Desertion as a Ground for Divorce - Sarin Advocate

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11/14/2014 DESERTION AS A GROUND FOR DIVORCE - sarin advocate

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FAMILY COURT> HINDU MARRIAGE ACT 1955>

DESERTION AS A GROUND FOR DIVORCE

Section 13 of the Act lays down the conditions or grounds under

which one spouse can claim divorce against the other. Accordingto the said Section, a marriage can be dissolved only if one of theparties to marriage has committed some matrimonial offencerecognised as a ground for divorce.

"Desertion",for the purpose of seeking divorce under theAct, means the intentional permanent forsaking andabandonment of one spouse by the other without thatother's consent and without reasonable cause. In otherwords it is a total repudiation of the obligations of marriage.Desertion is not the withdrawal from a place but from astate of things. Desertion, therefore, means withdrawing

from the matrimonial obligations, i.e., not permitting orallowing and facilitating the cohabitation between theparties. The proof of desertion has to be considered bytaking into consideration the concept of marriage which inlaw legalises the sexual relationship between man andwoman inthe society fo r the perpetuationof race,permitting lawful indulgence in passion to preventlicentiousness and for procreation of children.Desertion isnot a single act complete in itself, it is a continuouscourse of conduct to be determined under the facts andcircumstances of each case. After referring to host ofauthorities and the views of various authors, this CourtinBipinchandra Jaisinghbhai Shah v. Prabhavati [AIR

1957 SC 176] heldthat if a spouse abandons the other in astate of temporary passions, for example, anger or disgustwithout intending permanently to cease cohabitation, it willnot amount to desertion. It further held:

"For the office of desertion, so far as thedeserting spouse is concerned, two essentialconditions must be there, namely (1) thefactum of separation, and (2) the intention tobring cohabitation permanently to an end(animus deserendi). Similarly two elements

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CANCELLATION OF

SALE DEED

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CONTRACT

PROBATE OF A

WILL

INDIAN

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1925

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TENANT

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REGISTRATION OF

THE WILL

LACK OF

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PROPERTY ACT

SECTION 53A, PART

PERFORMANCE

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AGREEMENT OF

SALE

LAW OF CONTRACT

INDIAN EVIDENCEACT

SECONDARY

EVIDENCE

Lis pendens

INTERPRETATION

OF WILL

WORDS AND

PHRASES

DRAFTING IN

MATRIMONIAL

CASES

MAINTENANCE

UNDER DIFFERENT

ACT

Hindu Marriage Act,

1955. Under Section

24

Hindu Marriage Act,

1955. Under Section

25

Protection of

Women from

are essential so far as the deserted spouse isconcerned: (1) the absence of consent, and(2) absence of conduct giving reasonablecause to the spouse leaving the matrimonialhome to form the necessary intentionaforesaid. The petitioner for divorce bearsthe burden of proving those elements in thetwo spouses respectively. Here a different between

the English law and the law as enacted by the BombayLegislature may be pointed out. Whereas under the Englishlaw those essential conditions must continue throughoutthe course of the three years immediately preceding theinstitution of the suit for divorce, under the Act, the periodis four years without specifying that it should immediatelyprecede the commencement of proceedings for divorce.Whether the omission of the last clause has any practicalresult need not detain us, as it does not call for decision inthe present case. Desertion is a matter of inference to bedrawn from the facts and circumstances of each case. Theinference may be drawn from certain facts which may notin another case be capable of leading to the same

inference; that is to say, the facts have to be viewed as tothe purpose which is revealed by those acts or by conductand expression of intention, both anterior and subsequentto the actual acts of separation. If, in fact, there has been aseparation, the essential question always is whether that

act could be attributable to an animus deserendi.Theoffence of desertion commences when thefact of separation and the animus deserendico-exist. But it is not necessary that theyshould commence at the same time. The defacto separation may have commenced

without the necessary animus ort it may bethat the separation and the animus deserendicoincide in point of time; for example, whenthe separating spouse abandons the maritalhome with the intention, express or implied,of bringing cohabitation permanently to aclose.The law in England has prescribed a three yearsperiod and the Bombay Act prescribed a period of fouryears as a continuous period during which the twoelements must subsist. Hence, if a deserting spouse takesadvantage of the locus poenitentiae thus provided by lawand decide to come back to the deserted spouse by a bona

fide offer of resuming the matrimonial home with all theimplications of marital life, before the statutory period is outor even after the lapse of that period, unless proceedingsfor divorce have been commenced, desertion comes to anend and if the deserted spouse unreasonably refuses tooffer, the latter may be in desertion and not the former.Hence it is necessary that during all the period that therehas been a desertion, the deserted spouse must affirm themarriage and be ready and willing to resume married life onsuch conditions as may be reasonable. It is also wellsettled that in proceedings for divorce the plaintiff mustprove the offence of desertion, like and other matrimonial
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Domestic Violence

