Desertion under Hindu Marriage Act, 1955

Introduction:-

Marriage constitutes the very basis of social organization. Hindu law regards marriage as a sacrament- indissoluble and eternal. This sacramental character of marriage has given rise to certain anomalies. The declaration of Manu that neither by sale nor by desertion is wife released from the husband was applied only to women and not men. Thus there was an element of inherent injustice on the wife in Hindu law. To counter such inequalities among spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was enacted which provided certain matrimonial remedies.

Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilization can exist. A marriage solemnized, whether before or after the commencement of the Hindu Marriage Act, 1955 can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act.

The Hindu Marriage Act, 1955 came into existence, eight years after the independence of the country. Section 13 of the Hindu Marriage Act deals with the grounds on which the parties can seek a decree of divorce from a competent court having jurisdiction to entertain such petition. In the literal sense "divorce" means a legal separation of two persons of the opposite sex who desire to respect and honor each other.[1]

Legally, a petition can only be filed after one year has elapsed from the date of marriage unless there are exceptional circumstances. The Hindu Marriage Act 1955 lists 9 grounds for divorce. Namely –

§  Adultery

§  Cruelty

§  Desertion

§  Conversion of religion

§  Unsoundness of mind / serious mental disorder

§  Virulent and incurable form of leprosy of partner

§  Venereal and communicable disease suffered by a  partner

§  Renunciation of the world

§  Unknown whereabouts of partner for more atleast 7 years

In addition to the above grounds, parties may also file for dissolution of marriage on the grounds of mutual consent, no resumption of cohabitation or no restitution of conjugal rights for a period of one year or upwards after a judicial decree of separation has already been passed.

Women have certain additional grounds for filing, namely – polygamous husband, rape or sodomy inflicted on her, or if she was married before she attained the age of 15 as long as the marriage was repudiated before she attains the age of 18. Because our country is a culturally and religiously diverse country, there are more than one set of Personal Laws. Muslim law does not require seven years of unknown whereabouts of husband. Four is sufficient period for the wife to file for divorce. Similar is the case for the wife of a man who has been under imprisonment for more than 7 years.[2]

Desertion

In explanation to sub-section (1) of Section 13, Hindu Marriage Act, Parliament has thus explained desertion: “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 marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” [4] In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and reasonable cause. It is a total repudiation on the obligations of the marriage.[5]

For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions are required: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). In actual desertion, it is necessary that respondent must have forsaken or abandoned the matrimonial home. Suppose, a spouse every day, while he goes to bed resolves to abandon the matrimonial home the next day but continues to stay there, he had formed the intention but that intention has not been translated to action. He cannot be said to have deserted the other spouse.[6] On the other hand, if a spouse leaves the matrimonial home for studies or business and goes to another place for some period, with the clear intention that, after completion of studies or work he would return home but is not able to return because of illness or other work. In this case the factum of separation is there but, but his intention to desert is lacking, therefore this will not constitute desertion. 

Similarly, two elements are essential so far as the deserted spouse in concerned: (1) the absence of the consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention . If one party leaves the matrimonial home with the consent of the other party, he or she is not guilty of desertion. For instance, if husband leaves his wife to her parent’s house, it is not desertion as husband’s consent is present. Again, a pregnant wife who goes to her father’s place for delivery without the consent of the husband cannot be treated in desertion.[7] Desertion is a matter of inference to be drawn from the facts and circumstances of each case.[8] The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that both should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time.. However it is not necessary that the intention must precede the factum. For instance, a husband goes abroad for studies, initially he is contact with wife but slowly he ceases that contact. He develops attachment with another woman and decides not to return. From this time onwards both factum and animus co-exist and he becomes a deserter. A mere separation without necessary animus does not constitute desertion.[9] Both factum of physical separation and animus deserendi must be proved.[10] It is also necessary that there must be a determination to an end to marital relation and cohabitation. There is nothing like mutual desertion under the Act. One party has to be guilty.

