• My wife is not coming back to me

I got married in 2019 October. 
After that we started to live happily for 3 months, then the disputes aroused, that lead to separation.. 
After 4 months of separation, my wife came back and stayed only for 20 days, again she started quarreling with me and left me..from that time on , until now (almost 1 year 6 months), she has not returned back, she's staying with her parents. 
From my side I tried to bring her back, But she is not willing..I took my family members to their home( after 1 yearof separation), to bring her back..but they did not send her , instead they argued, scolded and mistreated us..Now 2years 6months gone by,but she stayed with me for only 4 months. 
Not willing to return back..
Now what I should do?
If I send her legal notice to her, will they file any case against me like 498A..etc.
What are the possibilities to get divorce from her, without getting into the problems.
Asked 9 months ago in Family Law
Religion: Hindu

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10 Answers

You can file a case under section 9 for restitution of conjugal rights

 

Regards 

Anilesh Tewari
Advocate, New Delhi
17942 Answers
377 Consultations

5.0 on 5.0

Don’t send legal notice 

 

semd her email /messages to return to her matrimonial home 

 

3) if she refuses file for divorce on grounds of mental cruelty 

 

4) wife refusing to stay with husband amounts to mental cruelty and is ground for divorce 

 

5) if wife files false dowry harassment case apply for and obtain Anticipatory bail from sessions court 

Ajay Sethi
Advocate, Mumbai
88385 Answers
6228 Consultations

5.0 on 5.0

1. File for Restitution of Conjugal Rights in the jurisdictional Court.

2.  Assuming that you get an order in your favour and and your wife refuses to join the marital life, without any valid reason, then her refusal to join you can itself be a strong ground for you to obtain divorce from her.

3.  If your wife files 498a, DV, etc., you can counter it by saying that the seperation period is already 2 years and 6 months over and why she did she not file the case in the first instance and why is she filing now, which shows that it's a fake complaint.

Shashidhar S. Sastry
Advocate, Bangalore
4206 Answers
258 Consultations

5.0 on 5.0

- As per Supreme Court judgment, wife is expected to move in with the relatives of their husbands, follow the rules and customs of their home, and ideally, blend in seamlessly as a new daughter. 

- Further, the court granted divorce to a man on the grounds of “cruelty” after his wife refused to share a home with her in-laws.

- Further, If wife is not supporting her husband for the enjoyment of life and denying relation, then the husband can get divorce after filing a divorce petition before the court on this ground.

- Hence, if she is not interested to live with you , then ask her for mutual divorce without any condition .

- Further, if you want to live with her then send a legal notice to accompany you , and on refusal you can file divorce petition on the ground of cruelly , separation and other mentioned grounds. 

- Even if will not send a notice then also she many file cases against you , if she not wanted to live with you , hence you can also lodge a compliant to the police as information for your safety. 

 

You can connect me , if further suggestion needed. 

Mohammed Shahzad
Advocate, Delhi
10055 Answers
122 Consultations

5.0 on 5.0

They can anytime file any false cases against you. If you want her back file petition for.restitution of conjugal rights or if you don't want her then file divorce against her. She can file false cases to harass you and your family

Prashant Nayak
Advocate, Mumbai
27587 Answers
88 Consultations

4.4 on 5.0

Hi, you can file a Petition for divorce on the ground of cruelty. Suppose, if she filed the complainant for the offence punishable under Section 498/A C.P.C then you can apply for the anticipatory bail and you will get the Bail. So don't bother too much.

Pradeep Bharathipura
Advocate, Bangalore
5399 Answers
310 Consultations

4.5 on 5.0

Instead of sending legal notice to her for the fear of false criminal cases,  you may directly a divorce case on the grounds of cruelty and desertion. 

After that if she files criminal case you can challenge the same on merits. 

T Kalaiselvan
Advocate, Vellore
78546 Answers
1554 Consultations

5.0 on 5.0

Dear client,

 

Since you have been living seperately for more than a year now, and there seems to be no scope for reconciliation, you can file for divorce by mutual consent.

Divorce by mutual consent is considered to be the quickest and the easy way to get a divorce in India, under Section 13 B of the Hindu Marriage Act, 1955. You can jointly present a Mutual Divorce Petition before the family court, without putting any allegations.

