Remarriage if husband is absconding
lakshmi
(Querist) 25 August 2014
This query is : Resolved
We got married in 2004, then he left me in 1 week. I cudnt find him and finally I found him in 2007. Wen I tried to reunite with him, he filed a divorce case of dessertion in bandra court. I contested against it. When he cudnt prove the case, he absconded. The court passed a decree in 2009 that he s absconding and not avlb in the address submitted in the appln. Its also mentioned in the decree that inspite of judge asking his parent n lawyer to submit the correct address, they left the court without giving the address. I cudnt trace him.Fyi all I cud gather abt him is that he s married with kids.Can I get married now in 2014 since the court has declared him absconding.
Y V Vishweshwar Rao
(Expert) 25 August 2014
The Divorce Petition filed by him is dismissed for default !
Anirudh
(Expert) 25 August 2014
On the contrary, you should make some more efforts, find out about his current status (even if you have to engage the services of a detective agency). If it is proved that he is married, then you should file a criminal case against him for marrying when the earlier marriage was subsisting. He will come in line.
Consult your local lawyer.
ajay sethi
(Expert) 25 August 2014
since you want to remarry you should first obtain divorce from your husband .
lakshmi
(Querist) 25 August 2014
I m sick of running after him.. I m mentally n financially drained. I dont want to go thru the same process again... finding him, then filing case of bigamy etc. This wil take another 5 yrs or more. Am 37 now. Can I get remarried n carry on with my life on the basis of that absconding decree or that he s married. I hv his childs birth certificate
Plz help
ajay sethi
(Expert) 25 August 2014
no you cant remarry during subsistence of earlier marriage . better apply for divorce . you can get exparte divorce if husband dosent contest .
Rajendra K Goyal
(Expert) 25 August 2014
You can not remarry without divorce. File divorce and if his address is mot known, ex-party decree would be awarded. Agree with the expert.
lakshmi
(Querist) 25 August 2014
Respected Mr.Sudhir kumar... can u pls explain your point. Do i hv to file a FIR of his disappearance? Fyi even a warrant was issued by court in maintenance case because of his disappearance from court but the police could not trace him in Mumbai or his native place.
lakshmi
(Querist) 26 August 2014
Pls clear the one last query. Am thankful to each n every expert who answered my query.
Pls explain "wait for 7yrs after fir of his disappearance"
Anirudh
(Expert) 26 August 2014
Dear Lakshmi,
I understand your position.
But law does not.
Let me clarify each point.
1. Under Sec. 107 of Indian Evidence Act, 1872, when the question arises as to whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
2. Similarly under Sec. 108 of the Evidence Act, when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
Thus, whenever someone is required to be declared as dead, then one has to prove that he has not been heard for seven years.
This is not applicable in your case, as you know that he is alive.
NOW coming to the question, whether you can remarry. The answer is emphatic NO for the simple reason you have not obtained divorce through court of law.
The mere fact that there is a child fathered by your husband, will not be proof enough to say that he is married to another woman.
Either you have to get proper divorce through court, or bring him to book by charging him to bigamy if you are sure and has proof that he has married.
When you know that he has a child and you can get the birth certificate of the child, it is possible for you to get his whereabouts also, BUT FOR THAT YOU SHOULD TRY.
Sudhir Kumar, Advocate
(Expert) 07 November 2014
In case a person is not traceable and not heard off for last 7 years he can be presumed dea. In such case his spouce can remarry being presumed widow. You have to consult your advocate on this issue showing him all the papers.
Further if you re-marry without divorce you new husband can be fixed by him for Jail upto 5 years.
