• Divorce under Hindu Marriage Act

Marriage in Jan 2014 - Shortly thereafter lived separately - In Feb 15, a notarized compromise was entered; it was agreed to exchange the jwellery items at a later date, one time settlement amt to be deposited by husband in family court - mutual divorce case filed in mid Feb 15, compromised amt deposited in court with notarized compromise- wife is not appearing for second motion and 18 months will pass in a day or so; her present address not known (she may have gone abroad for study etc) - recourse to husband : i) if fresh divorce case is to be filed - grounds? ii) How the summons can be served iii) whether service of summons by e mail is legal iii) whether this is a case of desertion iv) wife is an Engineering graduate and was in service prior to marriage, whether the terms for one time settlement will remain valid iv) whether the case should be withdrawn and amount deposited in court should be taken back by husband v) Is it a case of desertion
Asked 4 months ago in Family Law from Lucknow, Uttar Pradesh
Religion: Hindu
court would dismiss your divorce petition 

2) fresh divorce petition has to be filed on grounds of mental cruelty  

3) summons will have to be served  at her last known address

4) if unable to serve her apply for substituted service ie by paper publication 

5) in addition service can be done by email 

6) since wife had agreed to x amount as one time settlement  you should offer to pay said money as OTS 
Ajay Sethi
Advocate, Mumbai
23380 Answers
1227 Consultations
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1) The Supreme Court (SC) has ruled that a spouse merely living separately does not amount to desertion.

2) the  estranged spouse  must prove that the estrangement wasn’t due to ill-treatment meted out by him or her.

3) n its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause.

4) in your case wife has deserted you in 2014 and for period of 2 years you have been staying separately
Ajay Sethi
Advocate, Mumbai
23380 Answers
1227 Consultations
5.0 on 5.0
i) if fresh divorce case is to be filed - grounds? 

Since the maximum waiting period is 18 months only and there is no sign of the wife returning to appear before court for final motion of MCD hearing, the court will dismiss the case.  You can file a fresh divorce case on the grounds of cruelty and desertion after dismissal of MCD or after withdrawing the same. 



ii) How the summons can be served

Summons to served on her last known address  india






 iii) whether service of summons by e mail is legal

Summons cannot be served through email.





 iii) whether this is a case of desertion

Desertion may be pleaded as another ground.





iv) wife is an Engineering graduate and was in service prior to marriage, whether the terms for one time settlement will remain valid 

It depends on her claim for maintenance and your reaction to it on this basis.





iv) whether the case should be withdrawn and amount deposited in court should be taken back by husband 

You can withdraw the amount held in court deposit while yo withdraw the MCD case.



v) Is it a case of desertion

It can be pleaded so. 
T Kalaiselvan
Advocate, Vellore
14158 Answers
128 Consultations
5.0 on 5.0
Whether some of the facts as given in consent divorce case can be changed in fresh contested divorce plaint


You cannot alter the facts, but can change the grounds.
T Kalaiselvan
Advocate, Vellore
14158 Answers
128 Consultations
5.0 on 5.0
Whether it can be termed as a case of desertion

In a contested divorce case, it can be treated as divorce on the grounds o cruelty and desertion.
T Kalaiselvan
Advocate, Vellore
14158 Answers
128 Consultations
5.0 on 5.0
1. The grounds cannot be told as your query is silent on what sent the marriage to rocks. Be that as it may, if she does not appear in the court now the MCD will be dismissed. 

2. Service of summons by email is not a substitute of physical service.

3. For desertion to come into play there has to be a separation without a justified cause for at least 2 years.

4, The entire MOU i.e terms of settlement will collapse when the court will dismiss MCD.

5. To recover the amount the husband has to file a civil suit for recovery and a criminal complaint for cheating and breach of trust.
Ashish Davessar
Advocate, Jaipur
18246 Answers
450 Consultations
5.0 on 5.0
the reasons for which you both wanted to get divorce shall be mention in fresh divorce petition. the summons can be served though court, register post, speed post, courier. in some case the summons can be served through airmail and substitute service ( paper publication). No, service of summons by emails are permitted under law. let the mutual divorce case will be disposed off.   you alone can't withdraw the divorce petition filed jointly. you can take amount back. no it is not case of desertion.    
Lakshmi Kanth
Advocate, Hyderabad
230 Answers
2 Consultations
4.8 on 5.0

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