• Staying separate for 3 years - want legal divorce

I am staying separate from my husband since 3 years; however; I left his home myself because he was abusive & didn't want me to work. Now, I am moving abroad permanenlty and would be a Non-Resident Indian from the next year hence I want a legal separation. i tried contacting my husband & his family but they dont respond to emails, phone calls or messeges.
 What should be my course of action?
 Is there any issue with me being a Non Resident indian from the next year, that would hinder me from getting a legal separation next year onwards?

I don't want alimony or maintenance; just a legal divorce.
Asked 1 year ago in Family Law from Patiala, Punjab
Religion: Sikh
1) file for divorce on grounds of mental cruelty

2) if your husband does not contest you will get exparte divorce 

3) if your husband contests you have to prove the allegations made in your petition 

4) your being a non resident indian wont hinder your divorce case

5) but you have to appear in court for giving evidence 
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
Hello,
1) There is no hindrance to your obtaining a divorce because of your residential status.Even if you are an NRI you can file for divorce in India and your personal attendance is not compulsory all the time.You could file for divorce even through your POA in India.

2) Alternately you can file for divorce unilaterally while you are still in India on grounds of cruelty. Once you file the case your presence would be required only at the time of evidence.

3) Alternately you can engage a lawyer and send a legal notice to your husband inviting him for a discussion for divorce by mutual consent. If he agrees you can obtain your divorce in 6 months flat.If he is non co operative and refuses for a consented divorce, you can file for a unilateral divorce.

4) It is advisable to engage a lawyer locally who can help you with the procedure.  
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1. You are required to file  Divorce Suit against your husband on the ground of cruelty if he does not agree for mutual consent divorce,

2. To compel him to come to the discussion table, the most common way is to file police complaint u/s498A of IPC and filing of DV case etc.,

3. when he will get fade up attending such cases, propose him MCD without claiming any compensation which he might love to accept,

4. If this step fails, pursue the Divorce Case filed by you and if he does not attend it it will be decided in your favour ex-parte.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1) if you give proofs it would be case for divorce on grounds of mental cruelty

2) you need not file case of domestic violence 

3) you can file for divorce on grounds of desertion and mental cruelty . 

4) if your husband agrees it can be converted into petition for divorce by mutual consent 
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
Dear Ma'am,

As you are planning to go abroad next year and don't want to get into legal proceedings it is advisable to get Divorce by Mutual consent. As your husband and his family are not cooperating with you it is advisable to involve elders of your family, common friends and relatives who are known to both the families.

Even after that if they don't agree and only if you have evidence / witness to prove cruelty by your husband then only proceed by sending a legal notice and thereafter file a divorce petition on the ground of Mental Cruelty, along with DV case in the court. This might bring him on the table to speak to you, as you both are living separately since three years without any relation it makes all the sense to get Divorced. 

Your NRI Status will not affect your case,
Shakila Shaikh
Advocate, Mira Road, Thane
6 Answers
0 Consultations
5.0 on 5.0
There is no legal impediment if you become a NRI, the legal requirement for seeking divorce on any grounds is a minimum of 1 year separation, you have completed 3 years.
Since you are going abroad for good, you might as well file the case seeking divorce abroad itself, it is that much more faster there and besides here you will have to seek divorce on grounds of desertion only it is very time consuming and you will need to frequently visit India, my advice is dont file the case here.
Before you go if your husband agrees for mutual then file the petition jointly go abroad come back after 6 months and get the legal separation without hassles for both parties.
Kiran N. Murthy
Advocate, Bangalore
766 Answers
52 Consultations
5.0 on 5.0
Hello,
1) Details are required by your lawyer to draft a petition. Although you have a choice of filing a DV case as you don't intent to prosecute your husband and want only divorce, you will use the details only to file a petition for divorce. Your lawyer cannot compel you to file a case you don't want to.

2) Regarding the ground for divorce it is not advisable to file on grounds of desertion as you have left his company. If he wishes to her can use this as a counter claim. I would recommend cruelty as the ground for divorce. Make sure there are detailed narration of incidents of mental and physical cruelty.

3) As posted in earlier reply your presence in person can be dispensed with most of the time except during evidence. Let your lawyer know of your requirement and availability and he/she will try accommodating them as far as possible.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1) if your husband does not participate in divorce proceedings filed abroad divorce decree would not be valid in india 

2) file petition for divorce in India only . the marriage was solemnised in punjab  after marriage both of you have resided in punjab only .
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
Hello,
1) There's no impediment to your filing for divorce in the country of your residence and it is likely you may succeed in obtaining a divorce ex parte without your husband attending the Court as he may not be inclined to do so. The risk in this is that he can successfully challenge such an order of the European Court in India on grounds that he was unable to attend court through constraints of finance and that you deliberately filed the case in a foreign country.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
You can file for divorce against him on the ground of cruelty and desertion. If you have proof of cruelty then the same should be used in divorce proceedings. It is your prerogative as to whether you are to file the case for domestic violence or not. You are required to appear only for your witness deposition whereas on all other hearings the presence of your lawyer alone in the court shall suffice.
Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
5.0 on 5.0

It will be unwise for you to file for divorce abroad and not in India. Since your marriage took place in India, your husband is a citizen of India and you were a citizen of India at the time of your marriage the divorce proceedings should be launched in India. The judgment of a foreign court can be challenged in an Indian court by your husband which can set it aside as illegal. 
Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
5.0 on 5.0
Hi, you can file a petition for divorce on the ground of desertion.

