately for at least one year and other applicable conditions.The wife should preserve relevant evidence, including messages, medical records, complaints, and witness details, wherever available. If she faces violence, threats, or other immediate danger, she should prioritise her safety and seek appropriate legal protection.You should consult a matrimonial lawyer to assess the available grounds, evidence, and appropriate proceedings. The precise timeline will depend upon the applicable personal law, the nature of the case, and the court’s schedule.

Q: Contested divorce by Husband for 3 years, now he also wants divorce

Wife filed divorce case 3 years back and husband contested the case. He only filed written counter but not filed any counterclaim. Now the case is in stage of petitioner evidence closed and respondent evidence to start. Now when husband is ready to give divorce, wife is not agreeing for mutual and trying to drag on the case. Now whether in chief examination, can husband file chief saying that he is now willing for divorce and doesn't oppose petition anymore. Will judge accept and grant divorce.

Advocate Prasanna Mohan answered
Assuming the proceedings are under the Hindu Marriage Act, 1955, the husband can, during his evidence, state on oath that he is no longer opposing the wife’s prayer for divorce. However, mere change of stand or admission does not automatically entitle the wife to a decree.The Court must still be satisfied that the statutory ground for divorce pleaded in the wife’s petition—such as cruelty or desertion—is established by evidence. Section 13 requires a decree to be based upon a recognised statutory ground. India CodeThe husband’s failure to file a counterclaim is not, by itself, fatal. Section 23A permits a respondent to make a counterclaim, but it does not make a counterclaim mandatory merely to contest or subsequently not oppose the petitioner’s relief.India CodeTherefore, the husband may file an affidavit/evidence stating that he does not oppose the divorce, but the Family Court should ordinarily proceed on the existing pleadings and evidence rather than grant divorce merely on that admission.If both parties genuinely agree, they may instead explore mutual-consent divorce under Section 13B, subject to its statutory requirements.

Q: Defence Struck Off in Commercial Cases

My defence is struck off due to non-filing of Written Statement within 120 days now what remedy I can take in commercial case if defence is struck off.

Advocate Prasanna Mohan answered
If the defence has been struck off in a commercial suit due to non-filing of the Written Statement within 120 days from the date of service of summons, the remedy would depend upon the exact facts and the order passed by the Commercial Court. Under Order VIII Rule 1 CPC, as amended by the Commercial Courts Act, the 120-day period is ordinarily mandatory and the Court cannot extend the time merely on the ground of sufficient cause; however, if there is an error in computation of the period, defective or incomplete service of summons, any period legally excludable from limitation, or other exceptional circumstances, an application for recall/set-aside of the order closing the defence may be maintainable before the Commercial Court, and, if unsuccessful, the order may be challenged before the Hon’ble High Court in accordance with the applicable appellate/supervisory remedy. The Supreme Court has recognised that legally excludable periods, including the period covered by its COVID-19 limitation-extension orders, have to be considered while computing the 120 days. Therefore, before advising on the precise remedy, the date of service of summons, order-sheets, date of filing/tendering of the Written Statement, and the exact order striking off the defence should be examined; if you provide these documents, a specific application/challenge with appropriate Supreme Court precedents can be prepared.

Q: Can summons be challenged if judge not apply mind

Judge issue summon - complaint filed application. Issue summons as prayed by complainant. Does judge have to apply mind and mention more detail. I need to ask whether summon is valid and if judge avoid to apply mind.

Advocate Prasanna Mohan answered
The issuance of summons cannot be treated as a mechanical or ministerial act merely because the complainant has filed an application seeking issuance of process. At the stage of taking cognizance and issuing process, the Magistrate is required to apply his judicial mind to the complaint, the preliminary evidence/material placed on record and the applicable provisions of law, and must arrive at the requisite satisfaction that there are sufficient grounds for proceeding against the proposed accused.

Q: What to expedite my civil appeal pending in sc

Hi sir i want to now can i file petition under article 32 or article 142 to expedite my appeal pending in supreme court from 5 years my fundamental rights violate

Advocate Prasanna Mohan answered
You may seek an early listing of your pending appeal, but filing a separate petition under Article 32 or Article 142 is generally not the appropriate remedy.Article 32 is meant for enforcement of fundamental rights against State action. Mere pendency of a matter before the Supreme Court, even if for several years, does not automatically give rise to a separate Article 32 petition.Article 142 is not a provision under which an independent petition can ordinarily be filed by a litigant. It is an extraordinary power exercised by the Supreme Court while deciding matters already before it.If your appeal has been pending for around 5 years, the proper course is to file an Application for Early Hearing/Listing (Expedited Hearing Application) in the pending appeal, setting out the reasons for urgency, such as prejudice caused by the delay, age, health, financial hardship, or any other exceptional circumstances.If you share your case number, the nature of the appeal (Civil/Criminal/SLP), the year of filing, and its current stage, I can advise you on the most appropriate procedural remedy and the chances of obtaining an early hearing.