• Divorce and second marriage

I had been married in 2000 & having a Son 13 yrs old.My wife  staying separately with son for more than 4 yrs She is the only daughter & staying with her mother. belongs to well to do family. Due to difference in thinking day today clashes I do not wish to continue the relationship. and She does  do not wish to give divorce with mutual consent what option I  have ? If I wishes to remarry what is the way out.Is there a provision in law if wife stays separately for considerable amount of period can i approach court for divorce may be on desertion ground. Can u explain me what is desertion clause ? And If I wish to remarry what is the way out if she does not wish give me divorce by mutual consent nor wish to stay with me.
  
Asked 1 year ago in Family Law from Mumbai, Maharashtra
Religion: Hindu
1) you can file for divorce on grounds of desertion and mental cruelty . 

2) section 13 (1) (b) provides that petitioner  can file for divorce on grounds of desertion if respondent has deserted petitioner for period of 2 years prior to filing of petition for divorce . 

3) you cannot remarry during subsistence of earlier marriage . if you remarry your wife will file case of bigamy against you under section 494 of IPC 

4) wait for divorce being granted by family court then remarry 
Ajay Sethi
Advocate, Mumbai
23192 Answers
1218 Consultations
5.0 on 5.0
1. Unless you obtain divorce from your wife you cannot remarry. 

2. Her refusal to go for mutual divorce does not impair your right to seek divorce. You may unilaterally file for divorce on the ground of desertion by and mental cruelty by your wife. Since she has stayed separately from you for over 4 years now you can seek divorce on the basis of desertion.

3. If you remarry before getting divorce you will be liable to be punished and jailed for bigamy. 
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
1. If mutual divorce is not a possibility then contested duvor e suit remains the only option which I must say takes more than 5 years.
2. Without divorce you can remarry. if you marry nevertheless then the said marriage has no force and you may be criminally prosecuted for bigamy.
3. No period of separate stay creates any ground. You have to prove that you were subjected to mental cruelty and then and then only you may get decree of divorce.
4. Desertion for 2 years is a ground for divorce but you have to prove that she had deserted you, not you to her.
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
4.9 on 5.0
Hi
1.you should file divorce on grounds of cruelty and desertion.
2.she has the options to file for maintenance for herself and the child.she can get maintenance if she is not earning at present despite her parents good financial conditions.
3.once the divorce is filed you should try for  mutual consent divorce by settling it as during the pendency of the petition there will be chances of mediation/counselling. Try to settle the matter either getting back together or s mutual divorce
Independent diborce will take few years in trial and in appeal. Thus the purpose of the divorce inorder to moving on with new life will be spoiled 
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
If the wife has left you on her own accord and does not want to stay with you, then you can file for divorce on the ground of desertion and mental cruelty. When you do so, the wife will retaliate with the custody of the child and maintenance application. 
Until and unless you obtain a valid decree of divorce, you cannot remarry.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
Hello,
1) You can certainly file for Divorce on Grounds of desertion and cruelty if she has left your company without your consent and with no valid reason and has been staying away for so long as 4 years. Contested divorce can take a few years to be disposed of.

2) Unless and until you obtain divorce you will not be able to remarry.

3) Send her a legal notice firstly asking her to come forward for discussion for a mutually consented divorce and if the reply is not favorable you can proceed to file for divorce on grounds of desertion and cruelty. 
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
 Section 13 Divorce- (1) Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other party-
(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; 

Hi, as per Section 13(1)(ib)  if the wife or husband has deserted more than two years you will get the divorce on the ground of desertion.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. Yes, you can file a divorce suit against her on the ground of desertion since she has deserted you 4 years hence,

2. You shall have to have adequate evidence of her such staying seperately from you since last more than 2 years of her own,

3. You can remarry after and only after getting the decree of divorce and not before that,

4. Try to convince her for MCD if possible in which case the decree of divorce will be passed within 6 & 1/2 months.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
Any marriage solemnized,may,on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

Thanking you, 
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0

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