214072 Anubhuti Gupta Desertion As A Ground For Divorce Under Hindu Law

Winter Semester 2014- 2015
Family Law-I Project

Desertion as a Ground for Divorce under Hindu Law

This project has been submitted by:
Anubhuti Gupta
I.D. No.- 214072

Introduction- “Divorce is a thorny question, especially in Hindu marriages”1. Hindu marriages are considered as sacramental institution which is to be preserved till death. Thus, typically, Hindu law did not provide for divorce except in certain socially lowly stratified communities. But this was inequitable to thousands of women who had been deserted by their husbands. Their problem could have been resorted with a possible re-marriage but for the existence of stringent laws against divorce. Hence, the Hindu Law Committee made a strong report in favour of legislation providing relief by way of divorce.
The project aims to study desertion, which is quite an ambiguous concept, as a ground for divorce.
Desertion as a Legal Concept-
Desertion as a legal concept presents ambiguity. No judge ever has or probably ever will be able to give a perfect definition of desertion. It is a little tough to encompass it within a strict definition. In evolving the position of law in case of desertion, the court has largely taken the view point as adopted in England. In the landmark case of Bipin Chandra v Prabhavati2, the SC posed the question as to what is desertion. The court then observed the legal position as had been summarised in Halsbury’s Laws of England.3 The court observed that-
“Cohabitation is the essence of a marriage and negation of the same i.e. living apart breaks down the very meaning of this institution4. Hence, desertion of one spouse of the other in a manner which is unjustifiable has been seen as an offence in a matrimonial set-up and is a ground for divorce.
Its essence is the “forsaking or abandonment of one spouse by the other without reasonable cause and without the consent or against the wishes of other.”5 It is the total repudiation of the obligations of marriage. Unlike cruelty and adultery, desertion is not a one- time offence. It will be considered as a ground for divorce only when it continues over a period of time, statutorily defined as 2 years.6
After observing quite a many cases, the idea that has been evolved is that desertion is to be construed according to the facts and situation in every case7. It has been described as “a withdrawal not from a place, but from the state of things.”8 Thus it may not be unlikely that parties are living in the same house and yet one of the spouses has deserted the other. Conversely, it may be true that the spouses may be spatially separated and yet none of the spouses has deserted the other.9
Section 13(i)(b) clearly states that this section is applicable to all cases “whether before or after the commencement of the act”10 Thus we can construe that this section as retrospective as well as prerogative effect.
Prior to amendment of 1976, desertion was only a ground of judicial separation. However, after the Marriage Laws Amendment Act, 1976, it became a ground for both judicial separation as well as divorce.
The Explanation provided with the section purports a definition of desertion which may be construed in a variety of ways owing to grammatical variations and cognate expressions. The expression “desertion” is generally understood in terms of permanent forsaking and abandonment11. However, Explanation broadens the scope by including “wilful neglect” of the petitioning spouse by the respondent. It states that to amount to matrimonial offence, desertion must be without reasonable cause and without the consent / against the wish of the petitioner. Wilful neglect, thus, amounts to desertion within the meaning of this expression. Making allowance for wife is not a defence on part of the husband to escape the offence of desertion.

