LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Mumbai Hubby (IT Professional)     13 April 2008

Divorce on Dissertion

Hi All,

I got married in  Feb 2004.My wife is very dominating and wants me to leave my parents and take seprate home near her parents.She left home in Nov. 2005 but come back in Nov 2006( after one year). She was with me for one month that is Nov. 2006 to Dec 2006. She left home again in Dec. 2006 and till date she is with her parents.There is some bottle neck in taking Mutual Consent we have agreed to all the things. She wants 6 Lakhs as alimony. She wants this money in cash and
does not not anything to be mentioned regarding this money and alimony in petition.I want to paythis money by cheque/draft and wants to wants to mention the same in petition.There is no communication on this from last 4 months.

Kindly request all the honurable memebrs/Lawyers to give their suggestion as to what should i do to get divorce.If i plan to file case on ground of dissertion, will the one month when she was with me (Although we r seperated from Nov. 2005 but she was living with me for one month between Nov 06 to Dec.06)become bottleneck. What proof will i require to prove dissertion and her unresonable demand.
Will i require to pay manitaince as she is seperated for unreasonable grounds.

Need your help. Kindly give your suggestion


 6 Replies

Known (B)     14 April 2008

Call local MLA at your wife's place and promise him that you will contribute to his party fund. They will help you out in a false 498A or DVA.

Kiran Kumar (Lawyer)     14 April 2008

hello friend, its quite unfortunate that ur matrimonial has gone far as disertion is concerned it needs to be proved like with the help of witnesses, u can trace her mobile usage to prove that she remained at distant place from u........if she has denied u s*xual relationship even then it amounts to desertion........if she is running away from the basic matrimonial duties even then it is desertion......dont pay her the money without getting it in written, she might be having some relationship somewhere else........file a case after consulting the local lawyer with all facts before him.....she will also have to prove that she is not deserting and intends to live with u.

Kamal Dave (Advocate)     15 April 2008

Dear ..., Your case appears to be a strong one. You can seek divorce on the ground of desertion. As regards payment of alimony many factors drive this such as your earning capacity, your wife's earning (if not then her qualifications etc could be utilised for setting off burden of alimony). Thus you need to weigh these and put before the court and as stated by Sh Kiran Kumar, you can make use of the information. And the suggestions made by Mr Kiran are correct.

Prakash Yedhula (Lawyer)     16 April 2008

See whether the news article appearing on the Hindu is of any use to you.

"A Hindu spouse seeking divorce under Section 13 of the Hindu Marriage Act, 1955, bears ``the burden of proving'' for the offence of desertion, the two essential conditions concerning the `deserting spouse' as well as the two essential elements in respect of the `deserted spouse,' and their continuance throughout the statutory period (of not less than two years immediately preceding the presentation of the petition for divorce), the Supreme Court has ruled.

The essential conditions for the offence of desertion concerning `deserting spouse' are: 1) the factum of separation, and 2) the intention to bring cohabitation permanently to an end (animus deserendi).

Similarly, the essential elements concerning the `deserted spouse' are: 1) the absence of consent, and 2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.

Delivering the judgment, Mr. Justice D. P. Mohapatra, on the facts and circumstances of the case, set aside the verdict of the Andhra Pradesh High Court which reversed the judgment of the Trial Court (Narsapur) and held that the wife did not have at any time the necessary `animus' (intention) to put an end to the matrimonial relationship and never intended to desert her husband (appellant).

The Trial Court, on appreciation of evidence, held that the appellant had satisfactorily proved that the respondent (wife) was guilty of having deserted him for a continuous period of more than two years preceding the filing of the petition for divorce and that he was entitled to a decree for `judicial' separation under Section 10 of the Act instead of the decree for dissolution of marriage under Section 13 (1) (ib) of the Act. Accordingly, the Trial Court granted a decree for `judicial separation.'

The Bench, which included Mr. Justice Doraiswamy Raju, while restoring the Trial Court's verdict noted that on the evidence in the case ``the conduct of the wife seems to be more indicative of a firm determination not to return to the marital home and discharge the obligations attendant thereto'' and ``therefore, the judgment of the High Court is unsustainable and has to be set aside.''

On the issue of `desertion', the Bench cited with approval an earlier ruling (Sanat Kumar case, 1990) which said that ``the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation.''

``The failure on the part of the wife to substantiate a serious allegation of infamous conduct of indecent advances said to have been made to her by the father-in-law (since deceased), taken together with the absence and omission from her side to demonstrate her readiness and willingness to discharge her continuing objection to return to the matrimonial home, establish sufficiently the animus deserendi, necessary to prove legal desertion as required under Section 13 (1) (ib) of the Act,'' the Bench said. "

shaheen (lawyer)     17 April 2008

Its a good case and if putforth properly the tables will be turned. Kiran is right Dessertion need not necessarily be stauing under different roofs . Absence of co-habitation also amounts to dessertion. If you have any further query you can write to em on

Guest (n/a)     23 April 2008

i got married with an italian woman and got certificate from marriage officer as per special marriage act of 1954 of 43.After a month she fled to her country. As i contacted her she refused to come and never.Now i want divorce from the court what should be done?

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register