seeking legal advice?

Question

My brother has got married to a girl who was not virgin at the time of marriage. He is now not able to tolerate her and started torturing her. He told her, " I could not sleep with a lady who has so bad physical condition, even if I could have got a girl like you in free of cost."Can we apply for divorce on this ground? Can my sister-in-law harrass my brother on the ground of mental torture? If she cannot prove the mental torture, then can we take any legal step against her? Can mental torture be proved? My brother has used so many slang languages in his mail to her. Can it be a valid document as a proof?

Answer 1

Premarital, extramarital or unwed sexual activities are not barred / prohibited and are no offence in any Indian law. Wife’s sexual intercourse with other/s is also no offence, hence no prosecution or punishment to her. Even her sex partner also cannot be punished, if was unaware of her wedlock or had sex with consent or connivance of her husband. However the police cannot arrest or prosecute him. After divorce also her husband is bound to maintain or pay till she remarries, even if she is permanently / continuously enjoying sex with all other/s. Pre marital sexual experiences (intercourse / coitus) with other/s cannot be a ground to seek divorce under Hindu/Special Marriage Act. Thus a female’s physical sexual relations with persons/s of her choice (with their consent) is not an offence or prohibited / barred in any Indian law and she is at liberty to enjoy SEX freely and fearlessly. A male’s physical sexual relations with any 16+ female (with her consent) is no offence or barred / prohibited in any Indian Law, unless she is in the wedlock of somebody else and is done knowing her wedlock or without her husband’s consent or connivance. Courts are bound to believe that all children born during the wedlock (or within 280 days of court's divorce judgment/ decree) are her husband’s legitimate ones. He is bound to maintain or pay them expenses; till sons are 18+ and daughters are married. Prostitution (commercial sex trade, offering sex for monetary gain) alone is an offence punishable in Indian laws. Yet no Station House Officer, Officer In Charge or Inspector of Police can arrest, enter, search or seize.
There is no concept of divorce in Hinduism. Hindu marriages are performed between their souls (not bodies) in heaven (not upon earth) in presence of 330 million gods and goddesses. Indian Government enacted Hindu Marriage Act in 1955 and created a chance for divorce to be granted by secular courts. Despite such legislations and courts' divorce judgments/decrees, their spiritual wedlock remains intact being eternal, everlasting and unbreakable even in future rebirths. Despite marriage with others after divorce, wife continues Ardhangini (half body) of her former husband and he continues her Pati Parmeshwar (Lord).
In Islam divorce is the most worst among permissible. In unavoidable circumstances only there may be a divorce. All unwed sexual activities (pre/post/extra marital), homosexual acts, & other perverted sexual acts are specifically forbidden in Islam in clearly written unambiguous words. In Islam, unwed voluntary sexual intercourse also is a great sin punishable continuously in hell & heinous crime against government/society punishable with publicly lashing/ death by pelting stones.

Answer 2

As far legal position in you case is concerned only right your brother has to get ride of his wife by way of annulment of this marriage on the ground that the consent to this marriage was obtained from him by fraud. Now what is fraud? It is willful misrepresentation of facts. If the wife willfully misrepresented to him about her virginity when it was asked from her specifically then it will amount to fraud & on this ground he can obtain the decree of annulment of such a marriage. Such a petition for annulment has to be filled within one year of such a marriage in the court of jurisdiction where the marriage was solemnized or where the parties to the marriage last stayed together or where the respondent i.e. the wife resides at the time of filling of such a petition & after being aware of such a fraud there should not be any cohabitation of the parties. As far as what your sister in law can do against her husband is that she can always state his allegation of fraud as wrong & his slang can be sufficient proof for mental torture/cruelty for getting divorce from him as well as filling a criminal complaint against him for cruelty under section 498A Indian penal Code. This is a brief idea of what is the legal position in such a case. For detailed information write to me directly.

Answer 3

Your brother is the one at fault here....he is a domestic abuser and yes any documents in which he insults his wife can be used as proof of this.

