• Regarding divorce from wife who left abroad and not returning

I was married on Feb 5, 2015 and got it registered in Chennai according to TN marriage act. My wife and I lived together till Nov 2015 after which she left to Canada for higher studies. Her plan was to return to India in Dec 2017, but she didn't return still. From Oct 2016, she stopped talking to me and blocked me in WhatsApp. She had told her parents that I was impotent. When I consulted a urologist, he checked and told that I am perfectly alright and he also told that if wife doesn't provide proper stimulation, it's difficult for men to have a good sexual life.
We met her parents in March 2017 and they told I need to wait till she returns. They abused me very badly. Later they also realized that what my wife had told them was not completely true. Now when we ask her father to tell her daughter to return and give divorce and go back, he is unnecessarily postponing things and is not telling us where my wife is.
Now I don't what to do. Could you please suggest me ways as to what should be my next step?
Asked 4 years ago in Family Law
Religion: Hindu

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29 Answers

File for divorce on grounds of mental cruelty and desertion

2) wife refusing to stay with husband amounts to mental cruelty

3) wife abusing husband and calling husband impotent amounts to mental cruelty

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

section 13 Hindu marriage act

(1)if wife/husband has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition can file for divorce.

(2) Also the act of your wife as stated by you abusing, calling you impotent and deserted for this long amounts to mental cruelty and divorce on the same ground can be filed.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Respected sir ...

There are both provision in Hindu marriage act for take court order to live with her or to get divorce ...Sir only you need to make your mind clear if you want to be with her in present circumstances then you can file a petition under section 9 of HMA seeking RCR from court...Court will give decree on marits and will give her direction to live with you as a legally wedded wife..But if you want to take divorce then you have to file a petition under section 13-A of HMA seeking divorce decree from court...Just mention all facts and circumstances in your petition you will get divorce easily ...And it will work as a defence as if she file a number of fake Case's against you and your family in future so it's better to take Legal action prior to her ...You have both the options available...You just need to set your mind ...

Thank you

Dinesh Sharawat
Advocate, Delhi
1258 Answers
12 Consultations

4.9 on 5.0

Please note if you wanna live with her please file a restitution of conjugal rights against her asking her to join matrimonial home. If you have made up your mind to divorce her file a case against her under desertion clause. Since two years elapsed you can comfortable get divorce under that clause.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

If you feel your marriage is irretrievably lost, you may initiate divorce proceedings by sending your wife a legal notice. Send the notices to her last known address in India and also abroad.

Swaminathan Neelakantan
Advocate, Coimbatore
1920 Answers
20 Consultations

4.9 on 5.0

1) You can file for Mutual Consent Divorce and sent notice to her if she does not return court will give exparte order of divorce.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

You need to file the divorce petition on the grounds of mental cruelty against her in the court of law. Make sure you must have the confirm address where she resides and studying.

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

4.8 on 5.0

If you have decided to part ways, then the best way is to file a petition under S.13 of the Hindu Marriage Act to dissolve the marriage on several grounds. In your case it shall attract cruelty. In one such case which we handled, the lady was granted divorce even in the absence of her husband.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

wife is at liberty to file counter cases against you of dowry harassment or DV

2) contested divorce cases take 5 years to be disposed of

3) you cannot claim the marriage expenses

4) jewelry given to wife constitutes her streedhan

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

If she's abroad how can she file case for harassment. Secondly you can't.claim mmarriage expenses from her. If you file a case uncontested takes six months and contested case may go up to three years

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Your cannot claim any expenses which you expended at the time of marriage. If she fail to appear, it will take 3-5 months to get a decree and if she challenge, then depends upon the adjournment sought by the lawyer of both sides.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

File a contested divorce in the said case. If she doesn't appear before the court after receiving notice then you will get exparte divorce from the court.

Prashant Nayak
Advocate, Mumbai
27226 Answers
88 Consultations

4.4 on 5.0

You can file a case of divorce on the ground of mental cruelty and desertion

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

She can at any time file cases against you, but the same can be defended on the ground of delay and afterthought and as an outburst to the divorce petition.

The divorce case will take 1.5-2 years to get decided.

Yes you can make a claim over the marriage expense that were incurred by you.

