Divorce - Me and wife separate for years

Dear Client,
In the given scenario, a divorce petition can be filed under Section 27 of the Special Marriage Act, 1954, on the ground of desertion as defined under Section 27(1)(c) of the Act. before the Family Court/District Court where the couple last lived together, such as their marital home, where the marriage was solemnized, or where the wife currently resides, praying for a decree of divorce to resolve the issues permanently. Both under Section 37 of SMA or Section 125 Cr. PC, any person having sufficient means is liable to support his wife and children, provided that she is unable to maintain herself and her children. This support is provided by way of a fixed amount determined by a judicial magistrate, known as ‘maintenance’, once an application is filed by the aggrieved spouse seeking maintenance from her husband in the Court. Certain guidelines had been set down by the Supreme Court in its judgment in the case of Rajnesh v. Neha (2021(2) SCC 324). Said criteria include the parties’ status, the respondent Wife needs, the respondent’s income and property, the claimant’s liabilities and financial responsibilities, the parties’ age and employment status, the parties’ residential arrangements, the party's minor children’s maintenance, and illness or disability, etc. Under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the custody of a child below 5 years of age is given to the mother. Since grounds for one-sided/contested divorce reflect the various challenges and complexities that may arise in the course of divorce proceedings, it is always recommended to consult an expert divorce lawyer to get the right legal advice before filing a contested divorce petition.

Dear Client,

Since you and your wife have been living separately for years and she has clearly stated that she does not wish to reunite despite your efforts, filing for divorce directly under the Special Marriage Act is the most practical step.

Filing a case for Restitution of Conjugal Rights will likely be a waste of time in your situation, as even if the court rules in your favor, your wife cannot be compelled to live with you, and you would still have to wait an additional year to file for divorce on the grounds of non-compliance. This approach can unnecessarily prolong the case by 2–3 years. Interim maintenance and child support can be claimed by your wife in both Restitution and divorce proceedings, but permanent alimony is typically awarded only during divorce.

Given your stable income and the fact that your two young children are with your wife, the court may also direct you to provide financial support.

Therefore, it is advisable to file for divorce directly, citing desertion and irretrievable breakdown of marriage, to avoid delays and resolve the matter efficiently. Consult an Advocate for for legal proceedings.