Man who ‘checked out’ of his marriage in 2019 granted divorce, despite wife’s opposition

The couple married in India in 2005. Photo / 123rf

A man who “checked out” of his marriage in 2019 has been granted a divorce, even though his wife initially opposed it.

Judge Paul Shearer of the Family Court found the couple had not lived together since the wife went on a trip home to India in 2019 and was delayed returning by the Covid border restrictions.

That meant they had been separated for longer than the two years of living apart required for dissolution under the Family Proceedings Act 1980.

Judge Shearer said it also became clear during a hearing that Santosh Dayal and his wife Salani Badakar*, who married in India in 2005, now had irreconcilable differences and neither wished to continue the marriage.

However, the judge said that earlier in the proceedings, Badakar did not consent to an order dissolving the marriage, so her husband’s application went to a defended hearing in the court.

Nor did she know that she was separating from her husband when she went to India in 2019.

Badakar told the court that her husband migrated to New Zealand in 2015.

She followed with their two children when he obtained a resident’s visa in 2018, but found that by then he was in a relationship with another woman.

He told her he was not sure which relationship he wanted to continue and asked her for some time to think about it, to which she agreed.

Badakar said she and her husband went through another marriage ceremony in early 2019. His view of this was that she had told him they “had to go to the temple and do some ritual”.

Badakar said that when Dayal dropped her at the airport to go to India in 2019, “there was no mention of going for divorce”.

She phoned him every day when she was in India until he “started abusing me on the phone”, and she stopped calling him.

Badakar intended to return to New Zealand in May 2020, but was left stranded by the closed border and did not return until October 2021.

When she and the children got back, the couple lived in different cities.

Judge Shearer said the two parties had different versions of events.

“While Ms Badakar … maintains the parties did not separate emotionally at that time [she returned to India], I find that Mr Dayal did separate emotionally. He had clearly ‘checked out’ of the marriage at that time,” the judge said.

“The relevant point in my view is that it only takes one party to opt out of the marriage,” he said.

“Even if Ms Badakar did not want to separate and considered that the parties were still a married couple when she was living in India and Mr Dayal remained here, Mr Dayal had verbalised that he was leaving the marriage.”

Judge Shearer issued an order dissolving the marriage, effective immediately.

* Names have been changed as identities are protected in Family Court proceedings. The names used are those provided by the court in the published judgment.