Examples of desertion

v  The husband left his wife at her parent’s house for 7 to 8 years uncared; his conduct amounted to desertion. [11]

v  Party taking unreasonable attitude resulting in separation is guilty of desertion.[12]

v  The wife left the matrimonial home for paucity of accommodation and the husband refused to live separately from the members of his family due to meager income. The act of wife amounted to desertion.[13]

v  Wife not intending to live with husband on any condition.[14]

v  Wife took no step to disprove charge of desertion.[15]

v  Husband filing application for restitution of conjugal rights and wife filing for judicial separation on the ground of cruelty constitute desertion.[16]

v  Notice issued by wife to the husband expressing her intention not to return to the matrimonial home constitutes desertion commencing from the date of notice.[17]

v  The wife became a Brahma Kumari and declined to perform her marital obligation.[18]

Examples of no desertion

v  The husband’s allegation of the wife’s unchastity caused the wife to live separately from the husband.[19]

v  Where the husband himself reached his wife to her mother’s place for confinement, there is no desertion.[20]

v  Continued separation without intention to willfully neglect is not desertion.[21]

v  An aggrieved spouse cannot be said to in desertion.[22]

v  After abortion of pregnancy through the husband, the wife was staying with her parents for better treatment, there was no adverse inference that the wife intended to remain separate and she did not want to come back to her husband’s place.[23]

v  The wife was living separately in a room provided by the husband under compromising in the proceeding under S. 488, Cr PC (old) and the husband had another wife living with him. Separation does not amount to desertion.[24]

v  Where the husband was guilty of cruelty to wife and of openly keeping a mistress in the house so that the wife was compelled to leave her husband’s house, it was held that the wife did not desert the husband without reasonable cause.[25]

v  Wife leaves the matrimonial house due to unpalatable atmosphere does not amount to desertion.[26]

v  Wife was turned out of house forcibly by husband and never tried to bring her back. She was clearly not in desertion.[27]

v  Wife was going to the house of her parent’s on false allegation of her immorality.[28]

v  Wife spending more time with mother doesn’t amount to desertion.[29]

Burden of proof

In case of desertion, the burden of proof lies upon the petitioner.[30] The petitioner is required to prove the four essential conditions namely, (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent (4) absence of his/her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved must be proved beyond any reasonable doubt and a rule of prudence the evidence of the petitioner shall be corroborated.[31] In short the proof required in a matrimonial case is to be equated to that in a criminal case.

Constructive desertion

Where a situation or circumstances are created either by actual use of force or by the conduct of one spouse that the other spouse is compelled to leave the matrimonial home, it constitutes constructive desertion of the creator of the situation or circumstances. It is not necessary for the husband in order to desert his wife to actually turn his wife out of doors; it is sufficient if by his conduct he compelled her to leave the house.[32] It is now well settled that the matrimonial court has to look at the entire conspectus of the family life and if one side by his or her words or conduct compels the other side to leave the matrimonial home, the former would be guilty of desertion, though it is the latter who is seemingly separated from the other.[33] But where the husband does not take any steps to effect reconciliation, he is not guilty of constructive desertion.[34]

 The ingredients of both actual and constructive desertion are the same: both the elements, factum and animus must co-exist, in former there is actual abandonment and in the latter, there is expulsive conduct. Under constructive desertion, the deserting spouse may continue to stay in the matrimonial home under the same roof or even in the same bedroom. In our country, in many homes husband would be guilty of expulsive conduct towards his wife to the extent of completely neglecting her, denying her all marital rights, but still the wife because of social and economic conditions, may continue to live in the same house.[35] 

Examples of constructive desertion

v  The husband accused constantly the wife of her immorality and told her to go away.[36]

v  Willful and unjustifiable refusal of sexual intercourse by the respondent.[37]

v  The husband’s adultery.[38]

v  The husband used sexual malpractices on the wife.[39]

v  Husband’s intention was to divorce wife with a view to remarry and he forced wife to leave matrimonial home.[40]

v  The spouse who by his conduct compels the other spouse to matrimonial home, the former would be guilty of desertion.[41]

v  Husband asked for judicial separation on the ground of wife’s desertion, the wife stated that she was maltreated, beaten up and turned out of house by husband. The wife’s averments were proved.[42]

Willful neglect

It connotes a degree of neglect, which is shown by an abstention from an obvious duty, attended by knowledge of the likely result of the abstention. However, failure to discharge, or omission to discharge, every material obligation will not amount to willful neglect. Failure to fulfill basic marital obligations, such as denial of company or denial of marital intercourse, or denial to prove maintenance will amount to willful neglect.[43]

Without the consent

If one party leaves the matrimonial home with the consent of the other party, he or she is not guilty of desertion. When the parties are living apart from each other under a separation agreement, or by mutual consent, it is a clear consent of living away with the consent of the other.[44] Wife when living away from the husband, husband sends a telegram ‘must not send wife’ to wife’s father expressed his wish to live separate.[45] 

