30 August 2021
According to the law, where a decree of judicial separation has been passed and the parties did not resume their cohabitation even after one year of the passing of such decree, a petition for divorce can be filed. But in the given case, the petition of judicial separation is still pending. Hence, the law provides different grounds for divorce and one of them is Desertion. Desertion as a ground for Divorce is stated under Section 13(1) (ib) of the Hindu Marriage Act, 1955. It states that, “any marriage solemnized, whether before or after the commencement of this 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 has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.” In the given case, the wife has left the husband and therefore, the husband is eligible to file for a divorce after completion of two years. There is requirement of an evidence for the same as well, otherwise it will not be entertained by the Court. Also, the husband can go for an option of Divorce by Mutual Consent. Section 13(B) of the Act prescribes that, “in order to mutually dissolve a marriage, the spouses should be living separately for a period of at least 1 year before filing the petition.” Hence, your son can ask his wife for the same, so that there would be a peaceful end of the marriage. And, if she does not agree with the same, then filing for a Divorce under Section 13 is the only solution.