This article has been written by shubham kumar sinha, a 1st year student at National Law University, Odisha(nluo), Cuttack
Abstract
Desertion is a one of the most prominent ground for divorce under the hindu law, it is mentioned under section 13(1)(ib) of the Hindu Marriage Act,1955. Understanding the legal consideration and proof requirements is very essential in this regard. This article sheds light on the same.
Introduction
Marriage is institution which is very ancient, it has been followed from very early period. It is union of two people for the companionship for rest of their lives. Unlike Muslim Personal Law where marriage is a contract, Hindu law considers marriage as union of two souls for eternity. It is a sacred institution and its death is a significant legal as well as social matter. The Hindu Marriage Act of 1955 is a legislation which guides the marriages in India for the Hindu community. The Act also provides the conditions for the dissolution of the marriages. One of such conditions which can lead to the death of this sacred institution is the ground of desertion, a circumstance in which a partner leaves the matrimonial bond without a reasonable cause. In the article we will focus on the legal considerations and proof requirements regarding this ground of dissolution of the marriage under Hindu Law.
Desertion as a ground for dissolution showcases the recognition of the importance of the marital relationship between the parties hence it is important to understand it in great detail as it not only shapes the legal lives of the two parties but also the understanding of the society in the matter of divorce and marriage. In this article we will look forward to understanding the legal intricacies as well as problems which an individual faces during this process.
This ground of divorce not just shows the technicality of marriages but also is a reflection of evolving society and its norms. We will analyse this in the subsequent sections.
Legal framework
Hindu Marriage Act of 1955 governs the legal framework of marriage in India for Hindus. It was made with an objective of codifying various Hindu customs and traditions governing marriages in our society. This Act provide the conditions under which a marriage is completed whereas it also states the possibilities and requirement for its death. Section 13 of Hindu Marriage Act states various grounds for divorce for Hindus in India. Among these grounds desertion stands a common and one of the most technical ground for divorce.
Section 13(1) provides the grounds under which a divorce can be filed, desertion being one of them. Under section 13(1)(ib) it states that the divorce can be filed and granted if one of the partner has deserted the other partner for a continuous period of not less than two years immediately preceding the presentation of the petition. The inclusion of the time frame of two years ensures this provision from being misused based on temporary separation and also the long time frame shows the intention of the deserting party to leave the marital bond.
The act also requires the proof that the deserting party must be living separately without the consent of the other party and the time frame of desertion continued for the stipulated period.
The legal framework showcases the intent of the Hindu Marriage Act of balancing itself, it protect the sacred union of marriages but on the other hand it recognises that not all union can be nourished for long.
Definition of desertion
In legal context desertion is clearly defined in Hindu Marriage Act,1955. The term refers to a situation in which one partner wilfully leaves the other without reasonable cause with intention of bringing the cohabitation to end. To understand it properly we have to understand the key components of this definition.
Wilful Abandonment:
Desertion implies a intentional act of leaving or abandonment by one partner. It is not only a physical but a mental separation as well, indicating a conscious decision to end the marital relationship. The party must prove a clear intention of the deserting party and the courts often evaluate the cases on the basis of the intention of the deserting party.
Without Reasonable Cause:
To claim divorce under section 13(1)(ib) the separation must lack the reasonable cause. This point recognises certain instances which can promote the need of leaving the marital relationship, like abuse, cruelty etc. Therefore desertion is not just act of physical abandonment but it is also based on the circumstances of the event.
Intention to end cohabitation:
Desertion involves more than a temporary separation. It means a conscious decision to end the marital cohabitation. It is different from the mere separation which can be due to temporary conflicts and disagreements.
This clear definition of the ground of desertion ensures that it cannot be misused and ensures it smooth application as a ground for divorce.
Types of desertion
Desertion is not the simple concept on its own, it have various types with their own legal intricacies and each governs different circumstances within the broad category of desertion.
- Actual Desertion:
It is when one partner physically abandons the matrimonial home with the intention to end the marital relationship. The departure is voluntary and without the consent of the other partner. To prove this one need to prove the mental element of the intentional abandonment.
- Constructive Desertion:
It is when one partner is forced to leave the matrimonial home due to conditions which made it harsh for the deserting party to continue the cohabitation. In this sub type of desertion the party forced to leave is considered as the deserted spouse even if they were the one who initiated the physical separation at first. To prove this the partner forced to leave should prove that the conditions were so intolerable for them to continue the cohabitation and it was reasonable on their part to leave the marital house.
The subtypes of the desertion shows that it is not a once size fit approach and it instils various circumstances within it.
Proof requirements
To establish desertion as a ground for divorce, it needs to met specific proof requirements. The burden of proof in the cases of divorce with the ground of desertion lies on the petitioner. The following are the intricacies which the court need to look at to prove desertion.
- Duration of Desertion:
The most important thing which should be proved is the duration of desertion. According to section 13(1)(ib) of Hindu Marriage Act, the desertion must be continuous and for the period of not less than two years immediately preceding the presentation of the divorce petition. It ensures the claim to be based on prolonged separation rather than a momentary discord.
- Intention to desert:
Proving the intention is also a very important consideration which need to be proved to establish a case for divorce on the ground of desertion. This requires to prove the intention through evidences such as actions, communications and circumstances which reflects the intention of the deserting spouse.
