One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.
Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.
TL;DR: A long separation makes the case for a contested divorce stronger, but it does not make the divorce automatic. Desertion under the Hindu Marriage Act, 1955 needs two years of separation plus proof that it happened without your consent and without reasonable cause. And no matter how much the other spouse earns, your duty to maintain your minor children does not switch off because she stopped replying to your messages.
Vikram Malhotra lives in Pune. Nearly nine years ago his wife Sneha moved to Chandigarh with their two daughters and took up a senior position with the central government there. He messaged her asking for her bank details so he could send money for the girls. Nothing came back. He tried again a few months later. Still nothing.
About eighteen months ago his mother was in the ICU in Pune. He sent a photograph and one line: let her see the grandchildren once. Sneha did not respond. His mother recovered, and she is in her early eighties now, living with him.
Somewhere in the middle of those years Sneha agreed to a mutual consent divorce. Then the replies stopped altogether. Vikram is 47 and has no plans to marry again. He spoke to two lawyers near home. Both told him a contested case would mean travelling to another state for every hearing, years of adjournments, and no certainty at the end of it.
He then approached the Chamber of Advocate Sudhir Rao, which handles matrimonial and family matters. The case was rebuilt around Section 13(1)(i-b) of the Hindu Marriage Act, 1955, with a documented record of every unanswered message.
The messages are still on his phone. The ones
The messages are still on his phone. The ones she answered in the first year sit in the same thread as the ones she never answered at all. There is one photograph in that thread, and he has not deleted any of it.
Both lawyers he spoke to had given him the practical picture — travel, adjournments, uncertainty. Neither had told him that the separation had already done part of the legal work, or that the unanswered messages were the other part.
Does nine years of separation make the divorce automatic?
No. This is the first thing to get straight.
Living apart for a long time does not dissolve a marriage in India. There is no rule that says a marriage ends by itself after a fixed number of years. Either both spouses petition for a divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955, or one of them files a contested petition and proves one of the fault grounds listed in Section 13(1). A court has to pass a decree. Until then, the marriage is intact on paper, with everything that follows from that — succession, nominations, property, and the right of either spouse to claim maintenance.
That last point is the one people miss. Your spouse remaining silent for years does not stop her from filing a maintenance claim tomorrow.
What desertion means under Section 13(1)(i-b)
The ground that usually fits a long, unexplained separation is desertion. Section 13(1)(i-b) allows a decree where the other spouse has deserted the petitioner for a continuous period of not less than two years immediately before the petition is filed.
"Desertion" is defined in the Explanation to that clause. It means abandonment of the petitioner without reasonable cause and without the petitioner's consent, or against the petitioner's wish. It also covers wilful neglect.
The four things a court looks for
- Factum of separation — you were actually living apart.
- Animus deserendi — the other spouse intended to bring the marriage to an end, not merely to live somewhere else for a while.
- Absence of reasonable cause — there was no justification for leaving or for staying away.
- Absence of consent — you did not agree to the separation, or at least did not agree to it continuing.
All four must hold together, and they must hold for the whole two-year period. Separation alone proves nothing. A husband who quietly accepted a wife's move to another city and did not object for years has a weak case on the consent limb, whatever he felt privately.
This is where the unanswered messages matter. They are not decoration. A dated record of repeated attempts to stay in contact, and repeated silence in reply, is what turns "we live in different cities" into "she abandoned the marriage". The messages show the separation was not something you had agreed to continue.
We only have one side of this. What the wife would say — that she moved for work with his knowledge, that he never asked her to return, that the marriage had already broken down — is not in front of us. Those are exactly the facts a contested case turns on.
Preserve the messages properly
Screenshots are often not enough on their own. Electronic records are governed by Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, and a certificate in the prescribed form is generally needed to prove them. Practically, that means do not delete the chat, do not change phones, do not wipe backups, and do not edit screenshots. The original device is the evidence. Take printouts with the dates and the sender's number visible.
Is a contested divorce worth it after this long?
Sometimes, and sometimes not. This is the honest answer, and it depends on what you actually want.
If both of you had already agreed to a mutual consent divorce and the other side simply stopped responding, that agreement is worth reviving before anything else. A mutual consent petition under Section 13B is faster, cheaper and far less painful. The catch is that either spouse can withdraw consent at any stage before the decree, so a deal that is agreed today is not a deal until the papers are signed. The statutory cooling-off period is six months, though courts have allowed it to be waived where the parties have lived apart long enough and everything else is settled.
If mutual consent is dead, a contested petition on desertion is the route. Two other options exist and are usually worse here. Restitution of conjugal rights under Section 9 is sometimes filed to build a record, and sometimes purely tactically. Judicial separation under Section 10 does not end the marriage; it only suspends the obligation to cohabit.
And a legitimate question: if you have no intention of remarrying, why file at all? Closure is not a legal reason. The real reasons are practical — you may want the uncertainty over maintenance ended, or you may need a clear marital status for property, nomination or succession. If none of that is pressing, there may be nothing urgent to argue, and that is worth saying out loud rather than running up years of litigation.
Which court hears the case if your spouse lives in another state?
Section 19 of the Hindu Marriage Act lists where a petition can be filed: where the marriage was solemnised, where the respondent lives at the time of filing, where the parties last lived together, or — for a wife petitioner — where she lives. A husband cannot simply file in his own city because it is convenient.
So check where you last lived together as a couple. If that was your city, Section 19 gives you a basis to file there. If it was not, you may have to file where your spouse lives. The Supreme Court can transfer a matrimonial case under Section 25 of the Code of Civil Procedure, 1908, but a transfer application is its own proceeding with its own delay.
The travel burden is real and it is not something to wave away. If you have to litigate in another state, plan for it at the start, not in the third year.
Do I still have to maintain my children if my spouse ignores me?
Yes. Her silence changes nothing about this.
The obligation to maintain a minor child is independent of the state of the marriage and independent of whether the other parent cooperates. Under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — the successor to Section 125 of the Criminal Procedure Code — a person with sufficient means can be ordered to maintain his minor children. For Hindus, Section 20 of the Hindu Adoptions and Maintenance Act, 1956 imposes a similar duty, and it falls on both parents. Within a divorce petition, Section 26 of the Hindu Marriage Act lets the court make orders about the custody, maintenance and education of minor children.
Two things follow. First, the fact that she is employed and earns well does not reduce your share towards the children. Courts look at both parents' income and the child's needs. Second, her earnings do matter if she claims maintenance for herself — an earning spouse's own claim is weaker, though not automatically dead.
There is a parallel point. Under Section 24 of the Hindu Marriage Act, either spouse can seek maintenance and the costs of the proceedings while the case is pending. That provision is not limited to wives. Whether a court would grant it to a husband who is also supporting a parent is a different question, and one that depends on the actual figures on both sides.
Rough timeline, and what to bring
A contested matrimonial case in a district or family court realistically runs two to five years before a decree, and longer if it is appealed. Family courts are required under Section 9 of the Family Courts Act, 1984 to attempt a settlement, so mediation is usually built into the process rather than optional.
For a first consultation, bring:
- The marriage certificate, or the invitation card, or photographs of the ceremony if no certificate exists.
- Both children's dates of birth and school details.
- Printouts of the messages, in date order, from the first unanswered one onwards.
- The phone itself, if you can bring it.
- Any draft or filed mutual consent petition, with its date.
- Your income proof — recent IT