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Hari (Confidential Assistant)     25 August 2011

Desertion by wife

This is in reference to my wife's sudden disappearance from my home about a one and a half year ago.  Missing case was registered in the Police Station.  Till date things have stood-still with no development from either the Police or my in-laws.  I am alone with my retired father and very young sister and brother who are still studying.  Due to unfortunate circumstances that life has put me into I am not able to fulfill my social obligations towards my family.  Inspite of tremendous and justified pressure for marriage from my family members, I cannot make up my mind for the same due to some possible severity of the consequences which may result by the same.  The parents of my wife are advising me to marry another woman.  We are ready to give you in writing.  You dont spoil your life for the heartless women i.e., our daughter / sister.  As I am a Govt. Servant and is there any insightful guidance as to possible course of options legally open to me whereby I can fulfill my social and filial obligations in the circumstances I am in and preseve my sanity.  I want to marry now.  Please help.  



Learning

 8 Replies

Hari (Confidential Assistant)     25 August 2011

My marriage has not been registered except with some photographs of our marriage.  Its just a live in relationship and her whereabouts are not known till date even after of 1 1/2 year of missing from my home.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     25 August 2011

You can not legally get married.

 

Divorce can be obtained only after 7 years of disappearence or 2 years of desertion.

1 Like

(Guest)

Very pathetic, yet u cant get married legally.

Tajobsindia (Senior Partner )     25 August 2011

@ Author 

Since you are public servant following are quick way around legaly

1. File RCR
2. Get the Service effected upon by all menas to her natal home
3. Get it ex partied
4. File Execution Suit of RCR ex party decree within 1 year
5. Wait  for Appeal period (90 days) post RCR decree execution and afterwards get yourself re-married.
Reasoning: As you yourself say that In Laws are in your favor (verbally). Hence seems no criminal / civil act going to be lodged against you / your family so to assume. Secondly societal pressure coupled with public servant service conduct Rules you have only above limited options available in hand to establish a marital life.

mamta kaura wadehra (lawyer)     26 August 2011

you cant marry. file a divorce petition and attatch the copy of f.i.r with it and get the ex-parte decree. only then you can marry.get the statements of your in laws recorded in the court regarding the missing of your wife

Arif Iqbal (Advocate)     26 August 2011

I agree with the coments of the learned experts

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     26 August 2011

Dear Lawyers and experts,

 

Please clarify my doubt here, because I think, I have valid doubt about your advise of few members not being in consonance with HMA, 1955.

 

How would a person serve the notice when the other party is missing, serving notice to family members won't be of any help as they also don't know the whereabouts.

 

It is a hapless situation and the facts of the case fall under Sec 13(1)(vii). As the person who would have naturally heard from her have not heard from her.

 

It is not a case of desrtion as the lady is missing and can not be said deserter as there can not be any proof of any willful desertion. Desertion is a matter of fact and not mere conjectures.

 

I know the situation is hapless and stricto sensu no case of desertion can be filed on true grounds.

 

There might be many reasons to lie in various places, but I don't think we should encourage people saying lies at any stage.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Nitish Banka (lawyer)     26 March 2018

Divorce on Adultery

Under the Hindu Marraige Act, 1955 adultery word is not used in the Section 13 1(i) of the HMA 1955

13. Divorce- (1) Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage had voluntary s*xual intercourse
with any person other than his or her spouse;

Image result for adultery

Divorce on Adultery

Now How to prove Adultery in Indian Courts?

The courts in India puts heavy burden on the person who is saying that his estranged spouse and invoked the provision of section 13 1(i) of the HMA 1955. Anything short may come under the cruelty ground and petition of divorce can be dismissed, therefore it very important to consider whether constitute adultery or not.

Though direct evidence of adultery is rarely adduced but largely the evidence is circumstantial.

What are the  facts that can prove adultery?

Since circumstantial evidence is the basis of proving adultery, the circumstance like wife and her paramour lived in a Hotel for 1 night and no explanation is given by the wife to this effect then adultery is presumed for this entry in Hotel register, CCTV footage with certificate under section 65B of IT act. It is important to make paramour also a party to the suit though no decree can be sought against the paramour. it is important the evidence of witnesses in are of equal weight age like A Husband brings his girlfriend to house in absence of wife and take her into bedroom. the witnesses can be grown up children, neighbors, maid etc. These are the circumstances where adultery can be presumed.

But a mere suspicion that wife was not home whole night is not enough to prove adultery. There should be voluntary s*xual intercourse and if husband tries to create a situation wherein a wife is left alone with male person not his husband under such circumstances it is not adultery. A rape on wife is not adultery.

Even if the paramour of the wife writes filthy letter that too also does not come into an ambit of adultery. what adultery is in the eyes of a reasonable man?  that circumstances are such that a reasonable man would think its adultery. like wife is living with paramour for more than 7 months . Another thing is merely having flirtatious conversation with a person not his/her husband/wife does not mean adultery, though it can come under mental cruelty. Wife conceiving a child and husband was away for 365 days is a conclusive proof.

Conclusion

The ingredients for proving adultery are like the facts in which the intimacy is such that in the eyes of the reasonable man, such intimacy is there, credible evidence needs to be produced before the court to prove adultery merely on the basis of whims fancies suspicion the same cannot be proved. The court also  put the heavy burden of proof on the person alleging. Divorce on adultery is difficult.

Advocate Nitish Banka

9891549997

nitish@lexspeak.in


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