DESERTION AS A GROUND FOR DIVORCE

INTRODUCTION:

Under the Hindu law, section 13 (1) (ib) of the Hindu Marriage Act,
1955 mentions desertion as a ground for divorce. What the section
provides for is that the party needs to have deserted the petitioner
for a continuous that is to say, uninterrupted period of not less than
2 years immediately after which petition is presented.

It can thus be inferred that the clause provides for 2 basic

necessities to be fulfilled in order to make desertion as a ground for
divorce; firstly that such desertion or separation must be for a
continuous period of minimum 2 years; and secondly, such period of 2
years should be in immediate continuity with time of presentation of
such petition. To make it more clear there should not be a gap
between the period of 2 years and presentation of the petition.
The conceptualization of “desertion” is incorporated in the
Explanation to section 13(1). The
Explanation goes as follows:
“In this sub-section, the expression “desertion” means the
desertion of the petitioner by the other party to the marriage
without a reasonable rationale and without or against the wish of
such party, and includes the willful neglect of the petitioner by the
other party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.”
In a catena of judgments the honorable judges have counted on the
facts and circumstances of each case in defining desertion.
Elementarily defining, desertion can be termed as the negation of
the relation to live together which is the nitty-gritty of a
matrimonial tie, provided it is indefensible, then it forms a ground
for matrimonial relief. Desertion in brevity means an absolute
repudiation of marital obligations, i.e putting an end to two-in-
oneship and the marital togetherness which is indeed the kernel of
marriage. In layman terms desertion can be interpreted as “running
away”, i.e., to say running away of one spouse from his/her marital
obligations. That he actually leaves the home, ceases to cohabit,
abandons all his obligations and refuses to perform matrimonial
obligations.

In Prabhakar Govindrao Bokade v. Mangala Prabhakar Bokade ,

the Bombay High Court held that the term “desertion” cannot be
said to have an exhaustive definition and facts and circumstances of
every case need to be considered accordingly in order to find out
whether desertion is made out within the meaning of section
13(1)(ib) of the Act.

In [Link] Devrao it was held that in the

Explanation towards the end of Section 13(1) the expression
“desertion” with its grammatical variations and cognate expressions
means the desertion of the petitioner by the other party to the
marriage either without a reasonable reason or against the consent
or wish of the other spouse party to marriage and includes the
wilfully neglecting behavior by that other party to the marriage
towards the petitioner

. The Supreme Court in Lachman v. Meena interpreted that

desertion in its very essence means the intentional permanent
abandonment by one spouse of the other without that other’s
consent and without reasonable or just cause or justification. It was
also held to include willful neglect of one of the parties towards the
other in a marriage. This therefore means that one of the parties
who intentionally ignores and willfully does not take care of the
other party or neglects to fulfil the needs of the other party being
fully aware of the fact that such neglect would prove to be negative
for that other party is termed to have committed desertion.
Further the Explanation so appended makes it clear that the burden
of proof of the fact of desertion lies on the petitioner, that is, the
petitioner has to prove beyond reasonable doubt that the
respondent is guilty of desertion. For proving the offence of
desertion the Courts insist upon Corroborative evidence which
although is not a rule of law absolutely but still unless the absence
of such evidence is accounted to for the Court’s satisfaction the
Court prefers production of such corroborative evidence.

Like in, [Link] Ravi, MD v. B.B Ravi MD, wherein the husband
alleged desertion on the part of his
wife and claimed that she did not invite him and his family members
even for the naming ceremony of their child and also that she had
left without his consent and he hadn’t met her for a long period of
time, whereas, on corroboration by the Hon’ble Court it was found
that all these claims lied in nullity since they could not be proved
because corroboration showed that he and his family member
willfully refrained from attending the naming ceremony of the child
and also that the husband met the wife for 2 days when she was in
Gulbarga pursuing her studies. Hence, although not a primary and
absolute rule of law the Courts still prefer corroboration on first
hand.

In Uma Wanti v. Ram Dayal it was seen that even if the wife who
was the deserting spouse was unable to prove just cause for her to
be living away, it was the husband who was burdened with the onus
to prove that the living apart of the wife was without any cause.

