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Muhammed (Marketing)     08 November 2011

Desertion of nri husband: is it criminal offence?

Hi,

I am an NRI residing abroad for last decade. I am planning to file for divoce. I have a child (minor) from the marriage.

This is not going to be a mutual divorce at this point of time. An NRI friend of mine was in a similar situation sometime ago. He wanted to divorce but his wife and family did not agree. They tried to negotiate over phone but finally gave in and asked him to visit India to settle divorce. But as soon as he landed in Mumbai airport, police arrested and locked him up. His wife had sued citing desertion and the court let him fly back from India only on the grouds that his 3 year old kid was left back abroad alone and that the child was from another marriage.

Both conditions do not exist in my case. After I asked for divorce last year, her family reacted voilently first. Now they are talking sweet, asking me to go to India and "talk this over".

I doubt that they are up to something. They are powerful people with lots of money, and got enough stupidity to value community gossip over failed relationship. I have not been in touch with my wife for last two years, but has provided for expenses.

Question is: how is desertion defined in the law? Is it safe for me to go to India? What are my chances of getting arrested in airport if they sued for desertion?

Thank you in advance.

Regards, Mohammed. 



Learning

 15 Replies

K.P.Satish Kumar (Advocate)     08 November 2011

If your husband deserted you for a period of more than 2 years then you can apply divorce on this ground.

You can also file maintenance for you and your children.

for details:

K.P.Satish Kumar M.L.

Advocate:- 9962999008.

1 Like

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     08 November 2011

I guess you were married as per Classical Muslim Law.

 

If that is the case, the triple talaaq is valid way of divorcing.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

2 Like

**Victim** (job)     08 November 2011

@ Muhammed since you are muslim i am not aware of muslim matrimonial law that much. But usually in hindu if you or someone is sued and husband has deserted then there are good chances for you or that person to get arrested it could be from airport or from anywhere it depends till what extent your wife has proceeded with court cases. There are chances you would be declared PO or LOC could have been issued against you. You should check with your sources in india about these things. I suggest not to visit india unncessary. Just tell ur inlaws to talk on the phone but do not fly india unncessary it will be very hard for you to return especially if your wife is demanding alimony or settlement amount. Once again you are muslim so you should consult a lawyer accordingly........

1 Like

sridhar pasumarthy (ADVOCATE)     08 November 2011

Dear Muhammed,

Desertion means wilful neglect of a spouse without reasonable cause by the other spouse.

But desertion is a ground for divorce for a muslim woman, if it is countinued for not less than two years prior to filing of the application.  Your wife can also claim maintenance against you on this ground.

Desertion is not an offence.  so, there is no question of arresting by police on the ground of desertion. 

1 Like

Muhammed (Marketing)     09 November 2011

Thank you all for the comments.

@Satish: I am the husband, not other way around.

@Shonee: how is triple talaq done? How do I legalize it?

@Victim: thank you for the valuable advise. Questions: what is PO and LOC? How exactly is this declared?

@Sridhar: Two year is not complete yet. What exactly constitute (legally) desertion? Is it physical absence, or that plus nil communication?

Waiting for your suggestions, again...

Muhammed.

**Victim** (job)     09 November 2011

@ Muhammed,

 

PO  stands for proclaimed offender

LOC stands for look out circular


If exparty order is ruled out because of your absense or in case if you are held liable for the allegations mentioned by your wife then you are required by court to adhere court's rules & regulations. In case if you don't follow courts order then court will issue following

Bailable Warrant -----> Non Bailable Warrant ------> Declaring you as proclaimed offender (during this court will publish proclaimation with a  time period not less then 30 days you will be ordered by court to be present at specific place & specific time) if this doesn't happen then next will be LOC------->Look out circular (You will be arrested at any airports in INDIA upon arrival or departure)


(Guest)

Divoce laws should be only women specific and should be not civil laws but criminal laws. Only women should be entitled to divorce their husbands who behave like Naxis treating their wives like Jews. Men should not be allowed to file divorce cases against their wives. Only wives should be able to file divorce cases which should be decided on an ex parte basis as Indian Constitution is not governed by due process of law. Further husbands should not allowed custody of their wife's children and visitation rights to husbands should be granted on the basis some hard terms and conditions. The government will easily amend these antiquated laws of divorce. Wives never committ adulterory and if they do husbands drive them to do so. Moreover women should be condoned for adulterous Acts like in Western Countries because there they realize that men force them into such acts.

sridhar pasumarthy (ADVOCATE)     09 November 2011

Dear Muhammed,

Desertion means wilful neglect of a spouse without discharging the responsibilities and duties expected of a wife/husband.

There need not be nil communication.

**Victim** (job)     09 November 2011

Originally posted by :Randhir Kaul
"
Divoce laws should be only women specific and should be not civil laws but criminal laws. Only women should be entitled to divorce their husbands who behave like Naxis treating their wives like Jews. Men should not be allowed to file divorce cases against their wives. Only wives should be able to file divorce cases which should be decided on an ex parte basis as Indian Constitution is not governed by due process of law. Further husbands should not allowed custody of their wife's children and visitation rights to husbands should be granted on the basis some hard terms and conditions. The government will easily amend these antiquated laws of divorce. Wives never committ adulterory and if they do husbands drive them to do so. Moreover women should be condoned for adulterous Acts like in Western Countries because there they realize that men force them into such acts.
"

 

Here comes another nut case....

Muhammed (Marketing)     12 November 2011

@Sridhar: Thank you, again.

@Victim: my friend (who was arrested in airport) was not served any notice and was completely unaware that he was being sued back in India. By the time he realized it was too late--obviously. Let us say my wife has filed a case against me for wilful neglect, how will I come to know about this? I have my parents living in my home in India, so will the summons be served, physically, like by registered post? 

Thank you, your advice is invalubale.

**Victim** (job)     12 November 2011

@ Muhammed i believe you although the case against you friend might have been expartied without those things no one can arrest you. You will have to keep an eye on proceedings so that you are aware of what is going on ? Regarding LOC you will knw this from local police station because in order to issue LOC i think DSP authourization is required without that LOC can't be issued.


Regarding Summons it can be served to your last know address or your current address in case if they try to serve you abroad it will take a while in case if you neglect accepting summons. Initially summons are served through regd. post only first step would be regd. post directly from court if that doesn work then regd. post via ministry of home affairs if that doesn't work then summons through summons processor(In person Service) if this doesn't work then newspaper publication and then you will be required to attend court date if you don't attend then case will be expartied.


(Guest)

Bha never do the mistake of  stepping in your foster mother nation i.e India 

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     18 January 2012

There are ways to circumvent arrest.

 

Feel free to get in touch with the undersigned.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

1 Like

Nitish Banka (lawyer)     05 September 2017

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


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