- if she have strong evidence of cruelty chances are in her favor and if it is proved her claims on you then order will be in her favor
- Case might take more than a year or just six months depends on speed of proceedings
My wife filed a 498a case against me and decided to part away from me, I was coerced by my wife's family to file a Mutual Consent divorce on the pretext of the existing 498a case compromise for which I denied and decided to fight the case. After TWO years of separation, she filed a contested divorce petition on the grounds of cruelty and desertion and I received a notice for appearance. Now I have two questions. 1. Now that we have lived separately for two years, what are the chances of awarding divorce on desertion ground as I don't want the divorce and the wife's family want divorce. 2.How long does the case will be dragged on in the court before awarding/not awarding the divorce to other party or before passing the final judgment. she lived with me only for 6 months after marriage and we have been living separately ever since then. We have no children.
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1) wife should get divorce if you have not stayed with her for continuous period of 2 years
2) it would take 5 years to be disposed of
3) you can appeal against said order before HC
1. You can challenge the divorce case filed by her on the grounds you rely upon i.e., to deny her allegations and the justifications you have in your side to convince the court to dismiss the divorce case filed by her.
2. Normally the divorce case may take at least two to three years to get disposed.
In case of desertion, the burden of proof lies upon the petitioner. The offence of desertion must be proved must be proved beyond any reasonable doubt and a rule of prudence the evidence of the petitioner shall be corroborated. 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 who is seemingly separated from the other. But where the husband does not take any steps to effect reconciliation, he is not guilty of constructive desertion.
Please do understand that desertion is ground for getting a decree of divorce. Divorce case may take two to Five years to get disposed. Appeal is also take more than 5 years from the decree from family court order and judgement.
She has to prove that you deserted her two years ago and you have to prove that you did not and even you are not willing for divorce, then her divorce petition may be dismissed on this ground. based on the cruelty, she has to prove the allegation.
it may be possible for more than 5 years.
1 chances are good
2. You will get the same
From examining all the facts of your query I want to say that-
These cases are very common in various Courts of India & Supreme Court of India. I can understand your concern in this regard. At times, despite our best efforts, life takes a turn for the worst. We may have wanted different things from life, but life’s got its own plan as well. A bad marriage is something which nobody hopes for, but at times, that’s exactly what we are given and forced to face head on. Marriages are hard. Divorces…even harder. Nobody enters marriage thinking about a divorce in the end. If some are unable to cope with the harsh realities of marriage, the only viable option in front of them is to approach the Court and seek legal separation.
You know that desertion is also ground for divorce in India, but the most difficult part is how to prove desertion in court of law. A layman may think desertion as his/her spouse is living separately for the period of 2 years that’s it. But actually what Courts in India require are the 4 things which are to be established by the spouse who is seeking divorce on this ground.
Now this intention can be from both sides or may be a constructive animus deserendi, In constructive animus deserendi when one of the spouse asks the other spouse to leave the house or leave him/her that is constructive animus deserendi other the other form is that the a spouse can leave the other spouse with his/her own will that is willful desertion. In both the situation the affected spouse i.e the spouse which was made to leave in the case of constructive animus deserendi or the spouse which was left alone can pursue the proceeding for divorce if other requirements are satisfied.
Proving all the aforementioned ingredients are essential to prove desertion in court, if any one element is missing divorce cannot be granted. Generally cases fall short in 3rd and 4th ingredient. Merely living separately even willfully does not guarantee divorce to deserting partner.
Cases of such nature can take upto 2 years after admission in Court. In various cases the Courts in India has held that the onus of proving desertion and all its elements rests on the petitioner as, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with common-sense as it is “so much easier to prove a positive than a negative”. However, the Courts are often faced with a problem of conflicting evidence, and it is difficult to decide which of the conflicting factual version given by the two spouses is correct. This is especially so since such cases occur within the privacy of the four walls of the house and in the absence of witnesses to corroborate evidence, the circumstances are hostile to the discovery of the truth. This translates into an advantage for the deserting spouse. Following the English Courts, the Supreme Court initially held that such proof must be beyond reasonable doubt. Eventually, the courts held that matrimonial offence may be proved on the preponderance of probabilities. However, there have been cases which have been decided on the beyond reasonable doubt standard thereby placing an immense burden on the innocent party to get relief and letting the deserter go scot free.
To my mind due to the subjectivity and absence of any guidelines for the determination of desertion petitions, the discretion and prejudices play a huge role in the process. It is true that every case needs to be weighed according to the individual facts and background, however for consistency in dispensing justice; there is a need to introduce guidelines for the judges. Detailed discussion is required in such cases with complete facts.
You may contact my secretary to connect with me for clarification.
Advocate on Record & Amicus Curiae,
Supreme Court of India
The wife has deserted you and not the other way round. Therefore they cannot claim desertion as a ground. It may take a while ie around 6 months.
ESSENCE OF DESERTION:
The decision of this Court in K.Kannusamy vs. T.Sumathi, reported in CDJ 2017 MHC 936, and submitted that the essence of desertion is forsaking and abandonment of one spouse by another without any reasonable cause and without the consent and against the wish of the other spouse and contended that in this case it is the respondent / husband who had abandoned the family and he is the person who kept on changing the residence and that taking the facts on entirety it is the husband who had deserted and that the wife cannot be held responsible for no fault of her. The relevant portion of the said decision reads as under:
“The essence of desertion is forsaking and abandonment of one spouse by other without reasonable cause and without consent or against wish of other spouse. It may at times be impossible to draw line between the two that is desertion and cruelty, because very often facts are mixed so that it is impossible to extricate one from other. It is a firmly established rule that the ground for the relief in a matrimonial cause should be strictly proved. The standard of proof in case of all proceedings under Act that Court must be satisfied on preponderance of probability and The Court requires evidence of spouse who charges other spouse with matrimonial offence should be corroborated.”
In Ravi Kumar vs. Julmidevi, reported in (2010) 4 SCC 476, the Apex Court has held that:
“It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home”
“the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.”
To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.
How long does the case will be dragged on in the court before awarding/not awarding the divorce to other party or before passing the final judgment.
It may take Five years or more.
1. Decree of Divorce will be awarded based on the merit of the case filed, evidence submitted and arguments made.
2.The case can be dragged for another 2 to 4 years.
As per he facts of the case, you are advised to fight the case and it is not possible to say the time of final judgement it depends on the Court hearings and adjournments of the parties. You can produce compromise deed which was executed earlier between parties before the Ld. Judge of Court, who is hearing the divorce case.
- Under the Hindu Marriage Act, Separation is a ground of Divorce, if the husband and wife have been living separately for more than two years at the time of filing petition.
- Further, if the separation is more than 2 years period, then even without a reason, is a ground for a Divorce decree.
1. Since she has already lodged an FIR under section 498a , hence the period of separation will not counted during that period for getting divorce .
2. It will take time , as she will have to prove the cruelty and desertion before the court after producing evidences in her support.