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Krishna Kumar (Business)     13 July 2012

How to get divorce from wife when not willing

Hi Exports,

I filed divorce case by desertion and cruelty after two years of separation from my wife. She is dragging the court dates how much she can possible, meanwhile she spoke to me for MCD. She is asking 30 lakhs + Gold worth of 5 lakhs. I had already given 6 lakhs to them before marriage, but she does not consider that.

I told I am not willing to got for MCD with that much money. She is not ready to reduce the amount and not ready for divorce without money. She is well educated. Could you please clarify the following doubts.

1. If she is not ready to live with me and not ready for divorce, what will be the court direction on this case? Will the court wait till my my wife says yes for divorce.

2. When court expecting her presents or reply from her, and she not replied or appeared to the court - will the court wait for her? If yes, how many hearings, how many times.

3. Please let me know what direction I can take further. My lawyer always telling let her come back, we will make our decision.

Please let me know what to do in this situation.


 10 Replies

Tajobsindia (Senior Partner )     13 July 2012

@ Author,

Change your Lawyer. Hire via reference / search LCI database for a seasoned advocate who knows what steps to be taken on your minor query 1 and 2.
2. It takes years in Court to get Divorce by a husband if he is first mover here. Make FD of the reasonable money that you think fit to give for that eventful MCD date and meanwhile meet expenses of seasoned lawyers fees via FD's interests. Have patience you are not the one and only husband here waiting for the proverbial Apple to drop in
Newton’s Third Law of Motion gender garden.

All the best.


1 Like

adv. rajeev ( rajoo ) (practicing advocate)     13 July 2012

i do agree with tejobsindia


Nothing more to add to the opinion of tajobs.

1 Like

Adv.R.P.Chugh (Advocate/Legal Consultant (     13 July 2012

@ Mr.Kumar, 


It is very difficult to get a contested divorce in India unless the ground desired by you is proven adequately. If you have filed it on ground of desertion or cruelty, and you are able to prove it by evidences, the fact that your wife does not agree would make a difference only insofar as it would delay the process. It is not decision of your wife to give or not to give you divorce. If the judge is satisfied with your case - you'd get it, which may take a long. Hence in the ultimate analyis its a battle of wits ! whoever looses patience first. 


Read this article of mine 


How to fight a false 498A ? How to handle your headstrong wive - and to minimise, if not negate the adverse effects of a failed union.


“For men in India marriage is a lottery but you can’t tear up your ticket even if you lose…” and it’s not just you who would have to live with the lost lottery but your entire family may have to suffer at the hands of a system so grossly skewed in favour of women.

Marriages may fall apart for a lot of reasons, temperamental issues, compatibility problems, but does that make you an offender in the eyes of law? Yes it does, your estranged wife in order to have her way in arm-twisting you may implicate you and your family in end number of false cases, 498A being the foremost.

498A penalizes cruelty for dowry, almost always comes alongwith S.406 Allegations which basically penalize the criminal breach of trust, when your wife’s articles are entrusted to you and you fail to return them back – misappropriate them or convert them to own use – you are criminally liable !. By aid of S.34 of the Indian Penal Code – your family/relatives can be held liable for the same if they share the common intention with you.

Now if you think that you have a wife who can potentially do this for money or the kicks that her ego gets out of the same or pure vengeance then you are my friend in a vulnerable situation, but there is a silver lining to this, there are legal strategies that may help minimize, if not completely rule out, the damage or mischief that may occur to you.

Being a Supreme Court Advocate and a Mens Rights Activist I speak from experience, the following things may(if done correctly) help in a lot of cases :-

1. Insist on a dowry-less marriage – Preparing of list of articles received at the time of marriage, countersigned by both the families, would help rule out exaggerated claims later !