Whether she was a virgin or not is pretty immaterial anymore, they are married and he is abusing her within that marriage, if any one has grounds for divorce its the wife.

Answer 4

Dear Sona (Mirdula B), How are you?
You have personal problem and you used terms as brother. I checked your profile. Before 5 months you asked about "Marriage relation meaning" and you choose best answer to one of christ reply.
You changed your profile name while I was studying your case.
Listen Sona or Mirdula....what ever you are.... you need some guidance to solve your personal problem. If you send me your detail life story may be I can help you with blessing of God (Allah)
Because after getting the answer on marriage relation you post the question for psycho. Than you repeat the problem with two different question. In first question of Advice me you received 17 answers and on this question may my answer will be first.
You can find my email in my profile. Send me detail hope I can guide you to solve your problem by your own.
Don't forget to choose my words as best answer.
Your brother.

Answer 5

i might seem into your rights, i'm not too specific what they are yet i be responsive to which you have some and issues like this is probably not allowed to ensue. First priority could be the youngster who attacked your son. He can not be allowed to proceed to be in that college, he's clearly risky to the different toddlers and that i don't think of your son will ever sense secure on an identical time as he continues to be there. See the way you go approximately having him removed from the college. Secondly is the college itself. Make no mistake, they'll do each and every thing they are able to to comb all of it under the carpet. it somewhat is problem they don't prefer or prefer and is undesirable for his or her recognition. it somewhat is of their terrific pastime to objective and convince you which you have not any rights and the full remember isn't as massive a deal as you're making it out to be. in addition they'll attempt and implicate your son in some way, 6 of one and 0.5 dozen of the different and all that, boys would be boys, if we seem into removing this youngster then we could desire to look into removing your youngster.... So go in arranged. be responsive to what your rights are (voters advice according to risk, any information online, your community coaching authority and according to risk even criminal illustration) and don't enable them to intimidate you. additionally, ge as many witness statements as you may, so it won't be able to be became around to be your toddlers fault simply by fact the college group will stick jointly to objective and make a topic go away. additionally write down each and every thing that got here approximately on your sons words as quickly as obtainable. you will in all probability prefer this in an prolonged time. I do exactly not prefer you to go in questioning you may have confidence the college and the teachers simply by fact they are purely human and each so often they don't seem to be large human beings, i'm specific you may undergo in concepts an extremely crap instructor from once you have been at school. good success, do in spite of you would be able to desire to, to ensure your son is secure.

Answer 6

NOW A DAYS ITS VERY DIFFICULT TO FIND OUT A VIGIN FROM INDIA TOO.SHE MAY HAVE DONE ANY THING WRONG BEFORE HER MARRIAGE.BUT, NOW ITS THE TURN OF YOUR BROTHER TO CORRECT HER BY MAKING HER HAPPY IN ALL MEANS.DIVORCING HER NOT ONLY DAMAGES HER LIFE BUT ALSO MAY CREATE SOME PROBLEM TO YOUR BROTHER S FUTURE.PLEASE , ADVICE HIM TO MAKE THE GIRL HAPPY AND NOT TO HURT HER. ALL THESE ARE PART OF LIFE.IF HE MAKE HER HAPPY SHE WOULD SERVE LIKE A FOOT WEAR TO HIM.MAY GOD BLESS BOTH OF THEM TO LEAD A HAPPY LIFE.

Answer 7

have you anything to prove that she had relationship with anyone.has she herself admitted that she lost her virginity before marriage.then you can claim for divorce.If in any case your brother has other reasons to get away from this wife,or if any other reasons which motivates him to get a divorce,which are only in his self interest,then he might get himself into trouble,by applying for divorce.