The Hon’ble Supreme Court in Savitri Pandey v. Prem Chandra

Pandey elaborated and shed light on the concept of desertion. To
reproduce what the court said, “Desertion in order to seek divorce
under the Act means the deliberate permanent forsaking and
abandonment by one spouse of the other without that other’s
consent and without reasonable and just reason. In other words, it is
an absolute repudiation of the obligations of marriage, it is not the
withdrawal from a place, but from a state of things. Desertion
cannot be made out by a single act but, it is a continuous course of
conduct.” Desertion can be viewed as synonym to terms like
abandonment, forsaking, relinquishment, abstinence, refraining from
marital obligations, total repudiation, separation, renouncement and
other such term

ESSENTIAL ELEMENTS OF DESERTION:

It was in Bipinchandra Jaisinghbai v. Prabhavati that the Court

elaborated and shed light on the concept of desertion. The following
is the reproduction of what was held by the hon’ble Court, “For
desertion to be proved, on behalf of the deserting spouse, two
essential conditions must be there, they are: (i) fact of desertion
and (ii) the intention to end cohabitation permanently. And so are 2
other essentials required to be present on behalf of the deserted
spouse; they are:……(i) absence of consent and (ii) the absence of
conduct that gives reasonable ground to the spouse leaving the
matrimonial home……Desertion is always to be proved depending on
the factual circumstances of every case…… However, desertion is
said to initiate as an offence or a wrong when both the essential
elements, that is, the fact of separation and animus deserendi exist
at the same time. But they need not begin together at the same, it
may be the case when separation begins first and intention develops
later so when they both exist at same time then desertion will
occur.” In order to prove desertion there are 2 elements that are
sine qua non, first is the actual fact of separation that is to say,
factum deserendi and secondly, the intention to desert or the
animus deserendi. Hence, the fact of being separated alone cannot
amount to desertion but has to be accompanied with intention to
desert as well and same way only the intention or the thought of
wanting to separate from the spouse without any actus reus will not
amount to desertion. This view was enumerated in Bhupinder Kaur v.
Budhi Singh wherein it was observed that merely living
way for a long time period cannot attribute animus deserendi on that
party. Where a wife stays away from her husband in order to
pursue her studies with the fond hope of
improving her career and gets a job later on, but, is also willing to
leave the job in order to live with the husband, she cannot be held
guilty of committing desertion. Also where the spouse is living away
in order to get medical treatment cannot be held for desertion.
Further in Pradip Kumar Kalita v. Hiran Provo Kalita and stayed
with parents because of the refusal of the husband to keep her was
not guilty of desertion.
In Manjit Kaur v. Mohan Singh the petitioner was an army officer
and whenever he used to visit his home on leave, his wife used to
accompany him and after he left she used to return back to her
parent’s house. The Court held this not to be desertion since there
was no separation on the wife’s side and for desertion the fact of
separation has to lie towards the spouse and not the family members
of the spouse and in addition to this there was also not seen any
intention of the wife to desert since on every occasion of the
husband coming back on leave whenever she got an opportunity she
used to make full use of it and used to stay with him. Where a wife
was seen to have left the matrimonial house under a delusion that it
would be unsafe to live with her husband, she was not considered to
have deserted her husband since she did not possess the mental
capacity to form the sine qua non that is, animus deserendi . In
Sucha Singh v. Paramjit Kaur a husband sought divorce alleging
wife’s desertion, he alleged that she didn’t live with his parents in
Hoshiarpur and rather compelled him to take her with him to USA
where he was residing. The Court held this not to be desertion and
dismissed the petition accordingly. In
Om Wati v. Kishan Chand , the parties married on February 2, 1976
subsequent to which the wife gave birth to a female child who died
later on. On May 22, 1981 the wife filed a divorce petition against
the husband on the ground of desertion. The findings of the hon’ble
Court showed that both the parties were living separately right
after 3 years of their marriage but the court could not find the
presence of animus deserendi, which came to be proved when the
death of their daughter child was informed to the husband and he
did not turn up for performing the last rites of his child. The
conduct of the husband prima facie showed that he had no
attachment left even for the daughter and that he had totally
broken up from the family and had forsaken and abandoned them.
The husband also refused to pay interim maintenance and litigation
expenses in favor of the wife. The Court granted divorce to the wife
on the ground of desertion.

