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Jun 30, 20233 min read

Is Years Of Separation Mandatory For Divorce In India?

to file for a divorce The minimum period of separation that is required between a husband and wife varies depending on the grounds on which divorce has been granted.


For a mutual divorce, when the couple decides to file for divorce, the minimum period of separation that is required is one year. As has been mentioned under Section 13B of the Hindu Marriage Act, 1955, the provision related to mutual divorce has been explained.


It explains the dissolution of the marriage by a decree of divorce based on the ground that the parties have been living separately from each other for a continuous period of not less than one year and have decided to mutually dissolve the marriage. For further information on the subject, you must seek a Divorce lawyers in hyderabad, who will offer you much-needed advice related to your matter.


For a contested divorce, if any one of the partners initiates divorce while the other does not agree, the minimum period required for separation shall 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 that is not less than two years immediately before the presentation of the divorce petition.

Desertion

Section 13(1)(ib) of the Hindu Marriage Act, 11955, provides for desertion as a ground for divorce. The term “desertion” means the desertion of the petitioner by his or 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 present so as to constitute the act of desertion, based on which the aggrieved party could apply for divorce.

  • Fact of separation (factum deserdendi)

  • 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, and the second step would be proving 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 minds. The difficulty would only be in proving the animus, i.e., the intention for desertion.

There have been instances where the separation was with the consent of both parties (say, 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 permanent end to the marriage with the expiration of such a consensual period. With 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:

  1. Absence of any consent for such desertion

  2. The absence of any such conduct leading to the other spouse leaving the matrimonial relationship

The deserted spouse filing for divorce on the grounds of desertion is the one who must sufficiently prove and provide evidence proving 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 to desert the relationship; rather, his or her wishes must be expressly 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 through which 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 bangalore , divorce lawyer in Mumbai

or divorce lawyers in your own city.

Lead India offers you a team of experienced advocates who have successfully handled 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.

Call Us: +91–8800788535


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