Study Notes: DESERTION as a Ground for Divorce under the Hindu Marriage Act, 1955

By Rituraj Swami 18 Minutes Read

Introduction

The Hindu Marriage Act of 1955 under Section 13 incorporates various grounds for divorce. Among those, is a ground of ‘desertion‘ given under clause (1) (i) (b) of section 13. Desertion as a ground for divorce was added via an amendment to the Hindu Marriage Act in 1976.

The statutory definition of desertion states:
“any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition”[1]

In simple words, it says that a petition for divorce on the grounds of desertion shall be filed when one spouse has been deserted for a continuous period of two years. So, after the prescribed statutory period elapses a Petition can be filed in the court. The act further added an explanation in 1976 for the better deciphering of the term Desertion.
It explains that “desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage. Its grammatical variations and cognate expressions shall be construed accordingly”.

Thus, it is evident from the explanation that desertion can have variations in its interpretation, depending upon the facts and circumstances of the case. It also reflects the intent of Legislature by widening the definition of desertion to include ‘wilful neglect’ of the petitioning spouse by the respondent. This basically means that one person has left the other without agreement or a reason.

The court in the case of Lakhsman v. Meena[2] held that wilful neglect should be added as an important element to fulfill the ingredients of desertion. The definition of Desertion in English and Welsh law is defined as one person in the marriage deserts the other for a continuous period of at least two years. Thus, Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse, but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.[3]
It should also be noted that only after the amendment of the said Act in 1976, desertion per se became a ground for divorce otherwise it was not available as a ground for divorce.

Components of desertion

In generality, the concept of desertion consists of two essential components:

• The fact of separation,

• The intention to bring cohabitation permanently to an end (animus deserendi);

and two elements that are also essential as far as a deserted spouse is concerned are:

• The absence of consent and,

• Absence of conduct giving reasonable cause to the spouse leaving the matrimonial house to form the necessary intention.

The elements above serve as a guiding star to the courts in deciding desertion cases. It is significant for decoding desertion cases because the elements serve as the crux of desertion. The courts have time and again interpreted the important features and elements aloof to get to a conclusion.
The use of the word “reasonable cause” has given profuse litigation to the courts to interpret. In the matter of Adyatama Alwar v. Adyatama Bhattar[4], it was held that desertion amounting to divorce, must be for a continuous period of not less than two years. It further states that to amount a matrimonial offence, desertion must be without reasonable cause and without the consent or against the wish of the petitioner. It was also abundantly clear that the legislature intended to give the expression a wide forum which includes willful neglect of the petitioner by the other party to the marriage.

The conduct of the deserted spouse should have had such an impact on the mind of the deserting spouse that in fact, it causes her to continue to live apart and thus continue the desertion. The desertion is done wilfully against the wish of the other party to amplify cessation of cohabitation. In Rengaki v. Arungiri[5], the husband had a mistress at home with whom he had intercourse sex 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 the wife with no option than to leave the house holding husband for desertion. Thus, a will to neglect the cohabitation with the spouse is what constitutes desertion by the deserter or guilty party.
In the classical case of Pulford v. Pulford[6], the wife was for nearly twenty years an inmate of an asylum, during which time her husband commenced to live with another woman. On the wife’s discharge, cohabitation was not resumed. After many years the wife took steps against her husband. She applied for a maintenance order on the ground of desertion, and the Divisional Court upheld the justices’ order and put the desertion as commencing when the husband ceased to acknowledge her as his wife. The initial separation had not amounted to desertion and the change was recognized when the husband’s intention was visible to forsake her and not to resume their marital obligations.

Subsequently, the main reason for desertion is the intentional abandonment of the spouse without justifiable cause and consent.  Mere separation of relation or without desertion is not sufficient. Desertion is not walking out of the house but is withdrawing from home. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Desertion consists in withdrawing not from a place, but from a state of things. So, there should be wilful neglect of the petitioning spouse by the respondent. It is a total repudiation of the obligations of marriage. Therefore, desertion cannot start unless a guilty party has the intent of doing so.