THE PERIOD OF 2 YEARS:

The period of 2 years does not mean an aggregate period of 2 years

but it mean an unbroken
continuous period which started off when the parties began to live
apart and did not live together during this continuous stretch. This
however implies that desertion will continue even if parties continue
to live apart for more than 2 years and will not be actionable per se
until and unless a petition for separation or divorce making desertion
a ground would not be filed. Hence, desertion is inchoate and will
only ripen when a petition is filed in the Court of law. If for example,
the parties continue to live apart for a period of 10 years and
thereafter they decided to join back the company of each other and
resumed living as husband and wife thereby fulfilling marital
obligations then, desertion will stand as null and void since no
petition was ever filed making desertion a ground for divorce. In
Nash v. Nash the Court held that a petition filed for judicial
separation before the expiry of 2 years would be premature and will
be dismissed. Also in Eveline v. Eveline Joseph it was held that
even if the period of 2 years completes before the hearing, it would
still not cure this defect. Likewise was held it Santosh Kumari V.
Shiv Prakash Sharma the Court laid that where the prescribed
period in the statute did not elapse since the alleged desertion the
petition for divorce on this ground will not be entertained. In
Satgunj v. Rahmat Dil Murad the Court held that 2 years does
not mean several short periods of refusal to live together in
aggregate but an unbroken period of 2 years. Payment of
maintenance amount by the husband towards his wife would not
constitute an interruption to the 2 years period of desertion.

KINDS OF DESERTION:
Primarily desertion is classified into 2 kinds which are Actual
desertion and Constructive
desertion. However, concepts of Mutual desertion and Supervening
desertion are also seen to exist.

Actual Desertion

Actual desertion is said to happen when the spouse in the literal

sense “runs away” from his
matrimonial obligations. It means where the spouse explicitly
refuses to perform his matrimonial obligations, acts in disobedience
to the other spouse or ceases to cohabit with the other spouse.
Here factual separation. To be precise it means when a spouse
actually shoves away with all his matrimonial duties and in actual runs
away or leaves the matrimonial home permanently. It can also be said
that when the fact of separation and animus to desert lies on the
part of the same spouse, then it is said to actual desertion.

