Women right

Civil courts have got powers to grant divorce only.  If you stay away from him it doesn't amounts to divorce. the gap is called as desertion;.  On that ground he can file divorce petition, but to claim under desertion it requires two years seperation.

There is no such law which says that if you stay away from your husband for a certain period then it automatically amounts to divorce. You will have to approach the court for divorce. Consult some lawyer and let him / her assess what grounds are available to you for divorce after going thru your whole story and then file divorce petition in the court on the appropriate ground.

I agree with learned Adv. Ms. Archana.  There is no such law which will recognize the long period of separation as divorce.  It is better you apply for  divorce on yourself if he doesnot gives his consent for mutual divorce.

If he has deserted you for more than 2 years then you can file for divorce based on that ground and that is easy to get. you will have to prove that he has deserted you and not the other way around.  Making life impossible for you to stay with him is the same as him deserting you.  You need to talk to a good Family Advocate who understands these facts and the applicable law while filing the divorce petition.

In the interest of the child, it would, however, be better if there is a way to get back together.  A girl always needs a father and may be you can make her change her views on him. Some sacrifices are required to make a family stick together. Just my thoughts...

the author is probably talking about Judicial Separation.

but it does not amount to divorce.

for getting divorce, one has to file divorce only, creating grounds specified in sec. 13 of HMA

13.       Divorce

(1)       Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by decree of divorce on the ground that the other party-

(i)                 1[has after the solemnized of the marriage, had voluntary s*xual inter course with any person other than his or her spouse; or

(ia)       has, after the solemnization of the marriage, treated the petitioner with cruelty ;or

(ib)       has deserted the  petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or,]

(ii)        has ceased to be a Hindu by conversion to another religion; or

1[(iii)    has been incurably of unsound mind, or 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.

Explanation: in this clause-

(a)       the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder of any other disorder or disability of mind and includes schizophrenia.

(b)   the expression “psychopathic  disorder” means a persistent              disorder of disability of mind (whether  or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible  conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment or.;

(iv)       has 2[***] been suffering from a virulent  and incurable form of leprosy.

(v)       has 2[***] been suffering from venereal disease in a communicable form; or.

(vi)       has renounced the world by entering any religious order; or

(vii)            has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive, 3[***]

1[Explanation : In this sub section, the  expression “desertion” means the desertion of the petitioner by the other party to the  marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be constructed accordingly.]

2[(1A) Either party to a marriage whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

(i)        that there has been no resumption of cohabitation as between the parties to the marriage for a period of 3[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties ;or,

(ii)        that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 3[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2)       A wife  may also present a petition for the dissolution of her marriage by a decree of divorce on the ground -

(i)        in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner.

PROVIDED that in either case the other wife is alive at the time of the presentation of the petition ; or

(ii)        that the  husband has, since the  solemnization of the marriage, been guilty of rape, sodomy or 4[bestiality; or].

5[(iii)    that in a suit under section 18 of Hindu Adoptions and Maintenance Act 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974)(or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898),  a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;

(iv)             that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation: This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment)Act ,1976(68 of 1976).

COMMENTS

It is not  requirements that there must be a direct proof of adultery. There would not be any justification in expecting direct evidence and where such an evidence is presented before the court, must be suspected and the evidence is apt to be disbelieved.-  Sanjukta Pradhan V.Laxmi Narayan Pradhan AIR 1991 Orissa 39

Cruelty may depend upon the type of life the parties are habitual of, their economic and social conditions, cultural and human values to which they attach importance may also lead to the  conclusion, whether the instance falls within the expression “cruelty”.-Narayanan V. Sri Devi AIR 1990 Ker 151.

Where the wife threats to commit suicide, it would amount to mental cruelty caused to the husband. Ranga Rao V.Vijaylaxmi 1990 (1) HLR 601.

Where the wife refuses  to have s*xual intercourse and there in no reason for such refusal, that would amount to cruelty subjected to husband.- Radhey Shyam v.Kusum 1990 (2) HLR 230

Petty quarrels between husband and wife cannot be so serious as amounting to cruelty and entitling husband to move for divorce.- Tapan Chakravarty v. Anjali Chakravarty AIR 1993 Cal.10

Where the husband  staying with a lady not his relative and the wife for this reason unwilling to stay with the husband and willing only when the lady is ousted from the home wife will not be guilty of cruelty as given same to the husband to take divorce on the ground of desertion or cruelty.-M.M.. Manna v.Chitra Manna AIR 1993 Cal 33.

Where there is an absolute denial of the obligation of marriage that would amount to desertion.-Sukumar Mukherjee V.Tripati Mukherjee AIR 1992 Pat.32

It is the petitioner who has to establish desertion for 2 years and that there was no cause for desertion. Where the conduct of the one is such as forcing other to stay away, that would not amount to desertion as a ground of divorce.-Eloskhi Chakraborty V.S.K. Chakraborty AIR 1991 Cal 176

There may be instances indicating short tempered nature and somewhat erratic behaviour, but this alleged mental disorder cannot be such a kind as making for husband living with the wife impossible.-N.M.Jagesha AIR 1991 Bom 259

1[13A.             Alternate relief in divorce proceedings

In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except insofar as the petition is founded on the grounds mentioned in clauses(ii), (vi)and(vii) of sub section (1) of section 13, the court may, if it considers it just to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

13B.    Divorce by mutual consent

(1)       Subject to the provision of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together,whether such marriage was solemnized before or after the commencement of Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2)       On the  motion of both the parties made not earlier  than six months after  the date of presentation of the petition referred to in sub section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being  satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has  been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree]

COMMENTS

Where a petition for divorce is moved under s. 13 the same can be converted into a petition under s. 13B provided it is duly signed by both the parties and  therby giving issue to a divorce on the ground of mutual consent.-Kuljit Kaur v. Harjit Singh 1989(2)HLR 72.

Where one of the parties has withdrawn the consent then the  petition moved and section 13B has to be dismissed.-Gautam Basu v. Nina Basu 1990(2)HLR 496