- Living separately:
Hindu marriage act also have another layer of proof requirements, It makes it necessary to show that the deserted party has been living separately from the deserting spouse without the consent or against their wish. It shows that the desertion involves a breach of the marital contract.
- Corroboration of claims:
The learned court requires corroborative evidences such as witness testimonies, communication records or other evidences to support the petition filed for divorce. It ensure that the court do not give wrong judgements.
To prove the desertion as the ground for divorce lawyers often advices their client to maintain such evidences which can be used to provide them relief in the court of law.
Judicial precedents
Judicial precedents are very important source of information when we say about understanding any law , judicial interpretations adds life to a basic bare legal text full of technicalities.
One such important judicial decision which is a landmark case for the ground of desertion is of Lachman Utamchand Kiriplani v. Meena alias Mota of 1964. In this case the learned Supreme court ruled that to prove desertion there need no to be a physical separation it can be in form of virtual separation, spouses living under same roof but not fulfilling the matrimonial obligations can be called as separated and can claim divorce under the ground of desertion.
Such judicial decisions are way too much important while looking at a matter of desertion. The judicial interpretations of such kinds help the court to take a nuanced decision based on different facts and circumstances of a particular case.
Challenges in proving desertion
Proving desertion is not a tea everyone can sip, it involves various hurdles and challenges. Some of those challenges are-
- Burden of Proof:
The burden of proof lies on the alleging party and the party alleging must have clear and convincing evidences to make a ground for divorce under the ground of desertion which often causes misfortune to the depressed party due to its inability to prove the desertion beyond the doubt which often leads to injustice been served to the oppressed party leaving it in a mental state of agony.
- Subjectivity of Intent:
Proving the desertion is very subjective. The courts looks at the mental state of the deserting party which makes it challenging as intent is not always explicitly mentioned which creates a challenge for the court to infer the intention of the party deserting from the facts and circumstances of the case.
- False allegations:
Desertion cases are prone to false allegations, party often claim it maliciously as a move in their divorce proceedings. Due to its subjective nature it can be easily twisted and can be presented before the court in a wrong way to mislead the judges.
- Temporal aspects:
The requirement to prove the separation for continuous period of two long years is itself a challenge. Proving an uninterrupted desertion is difficult as party may be involved in communications or temporary reconciliation while this two year of deserting period.
- Emotional and psychological impact:
The deserting period can have very huge impact on the psychology of the deserted party which can enhance its ability to present the case in a proper manner. Due to this psychological inability of the deserted party often these people are left in despair.
- Subjective interpretation by courts:
Proving desertion is very subjective task in itself hence the observations and the judgements arising out of those considerations is very different for every judges and courts, hence the difference in approach is another challenge posing the challenge for the parties for uniform justice system.
Termination of desertion
The act of desertion can come to an end by certain acts of the deserting party. Resumption of co habitation and marital intercourse before the statutory period with the aim of permanency can put an end to the deserting period.
Though often these acts of resumption is misused creating hurdles. Deserting party strategically often gets involved in the sexual intercourse with their partners with an intention of deserting again which frees them from the statutory period of the earlier desertion. They often use this reconciliation efforts for their own cause. It is immoral and unethical at the same time. Observing this the court in recent times is taking steps against these immoral reconciliatory methods by the deserting spouse. Courts observing this loopholes laid down that the casual act of sexual intercourse can not be necessarily termed as a resumption of marital intercourse and should not hinder the already deserting period.
Conclusion
To conclude we can say that the separation of the sacred union of two souls is not a joyful process, it is very depressing and painful at the same time. Hence it becomes important for the court and the legislation to draft laws which are very specific but accommodates the needs of the people respecting the facts and circumstances of the case which differs on case to case basis. The ground of desertion is a very well example of a specific while accommodating law. Though it have some intricate challenges within it, we can be optimistic that it would be resolved on a war foot basis. Finally to end the discussion we would end of an observation of court that “Desertion is not the withdrawal from a place, but from a state of things.”
References
- THIS ARTICLE WAS ORIGNALLY PUBLISHED ON LEGAL KART THE LINK FOR THE SAME IS HEREIN
https://www.legalkart.com/legal-blog/desertion-as-a-ground-for-divorce-in-india
- THIS ARTICLE WAS ORIGANALLY PUBLISHED ON VARDAGS THE LINK FOR THE SAME IS HEREIN
https://vardags.com/law-guide/basic-principles/desertion-as-a-ground-for-divorce
- THIS ARTICLE WAS ORIGNALLY WRITTEN BY SUDHI RANJAN PUBLISHED ON IPLEADERS THE LINK FOR THE SAME IS HEREIN
https://blog.ipleaders.in/desertion-ground-divorce/#_ftn1
- THIS ARTICLE WAS ORIGINALLY PUBLISHED ON FREELAW THE LINK FOR THE SAME IS HEREIN
- HINDU MARRIAGE ACT,1955
- Lachman Utamchand Kiriplani vs Meena Alias Mota 1964 SCR (4) 331
- Pulford v. P ulford (1947) 1 All E.R . 32
- Halsbusry’s Laws of India: Volume 26 (New Delhi: Butterworth’s, 2007)
- Desertion under hindu law by prof, Rakesh Kumar