Constructive Desertion

Constructive desertion is where the conduct of one spouse makes it

impossible for the other to live with the former. This doctrine lays
that the conduct of the respondent is such that it cannot be
reasonable expected from the petitioner to reside with the
respondent. It can be termed as compulsive desertion wherein
the petitioner is in a way impelled to withdraw from the normal
course of matrimonial life.
A fact that gained clarity here was that it is not necessary that
every time the spouse who leaves the matrimonial house would be
the deserter. This may be the case in actual desertion where this
leaving would be accompanied by the intention to desert as well. But,
in the case of constructive desertion, one spouse makes it absolutely
impossible for the other to spouse to live in a combined marital
household and thus the deserting spouse can be seen to have been
impelled by the other spouse to withdraw from the household. Thus,
the deserting spouse although has fact of separation but lacks
intention to separate because such factum occurred due to the
intention of other spouse who forced the former to leave the house.
Thus, where one spouse by way of his words and conduct forces the
other spouse to leave the matrimonial house, then even if the latter
spouse has physically separated but still the former spouse will be
held for constructive desertion because of whom the other spouse
has left the matrimonial home. It was held in Stickert v. Stickert,
that desertion is not determined solely on the basis of the fact that
who left the matrimonial home. In Sadananda v. Indra Devi , a wife
keenly wanted to come back but the husband was not interested in
rehabilitating her. It was held, that the husband cannot hold wife
guilty of desertion because this was a case of constructive
desertion. If one spouse is obligated by the conduct of the other
spouse, to leave the home then the former spouse responsible for
driving out the latter would be held guilty of constructive desertion
. In Lang v. Lang the Privy Council laid, “Since 1860 in England it has
been recognized that the party who is truly guilty for breaking off
the home is not inevitably or in all cases the party who first initiates
the departure. The party who stays behind (their Lordships will
assume this to be the husband) may by such conduct on his part
making it unbearable for a wife with reasonable self-respect, dignity
or powers of endurance, to n Roi v. R. Naik, the husband after few
of year of marriage brought a woman into the matrimonial home with
whom he had relations and compelled for that woman to live in the
same household, when the wife asked the husband that either she
would stay in the house or will that
woman, the husband very calmly asked her to leave. The wife then
went away and never again resumed cohabitation with the husband.
Thus, here the husband was said to be guilty for constructive
desertion.
In Ashok Kumar v. Shabnam Bhatnagar, the husband and in-laws
harassed the wife by making demand for dowry and eventually the
husband abandoned the wife. The wife was left with no option than
to leave the matrimonial home due to such constant harassment and
abandonment. The wife not held to be in desertion although she was
the leaving spouse because the conduct of husband and in-law
amounted to constructive desertion.
The husband got a mistress in the house in spite of the wife’s
protest is Rengaki v. Arungir , he had sex with the mistress in
wife’s presence to which the only resort left with the wife was to
leave the marital home. The Court held wife was not in desertion
since the exculpatory behavior of the husband left wife with no
option than to leave the house holding husband for constructive
desertion. Where a wife lived away from husband for 30 years but
was still willing to join his company but was driven out of the house
by her husband, the husband was held guilty for constructive
desertion.
The only point of difference would be that in actual desertion there
is actual abandonment or actual running away from the marital
obligations whereas in constructive desertion it would be the
expulsive conduct of one spouse.

Mutual Desertion

Mutual desertion is that when both the parties irrespective of each

other’s consent, without taking care to obtain such consent live
separately, while there is no such thing as mutual desertion and the
Hindu Marriage Act, 1955 instead provides for mutual consent as a
ground for divorce and also when parties live separate from each
other for 1 year or more, so when such ground already exists then
what is the need to incorporate mutual desertion separately.
In an English case of Price v. Price, the English Court held that the
parties should be seen to
have deserted each other and must be granted divorce on this
ground, provided such desertion
exists, without mutual consent, is permanent and both spouses are
living independent of each
other. However, it should also be noted that English law does provide
for divorce by way of mutual consent if the parties are found to be
living away from each other for 2 years.
Now focusing on the view taken by the Indian Courts, the Allahabad
High Court in Guru Bachan Kaur v. Preetam Singh , absolutely
nullified the concept of mutual desertion and held that no such
concept exists. It laid that there has to be one party who will be
guilty. In this case, the husband after 7 years alleged desertion on
the wife. The court found that husband was never in favor of
accepting the reasonable wishes of a working wife and also had not
made any efforts whereas the wife was still ready to live with the
husband in her flat located at the place of her service. So it was
constructive desertion wherein the husband made it impossible for
the couple to live together, and not of mutual desertion.

Desertion When Or When Not Cruelty:

Often it happens that cruelty becomes the very reason or ground

for desertion and vice versa also.
Thus, where a spouse is being treated with cruelty and being
tortured whether physically, mentally or psychologically, it would be
an extremely normal phenomenon if that spouse leaves away the
matrimonial household where he or she is subjected to cruelty. It is
very obvious and a very basic nature of human beings that none of us
want to be controlled by anyone and none of us can tolerate harsh,
rigid and more specifically cruel kind of behavior towards us. Hence,
it is always better to end or leave such relations which do not give us
the space even to breathe.
In Parimi Mehar Seshu v. Parimi Nageshwara Sastry , the husband
proved that wife treated husband with cruelty, deserted him
frequently and hardly ever showed any kind of affection towards
him. The Court held, such acts of frequently deserting the husband
as per her wishes amounted to cruelty on her part.
In Dharam Pal v. Pushpa Devi, the wife was living apart from
husband for about 20 years
without any valid justification for such separation and in addition to
this, she had filed serious
complaints against the husband to higher authorities, which in the
perception of the Court,
amounted to cruelty. Thereby, divorce was granted.