Also, you may talk to her for mutual divorce and see if she agrees for the same.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

If your wife files a dowry case against you, it has to be strongly supported by evidence. Otherwise, it cannot stand the test of law. If you have not done anything as alleged by her, you need not unduly worry on that count.

If you file a petition for divorce, it may take two years depending on the workload of the family court .

It is advisable not to claim marriage expenses and cost of jewels.

Swaminathan Neelakantan
Advocate, Coimbatore
1920 Answers
20 Consultations

4.9 on 5.0

You do not beg your father in law to arrange for divorce between you and your wife.

You can file a contested divorce on the grounds of desertion and cruelty.

You can send the summons to her father's address itself and let the court decide if the summons are returned more than two times.

You can seek newspaper publication for serving her summons through newspaper.

After this the court will automatically grant you an exparte divorce.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

For lodging the criminal complaint she has to be here in India to follow up the case.

Since it is more than two years, she may not find a substantial ground to lodge the said cases.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Can I claim the marriage expenses which was shared by me and her father like the jewels which we had given to her and marriage hall booking and other expenditure (and other living expenses like rent etc which I paid totally) as settlement?

You may not be eligible to claim them at this stage.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

1) No, you can't get stridhan (Gold jewelry, mangalsutra etc) it will remain with her.

2) If you apply for divorce on cruelty ground, the case will stand in the court and don't know how much time it will take to come on bench.

3) Best way is go for Mutual Consent Divorce and you can demand you're marriage expenses and can ask for settlement price.

4) What she will find against you how we will come to know, what's going on her mind and her lawyer's mind there are N numbers of way to file against you. Its totally depends upon her,how to look at life and in which way to proceed.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Apply for a divorce against your wife on the ground of desertion and mental cruelty.

Contest the same and if she appears before the Court, well and good. Otherwise, you will be granted ex-parte divorce.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

There are grim chances that she can successfully lodge a 498a case against you and/or a dowry harassment case.

In any case she succeeds to do so, you can easily demonstrate that since she has no been residing with you for approx 2.5 years, there is no strength in her allegations.

Yes, you can claim your expenses by moving a separate application under section 27 of the Hindu Marriage ACt.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Dear Querist

you may file a divorce case based on cruelty against her before the family court Under section 13(1)(ia) of Hindu marriage Act-1955, it will take more then two years, if not settled in between and if there is any chance for settlement then do it and go for mutual consent divorce Under section 13B of Hindu marriage Act-1955.

she may file the cases against you and your family but when you filed the divorce case first then her cases can be consider as counter blast case.

No need to worry about the dowry cases, in the present time, the supreme court directed to not to arrest any accused in dowry demand cases.

Feel Free to call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

If she is not interested in having sexual relationship, you cannot force her, however you should feel happy that at least she did not refuse you to have the relationship with her though she did not cooperate.

Instead of prolonging the issue on good for nothing things you can better go for mutual consent divorce

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

stay calm and agree for divorce by mutual consent

2) divorce by mutual consent takes 6 months

3) contested divorce take 5 years

4)dont confront them even after divorce

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

It is better you stay calm and go through the divorce proceedings.

Swaminathan Neelakantan
Advocate, Coimbatore
1920 Answers
20 Consultations

4.9 on 5.0

It is advisable to end marriage by mutual consent divorce if they are not demanding any alimony or maintenance. Just ensure that they don't make any allegations in petition when you sign petition of MCD.

After divorce decree is granted they cannot file any false cases and if they have already filed any case ask them to withdraw it before giving con sent divorce.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Is it possible to file the mutual consent divorce only in my presence, and with a power of attorney (my father in law in this case) from my wife's side?

Yes, it is possible.

Video conferencing facilities can be availed by the other poetitioner if he or she is not able to come to court on that date.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

1) you can send divorce petition to your wife for her signature

2) since she is abroad she can sign the divorce petition have it attested before indian consulate abroad

3) she can also execute POA in favour of her father to sign thee petition , appear in court , engage lawyers etc

4) during counselling her virtual presence through skype is sufficient

5) her personal presence is not necessary

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

In matrimonial case power of attorney is invalid and your father in law cannot represent on behalf of your wife.

Your wife needs to be personally present to file petition with you. Though each state has different court rules regarding filing of case it's better if she's present personally on the date of hearing once at least to speed up the procedure of divorce by mutual consent.

Courts do allow under special circumstances video conferencing.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

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