This article has been written by Ms. Ayushi Yadav, a 3rd year B.A. LLB student of Lloyd Law College, Greater Noida.

ABSTRACT

Desertion in English law is defined as one person in the marriage deserting the other for a continuous period of at least two years. This basically means that one person has left the other without agreement or for a good reason.  This Article will start by tracing the history as to how desertion and its various types came into force and what are the loopholes which gave rise to it. Also, how willful neglect, mutual desertion, good cause for separation and remarriage of husband could be a ground for divorce. For establishing this aspect, certain landmark cases have been used which clearly highlight the reason as to why these all are considered as a ground for divorce.  

 In the conclusion, the importance to reduce desertion as a ground for divorce will be highlighted and more emphasis will be laid on the need to again unite the spouses..

INTRODUCTION

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.

Desertion is described as a “complete repudiation of the obligation of marriage” in Halsbury’s 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.

The main essential ingredients of this offence in order that it may furnish a ground for relief are:

1. Physical separation
2. Animus deserendi or the intention to bring cohabitation permanently to an end.
3. Both these essential ingredients should continue during the entire statutory period.

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.

History and development of Desertion as a ground for Divorce

Under the uncodified Hindu law, divorce was not recognized, unless it was allowed by custom. The reason was that, a Hindu marriage was an indissoluble tie between the husband and the wife. 

However painful cohabitation may be, divorce was not accepted by the old law. In some communities, such customs fulfilled the requisites of a valid custom. Divorce puts the marriage to an end, and the parties revert back to their unmarried status and are once again free to marry. All rights and mutual obligations of husband and wife cease. In other words, after a decree of dissolution of marriage, the marriage comes to an end and the parties cease to be husband and wife, and are free to go their own ways. There remain no bonds between them except in relation to Section 25 and Section 10 of Hindu Marriage Act, 1955. Matrimonial causes in their real sense did not exist in Hindu law before 1955, although some reliefs in respect of marriage could be obtained under general law. Thus, a suit for a declaration that a marriage is null and void could be filed under Section 9 of Code of Civil Procedure, 1908 read with Section 34 of the Specific Relief Act, 1963.

Desertion was a ground only for judicial separation under Hindu Marriage Act, 1955. However, after passing of the Act of 1976, this is a ground for both divorce as well as judicial separation under Section 13 (1) (i-b). Desertion may be actual or constructive. Constructive desertion may contain the characteristics of cruelty. In actual desertion, there is forsaking of the matrimonial home while in constructive desertion, there is forsaking of the matrimonial relationship. This forsaking of the matrimonial relationship must be accompanied by the animus deserendi. It is the neglecting spouse that is solely responsible for constructive desertion. If by words or conduct, a spouse makes it impossible for the other spouse to live in his or her company and as a result, the other spouse leaves the matrimonial home, the other spouse cannot be said to be the deserter. On the other hand, the spouse who makes it impossible for other spouse to continue matrimonial relations would be the deserter. If the wife leaves her matrimonial home and lives apart this would be desertion by her. But if she shows that there was cruelty on the part of the husband and so she had quit the matrimonial home, there would be no legal desertion by her. On the contrary, it would be treated a desertion by the husband who had driven here out. So the question of legal desertion cannot be established merely by showing who left the matrimonial home. Thus desertion has to be inferred from the state of things. This is known as constructive desertion.

CLASSIFICATION OF DESERTION 

Desertion may be classified as-

(i)Actual Desertion

(ii)Constructive Desertion

(iii)Wilful Neglect

1) Actual Desertion: 

Factual separation is an absolute requirement of actual desertion. Abandonment of the matrimonial home as a fact situation is essential in actual desertion. Mere intention to abandon without actual abandonment of matrimonial home is not enough .It is also that the factual separation without an intention to desert is not enough. It is mandatory to establish intention to desert.

2) Constructive Desertion:

It is stated that ‘desertion is not the withdrawal from a place but from a state of things’. To constitute constructive desertion, there must be separation of households, not a separation of houses. Even though the concerned parties may be living under one roof, but still they can be in desertion.

The doctrine of constructive desertion is that the conduct or behavior of the respondent is such that in the nature of things, the petitioner cannot reasonably be expected to live with the respondent. Where separation is compelled, it is impossible to infer from the mere fact of withdrawal from cohabitation any intention to bring cohabitation permanently to an end. In other words, the spouse who intends bringing cohabitation to an end and whose conduct in fact causes its termination commits the act of desertion.

3) Wilful Neglect :

Wilful neglect is taken as a type of desertion under the Hindu Marriage Act 1955 and the Special Marriage Act 1954. Explanation to Section 13(1), HMA states that “desertion includes willful neglect of the petitioner by the other party to the marriage.” It will amount to willful neglect if a person consciously acts in a reprehensible manner in the discharge of his marital obligations, or consciously fails in a reprehensible manner in the discharge of these obligations. Failure to fulfill basic marital obligations, such as denial of company or denial of marital intercourse, or denial to provide maintenance will amount to willful neglect.