Ingredients of Desertion-
The essential ingredients of the offence of desertion have been eruditely dealt within the famous and landmark case of Bipin Chandra Jaisingh Bhai Shah v Prabhavati12 (under Bombay Hindu divorce act, 1947). These ingredients coupled with other statutory provisions help in claiming matrimonial reliefs against the offense of desertion. However, the order in which relief is given may differ for each.13 The ingredients along with their explanation and related case laws are dealt below.
Firstly there must be the factum of separation.
It is a key element for the offence of desertion. As long as cohabitation continues, even wanton refusal by one party to other to not engage in sexual intercourse is not considered as a sufficient ground for desertion. However, unreasonable refusal to have sex does lead to constructive desertion when one party is aware of the fact that refusal to have sex shall lead to forsaking and abandonment by the other party.
However, it has been seen in exceptional cases where even though the husband and wife had not ceased their cohabitation but had permanently abandoned one another, the court awarded them the decree of divorce. The court will hold that the spouses cease to be in one household and have formed two separate households.14
Secondly there must be the intention to bring cohabitation to a permanent end- animus deserendi15. It is well established in the famous case of Umesh Kumar v Shashi Kumar16 that for the factor of animus deserendi to work, the element of permanent forsaking is a necessity. I.e. the deserting party must not agree or make an attempt for cohabitation again. In this case, the wife was in service at Dehradun and earned much higher than her husband. As she had no other siblings, she went to Dehradun to look after parents and continue with her services thus not being able to cohabit with her husband for more than 5 years. After the said period, the wife made several requests to her husband and his family to let her continue with her marital home. However, the husband refused and filed for divorce on grounds of desertion. The court held that the decree of divorce could not be granted as the husband’s income was insufficient to support the entire family. Moreover, the court found that the necessary element of animus deserendi, i.e. intention on part of wife to permanently forsake her husband was not present.
Also, there must be no consent on behalf of the deserted partner. In case of consent, there is a diversion by the position taken by Indian courts and the English courts. Thus, in India, mutual desertion is no ground for divorce.17
Then there is an ingredient which effectuates the above two. It is the element of permanence which is a primary condition. It requires that both the above ingredients should continue during the entire statutory period. Then there must be absence of reasonable conduct on the part of the deserting spouse. In Ashok Kumar v Shabanam18, the husband constantly demanded Rs. 16,000 as dowry demands because of which the wife left her marital home. When the husband filed for divorce, it was held that it was he who was the deserter. The wife had justifiable grounds to leave the house.
Fourthly, there should be a fixed minimum time period for which the desertion should continue.
“Desertion is a continuing offence.”19 It continues until it is terminated20.Hence it is necessary that the parties should have been separated and the factor of animus deserendi must have been present for not less than the statutorily prescribed period of two years immediately preceding the presentation of petition. It must be noticed that the period of desertion remains inchoate unless there is a petition filed.
In accordance to the above, it may be inferred that during the entire period when there has been desertion, there must be two conditions which must be met. Firstly the deserting partner must have a chance to go back and continue residing in his marital set up with the other spouse i.e. he must have the option of locus poenitentiae . Secondly, throughout the period of desertion, before the petition has been filed, the deserted spouse must be ready and willing to resume the married life21 (only if other conditions are reasonable).22
However, the question of whether the deserting partner actually tried to bring the desertion at an end or not and whether there was a justifiable cause due to which the desertion took place are questions which are a pure matter of fact.23
The statutory requirements as to the time during which the “state of things” should continue is fixed at a continuous period of not less than two years which should immediately precede the presentation of the presentation.24 Thus, the quality of permanence is one of the essential elements, which is different from wilful and voluntary separation. If the deserting spouse decides to return to the deserted spouse with a bona fide offer to resume the matrimonial home, before the statutory period gets over,25 desertion comes to an end. The deserted partner should not unreasonably refuse the offer.26 Infact in Karuna v Jiwan Prakash27, it was held that it may amount to cruelty.
The clause “not less than two years…” thus lays down that desertion shall amount to matrimonial offence only when it continues over a specific period of time immediately preceding the presentation of the petition. 28
Court said that abandonment of one spouse of the other in a state of temporary passions for the reason of anger or disgust does not amount to desertion.
Time Period for Filing the Suit-
In case of desertion it does not matter when the offended party institutes the proceedings. Whenever the suit is filed, then even if the proceedings are instituted much beyond the statutory period, the court may accept the petition if it finds that there was a reasonable cause of delay.29 As held in a very recent case (2014) of Lily Saini v Nand Kishore Saini30, the court held that-
“Whether delay is unnecessary or improper is a question of fact. For it each case has to be examined on its facts and circumstances…. In cases where a divorce is sought on the ground of desertion, the considerations are different. A deserted spouse may not act with the speed he is supposed to act… Lapse of time in such cases cannot necessarily be taken as unnecessary or improper delay.”
