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

seek joint custody of your daughter 

You can file for contested divorce on the grounds of desertion and insanity, subject to your gathering all the evidences, such as medical records, etc.

- As per law , concealment of true facts from the spouse family at the time of marriage , invalidate the marriage 

- If she has concealed that facts of her disease at the time of marriage , then you can file a declaration suit before the family Court for declaring the marriage as null and void. 

You say that your wife already suffered a stroke in her young age, and married and divorced once earlier, which would have definitely resulted in her present physiological and mental health conditions. You also say that your daughter is now about 5 years old. In the circumstances, as her husband you are duty-bound to support her and not abandon her at this stage. Marriage is a lifetime institution where both husband and wife take proper care of each other till their lifetime. Assuming that you get divorced, will you look after the girl child? In all probability, the court may award custody rights to the mother. Can she bring up the child alone in her present condition? Think over these issues seriously before even harbouring the thoughts of getting a divorce by shirking your responsibility. Give your wife proper medical and pyschological treatment and help her to come out of the truama she is suffering from. Learn to tolerate her ill-temper and quarrels, which arise only out of her health issues, and be supportive. Remember such health conditions may befall anyone.

• Grounds for Divorce: Your strongest grounds are desertion, as your wife has lived separately for eight years, and mental cruelty due to the circumstances. Proving "insanity" has a much higher legal burden.​

• Child Custody: The court will decide custody of your daughter based on her best interest.​

Your immediate step is to hire a family lawyer in Bangalore to file a divorce petition.

You can file for divorce under Section 13(1)(iii) and 13(1)(ib) of the Hindu Marriage Act, 1955, i.e. on the grounds of mental disorder (insanity) and desertion (abandonment).

Since your wife has a history of psychiatric illness (supported by medical records and treatment proof) and has voluntarily left the matrimonial home with no intention to return, these form valid legal grounds. You must collect and present medical certificates, prescriptions, doctor’s reports, proof of separation period (minimum 2 years for desertion), and witness statements to strengthen your case.

Your daughter’s custody can be sought under Section 26 of the Hindu Marriage Act, depending on her welfare and your capacity to care for her.

It’s advisable to issue a legal notice first, then file a divorce petition in the Family Court having jurisdiction where you both last lived together.

You can file for divorce against her in family court on grounds of cruelty and desertion. And if you want her back then you can file petition for restitution of conjugal rights 

The every day quarrel after marriage and frequent abandonment of matrimonial home as well as now having deserted the married life and not willing to return to the matrimonial fold and living separately for a period of more than two years, as well as having a history of psychic issues, including chronic illness since her young age, all contributes a valid and strong ground for divorce on the grounds of cruelty and desertion besides concealment of facts pertaining to her pre marital health conditions.

You may secure the documents as evidence to establish the facts that you would be pleading in the divorce case proposed to  file now and also considering her mental illness, you may even seek the custody of your child in the interest of the child's well being which is paramount.  

1. Gather and Organize All Documents:

   • Medical Records: All reports from the neurologist and psychiatrist, prescriptions (Olanzapine, Nexito), and any hospitalization records.

   • Marriage Certificate.

   • Child's Birth Certificate.

   • Proof of Abandonment: Save all text messages, emails, or voice recordings where she states she is not coming back. Note down dates and times of conversations with witnesses, if any.

   • Financial Records: Your income, assets, and liabilities.

2. Focus on Your Daughter: Document your role as the primary caregiver. Be prepared to show the court that you provide a stable, loving, and safe environment for her.

3. Do Not Engage in Conflict: Her condition may lead to provocative behavior. For the sake of your case and your well-being, avoid heated arguments. Communicate in writing as much as possible to keep a record.

4. Consider Your Own Well-being: This is a tremendous strain on you. Seeking therapy or counseling for yourself can provide crucial support during this process.

This situation is emotionally painful and legally complex. You’ve carried a lot of responsibility, and it’s clear that you’ve tried to help your wife despite the difficulties. Let me explain, step by step, what your legal position is, and how you can move forward carefully and effectively.