Answer 8

read this case study
When former prosecutor and defense attorney Richard Hamlin was arrested on February 28, 2004 for allegedly battering his wife Susan Hamlin, El Dorado County District Attorney Gary Lacy was faced with deciding what charges to bring against him. Although the word "torture" was never mentioned in the sheriff's investigation reports detailing both Susan Hamlin's original confession of child abuse or in the later arrest warrant of her husband, DA Lacy decided that the retraction of Susan Hamlin's confession and subsequent jailing of her husband justified charges being filed against Richard Hamlin for both felony spousal abuse and "torture". DA Lacy also succeeded in keeping Richard Hamlin in jail without bail until his trial. Fourteen months later DA Lacy impaneled a Grand Jury and on April 15, 2005 that body doubled the charges against Richard Hamlin to 18 felonies.

Richard Hamlin had an unblemished record as both a prosecutor and a defense attorney. The marriage between the Hamlins had lasted twenty years and had produced four beautiful children. Testimony introduced at trial provided evidence that Susan Hamlin had not shown any signs of spousal abuse until just before her confession to child abuse which she retracted two days later when El Dorado County Sheriffs arrested Richard Hamlin and turned the case over to the District Attorney for prosecution. DA Lacy knew or should have known that Richard Hamlin had never before been charged with any similar offense and was, therefore, what is commonly known as "a first time offender" should he be found guilty.

Given these facts, the biggest question in the Richard Hamlin case is why did DA Lacy charge the defendant with torture, a violation of Penal Code Section 206 which requires a life sentence rather than charging him only with domestic violence, Section 273.5 which is punishable by imprisonment for one year in county jail or up to six years in state prison?

It is very important for all individuals involved in a relationship with another to understand the potential repercussions should the relationship deteriorate and violence become the end product. If the violence results in law enforcement or social services becoming involved, both parties in the relationship will lose all control of their lives. Nothing that these individuals had experienced in the past will be recognizable in their future. Once people enter the web of "the system" their lives and the lives of those closest to them will cease to exist as they knew it.

Of course, those with faith in "the system" maintain their beliefs until it directly entraps them. One hopes that the district attorneys making the judgment calls on what charges will be leveled against a defendant will do so with his or her wise eye on the law and on future reviews of their decisions by the Courts of Appeal and the Supreme Court. Hopefully, district attorneys make their decision in this manner and not simply because of a particular distaste for a specific defendant or some favoritism towards a victim or protection of some third party. Ideally, the all- powerful district attorneys will not make politically-driven decisions based upon pleasing some powerful politician and/or party who will be helpful to the district attorney in some future election. But, in reality, that is often exactly how these decisions are made.

If we use the Richard Hamlin torture case as an example of the problems involved in "the system," it will allow us to explore the history of the "marriage" of charges of domestic violence with a charge of torture.

In the Hamlin case, DA Lacy presented evidence that Hamlin allegedly beat his wife on numerous occasions. Lacy alleged that Hamlin did this in order to get his wife to make statements that her father sexually, physically and emotionally abused her so that the husband could build a criminal or civil case against his wife's father, Sid Siemer, for his alleged abuse of his daughter. Thus, it appears the district attorney is attempting to prove Hamlin was trying to extort money from those he believed battered and abused his wife. One of the conditions necessary to prove torture is that there be an intent to extort or persuade someone through employing certain emotional or physical acts of abuse.

For example, in a recent case, People vs. Lemur (2004), 122 Cal. App. 4th 614 (9/20/04), the California Court of Appeal, 4th Appellate District ruled that "abrasions, lacerations and bruising" can constitute "great bodily injury" sufficient to prove torture. The court also ruled that to establish the "intent to cause cruel or extreme pain or suffering for the purposes of revenge, extortion, persuasion or for any sadistic purpose" which is required for torture, proof that a defendant subjected a person to prolonged physical and emotional abuse is sufficient. Note the type of conduct Lemur engaged in:

The Lemur court stated:

The evidence further shows Lemur intended to inflict cruel or extreme pain on Maria. He did not simply slap her. He subjected her to prolonged physical and emotional abuse. When Maria tried to escape, Lemur yanked her by the hair and threw her to the ground. He repeatedly punched her in the face, pulled her hair, hit her, kicked her in the head, and dunked her head under water. Lemur continued these attacks on Maria for almost four hours.

