• Wife deserted but not willing to give divorce - husband lives in US

I am an NRI, my wife deserted me in claims that i was il treating her and falsely accusing domestic violence (but real reason being, she couldn't get job abroad and also wanted to stay with her parents and earn for them)

She deserted for more than 1.5yrs ago and still with her parents in India. I've filed RCR (Rejuvenation of conjugal rights) asking her to come back, the case had been in stage "Notice" for more than 8months (She is from Bangalore, im from Chennai)

She is not willing to give divorce, she has not filed any case against me. But in reply notice she claimed she wanted to live with me, and says she is afraid to live with me abroad because i am abusive. But she stated that I need to move to Bangalore or Chennai so she will live with me under her parent's supervision. 

Case not moving forward because delay between different state court. How can i get divorce ? I have emailed her and messaged her in facebook several times even after filing the RcR. But no reply from her. She changed her phone number. 

Can I be able to withdraw the RCR and file for divorce after 2yrs of her desertion ?
Asked 6 years ago in Family Law
Religion: Hindu

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7 Answers

with draw RCR petition and file for divorce on grounds of mental cruelty

2) RCR is useless . even if you get decree after 5 years you cannot force wife to stay with you

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

You can file divorce any time under the ground desertion and cruelty after 2 years of continuous desertion.Marriage throws an obligation on the wife, to live and co-habit with her husband. Only on reasonable grounds she is justified to live separate from him. Neglect, cruelty, ill treatment, impotency, extra-marital relationship, remarriage are sufficient grounds to justly separate living by a wife. The burden of proving this is on the woman. Failure to fulfill basic marital obligations, such as denial of company or denial of marital intercourse, or denial to prove maintenance will amount to willful neglect. It is now well settled that the matrimonial court has to look at the entire conspectus of the family life and if one side by his or her words or conduct compels the other side to leave the matrimonial home, the former would be guilty of desertion, though it is the latter that is seemingly separated from the other.

Ajay N S
Advocate, Ernakulam
4072 Answers
110 Consultations

5.0 on 5.0

1.Since you have filed RCR on this basis no divorce is possible.

2. For this you will have to first withdraw the RCR and then file divorce suit afresh.

3. You will have to cite instances of mental cruelty which may have occurred after withdrawal of the RCR to file the divorce suit.This is so because by filing RCR you have condoned all her past misdeeds and hence on event occurred prior to withdrawal of RCR is not more available to you file divorce suit anymore.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

Yes, you may convert the RCR petition into divorce under section 27(1) b of SMA or under Hindu marriage act.

2. Ask your lawyer to service Notice to your wife immediately and if it has been received by her, then after issue of 3 notices by court you should request court to grant ex-parte divorce if reconciliation does not happen till such time.

Sushil Jha
Advocate, Patna
283 Answers
5 Consultations

5.0 on 5.0

The RCR case filed by you is mere waste of time, money and energy.

This is of no use because you cannot do anything if she refuses to join you or if expresses that she cannot live in your place.

You do not have to follow this case instead you may wait for some more time and then withdraw this case.

You may, subsequently, file a divorce case on the grounds of desertion and mental cruelty.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

if the divorce is filed on those grounds as provided in India then it will be a valid divorce, avoid taking a no fault divorce. Such divorce is invalid in India per se.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

your marriage has been solemnised in India under provisions of HMA

2)file for divorce in India only

3) if you file for divorce abroad and your wife does not participate in divorce proceedings divorce decree would not be valid in India

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

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