You have two clear and legally sustainable grounds under the Hindu Marriage Act, 1955:

(a) Mental Disorder (Section 13(1)(iii))

You can seek divorce if your spouse has been “suffering from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.”
Since your wife has a documented diagnosis of Borderline Personality Disorder, with treatment using antipsychotic medication (Olanzapine, Nexito) and recurrent delusions and mood instability, you can establish that her mental condition is of such a nature and degree that normal marital life has become impossible.

You’ll need to produce:

• Medical certificates and prescriptions

• Consultation records from the neurologist and psychiatrist

• Any hospital admission or treatment notes

• An expert opinion from a psychiatrist confirming her diagnosis and its chronic nature

The Supreme Court and various High Courts have, in several cases, granted divorce where mental disorder or psychotic illness made cohabitation impossible — especially where the illness existed prior to marriage but was concealed.

(b) Desertion (Section 13(1)(ib))

If she has left you and is refusing to return, and this separation has continued for at least two years, you can independently claim divorce on the ground of desertion.

Desertion requires proof of:

1. Separation (living apart for 2+ years), and

2. Intention not to resume marital life (her clear statements that she will not live with you again).

These can be proved through messages, calls, or witness statements.

Another strong point in your favour is that your wife and her family suppressed the material fact that she had previously suffered a stroke and had been treated for psychiatric issues before marriage. This amounts to fraudulent concealment of a material fact under Section 12(1)(c) of the Hindu Marriage Act — which can make the marriage voidable at your option. You can plead this as an additional ground — that your consent was obtained through concealment of her serious medical history.

Custody of Your Daughter

Since your daughter is around 5 years old, the court will primarily consider her welfare and best interest. Although normally, young children are kept with the mother, your wife’s psychiatric condition changes the scenario.

You can apply for permanent custody under Section 26 of the Hindu Marriage Act, stating that:

• The mother’s mental health condition makes her unfit to care for the child full-time, and

• You can provide a stable home, education, and emotional environment.

The court may grant you full custody or primary custody, allowing limited visitation rights to the mother.

Precautions Before Filing

Before filing, avoid provocation or any heated exchanges — people with such disorders often react unpredictably and may file false cases (DV, 498A, etc.).

• Keep communication only in writing (messages/emails).

• Preserve all medical records (old and new).

• Collect proof of desertion — texts, calls, or written refusal to cohabit.

• Consult a good local family court lawyer experienced in cases involving mental illness.

Procedure to File

• Draft a petition under Section 13(1)(iii) (mental disorder), Section 13(1)(ib) (desertion), and Section 12(1)(c) (fraudulent concealment).

• File before the Family Court where the marriage took place or where you last lived together.

• Attach all supporting medical and communication documents.

• You can also file for custody and guardianship in the same petition or separately.

• Once notice is issued and the trial proceeds, if she doesn’t contest strongly and medical evidence is clear, you have a very strong case.

I know this isn’t just about law — you’ve probably tried to hold things together for years. Please don’t blame yourself. When mental illness reaches this degree, it’s not a question of love or effort — it’s about safety, peace, and stability, especially for your child. You deserve to rebuild your life, and your daughter deserves a calm, nurturing environment.

Under Section 13(1) of the Hindu Marriage Act, 1955, a decree of divorce can be granted to either spouse on several grounds, two of which are directly applicable to your situation:

1. Section 13(1)(iii) — that the respondent has been incurably of unsound mind, or has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

2. Section 13(1)(ib) — that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

For the first ground, the law does not require complete insanity or permanent unsoundness of mind; it is sufficient to show that the mental disorder is of such a degree that living together has become impossible or intolerable. The Supreme Court has held in Rita Roy v. Sitesh Chandra Bhadra Roy (1982) 1 SCC 144 and Sharda v. Dharmpal (2003) 4 SCC 493 that the key consideration is whether the petitioner can reasonably be expected to live with the respondent, considering the nature and degree of the disorder. Borderline personality disorder and delusional or psychotic conditions, if established by medical evidence and conduct, fall within this scope.

In your case, the sequence of events—non-disclosure of the pre-existing stroke, subsequent medical diagnosis of mental illness, violent and unstable behavior, and refusal to live with you—together form a strong factual foundation for a divorce petition under Section 13(1)(iii) read with Section 13(1)(ib). The court will, however, require cogent medical and documentary evidence. You should collect and preserve the following:

1. Certified copies of all medical records and prescriptions from neurologists and psychiatrists indicating diagnosis, treatment, and medication.

