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Lonely_Guy   22 January 2017

Running of time in desertion?

Hello Sirs/Madams, please help me in a Hindu marriage & divorce question. Basically, my question is related to how is the time period of two years running for desertion immediately before presentation of case is calculated? To make myself clear, this is the situation:

My wife left matrimonial home in April, 2015 without any resonable cause and started living at her parents home. I want to file a Petition for divorce in February, 2017 but I cannot take the ground of desertion and cruelty because two years of desertion are not complete. So, suppose I file on the grounds of cruelty only in February, 2017. But I withdraw this Petition before the Respondent wife was been given notice of case, with a Court permission to file appropriate Petition.

Then, I file a fresh Petition for divorce in May, 2017 on grounds of both desertion and cuelty.

Can I take the ground of desertion in the subsequent, May, 2017 petition saying that two years of desrtion are complete in April, 2017? Or does the desertion time stop running when I filed the first Petition, and starts running fresh when I withdraw the first Petition?

This is why I do not want to wait uptil April, May 2017, and file now, withdraw and file again in April, May 2017. Because a common friend of mine and wife told me that she is planning to file a false police complaint on me in February, 2017 when she is coming back to her parents home (right now out of India, friend tells me, I don't know directly). So if I file divorce after police complaint, she will say that my divorce case is because of reaction to police case and court may not take me seriously. So I want to file divorce before she file police case. And then, in police case also I may be able to say that false police case is reaction to divorce case.

Please give guidance. Thankyou.



Learning

 10 Replies


(Guest)
Originally posted by : Lonely_Guy
Hello Sirs/Madams, please help me in a Hindu marriage & divorce question. Basically, my question is related to how is the time period of two years running for desertion immediately before presentation of case is calculated? To make myself clear, this is the situation:

My wife left matrimonial home in April, 2015 without any resonable cause and started living at her parents home. I want to file a Petition for divorce in February, 2017 but I cannot take the ground of desertion and cruelty because two years of desertion are not complete. So, suppose I file on the grounds of cruelty only in February, 2017. But I withdraw this Petition before the Respondent wife was been given notice of case, with a Court permission to file appropriate Petition.

Then, I file a fresh Petition for divorce in May, 2017 on grounds of both desertion and cuelty.

Can I take the ground of desertion in the subsequent, May, 2017 petition saying that two years of desrtion are complete in April, 2017? Or does the desertion time stop running when I filed the first Petition, and starts running fresh when I withdraw the first Petition?

This is why I do not want to wait uptil April, May 2017, and file now, withdraw and file again in April, May 2017. Because a common friend of mine and wife told me that she is planning to file a false police complaint on me in February, 2017 when she is coming back to her parents home (right now out of India, friend tells me, I don't know directly). So if I file divorce after police complaint, she will say that my divorce case is because of reaction to police case and court may not take me seriously. So I want to file divorce before she file police case. And then, in police case also I may be able to say that false police case is reaction to divorce case.

Please give guidance. Thankyou.

 

Wait till May 2017 and then file divorce petition.  However, your divorce petition will be dismissed by end of 6-7 years when you will not be able to prove that your wife left on her own will.  Filing divorce is easy, but getting divorce is tricky.  First you need to prove desertion, only then your divorce petition will be valid one.

 

If you want, you can take my number and contact me for further advice.  But in any case don’t file divorce petition now.  File it later on when you have proof of her deserting you.

Lonely_Guy   22 January 2017

Originally posted by : Helping Hand !
Wait till May 2017 and then file divorce petition.  However, your divorce petition will be dismissed by end of 6-7 years when you will not be able to prove that your wife left on her own will.  Filing divorce is easy, but getting divorce is tricky.  First you need to prove desertion, only then your divorce petition will be valid one.

