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Desertion in Hindu Marraige Act, 1955
Typology: Study Guides, Projects, Research
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Special Project Report on
Dr. Archana S. Gharote
Faculty, Family Law
Ashutosh Biswas
Roll No. 33
SECTION A
SEMESTER II
November 15, 2019
Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)
i.e. – THAT IS
eg. – EXAMPLE
SC – SUPREME COURT
MP – MADHYA PRADESH
P & H – PUNJAB AND HARYANA
AP – ANDHRA PRADESH
DEL – DELHI
Cal – CALCUTTA
Raj – RAJHASTAN
Mad – MADRAS
Ori - ORISSA
P. - PAGE
Desertion
Under Section 13(1), Hindu Marriage Act 1955 desertion is explained. The expression 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 willful neglect of the petitioner by the other party to the marriage. Desertion is a total repudiation of the obligations of marriage; desertion is not merely an act but includes conduct. To constitute desertion, previous cohabitation by parties is must. Without previous cohabitation there cannot be any desertion.
WHAT IS DESERTION
Desertion, what is? – Halsbury’s Laws of England defines desertion as follows: “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. It is a total repudiation of the obligation of marriage… Desertion is not the withdrawal from a place but from a state of things .The person who actually withdrawal from cohabitation is not necessarily the deserting party.”
In the case of “Bipin Chandra V. Prabhavati” 1 , desertion, as a matrimonial relief, was extensively discussed. It quoted the above passage from Halsbury and concluded that –
i. In every case of desertion there must co-exist:
a. The factum of separation; and
b. Animus deserendi, i.e. an intention on the part of the guilty spouse of forsaking the aggrieved spouse;
ii. The two elements (i.e. de facto separation and animus deserendi need not commence at the same time, one can follow the other ; and
The two elements, as stated above, must subsist during the whole of the statutory duration.
1 AIR 1957 SC 176
But as specifically pointed out by S.B. Sakrikar J in the case of Archana V. Ajay Kumar 2 , there is a third element which must also remain present to complete the allegation of desertion. Such third ingregient is-
iii. Absence of his or her consent and the absence of his or conduct giving reasonable cause to deserting spouse to leave the matrimonial home.
2 (1999) DMC 23 (MP)
b. Hindu Adoptions And Maintenance Act, 1956 - section 18(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her;
All these definitions are qualified by the expressions ‘without reasonable cause’, ‘without consent’, ‘against wish’, ‘against the will’, etc. In other words, there is no desertion if there is reasonable cause for absence. 3
Desertion is of three types:
“LacHhman V. Meena” 6 – Wife was from rich family. She was required to live in joint family of husband. She went back to her parents. She kept making fake promises of returning back but she never did. The court held it as desertion.
“Sunil kumar V. Usha” 7 – Wife left due to unpalatable atmosphere of torture in husband’s house. The court held wife has not done any desertion.
3 MARRIAGE SEPARATION AND DIVORCE, 4TH^ EDITION, MOOKERJEE, KAMAL LAW HOUSE, P. 228
4 Ramesh V. Prem lata, AIR 1979 MP 15 5 AIR 1964 SC 40 6 Gopal V. Mithilesh, AIR 1979 MP 316 7 1955 AC 402
In “Pulford V. Pulford” it was observed that “ Desertion is not the withdrawal from a place but from the state of things”
In “Lang V. Lang” the Privy Council explained the ‘Doctrine of Constructive Desertion’:
“It has been recognized that the party truly guilty of disrupting the home is not necessarily or in all cases the party who first leaves it. The party who stays behing may be by reason of conduct on his part making it unbearable for a wife with reasonable self-respect, or power of endurance to stay with him, so that he is the party really responsible for the breakdown of marriage. He has deserted her by expelling her, by driving her out.”
In “Jyotish Chandra Guha vs Sm. Meera Guha” Husband was not interested in wife, he was cold, indifferent, sexually, abnormal and perverse. He went to England. Then came back and sent wife to England for PhD. When wife came back, he did not treat her well. Abused here and his in laws physically. Wife was forced to live separately. The court held desertion by husband.
in our social background, it happens that the husbands deliberately neglect their wives, by refusing to have marital intercourse with them, by denying maintenance to them, or by declining to give company to them. Thus, a spouse may not totally withdraw from cohabitation, yet his conduct or act may be sufficiently grave and weighty; may cause untold misery and deprivations to the other. These will constitute willful neglect.