On the other hand, the injuries to Susan Hamlin, if found to be caused by Richard Hamlin, are also injuries which could have been charged as domestic violence. Look at the domestic violence statute:

Penal Code 273.5 states:

273.5: (a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

So the domestic violence statute requires a traumatic injury and willful infliction of that injury.

Is it cruel and unusual punishment to impose a life sentence for torture in a spousal abuse case when murder in the first degree is a lesser punishment of 25 years to life. The courts say that this is NOT cruel and unusual punishment.

For example, the Appellate Court in Lemur stated:

Lemur attempts to show that torture is punished more severely than other equal or more serious crimes. He compares torture with aggravated battery, assault with a deadly weapon, second degree murder, and mayhem. These crimes, except for second degree murder, are punished by determinate sentences whereas torture is punished by an indeterminate sentence. Second degree murder carries a more severe sentence than does torture. Lemur fails to recognize, however, that torture has a specific intent element that is particularly odious to civil society. As stated, torture requires an intent to cause cruel or extreme pain and suffering for revenge, extortion, persuasion, or any sadistic purpose. It is this intent that makes torture such a serious crime.

The way the law is currently structured, district attorneys have the sole power to charge an individual with torture instead of domestic violence and send the defendant to jail for life based on the same evidence that could result is a charge of domestic violence that dictates a far lesser punishment. What is wrong with this picture?

The problem is compounded by the fact that lawyers are not allowed to argue to a jury what sentence could be applied to each charge. The jury will not be informed of the potential sentence by the judge prior to their deliberations. The State of California does not adhere to the fully informed jury philosophy so most juries have no idea that to convict a person of torture results in life imprisonment. Many jurors would know, for example, that murder in the first degree carries a sentence of 25 years to life in prison and that proof of special circumstances carries a sentence of death or life without parole. These sentences have become common knowledge because there is an abundance of Court TV and a wide variety of detective shows that talk about the sentences for these crimes. There are also a great many television programs that deal with the subject of spousal abuse. However, this author can not recall one show that has dealt with the discretion given the prosecutor in dealing with the wide variance of sentences that can be delivered depending on how domestic violence is charged. Why is there a reluctance to educate the public about this issue?

A look at the history of the "torture" code is in order. The crime of torture was codified in 1990 in California after the passage of Proposition 15 because a man named Lawrence (Larry) Singleton fell through the cracks of the justice system. The crime that Larry Singleton committed generated international anger and condemnation for California's pampering of vicious criminals. According to court records, Singleton picked up a fifteen-year-old hitchhiker, kidnapped her and committed sex offenses against her. Finally, according to the court record: "Singleton cut the ropes from her hands. He took a hatchet, chopped off Mary's left hand, then her right. He threw her over the side of the road, climbed down, shoved her into a drainage culvert and told her she was free. Mary made her way out of the culvert after Singleton left and after hours of wandering was discovered and given medical aid."

The public was outraged at the low sentence Singleton received -- fourteen and one-third years. In 1987 Larry Singleton was paroled after serving just over half his sentence. He ended up living in a trailer on the grounds of San Quentin Prison because no community wanted to accept him as a parolee. After his release from parole Singleton moved to Florida. In 1998, a jury in Tampa convicted him or murdering a mother of small children who worked as a prostitute. He had stabbed the 31-year-old woman to death in his residence and he received the death penalty for this murder. Waiting for the sentence to be carried out, he died in prison of cancer in 2001.

Now, however, prosecutors have twisted the intent of the torture statute so that those committing domestic violence or spousal abuse can be charged with torture for crimes that simply do not rise to the level of the criminal intent and injury that Singleton committed against a young girl.

