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(Guest)

Is there any default divorce

Just wanted to understand whether there is any default divorce if wife absconding for 5 years


 5 Replies

Dr J C Vashista (Advocate)     02 July 2021

There is no such terminology in law to be termed as "default divorce".

Consult and engage a local prudent lawyer for better appreciation of facts /documents, professional advise and necessary proceeding if there is some truth in the facts posted.

Prima facie hypothetical and fabricated story posted for "time pass".

G.L.N. Prasad (Retired employee.)     02 July 2021

In such cases, a notice has to be given to the last known address of the wife to return back to live with husband, and if the advocate advises a notice may be published in news papers, and after this process, the advocate may advise you further course of action for getting a divorce.  It is not clear as to whether the husband has given a criminal complaint on "missing wife" to Police..  If such a complaint was lodged, a writ may be filed in High court as Habeas corpus.

Kevin Moses Paul   02 July 2021

As per your situation, let me tell you that marriages among Hindus in India is solemnised as per the Hindu Marriage Act (HMA), 1955.
The law states that, any marriage which has been solemnised, either 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 following grounds :-

1.) that the other has, after the solemnization of the marriage, had voluntary s*xual intercourse with any person other than his or her spouse or

2.) has after the solemnization of the marriage, treated the petitioner with cruelty or

3.) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, or

4.) has ceased to be a Hindu by conversion to another religion or has been incurably of unsound mind, or

5.) has been suffering continuously or intermittently from mental disorder of such a kind and therefore, the petitioner cannot reasonably be expected to live with the respondent.

The Hindu Marriage Act, 1955 authentically based divorce on the Fault Theory, and has enshrined nine technical fault grounds laid down/mentioned under Section 13(1) of HMA, 1955 through which either the husband or wife could sue/file a petition for divorce.

In addition to these, two fault grounds are laid down under Section 13(2) of the Act, using which a wife alone (females only) could seek the divorce.

All of these nine-fault-grounds are explained below for you understand them clearly. These are as follows:-

Adultery -
In adultery there must be voluntary or consensual s*xual intercourse between a married person and another, whether married or unmarried, of the opposite s*x, not being the other’s spouse, during the subsistence of marriage.

Thus, intercourse with the former or latter wife of a polygamous marriage is not adultery.
However, if the second marriage is void, then s*xual intercourse with the second wife will amount to adultery.

Cruelty -
The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore; each case has to be decided on the basis of its own set of facts.

Desertion -
Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation.

Conversion
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted.

Insanity
Insanity as a ground of divorce has the following two requirements-

i) The respondent has been incurably of unsound mind
ii) The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Leprosy
Contagiousness of leprosy and repulsive outward manifestations are responsible for creating psychology where man not only shuns the company of lepers but looks at them scornfully. Thus, it is provided as a ground for divorce. The onus of proving this is on the petitioner.

Venereal Disease
At present, it is a ground for divorce if it is communicable by nature­ irrespective of the period for which the respondent has suffered from it. The ground is made out if it is shown that the disease is in communicable form & it is not necessary that it should have been communicated to the petitioner (even if done innocently).

Presumption Of Death -
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent is not known for the requisite period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if not impossible to prove that fact.

Thus, as per you situation, you may proceed to file a divorce petition based on the ground of 'Desertion'.

Hope It Helps

Regards
Kevin M. Paul

P. Venu (Advocate)     02 July 2021

What are the facts? What is the context?

T. Kalaiselvan, Advocate (Advocate)     06 July 2021

There is no such terminology called default divorce.

If she has abandoned your company and it is more than five years that she failed to resume cohabitation or made any attempt to rejoin you then you can file a petition for divorce ion the grounds of desertion besides cruelty.


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