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Anonymous
in Family Law
Asked March 07, 2021

legal remedy for marital separation

  • 1 Answer
  • 69 Views

MY DAUGHTER ANKITA GOT MARRIED FORMALLY TO AAVISHKAR GUPTA 8 YEARS BACK. MY SON IN LAW WHO IS IN MERCHANT NAVY WAS STAYING IN A HIRED ACCOMODATION IN CHENNAI WITH MY DAUGHTER AND GRAND DAUGHTER BLESSED TO THEM 5 YEARS BACK. ONE FINE MORNING AAVISHKAR WALKED OUT OF THE MARRIAGE ON GROUNDS OF NON COMPATIBILITY IN THEIR STARS AND BECAUSE HE WAS FED UP OF A MARRIED LIFE AND WANTED TO LEAD HIS LIFE WITHOUT ANY COMMITTMENTS. WHAT LEGAL ACTION CAN I TAKE AGAINST HIM? I AM STAYING IN NOIDA IN MY OWN FLAT IN SECTOR 29. MY DAUGHTER AND GRAND DAUGHTER ARE ALSO STAYING WITH ME AND MY WIFE. COL GUPTA WITH HIS WIF IS STAYING IN NASHIK (MR) MORE DETAILS ON HEARING FROM YOU

Answer 1

Assuming that they were married under the Hindu Marriage Act, there are two legal remedies available to your daughter. 

Since Mr Aavishkar Gupta has walked out of the marriage without any reasonable grounds, and since your daughter and Mr. Gupta are not residing together, your daughter may apply for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. This will compel Mr. Gupta to once again live with your daughter.

Restitution of Conjugal Rights can be tricky, and may not be ideal as Mr. Gupta will be forced to live with your daughter against his wishes. So, you may want to consider reconciliation instead, which employs a mild and requesting tone.

The other option available to your daughter will be to file for divorce on the grounds of desertion. There are two elements which are essential to constitute desertion: separation and an intention to desert on Mr. Gupta’s behalf. These two elements are met, along with the lack of consent from your daughter’s side. The only catch in seeking this remedy is that two years must have passed in a continuous stretch, from Mr. Gupta walking out, to amount to desertion. If two years have passed, your daughter may file for divorce on the grounds of desertion.

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