Further, it would appear that the California Courts of Appeal are moving in the direction of allowing torture charges and penalties in cases which could have been charged as domestic violence.

However, one justice of the Courts of Appeal has provided a ray of hope for those who want more balance and sensitivity exercised by district attorneys and judges in their upholding torture charges and convictions.

In the case People v. Pre (2004) 17 Cal. App. 4th 413, Judge McIntyre, had the courage to dissent in a case which Pre could have been charged and convicted of domestic violence instead of torture. In the Pre case it was alleged that Pre didn't know the victim Rose and committed the following according to the court record:

Pre grabbed Rose's hands and dragged her down the hall so that they could not be seen through a nearby window. Rose was kicking and struggling. Pre continued to choke Rose until she lost consciousness. When Rose regained consciousness, Pre had her shoulders and head cradled in his lap area, her head elevated and he was biting her right ear. Rose began struggling again but Pre applied pressure to her throat until she passed out again. Rose was afraid Pre was killing her, believing, "Why would anybody choke somebody out twice if it were not to kill someone?" When Rose regained consciousness, Pre had left the apartment and she crawled to the phone and called 911. She later discovered her purse was missing. As a result of Pre's attack, Rose testified she suffered an injury to her right temple, a fracture of her cheek which caused dental problems, a bite mark on her right hand, fractured ribs on her left side, an injury to an internal organ, a fracture of her left little finger that was later amputated, and a bite to her ear that required over 100 stitches."

In addition to torture, the defendant had been convicted of attempted voluntary manslaughter (Pen Code, 664, 192 subd. (a), simple mayhem (PC 203), first degree robbery (PC 211) and residential burglary (PC 459) which resulted in a term of 13 years and four months. The torture conviction however carried a life term.

The type of injuries in the Pre case are far more severe that those alleged in the Richard Hamlin Case. For example, Hamlin is not charged with trying to cause his wife's death or causing injuries so severe as to necessitate stitches or inflict permanent injury.

In the Pre case, despite the severity of the injuries to the victim, Justice James A. McIntyre decided he did not want to impose the term of life for the crime of torture. Judge McIntyre explained his reluctance to impose a torture conviction in his dissenting opinion.

I agree with the majority's analysis of Pre's contentions on appeal, except as to the sufficiency of the evidence to support the jury's finding that Pre acted with the specific intent to cause cruel or extreme pain or that he acted for revenge, persuasion or any sadistic purpose. On this latter issue, I respectfully dissent.

The crime of torture was codified in California in June 1990, when the California electorate passed Proposition 15 in response to the facts in People v. Singleton (1980) 112 Cal. App. 3rd 418. People v. Jung (1999) 71 Cal. App. 4th 1036, 1044 (dis. opn. Armstrong, J.) In that case, Singleton kidnapped and sexually abused his victim, then chopped off her hands and dumped her in a ditch in a remote location. He was later charged with and convicted of attempted murder, mayhem, kidnapping and multiple sex crimes, which resulted in a sentence of fourteen years, four months in prison. Singleton was paroled after having served just seven years in prison and thereafter the new crime of torture was included in proposition 115 "to insure that crimes such as Singleton's receive a minimum punishment of life imprisonment". (Ibid., quoting Sen Com. on Judiciary, Assem. Com. on Public Safety, Joint Hearing on Crime Victims Justice Reform Act (1990) pt. 3, at p. 005.)

Penal Code Section 206 was not intended to alter the existing legal definition of torture, but was codified to insure that conduct amounting to torture would be punished by no less than life in prison even in situations where the victim survives, as in Singleton. (People v. Barrera (1993) 14 XL. pp. 4rh 1555, 1564) The majority recognizes as much, noting that the adoption of Penal Code section 206 was intended "to fill a gap in existing law dealing with extremely violent and callous criminal conduct." (Maj. opn. p. 13, quoting People v. Barrera, supra, 14 Cal. App. 4th at p. 1572) [17 Cal. App. 4th 426].