2. Digging the well before the fire starts; when trouble starts at home you apprise all concerned of the problems that you are facing, not for the purposes of any action but information;

If you see things going awry in near future, then it would be good idea to seperate from parents to a rented house with sufficient public notices;

3. As per the prevailing law atleast here in Delhi, if your wife approaches a Police Station with her complaint, she is to be forwarded CAW CELL instituted to try and reconcile and investigate and act as buffers so that penal actions are not inititated right away. Once the matter goes to CAW Cell – apply for an anticipatory bail , you are sure to get notice bail atleast – this would help in two ways :-

a) Give you greater confidence, level playing field in the CAW Cell talks;

b) Prevent any hasty arrest on failure of conciliation;

All in all nothing to lose in this and in this step 1. Would help a great deal.

4. Seek a copy of complaint via RTI ASAP, since they deny at the first instance you’d have to appeal therefrom which may take some time. There are CIC Decisions that would help you here.

5. In the event of an FIR being registered apply for AB again, and quashing of FIR (not always depends on the kind of allegations leveled)

6. Filing Restitution of Conjugal Rights (case that you want her back) may help in some cases, but not in all. Sometimes it helps in defending maintenance cases, and showing your bona fides.

7. Keep a check on your wife’s finances. Would come handy defending maintenance cases.

8. Prosecution (S.340 CrpC) for perjury in cases of false & exaggerated claims in maintenance petitions.

9. Tax Evasion Petitions once you get the List of Istridhan may also help put pressure.

10. Dowry Prohibition Act – penalizes giving of dowry so in case there is a clear admission of DOWRY (not Istridhan) then in that case your in laws are also liable to be prosecuted. Think on these lines !

11. With a marital property law on the anvil, don’t buy property in your name, much less jointly with spouse.

The above may go a great deal helping you defend correctly, my advise would be to stand your ground, don’t give in to their extortionate tactics, once you’d get an AB the worst would already be over and after that the judicial system with it’s endemic delays won’t treat your wife differently, sooner or later she would realize that frivolous litigation doesn’t pay !

The Author is a Supreme Court Advocate, and a Mens Rights Activist and can be reached at, Tel : 9810553252.

2 Like

Krishna Kumar (Business)     13 July 2012


I have enough proof she deserted me for two years and never come back after many mediation with elders. I am sure I can prove I am victim. But problem with the time and money.

I am even planning to change the lawyer, but worried I paid much money to that lawyer and told most of the truth.

Please let me know is there any process to make the court case faster.


File application for speedy trial.

2 years continue deserter is ground for divorce, various ciattation available. If proved living separate without any cause.

Ask to court for run the case continue. Its your right.

When case will run your matter will be solve.


1 Like

Raj (fr)     03 January 2013

What all to prove for her cruility.Few statements by her agreeing opening door late whle husband return exhausted from office,throwing hot oil on husband,throwing chair and scrataching wth nail on husband,not serving food to husband,abusing kids,..will all these result in her cruility have voice record of her will her cruility proved by this.Regularly leaving her husband and going to her parents...Also FIL hiding lot of information before marriage and lies he told and was proved to be lies in video will it help the matter...Even FIL & MIL telling lies and proved that they told lies on audio record.Will this help... 

Need more replies from experts on this topic.



sachin (manager)     30 June 2013

Hi Friends, I got married last year on Dec 11,2012 and my wife was back to her parents on 25th dec 2012 . Since then iam facing problems from my wife and her parents . They ill treat me and my family and also spread wrong rumours about us. Its been 6 months now that iam not living with my wife. She is at her fathers place. She doesnt want to live with me nor does she want to give divorce to me and had started.I would like to know when can i apply for divorce and what would happen if my wife refuses to give me divorce.her parents have started blackmail to my family for the money otherwise they are going to police.they have given demand also in written. Let me know the way how I can get divorce fast and easily or I need to fulfill their demand???????

Nitish Banka (lawyer)     21 February 2018

Posted by: nitish788  Categories: Uncategorized 


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)

test123   23 February 2018

Nitesh go back to sleep in grave yard..

gare murde kyo ukhar rehe ho..

abhi abhi advocate bane ho ?

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