Desertion must be for a continuous period of two years

To constitute a ground for judicial separation or divorce, desertion must be for the entire statutory period of two years,[46] preceding the date of presentation of the petition.[47] Desertion is an continuing offence; it is an inchoate offence. This means that once desertion begins it continues day after day till it is brought to an end by the act or the conduct of the deserting party. It is not complete even if the period of two years is complete. It becomes complete only when the deserted spouse files a petition for a matrimonial relief. Wife’s act of withdrawing jewellary from the locker and remaining away from her husband for two years clearly proved her desertion.[48] 

Offer to return

If a deserting party spouse genuinely desires to return to his or her partner, that partner cannot in law refuse to reinstate him or her.[49] An offer to resume cohabitation must be genuine or bona fide for which two elements must be present. First, an offer to return permanently, if accepted, must be implemented; secondly, it must contain an assurance as to the termination of the conduct by the deserting party which caused the separation.[50] A refusal to such an offer would convert the deserted party to the deserting party. The offer to return to resume married life by the deserting spouse before the expiry of the statutory period of desertion must not be stratagem. The deserting spouse must be ready and anxious to resume married life.[51]

Defences to desertion

The following are the main defences to desertion:-

v  Agreement to separation does not amount to separation. But such agreement may be changed to desertion without resumption of cohabitation. Separation in such cases loses its consensual element.[52]

v  There may be animus deserendi without a separation.

v  Physical inability to end desertion, such as imprisonment.

v  Absence of just cause of separation.

v  Absence of animus deserendi.

Termination of desertion

Desertion is a continuing offence. This character and quality of desertion makes it possible to bring the state of desertion to an end by some act or conduct on the part of deserting spouse. It may be emphasized that the state of desertion may be put to an end not merely before the statutory period has run out, but also at any time, before the presentation of the petition. 

Desertion may come to an end by the following ways:

(a)    Resumption of cohabitation.

(b)   Resumption of marital intercourse.

(c)    Supervening animus revertendi, or offer of reconciliation.

Resumption of cohabitation – if parties resume cohabitation, at any time before the presentation of the petition, the desertion comes to an end. Resumption of cohabitation must be by mutual consent of both parties and it should imply complete reconciliation. The desertion ends only when the deserting parties goes to the matrimonial home mentally prepared to end the cohabitation. It is necessary to prove that marital intercourse was also resumed.

Resumption of marital intercourse – Resumption of marital intercourse is an important aspect of resumption of cohabitation. Sometimes resumption of marital intercourse may terminate desertion. If resumption of marital intercourse was a step towards the resumption of cohabitation, it will terminate desertion even if the deserted spouse backs out.

Supervening animus revertendi – if the party in desertion expresses an intention to return, this would amount to termination of desertion. Animus revertendi means intention to return. Desertion may be brought to an end by the deserting spouse’s genuine and bonafide offer of reconciliation. It should not be just to forestall or defeat the impending judicial proceedings.

Judgment on desertion

Case 1

Mrs. X: Appellant
Vs.
Mr. Y: Respondent

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

FAMILY COURT APPEAL NO.204 OF 2007
DATED: DECEMBER 02, 2009

JUDGES - S. A. BOBDE & S. J. KATHAWALLA, JJ

Facts of the Case

(i)     The parties got married on 1st May 1987. It appears that soon thereafter on 25th January 1989, the appellant wife left the company of the respondent husband, but later she filed a petition for restitution of conjugal rights (Petition No. 789/89), which was decreed on 11th April 1990.

(ii)   She resumed cohabitation with the respondent after he paid her a sum of Rs. 24,500/-.
The parties apparently lived together for the period between 1st July 1993 and 15th January 1994.

(iii) On 7th April 1994, she left the company of the respondent again. She returned the next day and lodged a criminal complaint against him for harassment, which she ultimately withdrew on being paid Rs. 10,000/- by the respondent.

(iv) According to the respondent, on 1st August 1996, he was transferred to Valsad, but she refused to accompany him there as she was working and giving tuitions at Surat at the time. On 12th January 1997, when he visited her at Surat, she threw him out of the very premises, which he had rented for her to live in and further threatened him of dire consequences if he entered again.

(v)   Since this incident, the parties have not cohabited till the date of filing of the divorce petition on 8th October 2003 and thereafter.