In Sheetal Raju v. Raju Malhotra, the wife was inflicted cruelty

upon by the husband but
unfortunately, could not present much evidence in the Court in order
to prove such charges. In such a case her refusing to join back the
matrimonial home was construed to be cruelty by the wife towards
husband.

Termination of Desertion:
Desertion is a very different ground as compared to other ground of
divorce like cruelty and
adultery. To me it seems like a softer ground which indirectly gives
parties time to reconcile as, it is actionable only after a petition is
filed with that regard. Desertion will not arise a cause of action until
and unless a petition is filed in that respect. Unlike cruelty and
adultery, where the cause of action arises the moment they occur,
the cause of action will arise only when a party files a petition in this
regard. Thus, till the time no such petition is filed, parties are at full
freedom to terminate the desertion at any time and resume their
cohabitation together. Desertion can be terminated in the following
ways:

i) Resuming cohabitation

Resumption of living with the spouse will end the desertion. No

matter how long the period of desertion has been, once the parties
decide to resume cohabitation desertion comes to an end. There
should however be the mutual consent of the parties for such
resumption. It should not be that the deserting spouse comes and
stays in the matrimonial home for a few days without any intention
to reconcile. If this is so then desertion will not come to an end
because for desertion to come to an end the intention to reconcile
on the part of both the parties is very essential and parties should
be mentally prepared to resume cohabitation.

ii) Resuming Marital Intercourse

Resuming the act of having marital intercourse with the spouse

proves to be a great deal for
termination of desertion. If such intercourse has happened but, yet
the parties are not able to live together due to some unavoidable
reasons, it would still be treated as a terminated desertion. But,
where such intercourse is like a casual act of intercourse and the
parties though having participated have in actual repudiated the
relation in all other aspects, it would not amount to termination of
desertion

.
iii) Offering to reconciliate

Where the deserting spouse expresses the intention to come back,

desertion is said to have terminated. Animus revertendi denotes an
intention to come back or return. Thus, where this intention is
expressed, desertion ends that very moment. However, if the
deserted spouse refuses to take back the deserting spouse then, he
himself becomes the deserter. Requirements of a valid offer for
reconciliation were laid in the case of Bipin Chandra Jaisingh v.
Prabhavati as the following:

a) Offer should be a genuine one: The offer must be genuine and not
just only have the intention to resume marital life but also should
provide for just means to fulfil such intention. In Shyam Chand v.
Janki, the husband had by his conduct driven the wife out
of the matrimonial home, and when the wife filed petition for
maintenance, he agreed to take her back. But, after some time he
backed out and when people asked him to reinstall the wife he
threatened to initiate proceedings for divorce. He then filed the
petition, and the Court found that his conduct was in absolute non
consonance with the offer.

b) Offer must not be accompanied with unreasonable conditions:

The offer being genuine must not be coupled with some sort of
unreasonable conditions which would act as a hindrance for the
parties to live together. In Krishnabai v. Punamchand, the wife
deserted the husband on the ground that her father-in-law
misbehaved with her. She was not able to prove such allegations. To
the reconciliation offer, she attached a condition that
she would only live with the husband if he lived separately from his
parents. The Court therefore, held this condition to be an
unreasonable one.

c) Offeror must not be involved in any other kind of marital

misconduct: Desertion will not come to an end where the spouse
leaves the other spouse due to a reasonable reason like
that of adultery or cruelty. In the above mentioned situations even
if the spouse refuses to take back the deserter spouse s/he will not
be held for desertion. The spouse rejecting the offer to terminate
desertion must also specify in the reasons for such refusal since
such refusal should not be construed without just cause. In Shingara
Singh v. Sukhwinder Kaur, it was found that the willingness to join
on the part of the wife was an extemporaneous design to get away
with the crisis of the divorce petition. It was held that this not a
genuine offer.
 CONCLUSION

