AFTER HOW MANY YEARS OF MARRIAGE WE CAN NOT APPLY FOR DIVORCE?

To Apply For Divorce, The Minimum Period Of Separation Which Is Required Between A Husband And Wife Varies Depending Upon The Grounds On Which Divorce Has Been Applied.

For A Mutual Divorce, If The Couple Mutually Decide To File For Divorce, The Minimum Period Of Separation Which Is Required As Per The Law Is One Year. As Has Been Mentioned Under Section 13b Of The Hindu Marriage Act, 1955 The Provision Related To The Mutual Divorce Has Been Explained. It Explains the dissolution Of The Marriage By A Decree Of Divorce Based On The Ground That Parties Have Been Living Separately From Each Other For A Continuous Period Which Shall Not Be Less Than One Year, And Have Decided To Mutually Dissolve The Marriage. For Further Information On The Subject You Must Seek A Divorce Lawyer In Delhi, Who Will Offer You Much Needed Advice As Related To Your Matter. 

For A Contested Divorce, In Case Any One Of The Partners Initiates Divorce While The Other Does Not Agree,  The Minimum Period Required For Separation Will Depend Upon The Grounds For Divorce. For Example, If  Cruelty Or Adultery Are The Grounds For Seeking Divorce,  No Specific Minimum Period Of Separation Will Be Required. But, For Divorce On The Grounds Of Desertion Which Has Been Provided Under Section 13(1)(B) Of The Hindu Marriage Act, The Aggrieved Partner Can Apply For Divorce If The Other Spouse Has Deserted Him Or Her For A Continuous Period Which Is Not Less Than Two Years Immediately Before The Presentation Of The Divorce Petition.

Desertion

The Section 13(1) (Ib) Of The Hindu Marriage Act, 1955 Provides For Desertion As Ground For Divorce. The Term “Desertion” Means The Desertion Of The Petitioner By His/Her Partner Without Providing Any Reasonable Cause And Without Consent Of Or Against The Wishes Of The Petitioner, Including Willful Neglect Of The Petitioner By The Defendant Knowingly Or Intentionally

Elements Of Desertion

Four Basic Elements Are  Required To Be There So As To Constitute The Act Of  Desertion, Based On Which The Aggrieved Party Could Apply For Divorce. 

  • Fact Of Separation (Factum Deserendi)

  • The Intent To Desert ( Animus Deserendi)

While Applying For A Petition, The First Step Would Be Proving The Fact Of Separation As Well As The Intent To Separate When The Second Step Would Be To Prove Their Union. It Will Be Fairly Simple To Prove The Physical Aspect Of Separation From The Conduct Of The Parties As Well As From Their State Of Mind. Difficulty Would Only Be While Proving The Animus I.E. The Intention For Desertion.

There Have Been Instances Where The Separation Was With The Consent Of Both The Parties (Say For Example When The Husband Is On A Voyage) With No Intention Of Deserting The Marital Partner. When Being Separated, One Of The Partners May Wish To Bring A Complete End To The Marriage  Permanently With The Expiry Of Such A Consensual Period. Having Such Separation As Well As Intention, The Act Of Desertion Would Start, Which Is Required To Be Proven By The Deserted Spouse.

There Are Two Other Elements Which Are Also Required To Be Proved On The Plaintiff’s Part As Well-

  • Absence Of Any Consent For Such Desertion

  • The Absence Of Any Such Conduct Leading  To The Other Spouse To Leave The Matrimonial Relationship.

The Deserted Spouse Filing For The Petition For Divorce On The Grounds Of Desertion Is The One Who Must Sufficiently Prove And Provide Evidence Proving The Fact That The Desertion Was Against His  Or Her Will. Courts Have Observed That It May Not Be Enough For The Petitioner To Show His Or Her  Unwillingness For The Respondent From Deserting The Relationship Rather His Or Her Wishes Must Be Expressed and Declared To The Deserting Spouse That Such Absence Was Against His Or Her Wish.

Conclusion

In Conclusion, It Could Be Understood That Desertion Can Be Considered A Fault-Based Ground To Apply For Divorce, However, There Are Many Options Or Rather Loopholes In The Law that the Guilty Spouse Can Maneuver Around The Law So That Justice To The Deserted Spouse Could Be Denied. Hence, If You Wish To Seek Legal Advice, You Would Have To Contact Divorce Lawyers In Ghaziabad Or Family Lawyers In Delhi Or In Your Own City.

Lead India Offers You A Team Of Experienced Advocates Successfully Handling Cases Related To Divorce Issues, Maintenance, Etc. Hence, If You Wish To Talk To A Lawyer Or Seek Free Legal Advice Online, You May Contact Us. 


Source:-


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