(vi) This as an appeal filed by the wife against the Judgment of the Vth Family Court, Mumbai, decided on 28th September 2007, decreeing the petition for divorce filed by the Respondent (Petition No. A – 1804 of 2003), under sections 13 (1) (ia) and 2 13 (1) (ib) of the Hindu Marriage Act, 1955, on the grounds of cruelty and desertion.

Decision

(i)       The respondent deposed before the Learned Trial Court that the appellant used to lose her temper on trivial matters, which was insulting and humiliating for him, as a result of which he could not sleep peacefully, and this in turn disturbed his work.

(ii)     This is a temperamental problem, which the appellant may have had and by itself is insufficient to establish cruelty towards the respondent, particularly in the absence of any specific instances from which it could have been inferred that this temperamental flaw was so disturbing, that it would constitute cruelty towards the respondent in itself.

(iii)   In the contention of desertion of the respondent by the appellant. Section 13 (1) (ib) of the Hindu Marriage Act, provides that a decree of divorce may be granted on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

(iv)   In Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] it has made it clear that it is not necessary for the deserting spouse to leave the home in order to constitute desertion. If one spouse by his or her words compels the other side to leave the matrimonial home or stay away therefrom, without reasonable cause, the former would be guilty of desertion, though it is the latter who is seemingly separated from the other. The ejection of the other spouse from the home with the intention not to cohabit equally constitutes desertion. This is the principle of ‘Constructive Desertion.’

(v)     In the present case, we find that the respondent has established and in fact, the appellant has not denied, that she did not allow the respondent to cohabit with her at the house in Surat, when he visited on 12th January 1997.

(vi)   She threw him out of the very house, which he had rented for her to live in, and threatened him with dire consequences if he dared to enter. This incident occurred over and above the fact that she herself had refused to travel and reside with him at Valsad, after he was posted there on 1st August 1996, ostensibly because she was teaching and giving tuitions at the time in Surat.

(vii) The Learned Family Court has observed that there is no challenge by the appellant to the evidence of the respondent that she was not interested in cohabiting with him at Valsad. In any case, we find that merely because the respondent had moved to Valsad, due to his transfer, it cannotbe considered to be reasonable cause for the appellant refusing to cohabit with him when he visited her in Surat, and in fact constitutes wilful neglect on her part.

(viii)    Her conduct on the whole, is evidence of animus deserdendi. The incident at Surat clearly compelled the respondent to leave and stay away from the matrimonial home. There is no dispute as to the factum of separation i.e. that the parties did not reside together from the date of the incident at Surat i.e. 12^th January 1997, until this petition was presented on 8th October 2003 and thereafter.

(ix)   At this stage, we may note that the Learned Family Court has not passed any orders as regards maintenance, as no prayer for such orders was made by the appellant. However, Mr. Vashi, the learned advocate for the appellant has submitted that the appellant has preferred an application for maintenance before this Court. It would be proper if this application is heard and decided by the Family Court itself.

(x)     Accordingly, the learned advocate for the appellant seeks leave to withdraw the application and present it, in accordance with the law, before the Family Court. The said application is allowed to be withdrawn.

(xi)   In the result, the divorce decree is upheld under section 13 (1) (ib) against the
appellant on the ground of desertion. The appeal is hence dismissed.

 

Case 2

Vikas Sharma - Appellant

vs

Mrs. Anita Sharma – Respondent

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

 First Appeal No.58 of 2010

DATED – March 10, 2011

Bench - V.K. Bist, J., Prafulla C. Pant,J.

Facts of the Case 

(i)                 07.10.2005 Vikas Sharma got married to respondent Anita. Vikas is a rifle-man in Indian Army and was posted in Manipur at the time of his marriage. 04.07.2006 A son was born out of the wed-lock.

(ii)               The appellant filed a petition under section 13 of Hindu Marriage Act, for a decree of divorce against his wife on the ground that she (Anita) has withdrawn from the society of the appellant/petitioner without any sufficient cause and as such deserted him. It is also pleaded that he moved a petition under section 9 of Hindu Marriage Act, 4 1955, for restitution of conjugal rights, but the same was got dismissed as not pressed. In substance divorce petition was filed on the ground of desertion and cruelty.

