THIS ARTICLE HAS BEEN WRITTEN BY MS. YASHASHVI MISHRA, A 3RD YEAR STUDENT OF UNIVERSITY OF ALLAHABAD

Abstract

Marriage is viewed as a sacrament to protect it as a social institution. It was once thought that this unique contract could only be terminated when one of the couples committed a crime that devalued the significance of this institution. 

      Section 13 of the Act lays down the conditions or grounds under which one spouse can claim divorce against the other. According to the said Section, a marriage can be dissolved only if one of the parties to marriage has committed some matrimonial offence recognised as a ground for divorce.

Introduction

Desertion is described as a “complete repudiation of the obligation of marriage” in Laws of India. In its literal sense, the word “desert” implies “to abandon, give up, or forsake without any good reason or intention to return.” One partner is considered to be “at fault” in a marriage if he or she quits the union without good reason.

              Desertion refers to the act of withdrawing from marriage obligations. It is a denial of the essence of any marriage partnership, which is living together. It is a complete breach of marital obligations. The following are the basic prerequisites for desertion – 

• Factum of separation of one spouse from other.
• Animus deserendi, i.e., intention to bring cohabitation permanently to an end or desert permanently.
• The deserted spouse must not have agreed to the desertion.
• The desertion must be without reasonable cause.
• For at least two years, this situation must have continued.
• The element of permanence which is a prime condition requires that these essential ingredients should continue during the entire satisfactory period.

It must be proven that the other party deserted the petitioner for a continuous period of at least two years immediately prior to the presentation of the petition without a valid reason or against the petitioner’s wishes in order to achieve divorce on this ground.

                  However, before granting the divorce judgment on this basis, the court must be completely satisfied that the respondent had animus deserendi, or the intention to desert, and for that reason, the circumstances and the reason why desertion has occurred will be considered. The animus deserendi would not exist if there were a true cause.

          “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalizes the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.

Thus, desertion may be classified under the following heads:

(a) Actual desertion,

(b) Constructive desertion, and

(c) Willful neglect: this expression is used both under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 and in some cases, it has been considered part of constructive desertion.

Further, to examine the elements of desertion, the following two preliminary observations are necessary to note with a view to clearly comprehending the legal concept of desertion:

(A) Until an action is brought desertion remains an inchoate offence, that is to say, it can be terminated by the party in desertion by either resuming cohabitation or expressing an unequivocal intention to resume cohabitation.

(B) Although fact of separation is an essential element of desertion, it does not mean that the party who leaves the matrimonial home is necessarily the deserter. It may be that a party who stays behind may by conduct or act on his part had made it intolerable for the other spouse to stay pn in the matrimonial home. This aspect of desertion is called constructive desertion.”

Origin and Development of Desertion as a Ground for Divorce in India:

Divorce was not recognized under uncodified Hindu law unless it was permitted by custom. The rationale was that in Hinduism, a husband and wife’s marriage were an unbreakable bond. However painful cohabitation could be, divorce was not permitted under the previous legal system.

            The Hindu Marriage Act of 1955 (“the Act”) only recognized desertion as a ground for judicial separation. However, under Section 13(1) (i-b) of the Act of 1976, this is now a basis for both divorce and judicial separation. Desertion could be constructive or actual. The traits of cruelty may be present in constructive desertion. Real desertion involves leaving the marital residence, whereas constructive desertion involves leaving the marital union. The animus deserendi must go along with this abandonment of the married union. Constructive desertion is the exclusive fault of the neglectful spouse.

Termination of Desertion Based on Circumstances:

Desertion is a continuous offence. By doing something or acting in a certain way, the deserting spouse can stop the situation of desertion. These are some possible ways that it could end: Resumption of cohabitation, resumption of marital intercourse and supervening animus revertendi, or offer of reconciliation. 

    In Gagandeep Gupta v. Dr. Sonika Gupta, on the grounds that his wife had deserted him, the husband filed for divorce. The parties did not cohabitate after their separation. Despite marital strife, the wife maintained her right to live in the marital home by claiming it as her own. Before the petition was presented, the wife had abandoned the husband for more than two years without a valid explanation. The judge decided that the husband would be eligible for a divorce decree.

    In Bipin Chandra v. Prabhawati, the wife and her husband lived together in harmony. He spent a short while in England, and during that time, his wife grew close to an old friend of his. They wrote each other letters, which the wife’s father-in-law received. She remained silent when her husband questioned her about it before leaving the following day for her parents’ home. Later, her spouse sent the child a letter that was written to her. As a result of his refusal to allow his wife to return, he later filed for divorce on the grounds of desertion. The Supreme Court ruled that even though the wife left the marital home without a reason, she would not be considered to have deserted if she later indicated a desire to return but was forcibly stopped from doing so by the petitioner. In other words, there was no “animus deserendi” during the required term. When factum of separation and animus deserendi occur together, desertion becomes a crime. It’s not required for them to start at the same time, though. 

          Following the decision in Bipin Chandra’s case (supra) this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there 

(1) the factum of separation and 

(2) the intention to bring cohabitation permanently to an end (animus deserendi). 

Similarly, two elements are essential so far as the deserted spouse is concerned:

(1) the absence of consent, and 

(2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. 

For holding desertion proved 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 anterior and subsequent to the actual acts of separation.

Burden and problem of proof

The Court has ruled that the petitioner has the burden of establishing desertion and all of its aspects because, typically, the weight of proof falls with the party who affirms a fact, not the person who disputes it. Since it is “so much easier to show a positive than a negative,” this principle makes sense. However, the courts frequently deal with the issue of contradicting evidence, making it challenging to determine which of the two spouses’ competing versions of the facts is true. This is particularly true given that these situations typically take place within the private confines of a home and that the lack of eyewitness testimony makes it difficult to establish the truth.

         To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.

      The basis for this theory is built upon the recognized position of law in matrimonial matters that no-one can desert who does not actively or willfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case. However, the party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong.

Conclusion

In conclusion, it may be concluded that while desertion may be seen as a fault-based basis for divorce, there are ways for the guilty spouse to get around the rules and thwart the justice of the deserted spouse. There are two potential answers to this issue: either establish new law that addresses these opportunities for abuse or move toward the idea of irretrievable breakdown of marriage so that the deserting spouse is not required to take use of the legal framework for desertion.

References

1. Gagandeep Gupta v. Dr. Sonika Gupta, 2009 SC
2. Bipin Chandra v. Prabhawati, 1957 AIR 176
3. Lachman Utamchand Kirpalani v. Meena alias Mota AIR 1964 SC 40