Thankyou. You can be right, but what else to do. May be my case will be dismissed but when she does not want to come back and even I do not want to live with her but she refuse mutual consent also, what to do. My only doubt now is if I can file divorce case now and two months later withdraw and file fresh divorce case. This is only because I want to file before her false police complaint or I would wait. I already waited for 21 months, but worried because of police and want to file divorce before she reaches police.

whatnot   22 January 2017

The reason that divorcefiled on basis of desertion drags is that though it is easy to prove that (1) the factum of separation, the (2) the intention to bring cohabitation permanently to an end (animus deserendi) is difficult.

You should have filed RCR after a year of separation. This would have shown to court that you have done all that is required by law. Also it is fail proof as if choses to put a cases of voilence or 498a,  you would be already a petitioner and can then change filing to divorce based on allegation.

 

Now moving court may have its own repacursions. If they intend to drag it will take ages. Keep options open for Mutual and sort it out.

 

But fight if you must.

Lonely_Guy   22 January 2017

Originally posted by : whatnot
The reason that divorcefiled on basis of desertion drags is that though it is easy to prove that (1) the factum of separation, the (2) the intention to bring cohabitation permanently to an end (animus deserendi) is difficult.
You should have filed RCR after a year of separation. This would have shown to court that you have done all that is required by law. Also it is fail proof as if choses to put a cases of voilence or 498a,  you would be already a petitioner and can then change filing to divorce based on allegation.

 Now moving court may have its own repacursions. If they intend to drag it will take ages. Keep options open for Mutual and sort it out.

 But fight if you must.

I did not file RCR because I had some hope left and I did not want to start  a court case...I was stupid to have some hope and I called her many times on phone (but no proff on that except by monthly phone bill showing her number called about 10-15 times in last year). But now after I know she is preparing a police case I have nothing left to save myself (I completely believe my friend's information about preparing police case. He is a very old friend and his wife also a friend of my wife after my marriage and he will not tell lies to me. My wifes uncle also a district lawyer so he may be helping/misguiding her).

Please tell me, will two years counting will stop if I file divorce case in February, 2017 and start counting again from 0 if I withdraw it and file again?

whatnot   22 January 2017

Go for RCR now.

Better late than never.

Lonely_Guy   22 January 2017

Ok. Thanks.

Sachin (N.A)     22 January 2017

In my opinioin you should not file divorce case first, as you stated she hasn;t file any case on you don't provoke her to do so.Try to convince her to save marriage or MCD

 

Filing case first may back fire you.

Lonely_Guy   22 January 2017

Originally posted by : Sachin
In my opinioin you should not file divorce case first, as you stated she hasn;t file any case on you don't provoke her to do so.Try to convince her to save marriage or MCD

 

Filing case first may back fire you.

Sir thankyou.

I understand your point. But nothing is left for me to do now. For almost 2 year (21 month) I tried best and called her many many times to come back but she refused. I do not know what is wrong with her or she has someone else and I will not make any without prof statement on her. But she has really become mad and forgot difference between good and bad. Like you advise, I try to convince her many time very politely but she not listening. Her father and brother call my father and say mcbc. She has gone to everybody she knew in my relatives side and all my friends she knew and told lies to everyone that I beat her for dowry and so Im now treated like untouchable leprosy patient by my self friends.

I was full fool that I still asked her back. But now as she preparing police case, it is all over for between me and her ... my eyes have opened that she never will come back and may be she never even wanted to be with me.

I do not want to fight ugly court case or scene in court but I have no way left now.

Only now, how to file divorce case quickly before her police case and withdraw it and file it again later with more grounds is only thing I request to understand now from you peples good guidance? I do not even know any lawyers becuase I was never in any court case, just doing my peaceful small business. But now I want to understand some beginner idea of law from my needs angle, before I meet any unknown lawyer.

sai narayana   23 January 2017

Send a neatly drafted advocate notice which should be to the point without any scolding.

A walk alone (-)     23 January 2017

If you are sure she can file case then hire a lawyer and ask him to file as many cases as he can on her and her family like theft or your mother and other female members can file DV . Case may be false. At initial evidence doesnot need. Till evidence stage come might be possible they agree for MCD. Firstly by filing case they will engage in cases not get time to file any case. Before they file any case file divorce also.

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