Decision

(i)     It has come on the record that the parties to the matrimony could live together only for a brief period after their marriage, and the respondent left at the time she was carrying pregnancy to her parents home and she did not go back to the house of her husband. The allegation and counter allegations are that the husband says that his wife has deserted him without any sufficient cause, on the other hand, the wife alleges that she is ready to live with her husband but not with his parents. Morally, the stand taken by the wife may not be correct but legally speaking when the husband is posted in Army and not taking his wife with him to his place of posting she cannot be said to have faulted in declining to stay with parents of her husband.

(ii)   Merely not obliging the petitioner to stay in his parental house, where he himself is not residing, in our opinion cannot be said to be desertion of the husband. That being so, we find that trial court has committed no error of law in appreciating the evidence on record and coming to the conclusion that the petitioner could not make out the case for divorce either on the ground of desertion or cruelty. We have already mentioned above that no incident of cruelty is mentioned in the petition and the period for which couple living together was a brief period.

(iii)  Having considered submissions of learned counsel for the appellant, and after going through the papers on record, we do not find force in these two appeals filed by the appellant (husband) against the impugned judgment and order dated 25.08.2010, passed in suit no. 70 of 2008. Therefore, both the appeals are dismissed.

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[1] Legal service

[2] Divorceindia.com

[3] Sudhir law

[4] paras

[5] Lachman Utamchand Kripalani v Meena AIR 1964 SC 40

[6] Ramesh v Premlata, 1979 MP 15

[7] Indira Devi v. Kumarian, 1982 Ker 78

[8] Bipinchandra Shah v Prabhavati AIR 1957 SC 176

[9] Rohini Kumari v Narendra Singh AIR 1972 SC 459

[10] Biswasnath Das v Maya Das AIR 1994 NOC 364

[11] 1969 Cur LJ 319

[12] (1967)69 Punj LJ 566

[13] Indu v Rajeshwar Pershad AIR 1982 Del 458

[14] Kulwinder Kaur v Harsi Singh 1997(3) Civ LJ 247 (P&H)

[15] Shimla devi v Kuldeep Sharma AIR  1991 Raj 181

[16] AIR 2004 Mad 43

[17] Pramod v Vasundhara AIR 1989 Bom 75

[18] Jagannath v Krishna 1982 PLR 83

[19] Lachman Utamchand Kripalani v Meena AIR 1964 SC 40

[20] Bejoy Daw v Sm. Alokha Daw AIR 1969 Cal 477 (DB)

[21] S. Kripal Singh v Smt. Harbans Kaur AIR 1967 Del 19

[22] Devi Singh v Sushila Devi AIR 1972 Raj 303

[23] Kamini v Balaji AIR 1988 Ori 93

[24] Bhagwanti v Sadhu Ram AIR 1961 Punj 181

[25] AIR 1961 Mad 391

[26] Sunil Kumar v Usha 1994 MP 1

[27] Anil Kumar v Sefali 1997 Cal 6

[28] J. Shyamala v P. Sunder Kumar AIR 1991 NOC 29

[29] Palwinder v Saroj, (2004) I CLT 323 (P&H)

[30] Lachman Kripalani v Meena AIR 1964 SC 40

[31] Bipinchandra Shah v Prabhavati AIR 1957 SC 176

[32] Jones v Jones [1952]2 TLR 225(CA)

[33] Ashok Kumar v Shabnam AIR 1989 Del 121

[34] Bharat Lal v Ram Kali Devi AIR 1984 All 274

[35] Lachman Kripalani v Meena AIR 1964 SC 40

[36] Marsden v Marsden [1967]1 All ER 967

[37] Hutchimson v Hutchimson [1963]1 WLR 180

[38] Roe v Roe [1956]1 WLR 1380

[39] D.B. v W.B. [1935] P 80

[40] Baljit Singh v Harjit Kaur 1997(1) Civ LJ 177 (P&H)

[41] Lang v Lang 1955 AC 402

[42] Shaym Chand v Janki 1966 HP 70

[43] Balidhar v Dhir Das, 1979 P&H 162

[44] Vadranama v Krishnama (1970) 1 AWR 13

[45] Bipinchandra Shah v Prabhavati AIR 1957 SC 176

[46] Shakuntala v Om Prakash, 1981 Del 53

[47] Amarjit v Kiran, 1985 P&H 356

[48] Suresh Bala v Gurmodinder Singh, 1983 Del 230

[49] Perry  v Perry [1952] 1 All ER 1076

[50] Gaskell v Gaskell [1963] 1 All ER 1052

[51]  Pratt v Pratt [1939] 3 All ER 437 (HL)

[52] Gallagher v Gallagher [1965] 2 All ER 967