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Mak (sale)     29 May 2015

Deserting partner for more than 2 years amounts to cruelty ?

Deserting partner for more than 2 years amounts to cruelty ?

As i am living in Canada & my ex-wife living in india. We got separated since Jan-2013. I came to canada in Aug-13 & since than i am here.

I got ex-partie Divorced from family court of canada based on one year of seperation. She never been to canada, so i know my canadian ex-partie divorced is not legally valid.

We tried to go for mutual divorced but it did not work out before i came to canada.

As in Aug-15 two years will be over, does that help me to get divorced in india if i applied ?

Please advise.


 11 Replies

Shantilal Pandya ( Advocate)     30 May 2015

  Certainly not, in the abscence of a conclusion of the issue  as to who was responsible for bringing about separation between  the   spauses, subject ofcourse to the binding nature of the Decree obtained from  the Canadian Court. 

advprasad9028707127   30 May 2015

You have to prove that, ur ex wife is not willing to cohabit with you than it would amounts to cruelty by her...

saravanan s (legal advisor)     30 May 2015

Desertion is a seperate ground for divorce.if you want to file divirce on those grounds you got to prove that it is wilful desertion by your wife and during the two years of desertion you made several attempts to reconcile which proved to be futile

Adv k . mahesh (advocate)     30 May 2015

the exparte divorce decree is not valid in india and to make it acceptale legally then again you have to file in the jurisdictional court of india with the order copy of canada here and if she does not contest the you will get divorce very easily and within 2 years what reconciliation steps you have taken has to be mentioned and if she contest the case then the case will take its normal turn and how much time it will take cannot tell



This is UR 8th similar query regarding desertion by wife,can U clarify,other things as suggested by the above experts.

Shantilal Pandya ( Advocate)     30 May 2015

The questioner only say that he tried for divorce only if the Canadian decree in this case  is not  bindiang  for any reason then   he cannot  make out a case for desertion  becuse  the alleged  separation was not against the will of this applicant

T. Kalaiselvan, Advocate (Advocate)     06 June 2015

The exparte divorce decree obtained in Canada is no doubt, as rightly observed by you, not valid in India as the respondent did not participate in the proceedings held at that place hence it is not binding on her who married as per Indian laws in India.  Since you know this very well, what prompted you to go for that in Canada?

Well non-cohabitation for a period of two years or more and  cruelty can be grounds for divorce that can be applied afresh in India, if you so desire. 

You may consult a local lawyer and discuss further issues at length before proceeding.

Shantilal Pandya ( Advocate)     08 June 2015

It is never the case  of the husband that the alleged desrtion was inspite of the protest of the husand  on the contrary  it appears that the husband was  trying alalong for divorce only and therefore it cannot be said that the alleged separation by wife  was willful on her part  

Mak (sale)     08 June 2015

Thanks for reply. 

To Mr. S. Pandya " We both decided to seperate in Jan-13 when we were together. After that i spend 6 months in india and she never showed intention to join me. After that i went to abroad in Aug-13." After that neither i nor she showed intention to join together. Infact in April-14 in presence of her & her side eleder persons we exchanged all belonging to each others. It is duly written on stamp paper with notarizartion."

So does it count willfull from both end ?





Shantilal Pandya ( Advocate)     10 June 2015

it appears that you both consented to be separate  and you always insisted for divocre and acually tried for divorce and  denied for resumption of cohabitation that by itself suggests  that there was justification on her part to remain separate since there can be a separtion without  desertton.further mere separtion in you case does not constitute cruelty. 

Shantilal Pandya ( Advocate)     24 July 2015

was the separtion against your will? was  there any attempt by you to ask her to reunite  during separtion ? if it was no, how can it be maintained that she refrused to reunite  and that too, was against your will ? mere separtion does not constitute desertion,however you can plead that intention  to bring and end to matrimonial tie can be presumed from the fact that you both have exchanged respective belongings you have to draft  the divorce petition very carefully.   

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