Divorce
jasvinder
(Querist) 14 May 2012
This query is : Resolved
my friend wife filed divorce on ground of desertion and my friend also not want to live with her,if he will not appear in court can ex party divorce be given by court and what else court may award to his wife as she prayed only divorce.they have a child who is with her wife.can such ex party divorce can be challenged set a side after some time.
SAINATH DEVALLA
(Expert) 14 May 2012
When filing for divorce, you will have to state a valid legal reason or grounds for the divorce. There are fault and no-fault grounds. Abandonment or desertion is one fault-based reason for divorce, meaning the spouse seeking the divorce must prove the other spouse's wrongdoing.
Abandonment or desertion generally means one spouse decides to stop living with the other spouse without a good reason, intends not to return, or that the marriage should end. Abandonment or desertion is included as a reason for divorce.
Here are some conditions laid down by the Supreme Court in a landmark case of Bipinchandra v. Prabhavati, AIR 1957 SC 176. The following conditions must be satisfied for desertion to be established in law:
Factum of separation i.e. willfully staying separately from the deserted spouse.
An intention to bring a permanent end to cohabitation.
Absence of consent to the separation on the part of deserted spouse.
Absence of any action by the deserted spouse providing justified reason to the spouse to leave the matrimony home.
Another famous case in Hindu marriage law pertains to Dhrubajaati v. Vila, AIR 1979 Ori. 93. In this case, the wife left the husband’s house in the second year of the marriage. She visited her matrimonial house after a long gap of four years, in the absence of her husband. She left before his arrival. The husband filed for divorce on the ground of desertion. The District Court held the desertion was put to an end after the wife’s visit to her matrimony home in absence of her husband. However, the High Court of Orissa observed that such a sudden appearance and disappearance cannot be considered as an intention to rejoin, so the desertion was continuing. It reserved the decision of the District Court. A constructive desertion is considered on the part of a person, if he/she makes the life of his or her spouse so intolerable, that the spouse is compelled to leave the matrimonial home.
If the respondent is not represented either in person or by an advocate the verdict is bound to go ex parte.She will have the liberty to claim maintenance for both herself and the child.
Shonee Kapoor
(Expert) 14 May 2012
Don't let it go ex-parte, because anytime after divorce she can claim anything under Sec 25 of HMA.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
ajay sethi
(Expert) 14 May 2012
he should appear in court to protect his interests . she can claim maintenance for herself and the child
Nadeem Qureshi
(Expert) 14 May 2012
Dear Sainath
As per your query if she filed only for divorce the court can not pass any order order without filling any another application for another relief.
feel free to call
