How to File for Divorce on the Grounds of Desertion in India

Divorce is a significant life event that can have profound emotional, financial, and legal implications. In India, the legal framework governing divorce is primarily outlined in the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. One of the grounds for divorce recognized under these laws is desertion. This article aims to provide a comprehensive guide on how to file for divorce on the grounds of desertion, including the legal requirements, procedures, and relevant case laws.

Understanding Desertion in Indian Law

Desertion is defined as the voluntary abandonment of one spouse by another without reasonable cause and with the intention of bringing the marital relationship to an end. According to Section 13(1)(b) of the Hindu Marriage Act, a spouse can file for divorce if the other spouse has deserted them for a continuous period of two years or more. The concept of desertion involves both physical and mental aspects.

Elements of Desertion

For a successful claim of desertion, certain elements must be established:

1. Physical Separation: There must be a physical separation between the spouses.
2. Intent to Desert: The spouse who leaves must have the intention to end the marital relationship.
3. Continuous Absence: The absence must be continuous for at least two years.
4. No Justifiable Cause: The spouse who has left must not have a valid reason for the separation.

Legal Provisions Governing Desertion

The grounds of desertion for divorce are primarily governed by the following legal provisions:

• Hindu Marriage Act, 1955: Section 13(1)(b) allows for divorce on the grounds of desertion.
• Special Marriage Act, 1954: Section 27(1)(b) provides similar provisions for couples married under this act.

Grounds for Filing Divorce on Desertion

To file for divorce on the grounds of desertion, the following conditions must be met:

1. The spouses must have been married.
2. There must be a period of desertion of at least two years.
3. The desertion must not be a mutual decision.
4. The spouse filing for divorce has not condoned the desertion.

Steps to File for Divorce on Grounds of Desertion

Step 1: Consult a Family Lawyer

Before proceeding, it is advisable to consult a family lawyer who specializes in divorce cases. They can provide guidance on the merits of your case and help you understand the legal procedures involved.

Step 2: Gather Evidence

Collect all necessary evidence to support your claim of desertion. This may include:

• Proof of marriage (marriage certificate).
• Documents showing the period of separation (e.g., communication records, bills, etc.).
• Witness statements from friends or family who can confirm the desertion.

Step 3: Drafting the Petition

The next step is to draft a divorce petition. The petition must include:

• Details of both spouses.
• Facts supporting the claim of desertion.
• Details of children, if any, and their custody arrangements.
• Any claims for maintenance or alimony.

Step 4: Filing the Petition in Court

The divorce petition must be filed in the family court that has jurisdiction over the area where either spouse resides. The court will require multiple copies of the petition along with the evidence gathered.

Step 5: Court Proceedings

Once the petition is filed, the court will issue a notice to the other spouse. The other spouse will have the opportunity to respond to the allegations. If they contest the divorce, the court will schedule hearings where both parties can present their cases.

Step 6: Final Judgment

If the court finds sufficient grounds for desertion, it may grant the divorce. The court may also address issues related to alimony, child custody, and division of assets at this stage.

Important Considerations

Desertion vs. Separation

It is crucial to distinguish between desertion and separation. Desertion implies an intention to end the marriage, while separation may involve mutual consent. Understanding this difference is vital when filing for divorce.

Impact of Reconciliation Attempts

If there have been attempts to reconcile during the period of desertion, it may affect the claim. If the deserting spouse returns and the other spouse accepts them, it may be considered as condonation, which can nullify the grounds for divorce.

Legal Precedents

Several landmark judgments have shaped the interpretation of desertion in Indian law:

• Krishna Bhattacharjee vs. Sarathi Choudhury (2016): The Supreme Court held that desertion must be established with clear evidence of intention to abandon the marriage.
• V. Bhagat vs. D. Bhagat (1994): The apex court clarified that desertion does not merely refer to physical absence but also includes the intention behind it.

FAQs

1. What is the difference between desertion and legal separation?

Desertion involves one spouse leaving the other with the intention to end the marriage, while legal separation is a formal arrangement where both spouses agree to live apart but remain legally married.

2. How long does the divorce process take?

The duration of the divorce process can vary significantly based on several factors, including court schedules, the complexity of the case, and whether it is contested. Generally, it may take anywhere from a few months to several years.

3. Can I file for divorce if my spouse has left for a valid reason?

If your spouse left for a valid reason, such as abuse or infidelity, it may not constitute desertion. In such cases, you may need to explore other grounds for divorce.

4. Is it necessary to have a lawyer for filing a divorce petition?

While it is not mandatory to have a lawyer, having legal representation can significantly improve your chances of a favorable outcome. A lawyer can help navigate the complexities of family law and represent your interests effectively.

5. What if my spouse contests the divorce?

If your spouse contests the divorce, the court will schedule hearings where both parties can present their evidence. The court will then decide based on the merits of the case.

Conclusion

Filing for divorce on the grounds of desertion is a complex legal process that requires careful consideration and preparation. Understanding the legal framework, gathering the necessary evidence, and following the correct procedures are crucial for a successful outcome. Consulting with a family lawyer can provide valuable guidance and support throughout the process. Remember, divorce is not just a legal matter; it is a significant life change that requires emotional and psychological readiness as well.