2. You have to file a petition in India only as if you filed a petition for divorce in Abroad and if your husband has not participated in the proceedings then it will not be valid in India.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
Once you become a resident of a European country you can file the case. there is no bar for this even if the marriage is registered in India.
Kiran N. Murthy
Advocate, Bangalore
766 Answers
52 Consultations
5.0 on 5.0
1. Divorce case is filed on some acceptable ground and one such ground is cruelty,

2. You there is no acceptable ground, then you are not supposed to get the decree of divorce,

3. Desertion is considered as cruelty for which your husband can file divorce suit,

4. In the instant case, you have deserted your husband of your own will and has caused cruelty on him.You can not file a divorce suit against him for your causing cruelty on him,

5. Try to find him and get mutual consent divorce which will be over within 6 & 1/2 months.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. You will become NRI after staying away from India for more than 160 days,

2. You can file a divorce suit in UK and get the Ex-Pate Decree of Divorce but the said decree will not be valid in india an for the said reason you have been advised to file the Divorce Suit in India.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
Is there any issue with me being a Non Resident indian from the next year, that would hinder me from getting a legal separation next year onwards?
I don't want alimony or maintenance; just a legal divorce.
If you have decided to part your ways with your husband by getting your marriage dissolved by a decree of divorce, you may first try to contact him for a mutual consent divorce, if he is not responding  or non-cooperative, you may file a contested divorce case on the grounds on which you both have disputes. 







My lawyer asked me for proofs when filing a case. If I give proofs, it would become a case of domestic violence which becomes a criminal case against my husband I believe? 
I dont want to get into a legal battle.
You lawyer is right is demanding the proofs to prove cruelty in the contested divorce case without which the case may not be maintainable.  In a contested divorce case, it will be a divorce case alone and not a domestic violence case, that is different to this.  That case can be taken up only when you file one otherwise there is no such case from your side. The contested divorce case is a legal battle. You cannot avoid it if you want relief.





Can desertion be a ground for divorce? Living separate for 3 years? If it requires living separate for a some more years I can wait.. but I dont want to get into legal cases that never end.
Yes desertion can be a ground for divorce, but remember even this is a contested divorce hence you may have undergo the same ordeal or stressful situations. 




I can appear in court once for giving evidence but not every now & then.
In family courts, the parties appearance will be expected by court on all dates of hearing, alternately, you can execute a special power of attorney in favor of any close relative who can appear to represent you during your absence in the routine hearings and you can appear in person during the important hearings, i.e., deposing evidence and for cross examinations. 




@Advocate Kiran R Murthy suggests to file a case abroad & not in India. Is it possible? I will be a resident of a European country next year, so can I file a case for divorce there even if my marriage is registered in India?
Yo have to verify the laws of the country you intend to settle down at abroad.  In general the country will accept the divorce petition only when both have together for some time in that country but you can check this clause in that country where you plan to settle. 
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0
Stridhan is your  right 


If your husband and his family have failed to return your stridhan file police complaint under section 406 of IPC against husband 

3) police will issue notice to your husband record his statement 

4) carry out investigations and submit charge sheet 
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
Stridhan is your own property, you only have full rights in it, nobody can take away your stridhan.  You can file a petition before the same family court for retrieving your stridhan articles or can lodge a complaint with the jurisdictional police station under section 406 IPC for recovery of yor stridhan articles from him. 
Without legal assistance you cannot achieve your object.
Once court gives exparte order on stridhan, then you may file an execution petition and seek police help to retrieve the articles from his home, or to get him arrested.
Consult your lawyer about this and proceed.
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0
To recover your stridhan you have to file a criminal case under section 406 of Indian Penal Code. Since it will be a criminal case the coercive process of criminal law can be pressed into service through warrants to recover the istridhan from him. 
Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
5.0 on 5.0
1. You are entitled to all your Streedhan.

2. Lodge a police complaint alleging that your Streedhan has not been handed over to you by your husband and his family members despite your repeated request.

3. Police will register FIR u/s406 of IPC and shall recover your Streedhan to handover the same to you.

4. Alternatively, you can file a criminal case u/s406 of IPC and the Court may direct the police to recover your Streedhan and hand over the same to you against your application filed with the said prayer.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

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