Raanjkumar (Prop) 02 September 2012

Desertion

About my best friend. His wife deserted him in year 2001. She left behind 2 boys of age 21 & 14. She carried her jewellery away. Since then, there is no divorce, legal case, reporting etc of any kind between them. My friend is financially very strong. He has owned flat and office and business.

The question: (1) What kind of maintenance or compensation my friend will have to pay if she files a case for divorce & maintenence & her share in husband's property? (2) How can my friend safeguard himself so as to pay least compensation etc..

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8 Replies

Nitish Banka (lawyer) 02 September 2012

If there is no reasonable ground on which wife deserted the husband then she is not entitled to claim maintainence.

https://vinayak.files.wordpress.com/2012/01/no-maintenance-u-s-125-cr-procedure-code-to-deserting-wife.pdf

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Adv Archana Deshmukh (Practicing Advocate) 02 September 2012

If your friend can show that, it is the wife who have deserted him without any reasonable cause then, she will not be entitled to any maintainance. As far as property is concerned, she cannot claim any share in his property during his lifetime.

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M.v.pratap reddy (Partner) 02 September 2012

Dear sir

i think you are anticipating a future litigation, wife if not having source of income from any source can claim maintenance in the following methods.

a. By filing a petition u/s 125 croc for herself and any minor children living with her.. The maximum claim for each is rs. 5000/-

b.by filing a DVc case, can claim the maintance and also compensation if any under the circumstances.

c.by filing petition for divorce or restitution of conjugal rites she can claim maintance and legal expenses.

Points for consideration for your query.

proving desertion is a bit difficult as you will have only oral evidence and no documentary evidence.

tif the he properties are self aquired by your friend, he need not give share it wife and children, in a ancestral property only children will have share but wife cannot claim any share.

Things to do

get the documentary proof in respect of desertion.

I hope I clarified

Mv pratap reddy

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M.v.pratap reddy (Partner) 02 September 2012

The desertion should be voluntary on her part to avoid maintance to her.

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Sudhir Kumar, Advocate (Advocate) 03 September 2012

Is there any claim in 11 years.

Raanjkumar (Prop) 04 September 2012

Advocate Archana,

As per my knowledge, As per new divorce laws, wife is entitled 50% right in property owned by husband. Then howcome she not entitled to property during lifetime?

There has been no claim whatsoever in last 11 years. But my friend fears she may file divorce and claim on his property soon. He is worried, She may put claim of violence 11 years back ( which is not true). Both children are adults and they stay with father.

Please advise

Adv Archana Deshmukh (Practicing Advocate) 04 September 2012

Currently there is no law which gives a wife 50% share in the property of her husband. It is just a proposed amendment and no such law have been yet passed nor can anybody predict whether it will be passed and in what form it will be passed if at all it is passed.

Nitish Banka (lawyer) 26 March 2018

Desertion as a ground for divorce -What to prove?

Divorce by Desertion

Desertion is also ground for divorce in India, but the most difficult part is how to prove desertion in court of law. A layman may think desertion as his/her spouse is living separately for the period of 2 years that’s it.

But actually what courts in India require are the 4 things which areto be established by the spouse who is seeking divorce on this ground.

1.. Animus deserendi-This means the intention to desert, if husband or wife decides to leave the martial co habitation as they does not want to continue with martial obligations or may be called husband/wife under the eyes of the society this means they have developed animus deserendi, once this intention is formed this fulfills one criteria for proving desertion.

Now this intention can be from both sides or may be a constructive animus deserendi, In constructive animus deserendi when one of the spouse asks the other spouse to leave the house or leave him/her that is constructive animus deserendi other the other form is that the a spouse can leave the other spouse with his/her own will that is willful desertion. in both the situation the affected spouse i.e the spouse which was made to leave in the case of constructive animus deserendi or the spouse which was left alone can pursue the proceeding for divorce if other requirements are satisfied.

2. Separation- Now the Animus deserendi is followed by actual separation, now this separation can be physical or mental one, normally itrs the physical one here the actual action takes place merely forming an intention or telling a spouse that I will leave you is not suffice if it is not followed by some action. Merely an action without the intention is also not suffice both intention to leave and followed by action is mandatory in proving desertion.Sometime there is first physical separation and then followed by intention and sometimes its vice versa, both should takes place for a continuous period of 2 years.

3. No reasonable just cause to leave- There should not be any reasonable cause available to the spouse who is leaving the matrimonial ties, generally cruelty is alleged by defending spouse to defeat the proceedings of desertion in such cases the burden is on the defending spouse to prove cruelty by examining witnesses and medical examinations etc. But if defending spouse fails to prove any of the just causes then this ingredient stand proved.

4. without the consent- if the deserting spouse does not consents such desertion this final ingredient also stands proved, but how to prove this ingredient? now let us suppose a spouse leaves then there must be continuous efforts from the other side to b ring back the spouse, it should not be the case where the other spouse sits mutely while the other spouse has deserted. efforts should be made to render reconciliation. here contact with parents, mother father or other relatives are essential. reconciliation at its own level at first and then involvement of relative is essential, this would satisfy the court that deserted spouse never consented for such a desertion.

Proving all the aforementioned ingredients are essential to prove desertion i n court, if any one element is missing divorce cannot be granted. Gene really cases fall short in 3rd and 4th ingredient. merely living separately even willfully does not guarantee divorce to deserting partner.

Nitish Banka

( Advocate Supreme court)

nitish@lexspeak.in