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Ani.Anonymous (Service)     01 April 2011

Divorce i- Need help.. I have been really stupid

Dear Anybody,

I need sound legal advise for proceeding with my Divorce

Iam a Christian was married without any registeration when I was 17years old. Both are christians, its been now 6years since he deserted me , got 2 kids who are looked after by me.

. Queries mentioned below.

1.Want to know if my marriage will be considered in court.

2.All the proof I have is his name is mentioned in Kids birth certificate, my PAN card contains his surname

3.Can I file for divorce

4.I dont know where he is now

Please give your valuable advise and guidance I dont have any family support, I want to be well informed and cant spare much money in engaging a lawyer...... Please help

 



Learning

 10 Replies

M.Sheik Mohammed Ali (advocate)     01 April 2011

1. yes the court consider your marriage is valid

3. you can file a divorce case and maintenance case against him,

you can appear in family court  without advocate, but who has help you and make complaint and notice.

if your husband name having any assets you can ask from the property.

1 Like

Ani.Anonymous (Service)     01 April 2011

Dear Sir,

 

How exactly do I do that Iam in Bangalore.

What documents should I carry?

Who should I approach in family court?

How will court give me the divorce since he is not traceable?

Ani.Anonymous (Service)     01 April 2011

 

a.How exactly do I do that Iam in Bangalore.

b.What documents should I carry?

c.Who should I approach in family court?

d.How will court give me the divorce since he is not traceable?

e.How much time will this take?

f.Will court declare me the sole custodian of my kids?

Tajobsindia (Senior Partner )     01 April 2011

@ Author


It is a very tragic situation you have come here seeking remedy of.


Given to understand you married at underage even as per Special Marriage Act which besides the point further the man in all your life has deserted the family now for almost 6 years.


Clubbing these tragedies and no where you say in your brief that you along with children may need support from him and this beside the point your main que. is for seeking remedy for divorce on grounds of constructive desertion and you have no clue how to go about it legally!


If these are right interpretation of your tragic situations then all you have to do is wait for 1 more year and then approach first the Legal Aid Center attached to the Family Court in Bangalore and seek their help in appointing a Legal Aid. Here you contact the reception and seek for appointment for discussing your briefs for legal Aid provision applicable in your case. The reception people will fix up a date / time for you to come and meet the center Incharge who is from Judiciary a experienced person and in front of this person you may narrate your short briefs and ask for help i.e. for attaching with you a legal aid person on STATE expenses who will be assisting you in preparation of your suit as per your briefs, annexing necessary documents, affixing of Court fees, preparing affidavits and admitting the case before Family Court Judge and pleading on your behalf all on STATE expenses .



However since you are tricked by life’s unfortunate happening representing yourself before Family Court and defending your suit in legal terminology will be a time consuming and tough affair and drain your time and energies hence I disagree to above ld. Advocate’s views purely based on your briefs  and I say even Section 13 of FCA (Family Court Act) is not absolute as per interpretation of various Courts and even as per FC (Family Court) in Bangalore and in your situation the Family Court is bound to grant remedy by appointing this Legal Aid given ld. advocate as amicus curie to the Court means friend of the Court appointed by Court to assist the court as well as you !
.


I understand the apathy of running a legal case when no clue of husband and probably his side of family whereabouts known and or there and it is even too late to file even a habeas corpse petition to produce him to Court  but all I can say that looking at your and children’s situations is that you shall not remain remediless if that is what you are unfortunately made to contended with all these six years, hence you may with confidence follow suggestion of first approaching Legal Aid Center of Bangalore Family Court and seek for a representation who will help you in drafting followed by filing the suit and servicing the same as ex Party eventually is my view.



The Birth certificate / Pan Card / Election Card / Ration Card / Marriage reception photos are quite sufficient documents to annex with your case suit and same may be carried to Legal Aid Center.



PS.:
You may also use last known address of your husband such as that of his family / home town where his parents or any of his ‘relatives’ live to service upon the suit process and all these you may discuss in confidence with Legal Aid Center Head during suggested self representation. It is doable thing and only hitch you must overcome is going there once.

 


It is a tough world you and children are made to live in and may God give strength and concede help at the earliest in such briefs.

