Dessertion
Bharat
(Querist) 30 April 2012
This query is : Resolved
Sir
My wife has left me and went. Its almost 20 months now. She has no intention of coming back after repeated requests and invites. I have decided to apply for divorce.
Should i wait for 4 more months ( 2 years) to apply divorce on basis of dessertion or can i apply now on any other basis?
Sankaranarayanan
(Expert) 30 April 2012
If you decided to get divorce then you should decide the way, if you need to go by the ground of abandonment then need to wait as you mentioned . otherwise you file for no time
Adv.R.P.Chugh
(Expert) 30 April 2012
Dear Bharat,
Desertion as you know requires 2 years living apart. But mind you desertion is not only physcial seperation. Even in same home if you live together but not performing obligations of Husband & Wife that's also virtual desertion. If even counting the same - it does not sum up to 2 years - you can wait for a while, or file on the grounds of cruelty right away.
Word of Caution : Be prepared for dowry498A/406 complaints as counter blast to your case.
Feel free to talk!
ajay sethi
(Expert) 30 April 2012
wait for 4 more months as you ahve already waited for 20 months now .
M.Sheik Mohammed Ali
(Expert) 30 April 2012
yes, you must wait 4 months then over 2 years,thereafter file divorce petition.
SAINATH DEVALLA
(Expert) 30 April 2012
Dear Bharat,
Once she left your home,were you expecting her to come back and join you.If you knew that she would not come back,you should have immediately filed RCR.Then things would have been different.Bharat Chughji and Sethiji can he file RCR now,as 20 months have elapsed?
Bharat
(Querist) 30 April 2012
Thank you so much for the reply sir.
Bharat
(Querist) 30 April 2012
Thanj you Mr.Sainath. Sir, I was continously presuading her to come back. Now i realised that she will never come back and i too have decided not to live with her after so much of mental torture that i have experienced.
Deepak Nair
(Expert) 30 April 2012
As she is not ready to live with you, try to convince her to file a joint petition for divorce by mutual consent.
Nadeem Qureshi
(Expert) 30 April 2012
Dear Bharat
according to section 13 of hindu Marriage act ,1955
if you want to go for divorce on ground of Desertion you should completed two years as you wait 20 months you should wait remain 4 month, but if you want to go for divorce on the ground of crulty, you can go and file the divorce petition before the court.
feel free to call
section 13:
13. Divorce.
(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the
1. Subs. by Act 68 of 1976, s. 6, for" or fraud".
2. Subs. by s. 6, ibid., for" the grounds for a decree".
husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) 1[ has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) 1[ has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.- In this clause,-
(a) the expression" mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression" psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment; or]
(iv) has 2[ been suffering from a virulent and incurable from of leprosy; or
(v) has 2[ been suffering from venereal disease in a communicable from; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
1. Subs. by Act 68 of 1976, s. 7. for the former cl.
2. Certain words omitted by s. 7, ibid
1[ Explanation.- In this sub- section, the expression" desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 3[
(1A) 4[ Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 5[ one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 5[ one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 6[ bestiality; or]
(iii) 7[ that in suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 , (78 of 1956 .) or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 .) (or under the
1. Ins. by Act 68 of 1976, s. 7.
2. The word" or" at the end of cl. (vii) omitted by Act 44 of 1964, s.
3. Cls. (viii) and (ix) omitted by s. 2, ibid.
4. Ins. by s. 2, ibid.
5. Subs. by Act 68 of 1976, s. 7, for" two years".
6. Subs. by s. 7, ibid., for" bestiality".
7. " Ins. by s. 7, ibid.
corresponding section 488 of the Code of Criminal Procedure, 1898 ), (5 of 1898 .) a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
(iv) that her marriage (whether consummated or not) was Solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation.- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 .] (68 of 1976 .)
M/s. Y-not legal services
(Expert) 30 April 2012
already a detailed discussion was over., now you can decide your self that what you going to do..
-tom-
Shonee Kapoor
(Expert) 02 May 2012
If desertion is the sole ground, then wait for 4 months.
I would warn you against filing divorce on false grounds.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