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offence, beyond all reasonable doubt. Hence, thoughcorroboration is not required as an absolute rule of law thecourts insist upon corroborative evidence, unless itsabsence is accounted for to the satisfaction of the court."Following the decision in Bipinchandra's case (supra)this Court again reiterated the legal position inLachman Utamchand Kirpalani v. Meena alias Mota[AIR 1964 SC 40]by holding that in its essence desertionmeans the intentional permanent forsaking andabandonment of one spouse by the other without that

other's consent, and without reasonable cause. For theoffence of desertion so far as deserting spouse isconcerned, two essential conditions must be there (1) thefactum of separation and (2) the intention to bringcohabitation permanently to an end (animus deserendi).Similarly two elements are essential so far as the desertedspouse is concerned: (1) the absence of consent, and (2)absence of conduct giving reasonable cause to the spouseleaving the matrimonial home to form the necessaryintention aforesaid. For holding desertion proved theinference may be drawn from certain facts which may notin another case be capable of leading to the sameinference; that is to say the facts have to be viewed as tothe purpose which is revealed by those acts or by conductand expression of intention, both anterior and subsequentto the actual acts of separation.

Adhyatma Bhattar Alwar v. Adhyatma BhattarSri Devi, reported in 2001 AIR SCW 4641 :AIR 2002 SC 88. In this case at Para 6 onpage No. 91, the Hon'ble Supreme Court hasobserved thus :

"The clause lays down the rule thatdesertion to amount to a matrimonial

offence must be for a continuous

period of not less than two years

immediately preceding the

presentation of the petition.Thisclause has to be read with theExplanation. The Explanation haswidened the definition of desertion to

include 'wilful neglect'of thepetitioning spouse by the respondent.

It states that to amount to amatrimonial offence desertion mustbe without reasonable cause andwithout the consent or against thewish of the petitioner. From theExplanation it is abundantly clear thatthe legislature intended to give to theexpression a wide import whichincludes wilful neglect of thepetitioner by the other party to the
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JURISDICTION OF

COURT

LAW OF CONTRACT

INDIAN EVIDENCE ACT

WORDS AND PHRASES

Hindu Marriage Act, 1955.

Under Section 24

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Cr.P.C. Section 125

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Domestic Violence Act

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GIFT

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UNREGISTERED

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Lease and license

Applicability Of Order XV

Rule 5 CPC

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marriage, therefore, for the offence ofdesertion, so far as the desertingspouse is concerned, two essentialconditions must be there, namely, (1)the factum of separation, and (2) theintention to bring cohabitationpermanently to an end (animusdeserendi). Similarly, no elements areessential so far as the desertedspouse is concerned; (1) absence ofconsent, and (2) absence of conductgiving reasonable cause to the spouseleaving the matrimonial home to formthe necessary intention aforesaid. Thepetitioner for divorce bears theburden of proving those elements inthe two spouses respectively andtheir continuance throughout thestatutory period."

case of Savitri Pandey v. Prem ChandraPandey, reported in 2002 AIR SCW 182 :[2002 (2) GLR 1369 (SC)].The Hon'ble Supreme Court in Para 7A onpage 187 has observed as under :"Desertion", for the purpose of seeking divorceunder the Act, means the intentional permanentforsaking and abandonment of one spouse by

the other without that other's consent andwithout reasonable cause. In other words, it is atotal repudiation of the obligations of marriage.Desertion is not the withdrawal from a place butfrom a state of things. Desertion, therefore,means withdrawing from the matrimonialobligations, i.e., not permitting or allowing andfacilitating the cohabitation between the parties.The proof of desertion has to be considered bytaking into consideration the concept of marriagewhich in law legalises the sexual relationship

between man and woman in the society for theperpetuation of race, permitting lawfulindulgence in passion to prevent licentiousnessand for procreation of children. Desertion is nota single act complete in itself, it is acontinuous course of conduct to bedetermined under the facts andcircumstances of each case "

Gujarat High CourtBhargavkumar Pranshankar Shukla vs
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Chhayaben Bhargavkumar Shukla on 21October, 2002"desertion under the Hindu Law is a withdrawalof a party from the marital home does not byitself constitute desertion by that party. It is theparty who by his or her conduct bringscohabitation to an end that is guilty ofdesertion."

