• Divorce after separation of more than 5 years

If seperated since more than 4.5 years and wife is getting maintenance she is not willing to give divorce and asking to stay again together, 
however considering the previously marrital situation & mental situation and ups and downs a husband went thru during false allegations , accusation at a time of maintenance case filed by wife 3 yrs back. Husband don't want to repeat the same and don't want to stay together anymore.

Can a husband file a divorce whether that will be accepted by courts ? & What will be grounds and how the one time alimony will be decided ?
Asked 1 month ago in Family Law
Religion: Hindu

7 answers received in 1 day.

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12 Answers

Wife refusing to stay with husband amounts to mental cruelty and is ground for divorce 

 

2) in your case she is separated for last 5 years 

 

3) wife refusing to stay with husband for continuous period of 2 years amounts to desertion and is ground for divorce 

 

4) alimony is at discretion of court 

 

5) it depends upon your income, wife income, standard of living etc 

Ajay Sethi
Advocate, Mumbai
82096 Answers
5157 Consultations

5.0 on 5.0

Section 13 of Hindu Marriage Act, 1955  provides for divorce to any spouse on following  grounds like..

  1. Having sex outside marriage, adulterous conduct of wife/husband
  2. Desertion (neglecting wife) for two years,
  3. Cruelty, it can be physical or mental direct or indirect.

As wife is separate since 4.5 years, none of above grounds is available to you.  If a wife does not want take divorce it is very difficult for any court to grant the same to husband. Still if you file divorce it will take 2-3 years and the decision can be either way. So far as the amount is concerned there is no fixed formula for computation of alimony. The Court considers following factors to determine alimony…

  1. Conduct of husband and the wife
  2. Income of both.
  3. Deduction, income tax, emis, loan repayments, expenditure of husband towards parents and other dependents.
  4. Duration of marriage.
  5. Expenses of children.
  6. Life style of husband and wife.

There are only rough parameters. The figure of alimony will certainly will be anything between 30 to 52 L.  

 

 

Ravi Shinde
Advocate, Hyderabad
797 Answers
7 Consultations

5.0 on 5.0

Dear sir,

 

Yes. As per Section 13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple should be living separately for at least one year before divorce proceedings can begin. Section 10A of the Divorce Act, 1869, however, requires the couple to be separated for at least two years.

 

Since you have been living separately for more than 4.5 years, this can be a critical step in seeking a divorce. the wife can not just live separately and enjoy maintenance throughout life if you wish to divorce her, you can move an appeal before the court.

the wife may appeal for RCR but it's on you and the discretion of the court since you were already living separately for more than 4.5 years, the court can likely be in your favor and grant a divorce.

 

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Anik Miu
Advocate, Bangalore
1125 Answers
10 Consultations

5.0 on 5.0

Yes you may file a divorce petition on grounds of mental cruelty and desertion as it has been more than 3 years.

You haven't elaborately stated the issues between you and your wife but if there are cogent reasons which are backed by evidence then you will surely get a divorce.

Alimony is decided by either the parties or the court. It is based upon the earnings of the husband his debts liabilities wife's earnings ie her salary etc.

She does not have any absolute right of maintenance and alimony.

Rahul Mishra
Advocate, Lucknow
12251 Answers
29 Consultations

5.0 on 5.0

-  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.

- Since, you have been separated for 4.5 years from her, then you are entitled to get divorce as per law.

- You should file a divorce petition before the court for getting the Divorce legally, on the ground of long period separation & Cruelty.

- Further, if wife is living separately without any valid reasons , then she is not entitled to get maintenance from her husband., hence you can challenged the order of maintenance if already granted to her . 

- Alimony not fixed , and depend upon the income of the husband. 

Mohammed Shahzad
Advocate, Delhi
6719 Answers
71 Consultations

5.0 on 5.0

You can file petition for divorce under section 13B of the Hindu marriage act against your wife on the ground of desertion and mental cruelty, as she has falsely accused you. If she puts false allegations in the case of divorce, then the court will think there is no trust between the spouses and there is no chance of them living a happy married life, so there is a very high chance of granting a decree of divorce. The court thinks like a prudent man, and there is no point of continuing the marriage if there is suspicion against each other between the spouses.

 


We can approach this situation in several ways where it can be resolved in a straightforward manner. Do not hesitate for further information or guidance through consultancy, happy to help.

Jitendra Singh Jodha
Advocate, Hanumangarh
4 Answers

Not rated

If the husband do not want to entertain wife's claim for rejoining the husband after a gap of 5 years, he can refuse and file a divorce case on the grounds of desertion and cruelty.

He should put forth the strong pleadings to convince court  about his plight.

The alimony is  separate subject, if the court decides to grant divorce for desertion by her or voluntary abandonment of matrimonial home by her then it may not entertain her application seeking alimony also, the husband should highlight the reasons for repudiating the claim for alimony.

T Kalaiselvan
Advocate, Vellore
72170 Answers
1078 Consultations

5.0 on 5.0

  1. It is not in whose name property is purchased, the court will look for source of purchase money. If mother can establish the source as her income, she can claim it as her property. If she has no source like job or business she cannot claim as her property.
  2. As per supreme Court direction, in divorce cases both husband and wife have to file affidavit of their income and assets. If anything is missing in affidavit or if affidavit is not true the claim to opposite party will be accepted. If there are no kids she cannot claim your property after divorce. You will ordered only to pay her maintenance. If she remarries the maintenance will be stopped.

Ravi Shinde
Advocate, Hyderabad
797 Answers
7 Consultations

5.0 on 5.0

Don't sell any property. Anything you ahve given to your mother doesn't belong to you legally and hence that will not be against you.

A permanent alimony should be paid so that you don't have to pay monthly and are free of her completely.

Rahul Mishra
Advocate, Lucknow
12251 Answers
29 Consultations

5.0 on 5.0

Wife has no share in property standing in mother name 

 

sell plots standing in your name before filing for divorce 

 

wife only has right to stay in matrimonial home 

Ajay Sethi
Advocate, Mumbai
82096 Answers
5157 Consultations

5.0 on 5.0

Be aware that she cannot claim any share in your property either before or after divorce.

As far as maintenance is concerned, she is already getting maintenance, hence if at all she is filing a petition again for maintenance, then this maintenance petition may not be entertained for the same reason.

The property on your mother name shall be her own property.

Your wife cannot claim any share in either in your property or in your mother's property as a right, at least not during your lifetime. 

T Kalaiselvan
Advocate, Vellore
72170 Answers
1078 Consultations

5.0 on 5.0

Dear Sir,

1) Wife cannot claim the property registered in your mothers name.

2) The maintenance is decided by the court taking into consideration the income of the husband and the living conditions that the wife had when living with the husband. If you are making income from those two properties, that income will also be considered.

3) The wife cannot claim right to your properties or your mothers property if there are no children.

4) Your wife can only file for alteration of maintenance, which the court may entertain as per discretion.

 

Thank you

  • For more assistance, you can book a consultation with me.
  • If you like my answer, please give a good rating and leave a review

 

Anik Miu
Advocate, Bangalore
1125 Answers
10 Consultations

5.0 on 5.0

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