Desertion in the literal sense means deserting or forsaking or

abandonment of one spouse by the other. Desertion can also be said
to be negation of living together, i.e. when a marital couple ceases
to live together renouncing all their marital duties and obligations. It
is provided as a ground for divorce under section 13 (1) (ib) of the
Hindu Marriage Act, 1955. It is pertinent to note that
desertion can be taken as a ground for divorce only when the
abandonment or separation has occurred for a continuous period of 2
years. There must not be any gap i.e. to say, that the period
of 2 years should be continuous. The spouses must have been living
separately for minimum 2 years in order to make desertion as a
ground for divorce. Desertion in order to seek divorce under
the Act means the deliberate permanent forsaking and abandonment
by one spouse of the other without that other’s consent and without
reasonable and just reason. In other words, it can be termed as
absolute repudiation of the obligations of marriage. Desertion is not
withdrawing from a place, but from a state of things. It is pertinent
to note that desertion was not recognized as a ground for divorce
earlier and it was only after .However after going through in detail
and scrutinising desertion to be a ground for divorce, the
researcher is left to blow hot and cold at the same time, since on
one hand it seems that desertion in many cases proves to be a
saviour however in some cases it also proves to be a negative, for
example, the condition of fulfilment of the period of 2 years often
becomes a deterrent for thedeserted spouse. The deserted spouse
is left with no option but to wait for the deserting spouse and
in cases wherein the deserted spouse is aware that the deserting
spouse has deserted him or her, he or she still do not possess the
qualification to knock the door of the Court for being granted
divorce since that 2 year condition sword is hanging which needs to
be necessarily fulfilled. This proves that inspite of having well
established legislation there are still lacunae and loopholes that
prevent a complete success. Another such point that was observed
by the researcher was that desertion serves to be like a double
edged knife, like in the case of constructive desertion it is the
spouse that stays back in the home who incites the deserting spouse
to desert by creating such uncongenial conditions that the deserting
spouse has no option but to leave, this was observed in Sunil Kumar
Gupta v. Kunti Gupta wherein the husband had impelled the wife to
physically leave the house by ill-treating her, however, the wife was
still ready to return provided the conditions were congenial for her
peace and safety. But, the Court held that though physical desertion
was made out but there was a failure to determine animus since the
wife was pretty much ready to return back provided the conditions
were congenial and reasonable. It is pertinent to note that it is
actually left up to the whims and wishes of the husband, that
whenever he wants he pushes wife out, the wife is neither able to
prove desertion nor is she being taken back into the house. First,
the husband throws her out and then the wife fears of being
charged of desertion in spite of the husband’s acts and has to
return and then also the husband does not keep her. According to
Indian society it becomes very difficult for the wife to sustain
herself, her dignity and her self-respect. It is like being the victim
and the culprit at the same time. On one hand the wife is being
inflicted upon with ill-treatment and being forced to leave the house
and on the other hand, upon leaving the house she is the one who is
being charged for the offence of desertion. Thus to conclude
desertion no doubt in few cases ends up being a kind of cruelty being
inflicted on the other spouse, but in maximum cases it has proved to
be of much importance for allowing the incompatible marital couples
to undergo divorce on the very ground of desertion.
 DESERTION AS A GROUND FOR DIVORCE

HINDU LAW

[Link](Hons.) 2016-17

SUBMITTED TO: SUBMITTED BY:

ANIL MAURYA AYONIJA

ASST. PROFESSOR [Link] Vth semester

DEPT. OF LAW 14137LA001

B.H.U

LAW SCHOOL BANARAS HINDU UNIVERSITY

ENROLLMENT NO.- 371954

 ACKNOWLEDGEMENT

I Ayonija of [Link] (hons.) pay my gratitude to the my subject

teacher. Prof. P.K Saha for Interpretation of Statutes. Without his
help this endeavor would not have been possible. I’d also like to
thank my friends & class fellows, who helped me in understanding
the topic & gathering resources for the completion of my project. I
would also like to mention that the project has borrowed its content
from books like G.p Singh, Bindra also websites such as, wikieductor,
researchgate, [Link]..,. etc

AYONIJA

[Link]-01