1 Like

Ani.Anonymous (Service)     01 April 2011

Dear Sir,

 

Truely intepretated..

I do not seek any aid from him yes but if my kids will be benefitted in thier education then will pursue it what do you suggest?

So should I wait for a year as per your advise or ahead right now to file?

Will it be constructive desertion or someother header?

Yes it has been tough but me and kids have moved on leaving our pasts behind, however taking great care so that kids are not affected in any way.

 

Tajobsindia (Senior Partner )     01 April 2011

@ Author

1.
See, your children are no way going to benefit it if father is not traceable! However if his parents address known then property rights of your share and or children share angle could be looked into under Succession Rules of special marriages under which your marriage falls. But, I repeat “but” it is a long drawn civil suits upon suits case scenarios as Family Court Acts especially Section 7 read with its sub clauses have such flexibilities in-built in one Special Act to concede to remedies exactly as prayed in your very first post read with subsequent post J 


For lawman's quick understanding certain nuances of Law you may read down

https://www.lawyersclubindia.com/bare_acts/Family-Courts-Act-390.asp



2.
It is “constructive desertion” and layman’s interpretation of such words and phrases in Law is that, “one spouse leaves company of another spouse to end cohabitation” and further read simple meaning of cohabitation which means ‘cohabitation meaning is one spouse lives with another spouse under the same roof continuously for minimum of 180 days which is constructed as they being functioning as husband and wife as per their personal Laws including pre-assumption of performance of their conjugal rites which is they have been found to be copulating” so it is now almost for 6 years as you say wherein he is found to be missing performing ‘cohabitation with you read with performing fatherly duties”, what could your apathy be called as other than clear case of constructive desertion read with not known / not heard of and not cohabited under a roof as husband and wife further not cared for his legitimate children welfare!!!!  

1 Like

PARDEEP KUMAR (Practicing Advocate)     02 April 2011

Hi,

Though I do agree with TajobsIndia to some extent, but I think he is advising to wait for another year, mean he is referring to provisions of Indian Evidence Act, according to which a person whose whereabouts are not known, and who is not seen, heard of for a period of 7 years in continuity is presumed Dead.  However, in that case, what is is the need for filing Divorce, and from whom she would get divorce?.  remember she is having 2 kids and via DNA etc., etc., paternity, marriage etc., could be easily proved. 

Otherwise, if that guy is not there for the past 6 years, and the lady, do not know his whereabouts etc., why didn't she lodged a FIR or missing person report.  How could she going to prove that the man is missing since last so many years. 

 

I think the right course for this lady at this stage is: -

To file a petition for restitution of conjugal affairs, deserted without intimating his address since last 6 years, indicating his last known(before marriage) address or his parents address (off course I know she is a christian, but since both are christians, provisions of christian marriage act could apply).

 

 

 

 

 

 

1 Like

Ani.Anonymous (Service)     02 April 2011

 

Hi,

I do know where his parents live, things went very dirty before our seperation he having an extra marital affair and was exposed of it, in order to retain him the other woman's parents were intimated by me which lead to lot of arguements from the girl's side and he walked out from our family.

For sure I know he is not dead, he is in contact with his parents and they are not revealing me the details. I did bring this divorce thing up to them all that his father says is get the papers I will get him to sign now this sounds so illogical just getting frustrating. 

My only need of the hour is I have to be the sole custodian of my kids and just an example even to apply for a passport for my kids I need his involment legally this really gals me a lot, Father who is not even involved the law asks for his approval...

 

PARDEEP KUMAR (Practicing Advocate)     03 April 2011

Let me ask a question, In case, a girl gets pregnant and gives birth to a child, without marriage, can't that child gets his/her passport. 

However, in your case, my ad vise is, go ahead file a divorce petition on grounds of desertion and adultery, use his parents address.  Also seek maintenance either under section 125 of criminal procedure code,1973 or other provisions, seek maintenance at least for the kids, after all its his responsibility as well.

 

best of luck,

in case you do not afford a lawyer, a draft divorce/maintenance petition could be provided on this platform, free of cose.

 

me,

 

an expert

Sanket Sharma (AM)     07 April 2011

Please seek advice from Family court at free of cost, u can claim maintenence and attach his property too


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