 

Thank you. 

Anik Miu
Advocate, Bangalore
5011 Answers
53 Consultations

4.9 on 5.0

Try to get any of your common relatives to intervene and suggest an amicable way out otherwise involve an advocate to mediate through the further course of action to be taken. But, involving an advocate without issuing a notice is not advisable. 

Sanjay Narayandas
Advocate, Hyderabad
101 Answers

5.0 on 5.0

From examining all the facts of your query I want to say that-

These cases are very common in various Courts of India and 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 can try for mutual consent divorce if she agrees for it. You can file for restitution of conjugal rights in this regard. Section 9 of Hindu Marriage Act states that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Where question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

You can take a horse to the water, but you can't make him drink, is a very popular proverb and the provision for restitution of conjugal rights under the Indian personal laws seems to be akin. The court can pass a decree for restitution of conjugal rights and order the erring spouse to cohabit with the aggrieved spouse. Also under the Indian law a decree of restitution of conjugal rights can be executed by attachment of the respondent’s property. But it is to be noted that the court cannot compel the defaulting spouse to physically return to the comfort-consortium of the decree-holder spouse. Constitutionality of this provision is currently challenged in Supreme Court for violation of various fundamental rights.

 

Please note that under section 13 (1-A) (ii) divorce can be granted when there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. If RCR is granted in your favour and she doesn’t come back within one year of passing of order then you can file for divorce on this ground.

 

Legal Notice through Advocate can be sent for RCR and other aspects. My team is dealing with many similar cases. A legal notice is, therefore, a formal communication to a person or an entity, informing the other party of your intention to undertake legal proceedings against them. This notice, when sent, conveys your intention before the legal proceedings and thus, makes the party aware of your grievance. Many times, a legal notice served will bring the other party on heels, and the problem can get resolved out of court too, with fruitful discussions on both sides. And, if the other party is still not heeding to the grievance, one can always start the court proceedings after a particular interval, as stated by the law. Although a legal notice can serve as a purpose of negotiations between the parties and save time, effort and money that are usually spent in court cases.

In your case divorce can be taken on grounds of non compliance of RCR decree (if passed in your favour) and desertion.

There are many cases where wife files various false allegations after husband filing any case. Therefore steps have to taken after detailed discussion. But Supreme Court and various other Courts in India are aware about such aspects and many a times grant relief to husbands.

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. This can also be opted in your case. 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.

  • Animus deserendi- This means the intention to desert, if husband or wife decides to leave the martial co habitation as they does not want to continue with martial obligations or may be called husband/wife under the eyes of the society this means they have developed animus deserendi, once this intention is formed this fulfills one criteria for proving desertion.

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.

  • Separation- Now the Animus deserendi is followed by actual separation, now this separation can be physical or mental one, normally its the physical one here the actual action takes place merely forming an intention or telling a spouse that I will leave you is not suffice if it is not followed by some action. Merely an action without the intention is also not suffice both intention to leave and followed by action is mandatory in proving desertion. Sometime there is first physical separation and then followed by intention and sometimes its vice versa, both should takes place for a continuous period of 2 years.
  • No reasonable just cause to leave- There should not be any reasonable cause available to the spouse who is leaving the matrimonial ties, generally cruelty is alleged by defending spouse to defeat the proceedings of desertion in such cases the burden is on the defending spouse to prove cruelty by examining witnesses and medical examinations etc. But if defending spouse fails to prove any of the just causes then this ingredient stand proved.
  • Without the consent- if the deserting spouse does not consents such desertion this final ingredient also stands proved, but how to prove this ingredient? Now let us suppose a spouse leaves then there must be continuous efforts from the other side to b ring back the spouse, it should not be the case where the other spouse sits mutely while the other spouse has deserted. Efforts should be made to render reconciliation. Here contact with parents, mother father or other relatives are essential. Reconciliation at its own level at first and then involvement of relative is essential, this would satisfy the court that deserted spouse never consented for such a desertion.

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.

 

Gopal Verma,

Advocate on Record & Amicus Curiae,

Supreme Court of India

 

Shri Gopal Verma
Advocate, New Delhi
316 Answers
5 Consultations

4.0 on 5.0

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