Can I file for divorce under the Hindu Marriage Act if my spouse has deserted me for over 2 years? What legal steps should I take under Section 13? What are the possible defenses someone can use in this situation?

Detailed Legal Analysis

Yes, you can file for divorce under the Hindu Marriage Act, 1955 if your spouse has deserted you for over 2 years, as this is a valid ground for divorce under Section 13(1)(b) of the Act.

To initiate the divorce process, you must follow specific legal steps as outlined in the Act:

• Grounds for Divorce: Ensure that you can prove the desertion. According to Section 13(1)(b), desertion means the voluntary abandonment of one spouse by the other without reasonable cause for a continuous period of two years or more.
• Filing the Petition: Prepare a divorce petition stating the facts of the case, including the duration of desertion. The petition should be filed in the family court having jurisdiction over your case, which in your case would be the family court in Bhiwandi.
• Supporting Documents: Gather necessary documents such as marriage certificate, proof of residence, and any evidence demonstrating the desertion (e.g., communication records, witness statements).
• Legal Representation: It is advisable to engage a lawyer specializing in family law to assist with drafting the petition and representing you in court.
• Filing Fees: Pay the requisite court fees when filing the petition, as prescribed by the family court.
• Court Proceedings: After filing, attend the court hearings as scheduled. The court may ask for an interim hearing to understand the nature of the case.
• Final Order: If the court is satisfied with the evidence of desertion, it will grant the divorce decree.

Regarding possible defenses, your spouse may use the following arguments in response to your divorce petition:

• Lack of Intent: They may claim that there was no intention to permanently leave the matrimonial home, disputing the claim of desertion.
• Justifiable Reason for Leaving: They might argue that they left due to cruelty, abuse, or other valid reasons that made cohabitation intolerable.
• Reconciliation Attempts: They could also present evidence showing that attempts were made to reconcile or that they were willing to return.

It is essential to prepare adequately for these defenses by gathering appropriate evidence and legal support to strengthen your case.