Aditya Pratap Singh 14 September 2021

my wife living separately from last 3 year & not ready to leave me we have 1 daughter too. what should I do now?

I am from Itarsi (M.P.) in 2016 I got married it's an arranged marriage my wife is also from Itarsi (M.P.) same city from September 2018 she is not living with us she went to her parents home my wife is a working woman currently she is doing job in bhopal.
we have one 3 years old daughter my mother in law taking care of her in Itarsi. during this period my tried everything to convinced my wife & her family for get back to her matrimonial home with daughter but my wife & her family doesn't agree on our suggestions even she don't want to leave me, Now I don't want to live with with her but she is not leaving me & living separately from last 3 year's from me. what should I do in this situation? either I will wait for 7 years of my marriage to avoid 498a and domestic violence than file for divorce or I will right now file section 9 than go for divorce? please advise me the safest and good way to get divorce against my wife. regarding the above situation of mine. thank you!

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3 Replies

minakshi bindhani 14 September 2021

As per your illustrated query

You may directly file a divorce petition. However, your wife without any reasonable excuse withdrawn from society, file a suit for divorce on the ground of desertion (has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition) under section 13(ib) of the Hindu Marriage Act, 1955.

Hope it clarifies the issues!
Regards
Minakshi Bindhani

Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 ) 14 September 2021

Desertion is a ground for divorce. Under the Hindu law, section 13 (1) (ib)2 of the Hindu Marriage Act, 1955 mentions desertion as a ground for divorce. What the section provides for is that the party needs to have deserted the petitioner for a continuous that is to say, uninterrupted period of not less than 2 years immediately after which petition is presented.3 It can thus be inferred that the clause provides for 2 basic necessities to be fulfilled in order to make desertion as a ground for divorce; firstly that such desertion or separation must be for a continuous period of minimum 2 years; and secondly, such period of 2 years should be in immediate continuity with time of presentation of such petition. To make it more clear there should not be a gap between the period of 2 years and presentation of the petition.

Vikirna Sharma 18 September 2021

What I have understood from the facts that you have mentioned in your query that you wish for divorce after 3 years of separation from your wife. You can get divorce on the grounds of desertion since it has been 3 years of separation (it needs to be a continuous period of separation) and do not have to worry about 498a because she has not been living with you. If you do not wish reside with her again then there's no need to file for restitution of conjugal rights. What you can do is start by collecting evidence of desertion. Once you have evidence that she left on her own and is refusing to come back, you will be able to prove desertion. For this, you can collect evidence of text messages, call recordings where you ask her to come back and she refuses. Once you have sufficient evidence of desertion, you can file for divorce on the grounds of desertion.