Wife not returning to home after 3 months of marriage

278 votes

If your wife who was a minor at the time of marriage has not sought an annulment within two years of attaining majority, your marriage with her has become legally valid.

As per your factual matrix -

• you can either apply for divorce on the ground of desertion as per Section 13 of the Hindu Marriage Act, 1955 or 

• you can apply for annulment of marriage if it can be proved by way of evidence that your wife was suffering from a mental disorder at the time of marriage which made her unfit for marriage and procreation of children and yet she was married off despite her condition. Such marriage is voidable at your option and can be annulled according to Section 12 of the Hindu Marriage Act, 1955.

To obtain a divorce on the ground of desertion in India or annulment of marriage on the ground of insanity, the following steps need to be followed:

1. Establish the ground of desertion: To establish the ground of desertion, you must prove that your spouse has deserted you for a continuous period of two years or more without any reasonable cause or consent, OR 
   ?Establish the ground of insanity: To establish the ground of insanity, you must prove that at the time of marriage, either you or your spouse was suffering from a mental disorder that makes them unfit for marriage.

2. File a divorce petition: The next step is to file a divorce petition in the district court where you and your spouse last resided together, or where either of you currently resides. The petition should contain details about the marriage, the grounds for divorce, and the relief sought, OR
   File an annulment petition: The next step is to file an annulment petition in the district court where you and your spouse last resided together, or where either of you currently resides. The petition should contain details about the marriage, the grounds for annulment, and the relief sought.

3. Serve notice to the other party: After filing the petition, the court will issue a notice to your spouse to appear in court. If your spouse fails to appear in court, the court may proceed with the case ex-parte (i.e., without their presence).

4. Attend court hearings: You will be required to attend court hearings and provide evidence in support of your case. This evidence may include letters, emails, or other documents that prove your spouse's desertion.

5. Obtain a divorce decree: If the court is satisfied that the grounds for divorce are valid, it may issue a decree of divorce, which legally ends the marriage, OR
   Obtain an annulment decree: If the court is satisfied that the grounds for annulment are valid, it may issue a decree of annulment, which legally declares the marriage null and void.

It is important to note that the legal process of divorce or annulment in India can be complex and time-consuming, and the specific steps may vary depending on the circumstances of the case. Therefore, it is advisable to seek the assistance of a lawyer who can guide you through the process.

LawRato LawRato

592 votes

Dear Sir,
You can file divorce on the ground of cruelty and desertion. Before that you please go through the following and approach me with strong mind so that you can file a divorce case.
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FOLLOWING ARE QUESTIONS ASKED BY MY OTHER CLIENTS….ON THE SUBJECT OF DIVORCE..
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Dear Sir,
My answers are as follows: Before starting you must remember that it is big task and never fight for case. Be cool and face it.
1, I want to know what is procedure to take divorce now and how much alimony i have to give her and monthly expenses as well.
Ans: Alimony means one time full settlement money given to wife. Montly maintenance is awareded during the pendency of case. She is entitled for one only.
2. What’s are rule and regulation for taking divorce?
Ans: It is given below.
3.I want to know whether my wife can claim her rights on the property of my parents like (my parents house) where i and my family live in as alimony.
Ans: No, wife has no share only right for maintenance or alimony. If she is educated and avoiding employment then alimony will be between Rs.2 – 3 lakhs one time settlement.
4.Will court seal my parent house as alimony ? And even she is asking to sign a paper where it will written as tht I can’t meet my son also in my entire life .
Ans: No, your father property cannot be ancestratl property as such your son not entitled for any share. You should not sign any paper. You have pay monthly maintenance to your son till he attains age of majority, only if you have sufficient means/source of income.
5.Can I take my son custody after 7 years from court.
Ans: Yes, even before that.
6.If I want to do settle out court what is the chance of her asking me for alimony amount?
Ans: Rs. 5 to 6 lakhs.
7.On what bases this alimony and monthly expenses is decided?
Ans: On the basis of your personal income.
8.We can deny if they ask huge amount in alimony to pay as I don’t have that much earning or saving with me to give her huge amount of alimony ?
Ans: Yes, definitely. Then she is entitled for monthly maintenance only.
9.What is the difference between alimony and monthly expenses ?
Ans: Alimony means one time full settlement money given to wife. Montly maintenance is awareded during the pendency of case. She is entitled for one only.
10.Do I need to pay monthly expenses only for my son or I need to pay for wife also it is compulsory to give monthly expenses to wife ?
Ans: yes to both. If you do not pay, your belongings will be attached and you will put into jail, if you are purposefully avoiding.
11.Whether she can do any police complain against me or my family ?
Ans: Yes. But now Supreme Court given several instructions to police before arrest.
12.Whether it is bailable or non bailable complaint?What precautions we shud take to avoid this?
Ans: Non-Bailable unders section 498A IPC and 3 and 4 of Dowry Prohibition Act. You must get aniticipatory bail under section 438 of CrPC
13.Can she harm me and family by putting false alligations ? How to take precautions for all this?
Ans: YES, File quashing petition before the High Court.
14.I even want to know that what are strict norms are there for taking divorce?
Ans: It all depends upon evidence, male rarely get divorce but women get very easily, it is the legal presumption, I am saying this as per my experience as judge.
15.Because my wife is continuously telling me now Norms are very very strict what’s are they?
Ans: Nothing to bother, your advocate protect you.
16.Yes she is working if she is working then I am not liable for her maintenance money
Ans: Yes, your burden will be lessened to 50 to 75%
17.what is section 487A IPC in this can we go bail procedure before and keep it ready with us.
Ans: At the end given.
18.What is RCR?
Ans: It is Restitution of Conjugal Rights filed under section 9 of Hindu marriage Act.
19.What are Section 498A and DV Act?
Ans: Given below
20.Under this act will I get bail or not?
Ans: 498A is non bailble, in these days bail is being given to all husbands if there is delay in FIR.
21.But my wife is asking for Alimony separate and monthly maintenance separate Can I combine both as give her?
Ans: No, law does not permit.
22.It is necessary to give her monthly maintenance in her hand or I can transfer to her account?
Ans: to her account.
22.What is Special marriage act and Indian Divorcee Act?
Ans: Please see below. Both applicable in India.
23.what is the procedure for taking bail?
Ans: Your advocate will tell you if you pay fee.
24.If my wife does second marriage will I be still liable to pay her monthly maintenance?
Ans: No.
25.My wife was troubling me a lot and was keep fighting with me for no reason so in the anger I told her if you continue to trouble me like this I will do Second marriage will this create any problem for me in getting the divorce?
Ans: You will be in jail if you marry without divorce under sectin 494 IPC
26.If I am not capable of paying alimony amount if my wife asks for that what court will take the section.
Ans: If you have money and refuse then you will be sent to jail.
27.From almost 9 months she is at her parent home Can she file a complaint against domestic violence against me or my family?
Ans: yes, police create a very good story and register FIR,
28.Mutual Divorce take 6 month time can we do settlement out of court and take divorce fast?
Ans: yes. if you pay alimony and good fee to your advocate it can be settled within 30 days.
Section 9 in The Hindu Marriage Act, 1955
9 Restitution of conjugal rights. — 7 [***] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. 8 [ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.] 9 [***]
Section 498A in The Indian Penal Code
376 [498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun¬ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]

