Respected Advocates of this forum...Pls clarify the following.
Whether the "Legal concept" for giving DIVORCE based on "Desertion" for 2yrs, and, NOT Living under ONE roof for 2 yrs is one and the same?
K.S.Rao (Nothing) 30 November 2008
Respected Advocates of this forum...Pls clarify the following.
Whether the "Legal concept" for giving DIVORCE based on "Desertion" for 2yrs, and, NOT Living under ONE roof for 2 yrs is one and the same?
Tribhuwan Pandey (Advocate) 30 November 2008
Desertion means the intenional permanent forsaking and abandonment of one spouse by the other without that other's cosent an without reasonable cause. For the act of desertion there must be the factum or physical separation and the animus deserendi or the intention to desert.
NOT Living under ONE roof denotes under what circumstances they are not living under one roof, because of their jobs, husband and wife or either any one doing job at different places where they cannot live together but they under love and affection they have no intention to desrtion. Many conditions are there where spouce cannot live together for years but it does not mean they are under desertion.
therefore, we cannot say both terms are one and same.
Ajay kumar singh (Advocate) 30 November 2008
No. The two concepts are not one and the same. The replty of Mr. Pandey is quite perfect and clear.
M. PIRAVI PERUMAL (Advocate & Consumer Rights) 30 November 2008
What Mr. Pandey said is absolutely correct.
K.C.Suresh (Advocate) 01 December 2008
Mr. Tribhuvan answered the querry perfectly. Nothing more. But accademical quest requires a brief of divorce in this context.
| DIVORCE IN INDIA The Law All major religions have their own laws which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages. Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939, which provides the grounds on which women can obtain a divorce, and the uncodified civil law. Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1956 .Other community specific legislation includes the Native Converts' Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a divorce if a spouse converts to Christianity. Grounds for Divorce In most Western nations, there are approximately 16 distinct reasons for which divorces are granted. In India, however, only five main reasons are generally accepted as sufficient grounds for divorce. Adultery. While no formal definition of adultery exists, it does have "a fairly established meaning in matrimonial law", namely "the voluntary s*xual intercourse of a married man or woman with a person other than the offender's wife or husband". While the law considers it valid grounds for either s*x, adulterous women are "judged more harshly" than men. The various religious regulations are not unanimous on this issue. The law regarding Hindus allows divorce to be granted on the grounds of infidelity of either husband or wife. The Christian law, however, would traditionally not have granted a divorce to a woman solely on the grounds of adultery. She would have had to prove another violation, such as cruelty .A recent Bombay High Court decision "recognised cruelty and desertion as independent grounds for the dissolution of a Christian marriage," striking down a section of the law that allowed for an unconstitutional distinction between the s*xes. Desertion. The three main components of desertion are the "disruption of cohabitation, absence of just or reasonable cause and their combination throughout three years" before the abandoned spouse may petition for a divorce. There also must be an obvious intent on the part of the offending spouse to remain permanently apart from the other. This statute also applies to cases in which a spouse has been heard from for at least seven years . Cruelty. As with adultery, "the definition of the type of behavior that constitutes cruelty varies according to the gender of the petitioner" of the divorce. "Despite the fact that cruelty is often equally available to husbands and wives, the way in which the law is interpreted and applied suggests that women and men are evaluated by rather different standards" .This category includes both physical and mental abuse and neglect. A court decision made in early May 1997 made cruelty sufficient grounds for a Christian woman to obtain a; previously, the law required both adultery and cruelty to be proven. The national Indian Christian community seems to have embraced this judgment. Impotency. This refers to the physical inability of the couple to consummate the marriage or the refusal by one spouse to do so. Some cases have established that sterility can be construed to mean non-consummation if the other partner is not aware of the condition before the marriage. Chronic Disease. Both mental and physical illnesses are included in this category, as well as s*xually transmitted diseases. Not all religions recognize identical diseases as grounds for divorce. Christians and Parsis do not allow divorce for a s*xually transmitted disease or leprosy while the other communities do. Divorce under Muslim law Muslims are governed by their personal laws under which "Nikah" (i.e. marriage) is a contract and may be permanent or temporary and permits a man 4 wives if he treats all of them equally. To have a valid "Nikah" under the Muslim Law, presence of a Qazi (Priest) is not necessary. Merely a proposal in the presence and hearing of two sane males or one sane male and two sane female adults, all Muslims and acceptance of the said proposals at the same time constitute a valid Nikah under the Muslim Personal Law. A husband can divorce his wife without any reasons merely by pronouncing thrice the word "Talak". However for a Muslim woman to obtain divorce certain conditions are necessary. |
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N.K.Assumi (Advocate) 01 December 2008
There has been so much debate over this issue. But as far as I am concerned Desertion mean Desertion and does not mean phyicsl seperation as couple staying under one roof can amount to desertion. It all depend on animus deserendi.Consider this, if one of the spouse refuses to perform its marital duties and responsibilities though staying under one roof it certainly amount to desertion. Some are of the view that factum or physical seperation is necessary, but if the couple live like stranger under one roof, is it not desertion?
K.S.Rao (Nothing) 01 December 2008
Dear advocates...thanks to all for your quick replies
My case is ...the bride is with her parents since close to 1yr. The reason is just with in 15 days after marriage, groom came to know about her serious mental illness suffering since 8 yrs prior to the marriage. After a long discussion with her parents the groom decided to not to live with her and after 49 days of stay at groom's place her parents took her to their home. Since then she is remaining there. We are approaching them for mutual consent for divorc and they are not will to co-operate for that. So i want to know whether groom can file a pition for divorce under the cause of 'NOT LIVING UNDER ONE ROOF' for some valid period. And if groom file a pition for divorce under section 12(1)(b) of HMAct it may be difficult to prove that she is suffering from a mental disorder Schizophrenia for the reason no doctor give it in writing that she is suffering from Schizophrenia though many doctors orally say that.
Pls advise me
Ajay kumar singh (Advocate) 01 December 2008
You should seek divorce on the basis of mental disorders.The court will itself seek a report regarding the mental health of the bride if you so pray.Yours is not a good case to be proceeded on the basis of desertion.
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