2. If possible, a written medical opinion or certificate stating that she suffers from a chronic or recurrent psychiatric disorder affecting her ability to lead a normal married life.

3. Evidence of her abnormal or violent behavior—witness statements, neighbours’ or family members’ affidavits, and any police complaints (if filed).

4. Proof that she has been living separately and has refused cohabitation continuously for at least two years before filing the petition (messages, notices, letters, or mediation records).

Regarding the second ground—desertion—you can rely on her refusal to return to the matrimonial home without justifiable cause for over two years. Desertion under law requires two elements: (i) the fact of separation, and (ii) the intention to permanently abandon the marriage (animus deserendi). If she has clearly stated that she will never live with you again, and this separation has continued for two years or more, this condition is fulfilled.

You may therefore file a petition for divorce before the Family Court having jurisdiction over your place of residence or where the marriage was solemnized, citing both Section 13(1)(iii) and Section 13(1)(ib). The grounds can be pleaded together as alternative causes of action. Since you also have a minor daughter, you may simultaneously seek custody under Section 26 of the Hindu Marriage Act. Courts generally prefer to grant custody to the parent who can provide stable care and environment.

The court will direct mediation initially, which is mandatory under Section 9 of the Family Courts Act. If mediation fails, evidence will be recorded, including medical experts if required. The process generally takes 12 to 24 months depending on complexity. If the mental disorder is clearly documented and the wife’s non-cooperation continues, the court may grant divorce sooner.

You asked whether her pre-marital medical condition (stroke and psychiatric illness) can itself be treated as fraud or concealment justifying annulment. The answer is yes: under Section 12(1)(c) of the Hindu Marriage Act, non-disclosure of a serious mental disorder at the time of marriage may amount to fraud and render the marriage voidable. However, annulment petitions must be filed within one year of discovery of fraud. Since your marriage occurred in 2017 and you discovered her illness shortly thereafter, limitation would have expired. Divorce on grounds of mental disorder and desertion is therefore the more practical route.

You should not cease support to your daughter or stop interim maintenance payments ordered by the court, as the court will view your conduct favourably if you continue to provide for the child. The court may, however, direct maintenance for your wife if she is incapable of self-support.

In conclusion, you have strong legal grounds to seek divorce under Section 13(1)(iii) for mental disorder and under Section 13(1)(ib) for desertion. You should gather all medical and behavioural evidence, file a divorce petition through an experienced family lawyer in Lucknow, and seek custody of your minor daughter. The process will include mediation, evidence, and final hearing, typically concluding within one to two years. The law will not compel you to continue a marriage where your spouse’s conduct or condition has made cohabitation unreasonable.

Dear Sir,

EGAL GROUNDS AVAILABLE FOR DIVORCE

Since your marriage was solemnized in 2017, it will fall under the Hindu Marriage Act, 1955 (assuming you are Hindus — please confirm if otherwise). You have two strong and distinct grounds available:

(A) Unsoundness of Mind / Mental Disorder — Section 13(1)(iii)

You can seek divorce if:

“The other party has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.”

You can rely on:

• Medical history showing she had a stroke in young,

• Psychiatric records diagnosing her with borderline personality disorder / psychosis,

• Prescription records (Olanzapine, Nexito — both are psychiatric medications), and

• Your own testimony and witnesses (family, neighbours) confirming violent behaviour, delusions, or quarrels.

You will need medical evidence from a psychiatrist or neurologist — either treating doctor’s certificate or a court-appointed medical board (if court orders).

(B) Desertion / Abandonment — Section 13(1)(ib)

You said your wife has not lived with you for 8 years and has clearly refused to resume cohabitation.

This perfectly fits “desertion”, which means:

Continuous separation for at least 2 years before filing the petition without reasonable cause and without your consent.

So, even without proving mental illness, desertion alone is a valid independent ground for divorce.

Dear Querist

if the disease is not curable then you may file a divorce case on the based of that disease. you may file a divorce case based on the cruelty against her before the family court.