An absent spouse does not trap you in the marriage. It changes how the case is run, not whether it can be run.
Which court will hear it
This is one of the few situations the statute actually anticipated. Section 19 of the Hindu Marriage Act, 1955 ordinarily sends the petition to the court where the marriage was solemnised, where the respondent resides, where the parties last resided together, or where the wife is residing if she is the petitioner. It then adds a limb made for this problem: the petition may be presented where the petitioner is residing, in a case where the respondent is at that time residing outside India, or has not been heard of as being alive for seven years or more by those who would naturally have heard of him if he were alive. So you are not obliged to file in a town you left years ago. In Bengaluru the petition goes to the Family Courts at Nyaya Degula, H. Siddaiah Road, Shanthinagar, under Section 7 of the Family Courts Act, 1984.
The ground
Usually desertion under Section 13(1)(ib) of the Hindu Marriage Act, which requires abandonment without reasonable cause and without consent, continuing for at least two years. Separately, Section 13(1)(vii) provides a ground where the spouse has not been heard of as being alive for seven years or more by those who would naturally have heard of them.
Getting past service
The court cannot proceed until it is satisfied the respondent has been given notice. Where the address is unknown, the sequence is:
- Attempt ordinary service at the last known address, and file the returned summons or the process server's report.
- Attempt service at the workplace, the parents' address, and any other address you can establish.
- Apply under Order V Rule 20 of the Civil Procedure Code for substituted service, typically by publication in a newspaper circulating in the area where the respondent was last known to reside, and by affixture at the last known address.
- If there is still no appearance, the court proceeds ex parte and you lead your evidence.
Build the service record as you go, because it is the part of the file that gets examined years later. Keep the returned envelopes with the postal endorsement intact, the process server's report and affidavit, the police missing person complaint and its acknowledgement, the letters written to the respondent's employer and to his parents, and printouts of any message or email that did not bounce. Where publication is directed, Bengaluru practice is ordinarily a daily circulating in the area where the respondent was last known to reside, and courts frequently direct a Kannada daily as well as an English one where that address is in Karnataka. File the original newspaper page rather than a photocopy, with the publisher's certificate and the receipt for the advertisement charges.
Proving the case ex parte
Nobody appearing does not mean the case is won. Section 23 of the Hindu Marriage Act requires the court to satisfy itself that a ground for relief exists and that the petitioner is not in any way taking advantage of his or her own wrong, and that applies whether the petition is defended or not. So the evidence still has to be led: the marriage and its date, when the desertion began, the absence of consent and of reasonable cause, and the steps taken to trace the respondent. Section 16 of the Family Courts Act, 1984 allows evidence of a formal character to be given on affidavit, which shortens the exercise without removing it. The overall sequence, from petition to decree, is set out in the guide on how to file for divorce in India, and the grounds you might plead in the alternative are covered in the guide on the grounds for a contested divorce.
Courts want to see genuine effort, and an ex parte decree obtained on sloppy service is vulnerable to being set aside years later under Order IX Rule 13, which is far worse than taking an extra two months now. Keep the police missing-person complaint, the returned envelopes, the process server's reports, and the newspaper copy on record.
Your spouse cannot be found. Which route fits?
- Missing, but you have a ground such as desertion? File on that ground and get past service by substituted service, which is the ordinary route.
- Not heard of as alive for seven years by those who would naturally have heard? The statutory presumption of death arises, and it is available as a ground.
- Address unknown but locatable with effort? The court will expect genuine attempts before permitting substituted service, so document every attempt.
- Deliberately evading service? Substituted service by publication, affixation and, increasingly, electronic means.
- In every branch, an ex parte decree still requires proof of the ground. Absence of the respondent is not proof.
The seven-year presumption
Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 108 of the Evidence Act) allows a presumption of death where a person has not been heard of for seven years by those who would naturally have heard of them. Note carefully: this presumes death, it does not fix the date of death, which matters for succession.
After the decree, and what it costs
Apply at once for certified copies, and then wait before doing anything irreversible. Under Section 15 of the Hindu Marriage Act it is lawful to marry again only when there is no right of appeal, or the time for appealing has expired without an appeal being presented, or an appeal has been presented and dismissed, and under Section 28 an appeal has to be preferred within ninety days of the decree. With an ex parte decree the ninety days is a floor rather than a comfort, because the respondent may surface later and apply to have it set aside. On time and money, a matter of this kind in Bengaluru commonly runs twelve to twenty-four months, most of it consumed by service rather than by trial, and the court fee on a matrimonial petition in Karnataka is a fixed amount under Schedule II of the Karnataka Court Fees and Suits Valuation Act, 1958 rather than a percentage of anything. The recurring out-of-pocket cost is the newspaper publication.
If your spouse reappears
An ex parte decree can be challenged. That is precisely why the service record needs to be beyond criticism.