The essential ingredients of this offence inorder that it may furnish a ground for reliefare :

(a) the factum of separation; and(b) the intention to bring cohabitationpermanently to an end - animus deserendi(c) the element of permanence which is a primecondition requires that both these essentialingredients should continue during the entire

satisfactory period.8.3 "Desertion, in short, means a totalrepudiation of marital obligation. An end to two-in-oneship and to marital togetherness which isthe kernel of marriage. To explain it with ananalogy: most of us are familiar with the termdesertion deserter from the army. A deserterfrom the army is one who runs away from hispost or from his duty. A spouse is in desertion ifit runs away from his marital obligations, from

cohabitation. The "running away" may mean thathe actually leaves the matrimonial homepermanently or living in matrimonial homerefuses to perform marital obligations; he ceasesto cohabit or he abandons his matrimonialobligations. The latter aspect of desertion istermed as constructive desertion.

Thus, desertion may be classified under thefollowing heads :-

(a) Actual desertion,(b) Constructive desertion, and(c) Wilful neglect : this expression is used bothunder the Special Marriage Act, 1954 and theHindu Marriage Act, 1955 and in some cases, ithas been considered part of constructivedesertion.

The main elements of desertion are :


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(a) the fact of separation (factum deserdendi),and(b) the intention to desert (animus deserdendi).The further elements are :(i) without any reasonable cause,(ii) without the consent of the other party oragainst the wishes. Further, to examine theelements of desertion, the following two

preliminary observations are necessary to notewith a view to clearly comprehending the legalconcept of desertion :

(A) Until an action is brought desertion remainsan inchoate offence, that is to say, it can beterminated by the party in desertion by eitherresuming cohabitation or expressing anunequivocal intention to resume cohabitation.

(B) Although fact of separation is an essential

element of desertion, it does not mean that theparty who leaves the matrimonial home isnecessarily the deserter. It may be'that a partywho stays behind may by conduct or act on hispart had made it intolerable for the other spouseto stay pn in the matrimonial home. This aspectof desertion is called constructive desertion."

Kerala High CourtSuchithra D/O. M.Radhakrishnan ... vs Anil

Krishnan, S/O. G.K.Pillai on 13 April, 2007As per the explanation to Section 13(1)(ib) ofHindumarriage Act, "desertion" means "the desertionof the petitioner by the other party to themarriage without reasonable cause and withoutthe consent or against the wishes of such partyand includes the "willful neglect" of the petitionerby the other party to the marriage. Thus, thereneed not even be a physical withdrawal from thesociety of the spouse by the other spouse.

"Willful neglect" can be inferred if thereis failure to discharge the matrimonialobligations."

PROVEING OF DESERTION:

To prove desertion in matrimonial matter it is not alwaysnecessary that one of the spouse should have left thecompany of the other as desertion could be proved whileliving under the same roof. Desertion cannot be equated


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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 bekept in mind that the question of desertion isa matter of inference to be drawn from thefacts and circumstances of each case.The basis for this theory is built upon therecognised position of law in matrimonial

matters that no-one can desert who does notactively or wilfully bring to an end theexisting state of cohabitation. However, such arule is subject to just exceptions which may be found in acase on the ground of mental or physical incapacity or

other peculiar circumstances of the case. However, theparty seeking divorce on the ground ofdesertion is required to show that he or shewas not taking the advantage of his or herown wrong.Supreme Court of India Savitri Pandey vs

Prem Chandra Pandey on 8 January, 2002

"Para 5 : It is well settled that the question ofdesertion is a matter of interference to bedrawn from the facts and circumstances ofeach case and those facts have to be viewedas to the purpose which is revealed by thosefacts or by conduct and expression ofintention, both interior and subsequent to theactual act of separation."Supreme Court in the case of Sanat Kumar

Agarwal v. Smt. Nandini Agarwal, reported inAIR 1990 SC 594. (Para 5)

Section 23(1) Clauses (a), (b) and (e) of theHindu Marriage Act which are quoted below:-

23. Decree in proceedings.- (1) In anyproceeding under this Act, whether defended ornot, if the Court is satisfied that(a) any of the grounds for granting relief exists

and the petitioner except in cases where therelief is sought by him on the ground specified insub-clause (a), sub-clause(b) or sub-clause (c) of clause (ii) of section 5any way taking advantage of his or her ownwrong or disability for purpose of such relief, and(b) where the ground of the petition is the groundspecified in clause (i) of sub-section (1) ofSection 13, the petitioner has not in any mannerbeen accessory to or connived at or condoned


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the act or acts complained of or where theground of the petition is cruelty the petitioner hasnot in any manner condoned the cruelty, and(c)(d)(e) there is no other legal ground why reliefshould not be granted, then, and in such a case,but not otherwise, the Court shall decree such

relief accordingly.

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Desertion as a Ground for Divorce - Sarin Advocate

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