• Divorce due to disabilities or desertion OR annulment of marriage - which option is suitable

Question relating to divorce
(1)Mr.A married Mrs.A(wife) Hindu on 14 th Jan 2019. Residence Mumbai
It is observed that wife :
i) cannot cook nor interested in learning cooking. Old Parents of husband have to serve food to wife.
ii)Not interested to do any work. Whole day busy on mobile/TV. 
iii)She leads a retired life. Burden on old parents of husband.
iii)Does not know simple arithmetic eg. example 4 plus10 , 
iv)Does not want to change her surname even after children.
When we advised her to learn cooking , she left house in May 2019 and has not come back not showing interest for discussion.deserted husband
(5) Can divorce be sought now since only about 2 and half months have passed since she left house and parents not coming forward for discussion and to resolve issues.
(6)Can wife claim maintenance even if her parents have flats and financially well off. And she deserted husband without any cause.
(7)It is possible they may not accept notice of court. 
(8)What if their house is locked and wife stays abroad with her mother who is practicing surgeon in hospital in UAE .
(9)How the court notice/ communication be sent if wife stays abroad. Can court communication be sent by email/whats app to wife /her mother.
(10)Can ex parte decree be passed in favour of husband if wife not available to receive court notice etc.
(11)What is best course of action; 
-Divorce due to desertion by wife,
- Divorce due to disabilities of wife ie does not know simple sums(arithmetic ) does not cooking,(mental incompetence) does not want to do any work take up job. Parents did not disclose this prior to marriage does it tantamount to fraud . Then can we opt for annulment of marriage
- Restitution of conjugal rights
12) Annulment of marriage on the ground ,the parents did not disclose about disabilities of their daughter example not able to do simple sums addition, subtraction .(mental incompetence) . Wife herself informed after marriage that she is suffering from dyslexia. Is it not a fraud 
If she does not know simple sums how she will be able to manage house hold work eg buying of grocery, vegetables fruits , make investments , manage investments in shares, mutual funds, banks housing society affairs etc .She can easily get cheated. She will not be able to lighten the burden of husband .
 Further ,Before marriage We told parents of wife that we desire to have working/earning partner .They informed that she has a pet grooming centre. After marriage she gave up this profession Does the above tantamount to fraud because they did not disclose disabilities of daughter Can this be ground of annulment of marriage . Cost of legal procedure?
Asked 6 years ago in Family Law
Religion: Hindu

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16 Answers

Divorce within one year of marriage can be file only in exceptional circumstances. And her parents financial status no reason to deny/consider maintainance but her own income capacity and education.

Notice sent on correct address even if refuse, house lock, not in town etc due service of notice. In 2 3 hearings court will pass ex parte decree.

Desertion for 2 years, concealing mental incapacity can be fraud, can be file with in a year. 

and her attitude not to perform marital obligation ground of divorce but after one year.

No annulment in your case.

Fraud can be prove by comparing her actual condition with her biodata pre marriage.

Yogendra Singh Rajawat
Advocate, Jaipur
23081 Answers
31 Consultations

Only in exceptional circumstances can you file for divorce before expiry of one year of marriage 

 

2) file for divorce on expiry of one year of marriage on grounds of mental cruelty 

 

 

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

 

4) you can file for  divorce on grounds of desertion only if she has refused to stay with husband for continuous period of 2 years 

 

5) summons have to be served at place wherein she is currently residing 

 

6) emails are additional mode of service 

 

7) you can file for anullment of marriage on grounds of fraud if wife has suppressed material facts about her reading disability 

Ajay Sethi
Advocate, Mumbai
99779 Answers
8145 Consultations

It is better to first establish all such incapabilities of her of leading a normal married life by issuing a notice to her wherein you claim for mutual divorce in case she can not make herself fit for your society.   Give a copy to her parents. 

If she does not respond then file divorce case on ground  of cruelty  desertion mental abnormalities.

Court can issue exparte decree but it can be set aside by opponent easily. 

Summons can be issued by email what app message or any other e-mode.  It can be send to her last known address. Or where she is residing presently.  You can hire professional service to trace out her whereabouts.  Serving summon is must. Paper publication can also be done. 

Or another way make her parents a party and request court to order her parents to disclose her present address. 

 

 

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

1. You cannot file divorce before one year of marriage without permission of the court.

2. Further see you cannot claim divorce on ground of ground that she is not cooking, not changed names.

3. Further she can claim maintenance her father's property is immaterial.

4. See if the notice is refused alternate publication can be done in paper .

5.  Notice can be served on emails.

6. Court may pass an order ex-parte if other party is not.comming to court.

7.see at this stage best option is to file RCR to safeguard yourself . As for divorce and annulment grounds are not sufficient.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

  1. First of all, divorce can be pleaded, only after 3 years of marriage. A mutual consent divorce can be pleaded for after one year of marriage. 
  2. In your case, there are sufficient grounds for you to plead divorce. However, you have to wait for 3 years to file divorce petition. 
  3. However, as you have have alluded to some concealment of her education qualification; it amounts to fraud. Such a marriage is voidable marriage, for which you can seek annulment by filing a petition for Nullity of marriage; without waiting for the 3 years period. 
  4. I'm prepared to handle your case. But I need an exhaustive consultation session with you first. I'm based in Mumbai/Navi Mumbai just as you are; so it shouldn't be much difficult for you to visit me.