Notwithstanding the original intent underlying the adoption of Penal Code Section 206, the application of the statute has expanded, by judicial accretion, to any assault in which the victim suffers "great bodily injury" where the jury infers an intent to inflict cruel and extreme pain, regardless of whether the assailant's conduct was extremely violent and callous. (See, e.g. People v. Hale (1999) 75 Cal. App. 4th 94, 108 [holding that the crime of torture focuses on the mental state of the perpetrator, not on whether actual pain was inflicted]. Under such an application of the statute, virtually any aggravated assault proscribed by Penal Code section 245 that results in great bodily injury may qualify as torture under Penal Code section 245 that results in great bodily injury may qualify as torture under Penal Code section 206; if the jury infers the requisite intent from the defendant's conduct, the defendant will be subject to a life sentence rather than a two to four year sentence applicable to an aggravated assault conviction (Pen Code, 245, subd (a), even if the crime was not particularly heinous and the injuries were not particularly substantial. This is not what the voters intended in passing Proposition 15. In my view, a part of our function as a reviewing court is to see that the law is applied in accordance with its purpose and the intent underlying it.

As the majority opinion points out, our review of the sufficiency of the evidence to support the jury's verdict is limited. However, I disagree with the majority's conclusion that this limitation precludes us from finding that a reasonable trier of fact could not have inferred the requisite specific intent from the circumstances of Pre's attack on Rose. In fact, no existing published case has recognized the crime of torture arising out of conduct similar to what Pre engaged in here. Without minimizing the nature of Pre's attack on Rose and recognizing that Pre's conduct may be viewed as somewhat unusual, I nonetheless conclude that the jury could not reasonable infer that Pre acted with the intent to cause cruel or extreme pain or for revenge, persuasion or any sadistic purpose from his conduct, which was neither "extremely violent and callous," nor comparable to that involved in Singleton. A reasonable juror could not infer from the circumstances surrounding his attack on Rose that Pre intended to inflict cruel or extreme pain. Characterizing Pre's actions against Rose as torture "redefine[s], and minimize[s], the gruesome and sadistic nature of torture, which has long been recognized as among the most heinous of human conduct....." (People v. Jung, supra, 71 Cal. App. 4th at p. 1049 (dis. opn. Armstrong, J.). For these reasons I would reverse Pre's convictions of torture.

In the "torture" case of Richard Hamlin, the headlines about the case in the local newspaper, the Mountain Democrat, have most often included the word "torture" and almost never the words "domestic violence" or "spousal abuse". Even though defendant Hamlin insists that he is innocent of all charges, the reading public in the community where the trial is being held is constantly exposed to the "torture" adjective reinforcing the allegations District Attorney Gary Lacy. The hardworking jury, shielded from knowing the potential sentences allotted to each charge, will be asked to bring back a verdict of guilt of innocence on each of 18 felonies never realizing the impact of their verdict in terms of the years taken from a man's life.

The United State's "war on terror" has resulted in torture becoming more prominent in today's local and international headlines. Now one finds the nation's war on terror reaching into domestic violence, an area usually reserved exclusively to state law.

In 1998, the Violence Against Women Act was passed. The statute,18 United States Code 2261, provides penalties for: Interstate domestic violence, interstate violation of protective order, interstate stalking, possession of a firearm while subject to a protection order, possession of a firearm after conviction of a misdemeanor crime of domestic violence, or felony in possession of a firearm. All of these offenses require that the defendant engage in some interstate activity so there is federal jurisdiction.

There is also one federal statute which applies specifically to torture:

Title 18, United States Code, Section 2340A.

(a) Offense - Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction - There is jurisdiction over the activity prohibited in subsection (a) if:

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy - A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

The United States Attorneys Criminal Resource Manual, in Section 20 somewhat explains the attitude of this office in regard to prosecuting torture cases:

http://www.newsmakingnews.com/vm,hamlin,violence,or,torture,12,29,05.htm