The court has held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife or husband and prove that he or she has not conducted in a way which furnishes reasonable cause to stay away from the home.[7] The legal desertion must pass throughout the prescribed statutory period and its permanency must not be disrupted at all. It is now well established that the burden is on the petitioner to show that desertion existed without cause and subsisted throughout the statutory period of two years. If the parties resume cohabitation to bring about reconciliation then the desertion terminates ipso facto. This is so because desertion is a continuing offence and it terminates as soon as the intention to permanently abandon the spouse is supported by the resumption of cohabitation. In the circumstances, if they attempt to bring about reconciliation proves to be unsuccessful, the deserted party is supposedly required to wait for the prescribed statutory period for desertion to start afresh. Thus, Desertion is the stopping of visiting each other or cohabitating together by either of the spouses. If the desertion process has encroached with a resumption of cohabitation, it is terminated instantly and the specified period is evaluated again.

Kinds of Desertion

The concept of desertion has also acquired distinctiveness since its incorporation. Desertion has been categorized into two types:

• Actual desertion means that in reality abandoning one’s spouse. It is when the spouse completely refuses to perform any obligations of matrimonial alliance and permanently runs away from home. It is the genuine and explicit forsaking of one’s spouse to be precise.
• Constructive desertion means that a situation has prolonged causing or compelling the other spouse to simply desert the other. It is the withdrawal of one spouse from other because it was impossible to stay together.

From the explanation of the two kinds of desertion, it is quite well inferred that every time the spouse who leaves the matrimonial home is not the deserter. The situation in both scenarios is different. Therefore, if the unavailability of intention is proved, then the desertion caused constructively by the conduct of one spouse will be charged with constructive desertion. Thus, the desertion is not solely determined by the fact who left the matrimonial home.[8] 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 Sadananda v. Indra Devi[9], a wife keenly wanted to come back but the husband was not interested in rehabilitating her. It was held, that the husband cannot hold the wife guilty of desertion because this was a case of constructive desertion. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him.[10] Thus, the onus to prove the act of desertion lies on the petitioner. But divorce will not be granted if the petitioner is found to be guilty or if the conduct of the respondent has deserted the petitioner is well justified. The plain and simple rule of who is guilty is taken into account for determining the deserter.

Desertion is an inference that has to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case, be capable of leading to the same inference, that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both before and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. In the case of Bipin Chander Jaisinghbhai Shah v. Prabhawati[11], it was observed that the offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. Desertion in a simplistic sense means the intentional permanent abandonment of a spouse by the other, without consent and without reasonable cause. It is a settled legal position that desertion is not a physical withdrawal from a place, but from a state of things, from which one can easily draw a conclusion that it is not a physical separation alone but there is a complete withdrawal on the part of the deserting spouse to bring cohabitation permanently to an end between them. Thus, the requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been.[12]

Conclusion

Therefore, the proper follow up of casting away by one spouse of the other for the stipulated time of 2 years, results in desertion. It is a continuous period that sets out the conduct of intentionally leaving the spouse. As rightly held in Fitzgerald v. Fitzgerald[13], no one can ‘desert’ who does not actively bring to an end an existing state of cohabitation. Whereas, the desertion will terminate if both the spouses resume marital life and cohabit together in the matrimonial home while fulfilling their obligations. Also, in Lepre v. Lepre[14], it was held that the factual separation and the intention must coexist with each other, and only then can desertion be said to have taken place. Thereby, each case should be weighed according to dispense justice righteously. Also, the provision of desertion should clearly mention what should basically constitute an unreasonable cause and wilful neglecting. There are also numerous judgments that set out the template for deciding what all incorporate within Desertion and what does not. Thus, an exhaustive explanation should be provided for a better interpretation of the provision.

[1] Hindu Marriage Act, 1956, s. 13 (1)(i)(b).

[2] AIR 1964 SCR 331.

[3] Rayden and Jackson on divorce pg128, 6^th edition.

[4] AIR 2002 SC 88.

[5] AIR 1993 Mad 174.

[6] 1923 All. E.R, pg. 18.

[7] Mrs. Nisha Rani v. Sohan Singh Nehra (AIR 2017 Del 640).

[8] Stickert v. Stickert, (1899) All E.R. 319.

[9] 1995 II DMC 575.

[10] Rohini Kumari v. Narendra Singh, (1972) AIR 459.

[11] AIR 1957 SC 176.

[12] Jyotish Chandra Guha v. Meera Guha, AIR (1970) Cal 266.

[13] 1864 I L.R. P&D

[14] 1963 All E.R.

Rituraj Swami