Constructive Desertion-
The offence of desertion is not established merely by the fact as to whuch party left the marital home. Thus the element of separation, though a necessity to constitute the offence of desertion, is independent of the person who commits it. It is so because law looks into the fact situation and then decides upon the actual reason that had led to separation of both the parties.
Hence, it is well established that a spouse may be guilty of such misconduct that may render the continuance of marital relations unbearable for the other spouse and is compelled to leave the marital home and “in such a case the former, and not the later, is the is the actual deserter.”31 Prior to Lang v Lang32, the courts were divided into their opinion as to what amounts to constructive desertion. Two schools of thought i.e. Objective and subjective prevailed. Finally, the subjective approach was adopted33.
In Lang v Lang34, the Privy Council held that-
“…the party truly guilty is not necessarily the one who first leaves. The party which is left behind may by reason of conduct on his part, make it unbearable for a wife with reasonable self- respect,…, to stay with him. He may cause the desertion by expelling her; by driving her out. The course of conduct i.e. the ‘factum’ must be grave and convincing.”
In Varsha Pravin Patil v Pravin Madhukar Patil35, the wife was forced to leave the marital home because of husband’s cruelty. Instead of reconciling and bringing her back, the husband filed for divorce. The husband was granted relief by trial court as the wife had not registered any police complaint36. The High court of Bombay reversing the trial court’s order, held that – “It is not expected that a newly married woman would rush to a police station. She might have harboured her grievances hoping for reconciliation one day.” It was held that the husband was the one liable for deserting his wife through constructive desertion.
However, not every course of conduct may prove to be a sufficient ground for desertion. A wife may be irritated by her husband’s habits but she cannot leave him only for this reason. “Such idiosyncrasies are a part of lottery in which every spouse engages in marrying, ‘for better, for worse.’”37 Thus, conduct which falls into legal cruelty and is of grave and convincing character may justify one spouse leaving another.38
In cases of constructive desertion, both the essential elements of factum and animus deserendi must be present. If the conduct of one of the spouses is such that any reasonable person can know that it shall lead to departure of the other spouse, the former cannot take the defence of ignorance. It will be no answer that “his desire was that the other spouse should stay and the home not be disrupted39.”40 Sometimes, the conduct may be of nature of cruelty but not amounting to cruelty in law. Grave and weighty matters may be alleged but in such cases facts overlap41. The conduct, if it falls short of matrimonial offence, should form the very nature of desertion e.g. wilful neglect.
Termination of Desertion-
Desertion may be brought to an end at any time by resumption of cohabitation as cohabitation is the exact negative counterpart of desertion. There must be consent and mutual intention of both the parties to resume cohabitation. But just like desertion, cohabitation is difficult to be defined. At best it can be defined as resumption of the normal “state of things”.42
Common intention of parties to set up the marital home without doubt includes the resumption of sexual intercourse and it reflects reconciliation. However, in contrast to the above there may be situations where the parties do involve in casual or occasional acts of intercourse though not ending the state of desertion. However, such events are rare and need a strong evidence to prove desertion.
Desertion may also come to an end by animus revertendi which is a genuine offer by the deserting party to return or in case of constructive desertion, a bona fide attempt to bring back the deserted spouse43. If however, the deserted spouse refuses to resume back the ordinary affair of things, (before the proceedings of divorce have commenced) the entire position reverses and the deserted spouse becomes the deserter.44
In Lachman Uttamchand Kriplani v Meena,45 the court held- “if genuine and sincere offer to return to matrimonial home exists, even after desertion has started the animus desrendi would be missing.”
Desertion and Cruelty-
There is much debate on whether desertion itself amounts to cruelty. In Cade v Cade it was held that the same conduct could constitute as an expulsive conduct founding a charge of constructive desertion and could also form a charge of cruelty. Thus the line dividing the both is fine and it is extremely difficult to distinguish one from other.
However, if the husband decides to turn away the wife from the house, she has full rights to stay within the house.46 In the Achala Anand case the Supreme Court had held that if the husband was a tenant of a house and deserted his wife, the landlord could not evict her from the tenanted home as long as she paid the rent and met the conditions of tenancy47.

Conclusion-
Desertion is thus what can be said as “negation of togetherness.48” It is a ground for not just judicial separation but also for divorce under the Hindu Law. It is not just the physical separation of two spouses but a forsaking of their marital obligations in such a manner that they do not wish to reconcile or get back together ever in the future. It is independent to the fact as to which party actually leaves the marital home as one party may impel the other to leave his/her house or create situations for the same. The true determination of desertion depends on the facts of each case however the minimum statutory period is fixed for each case i.e. two years.

Bibliography-
1) SA Desai, Mulla Hindu Law (19th, Lexis Nexus, New Delhi 2005)
2) Kusum, Family Law Lectures: Family Law I (2nd, Lexis Nexus, New Delhi 2008)
3) 'A Home of Her Own' (www.epw.in 2008) <http://www.epw.in/editorials/home-her-own.html> accessed 18 Jan, 2015
4) P. Diwan, Family Law( Hindus, Muslims, Christians, Parsis and Jews) (5th, Allahabad Law agency, Faridabad 2000)
5) M. Rangannath, Mayne's Treatise On Hindu Law and Usage (15th, Bharat Law House, New Delhi 2003) 235
6)