Dear Sir,
Your questions are answered as follows:
1.Can she ask me to come to her place or refuse to come to my place?
Ans: No, it cannot be. Her proposal cannot be accepted by Courts.
2.Can she file false dowry and domestic violence case.?
What punishment will be given to her for false cases ?
Ans: She can file but on its failure no punishment can be given to her saying she lodged false cases, since it is family matter.
3.How long shd I wait for getting divorce if contested ?
Ans: About 2-3 years depending upon the tactics of other side.
4.How frequent can I get visitation rights of child and also during trial ?
Ans: Once a 15 days depending upon age and sex of the child.
5.Does my and parents govt job affected by it also pension settlement as my dad will retire in1 year if she files false cases?
Ans: If she includes your parents in the FIR, there will be some problems in pension settlement.
6.Does separation count from the day she left or the day I stopped visiting her ?
Ans: The day she left you that is deserted you.
7.Is it not the duty of wife to come to husband home as supreme court has granted divorce to husband ,in which wife refused to stay with in laws?
Ans: Yes, you are correct.
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The following are similar FAQs asked by my another client....for your ready reference.
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Dear Sir,
My answers are as follows: Before starting you must remember that it is big task and never fight for case. Be cool and face it.
1, I want to know what is procedure to take divorce now and how much alimony i have to give her and monthly expenses as well.
Ans: Alimony means one time full settlement money given to wife. Montly maintenance is awareded during the pendency of case. She is entitled for one only.
2. What’s are rule and regulation for taking divorce?
Ans: It is given below.
3.I want to know whether my wife can claim her rights on the property of my parents like (my parents house) where i and my family live in as alimony.
Ans: No, wife has no share only right for maintenance or alimony. If she is educated and avoiding employment then alimony will be between Rs.2 – 3 lakhs one time settlement.
4.Will court seal my parent house as alimony ? And even she is asking to sign a paper where it will written as tht I can’t meet my son also in my entire life .
Ans: No, your father property cannot be ancestratl property as such your son not entitled for any share. You should not sign any paper. You have pay monthly maintenance to your son till he attains age of majority, only if you have sufficient means/source of income.
5.Can I take my son custody after 7 years from court.
Ans: Yes, even before that.
6.If I want to do settle out court what is the chance of her asking me for alimony amount?
Ans: Rs. 5 to 6 lakhs.
7.On what bases this alimony and monthly expenses is decided?
Ans: On the basis of your personal income

Advocate Kishan Dutt Kalaskar LawRato

439 votes

You can ask the Family Court to reclaim your wife by filing a RCR. Before you seek legal recourse, have a good discussion with your family elders. If that fails then you can turn to legal aid.

Advocate Chikirsha Mohanty LawRato