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Esonique (Researcher )     10 October 2014

Not met my husband since 2007

I need advice as to what is the best option for me and my previous spouse. We were married in 2001 but after 2007, we have been separated. We are in touch but he is legally not in a position to be physically present to apply for a divorce in India. Now this is a big problem for me because even if he agrees to divorce me, he cannot be here but also I have met somebody else and we want to now get married and start a family. 

I don't have any children from him and I live on my own. I am financially independent of him.

Am I still considered to be married if I have not met my husband in the last seven years? What is the best, legal, and shortest way for me to get a quick separation (within weeks) so I can remarry?



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 3 Replies

prakash chandra jain (proprietor.)     10 October 2014

adarniya madam.youhave not mentioned of what caste or community you belong.my advice is based on hindu law.i presume you to be hindu.if so,u/s 13 of act,if your husband has not been heard of for aperiod of 7 yrs or more. no physical relations exists between you and him. he is in other country.you  know that he is alive.but i presume that he may no more be interested in you.you are living without him for more than7 yrs.you should file acivil suit to get it declared thatnonof you are discharging merital obligations to each other.you stand separated from him as wife. if such status is declared, youmay marry subject to any other law. better you consult any senior lawyer or me with more details on phone or my email.it is my free service to all needy. prakash chandre jain advocate indore. phone no-09826779759. email- prakaschcjain2013@gmail.com

Tajobsindia (Senior Partner )     11 October 2014

@ Author,


1.
 If, exact 7 years have been completed from the date of marriage and in case of a spouse (here your husband) unheard of for more than 7 years, a presumption can be drawn under S. 108 of the Indian Evidence Act, that the spouse (husband) is dead.


2. In such an event, the other spouse (you) can marry a second time on the ground that the former marriage is dissolved due to the civil death of your spouse.


3. Hence, in my opinion there is no need to approach a Court under S. 13 (1) (vi) HMA if exact 7 years have lapsed and he is unheard of and/or both have had no contact with each other since exact 7 years and then you can marry a second time.

 

4. However, if in Public Documents (such as ration card / election card / driving license / adhaar card / passport amongst others) first husband's name still exists then you should approach Court S. 13 (1) (vi) HMA and dissolve the marriagre following Court procedures under Personal Laws of the parties assuming herein to be that of Hindus.

 

5. Ideally you should approach your jurisdiction Court under S. 13 (1) (ib) HMA i.e. under 'desertion' grounds to seek divorce and he can represent himself via a signed / stamped / notarised from overseas PoA (Power of Attorney) given to his parents or to an advocate OR opt for video conference facility (if available in Court complex) to assist in dissolving this marriage. This ideal option is suggested because in your brief you mention and I quote you “We are in touch but he is legally not in a position to be physically present to apply for a divorce in India.” This para is complimentary to para 4 facts too but using S. 13 (1) (ib) HMA instead of S. 13 (1) (vi) HMA procedures.


[Last reply]

Adv. Chandrasekhar (Advocate)     11 October 2014

First, within a few weeks, you cannot legally marry with your fiancee without dissolving the first marriage.  If you are still aware of your husband's address,  contact him and find out whether he is willing to give divorce to you.  If so, then you can go by mutual consent divorce but even by video conference it is difficult if he is not willing to come here atleast once in mediation or first / second motion.  The other option is that you can file divorce on the ground of desertion of more than two years.  When you send court notice to him, as you are aware of the address, if he files reply admitting the desertion of more than two years and his unwillingness to resume cohabitation, then you will get divorce.  It is quicker and easier.  If he is staying abroad, he send send his reply affidavit duly attested the consular office of that country and it will serve your purpose.  If you do not know his whereabouts and if it is difficult for you to get in touch with him, then also you file divorce case under desertion ground and serve the court notice to his last known address and seek court's permission to publish it in news paper and after that you get ex-parte divorce decree and then you can go for remarriage.  Not having contact for seven long years and unheard of him for the last seven years and presumption of his death will not automatically dissolve the marriage.  There is a very lengthy process first to get a decree in the court about "legal death", after seven years of his 'incommunicado'.  So follow my advice and do not expect to have a legal marriage within a few weeks, which may create future problems.


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