Failure to discharge or omission to discharge, every marital obligation will not amount to willful neglect. But failure to discharge basic marital obligations will amount to willful neglect. Failure to provide maintenance may also amount to willful neglect.
8 AIR 1970 Cal 266
In “ Neelam V. Vinod Kumar Midha”, the wife was prepared to return to the husband but on condition of his good conduct. Her application under Section 125 of Cr.P.C (maintenance) as also the case for return of dowry were pending, held, desertion by wife was clearly writ large. 12
In “ Promod Purshottam V. Vasundhara ” the court held, in the event of a notice having been issued by a spouse to the other expressing the intention not to return to matrimonial hom, desertion would commence from the date of such notice. 13
ii. (^) Lack of consent – There cannot be any desertion if the separation is by consent. But the context of desertion has to be construed strictly. ‘Buckley’,LJ oserved:
“Desertion does not necessearily involve that the wife desires her husband to remain with her. She may be thankful that he has gone, but he may nevertheless have deserted her”
It is in this context that the ‘Special marriage Act’ and ‘The Hindu Marriage Act use two expressions:
The real test of lack of consent is whether separation is really due to the conduct of the deserting spouse or the other’s consent to a permanent separation. When parties are living separate and apart under a separation agreement, it is clear case of separation by consent. 14 Similar is the case where wife is living separate from her husband under a compromise agreement entered into in maintenance proceedings. 15 Consent may be expressed or implied. Whether or not there is consent to the separation is a question of fact.
If the consent of separation is withdrawn, desertion will automatically begin, provided other conditions of desertion are satisfied.
Consent must be free. Thus, in “ Holroyd V. Holroyd ”, where a wife has signed a separation agreement under great mental strain, with no intention legal advice because she thought that this would be the only means of obtaining maintenance from her husband, the court held that the wife had not given her consent freely to live separate and apart.^16
(^12) AIR 1986 P&H 253 13 AIR 1989 Bom 75
14 Aryarama Yajulu Venkata Subha Rao V. Aryasomayajula Surya Kumar, AIR 1980 AP 318 15 Haniman V. Haniman 1909 p 23 16 Vadramma V. Krishnama 1970 1 AWR 13
iii. Without Reasonable Cause – Under all the matrimonial laws whenever withdrawal from the society of the petitioner is shown to be with “reasonable cause”, it is a complete defense for restitution of conjugal rights.
Desertion should be there without any reasonable cause otherwise it will not be desertion.
“ Lachhman Kripalani V. Meena ” A husband making serious allegations against the wife about adultery. Allegations were unfounded. Wife’s living apart is not ‘without reasonable cause’ and consequently not desertion [ 17
“ Radhakrishnan Murthy V. P.Vijayalakshmi ” Evidence of the wife and other witnesses show ill-treatment of the wife. Her lawyer’s notice to husband alleging ill-treatment has not been denied specifically. Held, wife has a reasonable cause to stay away from husband, it is not desertion.
“ Shrikant V. Saroj”, If wife is forced to live separately to avoid constant demand of dowry and misbehavior of the husband and in-laws for the fulfillment thereof, the same cannot be said to be desertion.
iv. The Statutory Period of Two years – the desertion must subsist continuously for the whole of the statutory period immediately preceding the presentation of the petition. Desertion is a continuing offence. It cannot be for by aggregating the different installments of desertion( Perry V. Perry )
Desertion to constitute a ground for divorce or judicial separation must be for continuous period of two years. Desertion is a continuing offence, it is an inchoate offence i.e., once desertion begins, it continues day after day, till it is brought to an end by the conduct of the deserting spouse. It also means that desertion is not complete even if the statutory period has expired. It may still be brought to an end by an act or conduct of the deserting spouse.it is inchoate. It becomes complete only when the deserted spouse files a petion for matrimonial relief. It is this aspect of desertion which distinguishes it from all other matrimonial offences.
In “ Bipin Chandra V. Prabha ”, the wife was clearly in desertion. But the wife expressed an intention to resume cohabitation before the husband filed a petition for divorce, and thus terminated the desertion.
If a spouse gave a notice not to return, desertion commences from the date of notice, wife’s withdrawal of jewellery from the locker may be tantamount to desertion and desertion commences from the date of withdrawal of jewellery.
