Wife in US. I am in delhi. Where can i file for divorce?
I want to revive my Divorce case which I had withdrawn in 2009 owing to my wife's health conditions and her inability to travel to India for the Divorce proceedings. I had filed a case under desertion and cruelty in 2008 and withdrew it later in 2009 stating her health condition and that we will try to reconcile.
Now she refuses to go for a mutual Divorce and she is in US whereas I am in Delhi. We last resided together in Delhi. Can I revive the withdrawn case or should I file a fresh case? Under what grounds and what will be the jurisdiction?
Firstly, we have to examine the order passed by the Court in 2009. In the order we will examine whether the court has given liberty to file a fresh petition on the same cause of action.
If the Court has given permission to file a fresh petition, then you may have to re file the petition. There is no provision under the law which states that a withdrawn case can be revived.
With respect to your second query, you may file a Divorce Petition under Section 13 (1) of the Hindu Marriage Act 1955. Section 13 of the Hindu Marriage Act which covers divorce has been reproduced below for a better understanding:
Section 13(1) states that a petition may be presented by either the husband or the wife, for dissolution of marriage by a decree of divorce on the ground that the other party-
i. has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse; or
a. has, after the solemnization of the marriage, treated the petitioner with cruelty; or
b. has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
ii. has ceased to be a Hindu by conversion to another religion; or
iii. has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.- In this clause,-
a. the expression" mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
b. the expression" psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment; or
iv. has been suffering from a virulent and incurable from of leprosy; or
v. has been suffering from venereal disease in a communicable from; or
vi. has renounced the world by entering any religious order; or
vii. has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
So, as per above mentioned section, you can seek for dissolution of marriage (divorce) on any of the above mentioned grounds.
As you have mentioned that your wife is staying in US and if she has been staying with you for a continuous period of 2 years then you may file a petition under Section 13(1)(b). In addition to this, depending upon the facts of your case, further grounds have to be decided.
With respect to your pertaining to jurisdiction, you can file the petition of divorce to the District Magistrate within whose territorial jurisdiction:
1.Either of the spouses resides;
2. Both spouses last resided or were placed;
3. Where the marriage was solemnized.
Kindly contact us for any further details and action.
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