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RAJU............ (Business)     26 October 2011

Dv-act- desertion by wife


Can a women file a case in a state where her parents are residing in Domestic Violence Act-2005. Irrespctive of the couple were staying together in another Indian state .Whether cognizance of the case will be taken into consideration in another state?


After leaving her husband VOLUNTARILY and without consent of the husband for exactly about 2 years and then filing a case in a fit of anger under DV Act-2005. Whether after desertion for about 2 years such case can she files to avenge on her husband?

Whether a single instance of quarrel between the couple on flimsy ground constitute a Domestic Violence under section 3 of DV Act? . It may be please noted that such quarrels were not followed and frequently done never afterwards. At  end of two years but after the laps of two years even not residing with her husband and residing with her parents and doing a job to earn money on her own can a DV case may be filed on such single instance only in the court where wife resides with her parents.

Can a DV Case be filed on an instance of quarrel say on 1-2-2006, which is before commencement of the act? The wife files case under DV Act on 10-4-2008 while she was residing happily with her parents doing job.

While deserting her husband on her own and against the wishes of her husband she had taken her children along with her . And now children are living with her. Can the husband file an application before the magistrate under the section 21 of DV Act for visiting rights of the children?

Can a magistrate entertain the application without insisting a report under Sec 9(1)b of the DV Act , a domestic incident report in form -2 from the protection officer.

What are the measures to be taken lawfully by the husband to see his children, as wife is preventing him to see his children and causing a mental agony.


 7 Replies

ajay sethi (lawyer)     26 October 2011

: in case of manish tandon &ors v/s state delhi high court held DV act can be filed where the person aggrieved permanently or temporarily resides or carries on business or is employed


thus your wife can file complaint in state that  at present she  is  residing namely  parents place




In a significant ruling that will help many women who are victims of domestic violence, the Delhi High Court Monday said the case can be filed any time if the action has happened. 

Justice V.K. Jain, setting aside the order of the trial court on the basis that the legislation came in 2006 and the complainant suffered domestic violence in 2005, said: “This approach will give a message of discrimination.”

“The petition under the Domestic Violence Act is maintainable,” the court said.

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RAJU............ (Business)     26 October 2011

Thanks for u r kind reply.

What are the measures to be taken lawfully by the husband to see his children, as wife is preventing him to see his children and causing a mental agony.

ajay sethi (lawyer)     26 October 2011

if wife is refusing to permit you to move court you cna make application to court for visitation rights . since you are the father court will permit you to visit on weekends , during vacations etc . wife cannot deny you visitation rights .

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RAJU............ (Business)     26 October 2011

Sir ji, Thank You.

Will you Please enlight on this .

At  end of two years but after the laps of two years even not residing with her husband and residing with her parents and doing a job to earn money on her own can a DV case may be filed .

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     26 October 2011

Even under PWDVA, 2005 an application u/s 21 can be moved for visitation of the children by the respondents.





Shonee Kapoor

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Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     26 October 2011

Also, the maintenance and other reliefs are matter of facts and proof.





Shonee Kapoor

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Nitish Banka (lawyer)     26 March 2018

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

( Advocate Supreme court)

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