In India, the minimum period of separation which is required between a husband and wife so as to file for a divorce varies depending on the grounds for divorce.
In the case of a mutual divorce, when both parties agree for the divorce, the minimum period of separation required is one year. Mentioned under Section 13B of the Hindu Marriage Act, 1955 the provision for mutual divorce by husband and wife has been provided.
It mentions the dissolution of a marriage by a decree of divorce on the ground that parties have been living separately for a continuous period of not less than one year, and have mutually decided to dissolve the marriage. For further information you must seek a Family Lawyer In Delhi, who could offer you much needed advice related to your matter.
In the case of a contested divorce, when one party initiates divorce and the other does not agree, the minimum period for separation required depends upon the grounds for divorce. For example, when the grounds for divorce are cruelty or adultery, no specific minimum period of separation shall be required. However, a spouse may file for divorce if the other spouse has deserted them for a continuous period of not less than two years immediately prior to the presentation of the divorce petition under the terms of Section 13(1)(b) of the Hindu Marriage Act.
Desertion
The Section 13(1) (ib) of the Hindu Marriage Act, 1955 mentions desertion as ground for divorce, The expression “desertion” could be understood as the desertion of the petitioner by his/her spouse without any reasonable cause and without the consent of or against the wishes of the petitioner, and also includes the willful neglect of the petitioner on the part of the other party to the marriage.
Elements of desertion
Mainly four basic elements are there which must be there so as to constitute desertion.
The fact of separation (factum deserdendi)
The intention to desert ( animus deserendi)
When filing a petition, the first step shall be proving the fact of separation and the intent to separate while the second step would be to prove their union. It would be fairly easy to prove the physical aspect of separation either from the conduct of the parties or from their state of minds. The difficulty would arise only while proving the animus i.e. the intention for desertion.
There have been cases where the separation was consensual (for example when the husband is on a voyage) with no intention to desert. While being separated, one of the spouses may develop the intention to bring an end to their marriage permanently on the expiry of such a consensual period. With such separation as well as intention, the act of desertion would start which the deserted spouse is expected to prove.
In addition to these elements in the deserting spouse, two other elements are also there which are also required to be proved on the plaintiff’s part-
Absence of consent for desertion
The absence of such conduct which leads to the other spouse leaving the matrimony.
The deserted spouse filing for the petition for divorce on the grounds of desertion is the one who must sufficiently prove and provide evidence that the desertion was against his will. Courts have decided that it will not be enough for the petitioner to show his unwillingness for the respondent staying out; rather it must be expressly declared his wishes to the deserting spouse that such absence was against his wish.
Conclusion
In conclusion, it could be said that the desertion could be considered a fault-based ground for divorce, however there are ways which the guilty spouse can maneuver around the law and the justice to the deserted spouse could be denied. Hence, in case you wish to seek legal advice, you must contact Divorce Lawyers In Delhi or Divorce Lawyers In Hyderabad.
Lead India offers you a team of experienced advocates who have been successfully handling cases related to divorce matters, maintenance, etc. Hence, if you wish to talk to a lawyer or seek free legal advice online, you may contact us.
SOURCE:-
Visit us: — https://www.leadindia.law
Call Us: +91–8800788535
Email: care@leadindia.law
YouTube: — https://www.youtube.com/c/LeadIndiaLawAssociates
Facebook: — https://www.facebook.com/leadindialaw
LinkedIn: — https://www.linkedin.com/company/76353439
Twitter: — https://twitter.com/leadindialaw
Pinterest: — https://in.pinterest.com/lawleadindia
Instagram: - https://www.instagram.com/leadindialawofficial
Comments