If husband wife are not living together for 4-5 years and husband got remarried. Can it be the basis for divorce for the first wife? What could be the steps for filing divprce?
Wife can file for divorce on grounds of desertion and mental cruelty
2) she can file for divorce in city where marriage was solemnised or where both stayed together after marriage or where she is residing
3) if husband does not contest she would get exparte divorce
Dear Sir/Madam,
1. The decree granted under the Hindu Marriage Act, allows for divorce on the ground of one of the spouse having deserted the other for a continuous period of two years before filing of the petition.
2. However, there must be no reasonable explanation for why the husband did not live with the wife together for 4-5 years
3. You may also apply for a mutual consent divorce as that is quicker. However, you shall not be awarded maintenance for the same.
4. You may file a divorce petition either in the family court or in the civil court, whichever is convenient.
5. STEPS:
A contested divorce case can be filed at either of the following places:
a. Place of marriage
b.Place where spouse last resided together
c. Place where the respondent( opposite party) residing
d. In case the wife is filing a contested divorce case, the place where the wife is residing at the time of filing of the petition
5.After filing, your divorce case gets listed for the first hearing/admission hearing. Court issues notice/summons to other party.
6. Your spouse will have to file a reply/written statement. If your spouse do not appear in the Court despire receiving summons, the court may proceed with the case in his/her absence. It is commonly called ex parte divorce proceedings.
7.Courts frame issues. Issues basically mean points of adjudication by the Family Court. Parties give their evidence on these points/issues. And not on everything.
8.Evidence is first filed by the spouse that filed the Petition for contested divorce. Cross-examination of the witnesses is done by the opposite party lawyer.
9.Evidence of Respondent is done after above.
10. Case is listed for final arguments after evidence of both parties.
11. After final arguments are heard by the Court, the case is listed for passing judgment.
12.On successfully proving the case, decree of divorce is granted.
God Bless
Thank you
Dear Sir,
From your query it seems that you have not undergone any court proceedings with first wife during separation and you got simply married to second wife. This may attract the provisions of divorce and your first wife can very well file the case of divorce on the various grounds including cruelty.
Hello,
1. A Hindu married person marrying again when the first wife is alive and not yet divorced is a strong ground for the 1st wife to obtain divorce from him.
2. You have to file for divorce on the above ground in the jurisdictional District/Family Court. You can seek the services of an Advocate to represent you and fight the case.
Mere staying separation ot of mutual consent is not ground for divorce
If there is instance of cruelty then only such suit will lie.
There is no automatic divorce if the husband and the wife are living separately for long period. This can be a ground for seeking divorce if separation is without any cause.
Second marriage, while first marriage subsists is an offense and marriage is invalid.
Wife can file a divorce petition , when husband is having extra marital relation on the ground of cruelty.
Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with desertion as a ground for divorce and the explanation of the same reads: “The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly”. There are mainly four basic elements which are primarily to be satisfied to constitute desertion. The first two are to be present in the deserting spouse.
STEPS
STEP 1: First Motion involves joint filing of divorce petition.
STEP 2: Husband & wife appear before court to record statements after filing of petition.
STEP 3: Court examines petition, documents, tries reconciliation, records statements.
STEP 4: Court passes order on First Motion.
STEP 5: Cooling off period of six months given to couple by court to rethink decision.
STEP 6: Filing of Second Motion is done within 18 months of First Motion.
STEP 7: Decree of divorce passed by the court.
In Contested divorce
STEP 1: Filing of petition by the husband or wife.
STEP 2: Court issues summons and seeks reply from the other spouse.
STEP 3: Court may suggest reconciliation.
STEP 4: Examination and cross-examination of witnesses and evidence.
STEP 5: Counsels for both parties present final arguments.
STEP 6: Decree of divorce passed by the court
The first marriage atill subsists and the second marriage is void. The wife may file a criminal complaint against the husband for bigamy as it is a criminal offence.
Yes that is a ground for divorce along with desertion as it has been more than 3 years.
1. The second marriage of the husband is illegal and void at law for which the wife can lodge complaint u.s494 of IPC bringing te charge of bigamy for which both the husband and his second wife will be liable to be punished with jail term for a maximum period of 7 years with or without fine.
2. However, the wife can file a divorce suit on the ground of cruelty in the form of bigamy before the Court.
3. She can also negotiate with her husband and jointly file a mutual consent divorce petition in India which will be disposed of within 6 & 1/2 months from the date of its filing.
- If the husband and wife is living separately for at least 2 years , then it can be a ground for divorce.
- Further, without getting divorce from the first wife , husband cannot re-marry , and he can be booked under the provision of Bigamy Act.
- Further, as the second marriage is not legal , then the that lady cannot be considered as wife.
- However, if husband and wife is ready for divorce , then they can file joint petition for getting mutual divorce decree.
The husband and wife living separate away from each other for years will not be termed as divorce or the dissolution of marriage between them.
If the husband who married another woman without dissolving his subsisting marriage and he belongs to India, then this remarriage can be termed as an offence under section 494 IPC for the acts of bigamy, which is punishable up to 10 years of imprisonment
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Second marriage without getting a valid divorce decree is not valid .It is not a ground for divorce.
The following are the Grounds for Divorce under the Hindu Marriage Act, 1955
In your case desertion and cruelty are good grounds for divorce .
This is tantamount to cruelty by husband as he remarried during the subsistence of his first marriage which is not only a civil wrong but also an offence under Section 494 IPC carrying an imprisonment of up to 7 years.
Yes, Second marriage without taking divorce from the first wife is an offence under section 494 of IPC and also treat as cruelty and based on the second marriage of the husband, the wife may file a divorce case against him before the Family court in India either in person or through her power of attorney under section 13(1)(ia) of Hindu Marriage Act-1955.
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Yes, the first wife can file for divorce on this basis, as this is a criminal offence as well. The steps for filing the divorce would depend on the details of the case and the relief desired as the suit could be civil as well as criminal.