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1590 Answers
5 Consultations

If the said things are proved as fraudulent before the court then you can claim annulment.  The ground of annulment are very narrow and limited and court is very reluctant to provide when there is contested annulment

Prashant Nayak
Advocate, Mumbai
34515 Answers
249 Consultations

Under Hindu Marriage Act, divorce can be sought

from the Family Court under Section 13 of Hindu

Marriage Act however the divorce petition is

maintainable only after the expiry of ONE YEAR

from the date of the marriage. But there is

provision under Section 14 of the Act which

empowered the Court to waive off this one year

period under exceptional circumstances. The

petitioner has to given some cogent reasons for

waiving off this period. In case the petition is filed

within one year from the date of the marriage, the

court may dismiss it as not maintainable or may

adjourned till date when one year period is going

to expiry. 

you can file Section 9 RCR. 

you can file divorce on grounds of mental creulty. 

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

It would be counted from 12 th May 2019 

 

2) messages , emails would prove date she left her matrimonial house 

 

3) send email to wife that she left matrimonial house on 12 th May 2019 

Ajay Sethi
Advocate, Mumbai
99779 Answers
8145 Consultations

See the evidence of mail and other messages asking her to come back , also a notice through advocate can be given to her to restitution of the conjugal rights. 

Message wife and you can have record of chat and mail.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

  1.  Are you not following whatever has been adviced? You can file divorce petition only on or after 14th Jan 2022. Your desertion ground for divorce will be counted from 14 Jan 2020. Desertion prior to that cannot be counted, as divorce petition can be presented only on expiration of 3 years of marriage. (For mutual consent divorce, the petition is to be presented on expiration of 1 year of marriage). 
  2. However, I had already adviced rather than going for divorce, you must file for Nullity of marriage for marriage on fraudulent grounds. Then you don't have to wait for 3 years. As there is some concealment of educational qualification and mental disorders (not insanity), hence you have sufficient grounds to plead Nullity as it was based on fraud. 
  3. I have already given you my number. So do visit for exhaustive consultation

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1590 Answers
5 Consultations

Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation.

The following 5 conditions must be present to constitute desertion; they must co-exist to present a ground for divorce:

  • the factum of separation
  • animus deserdendi (intention to desert)
  • desertion without any reasonable cause
  • desertion without consent of other party
  • statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati[vii] the Supreme Court held that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently he shows an inclination to return & is prevented from doing so by the petitioner.

Period will be from the day spouse left the other spouse

Prashant Nayak
Advocate, Mumbai
34515 Answers
249 Consultations

Who is saying that divorce can be filed after two years. 

You can file divorce now also on the ground of cruelty. 

Now question arise of marriage is of May 2019 for that you have to make allegations that now it is exceptional hardships to live with her for that there is a specific section I. E Section 14 H. m. Act  

Alongwith section 13 petition you have to file an application under section 14 H. M. A .

If she will not receive summons court can pass ex-parte order. 

Yes she can file maintenance petition against you if she is not working no matter how much her mother is earning

Tarun Budhiraja
Advocate, Rohtak
379 Answers

If her matrimonial house is in other city or state than desertion will easy to prove from 12th amy.

Yogendra Singh Rajawat
Advocate, Jaipur
23081 Answers
31 Consultations

The allegations leveled by you against her do not warrant any ingredients that are essential for filing an annulment petition.

They are not disabilities.

You cannot even file a divorce case within one year from the date of marriage.

You may have to wait for at least completion of one year from the date of marriage to file divorce case on the grounds of cruelty citing all those issues as reasons for mental cruelty including her irresponsible act of abandoning the matrimonial home without any valid reason.

 

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

In addition to the email correspondence to her mother about her daughter deserting the matrimonial home, you may send a legal notice now mentioning the date of her leaving your house and ask her to return to rejoin you.

This legal notice also will serve as an evidence to prove her desertion.

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

Dear

First of all you should file RCR petition in court to get your wife back if she refuse to come back without any sufficient reason the order will be in your favor. Then wait for few months if still she doesnt return home file execution petition for order of RCR petition.

Execution petition help you evict maintenance of she files case for maintenance against you. 

And then file divorce against her on ground of not coming back even after orders of RCR petition.

If you don't want to go for RCR petition then only option you have is to file a case of judicial separation and get order of JS. Because divorce petition is not maintenable before completion of one year of marriage.

After completion of one year of Judicial separation you can file divorce petition.

Yes the summons can be serve through Whatsapp messages and Email and record of the same can be produced to prove the serving of summons. 

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

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