CASE LAWS 

Bipinchandra Jaisinghbhai Shah v Prabhavati

The case is related to Bombay Hindu Divorce Act 1947. The husband, appellant in this case, was the petitioner. Misunderstanding and problems cropped up in the marriage because of a friend of the husband with whom the wife became intimate when the husband was on a short trip abroad. There were letters also to establish the intimacy. The defendant wife having been discovered in her correspondence with the supposed person could not face her husband and his family and went to her parents’ place on the pretext of a marriage in her family. The husband sent solicitor’s letter to her charging her of intimacy and asking her to send back the child to him. He also asked his father-in-law not to send the defendant back. After 4 years, the husband filed a petition for divorce on the ground that the defendant had been in desertion from four years without reasonable cause and without his consent and against his will (four years of separation was a statutory requirement under the Bombay Hindu Divorce Act, 1947). The wife pleaded constructive desertion by the husband alleging that she was forcibly turned out of the house. The husband denied this. He succeeded at the trial court but lost on appeal by the wife at the High Court. The Supreme Court decided in favor of the wife. The husband had failed to discharge the burden of proof of desertion throughout the whole period of four years. He had refused the reconciliation offers made by the wife and her family. The Apex Court explained the concept of desertion.

 It held that if a spouse abandons the other in a state of temporary passion without intending permanently to cease cohabitation; it will not amount to desertion.

 According to SC, there are following ingredients of desertion as a ground for matrimonial relief:

(i)Factum of desertion by deserting spouse

(ii) Intention to bring cohabitation permanently to an end or animus deserendi.

(iii) Absence of consent to such separation by the deserted spouse

(iv) Absence of conduct reasonably causing the deserting spouse to form his or her necessary intention

(v) The petitioner bears the burden of proof 

(vi) The offence of desertion commences when the fact of separation and animus deserendi co-exist.

(vii) The desertion must have continued at least for the prescribed statutory period

(viii) Desertion comes to an end if the deserting spouse comes back to the deserted spouse before the statutory period is out or unless the proceedings for divorce have been started.

Laxman v Meena 

In this case, the husband petitioned for judicial separation on the ground of wife’s desertion. Meena, the daughter of an affluent businessman having business houses all over the South East Asia, was married to a physician whose father was also a businessman. Parties were married in 1946. They had a child in 1947. In 1954, Meena left her husband’s house and went to Poona with her father and from there she went to several South-East Asia towns where her father had business establishments. The husband wrote several letters to her requesting her to join him and to every letter she replied that she would come as soon as her health would permit. But a time reached when Laxman lost his patience and started hurling wild and nasty allegations in his letters and ultimately crossed the threshold of the court by suing for judicial separation on the ground of desertion. Meena’s story reveals that she had no freedom in her husband’s house, that she was abused and insulted by her parents-in-law and sisters-in-law, that she was not allowed to look after her husband and the child and that whenever there was any trouble between her and her in-laws her husband always took the side of her in-laws. It was in these circumstances that she was left with no alternative but to leave the matrimonial home. According to Laxman, Meena was disrespectful and indifferent to her him and was proud and arrogant and that she was very disrespectful, disobedient and rude to his parents. She used to leave for her parents’ house very often, and sometimes without informing, she had no love and affection for him, and in her father’s house she indulged in smoking, drinking and playing cards. 

The trial court passed the degree in favor of husband. The court held that the burden of proof lies on the petitioner who has to show the desertion was without reasonable causes and without consent or against the wish of petitioner.

Savitri Pandey v Prem Chandra Pandey

The wife sought divorce on the ground of desertion and cruelty under s. 13 of HMA. The trial court and the High Court found, on facts as also on evidence led in support of cruelty that she failed to establish that she was treated with cruelty. The court emphasized that ordinary wear and tear of family life cannot be equated with cruelty. Also, the wife had admitted that there was no cohabitation between the parties. According to the court, “Court cannot be decided on the basis on sensitivity if the petitioner and has to be adjudged on the basis of the course of conduct which would, in general be dangerous for a spouse to live with the other. The trial court, however, granted divorce on the ground of desertion but the High court, on appeal, set aside the decree. The Supreme Court emphasized that there can be no desertion without cohabitation.

Burden 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. After Dastane v Dastane case, it has been held that Desertion may be proved on preponderance of probabilities.

Termination of Desertion 

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, AIR 2010, 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.

CONCLUSION

In recent times, to ensure that divorce is granted the petitioner combines the charges of adultery and desertion. However, courts have held that if adultery is not proved the petition under desertion falls too. There has been no room provided for spouses who genuinely believe that the other has been adulterous and leave the matrimonial home. Desertion itself is not cruelty however it is difficult to draw a line between them, especially for constructive desertion. The contradictory pleas of cruelty and desertion always fail as there is a necessity to prove both of them separately. Due to the patriarchal nature of Indian society, the courts have held that if a woman is working elsewhere, she is not fulfilling her marital obligations resulting in desertion. In addition, the deserted woman has a right to maintenance but no right to a separate residence in today’s day and age of perceived equality and social justice, to force a woman to resign her job merely because she is living away from her husband would result in cutting off her source of independence and subjecting her to beliefs that continue to confine women to patriarchal ideals. There also is a need to duplicate the English stand of deserted woman equity which recognizes a deserted woman’s right to reside in the matrimonial home because of her right to the consortium and the husband’s reciprocal duty to maintain her. In conclusion, it can be said that desertion might be considered a fault-based ground for divorce, but there are ways that the guilty spouse has deserted and violated the law and therefore there is a need of justice for the deserted spouse. There are two probable solutions to this problem: either to adopt a new legislation which tackles these opportunities of misuse or move towards the concept of irretrievable breakdown of marriage to provide no necessity for the deserting spouse to abuse the legal provision of desertion.

References

https://blog.ipleaders.in/desertion-ground-divorce/

https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992&orderno=13

https://indiankanoon.org/doc/1131783/

https://indiankanoon.org/doc/1376469/

Dr. P. Diwan and P. Diwan, Modern Hind u Law (Codified and Uncodified) (12thedn. Haryana : Allahabad Law Agency, 1998) at118.