17 Bhagwanti V. Sadhu Ram, AIR 1961 Punj 181
Does resumption of matrimonial intercourse terminate desertion?
If resumption of matrimonial intercourse is a step towards resumption of cohabitation, it will terminate desertion, even though parties are not able to live together.
In “Dhrubajyoti V. Lila” 19 wife left her husband’s home and did not return to the matrimonial home for more than 2 years. Thereafter one day she went to her husband’s house with her relations and left it before her husband returned. It was held that the wife continued in desertion.
b. When separation becomes consensual- if the spouses enter into a separation agreement, desertion would be at end. Similarly, if a decree of judicial separation is obtained, the desertion would come to an end from the date of judicial separation.
c. Offer to return- In desertion there is an intention to destroy the marriage. But if the deserting spouse seeks to return, makes an offer to return, the intention to destroy the marriage is no longer there and therefore desertion will come to an end; the basic principle being that a spouse who has been deserted must take back his deserter spouse. The moment the deserter spouse makes an offer to return, the desertion is at an end. In “Perry V. Perry”[35] it was held that if he will not receive her, he becomes himself the deserter and he cannot say, “you have deserted me. I will not forgive you for running away and therefore you cannot return” During the whole of the intention to return is an essential element; his motive for making an offer to return is not relevant.
In a simple case of desertion, offer to return will be sufficient. Thus, in “Bipin Chandra V. Prabha”[36], the wife made offer to return but the husband by sending the telegram “do not send Prabha” frustrated her intention to come back and thereby terminated. But if deserting spouse has been guilty of a behavior which entitles the other to stay away, such as when deserter has been guilty of adultery, the simple offer to return will not be enough to terminate desertion, and the deserted spouse is not bound to accept it; were not so it would amount to forcing condonation on him. [37] In such a case, the deserter spouse must give the other such credible assurances that conduct complained of will never be repeated in future.
Any offer to return must satisfy the following two conditions :
19 AIR 1979 Ori. 93
i. It must be genuine and bona fide offer to return permanently, and the offerer must have the means and the intention to implement if it is accepted by the other party. If offer is made just to forestall or defeat impending proceeding in a court of law, offer cannot be said to be genuine and bona fide.
In “Shyam Chand V. Janaki”[38] a wife who was turned out by the husband from the matrimonial home filed maintenance proceedings. These proceedings were compromised and the husband agreed to have the wife back and maintain her. But subsequently he backed out and filed proceedings for divorce. His petition was rejected. He filed an appeal. At the hearing of his appeal, he made an offer to take back his wife. The wife rejected it. The court held that offer was not genuine and sincere.
ii. The offer should not be subject to unreasonable conditions - Illustration – In 1951, the wife deserted her husband taking with her three daughters of the marriage whose ages range between 17 to 19 years after a while, the husband asked her to return but refuse to have the daughters back. The wife decline the offer. In the husband’s petition for divorce on the ground of wife’s desertion, the court held that desertion terminated when the husband refuse to take the daughters, since there was nothing in the conduct of the daughters to justify him in refusing to have them back and it was not unreasonable of the mother to decline to leave them to fend for themselves in view of their ages. On the other hand, if the deserter spouse has given the other spouse just cause to live separate and apart from him, the deserted spouse is entitled to refuse an offer to return either outright or to put conditions on the deserter spouse that he would abide by the assurances of better behavior in the future.
d. Supervening event – if the deserted spouse commits an act which justifies the other to continue to live apart, desertion will stand terminated unless it can be shown that the deserter would not, in any case, have returned. [40] If the deserted spouse subsequently consents to the living apart of the deserter spouse, it will terminate desertion.
It is established law that the burden of proving all aspects of desertion are on the petitioner. Thus, it is for the petitioner to establish both animus factum of desertion. It for him to establish that desertion was without reasonable cause and against his wishes and without the consent, and that it subsisted throughout the statutory period. At one time “it was the
● Dr. Paras Diwan, Family law, 9th^ Edition, Allahabad Law Agency
● Mookerjee, Marriage, Separation and Divorce, 4th^ Edition, Kamal Law House
● http://www.scribd.com/doc/44990603/Desertion
● http://www.lawisgreek.com/hindu-marriage-law-legal-implications-of-desertion-as-a- ground-for-divorce
● http://www.allindiareporter.in/
● http://www.indiankanoon.org/
