Author: A. Thiruthi
As per section 13 (1) (ib) of the Hindu Marriage Act of 1955 mentions desertion as a ground for divorce. This section provides that the party must have abandoned the petitioner for a continuous, that is, uninterrupted period of not less than 2 years immediately after which the petition is filed. Therefore, it can be inferred that the clause provides for two needs to be satisfied to convert desertion into grounds for divorce; First desertion or separation must be for a continuous period of at least 2 years; and secondly the period of 2 years must be in immediate continuity with the time of presentation of said petition. In this subsection, the expression” desertion “means the defection of the petitioner by the other party to the marriage without reasonable justification and without or against the wish of that party and includes the willful negligence of the petitioner on the part of the other party to the marriage.
As per subsection (1) of Section 13, Hindu Marriage Act of 1955, the expression desertion means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the will of said party, and includes the willful negligence of the petitioner by the other party of the marriage. For the crime of desertion with respect to the deserting spouse, there must be two essential conditions
- the reality of the split and
- the desire to end coexistence (animus deserendi).
Similarly, two elements are essential when it comes to the abandoned spouse:
- the lack of consent, and
- The lack of legitimate cause of action on the part of the spouse who leaves the marital home to fulfill the aforementioned required purpose.
In Savitri Pandey vs. Prem Chand Pandey, the court held that there can be no desertion without prior cohabitation of the parties.
In the case of Bipin Chander Jaisinghbhai Shah vs. Prabhawati, the court held that the crime of desertion is a path of behavior that exists regardless of its duration, however, as a cause for divorce it must exist for a minimum of 3 years immediately prior to the presentation of the petition.
ELEMENTS OF DESERTION:
To prove desertion there are 2 elements that are sine qua non, the first is the actual fact of separation, that is, factum deserendi and, secondly, the intention to desert or the animus deserendi. Therefore, being separated by itself cannot amount to desertion, but must be accompanied with the intention to desert also. This view was listed in Bhupinder Kaur v. Budhi Singh where it was noted that simply living away for a long period of time cannot attribute animus deserendi to that part. Further in Pradip Kumar Kalita vs. Hiran Provo Kalita It was argued that a wife who left her marital home and stayed with the parents due to the husband’s refusal to stay with her was not guilty of desertion. If they are combined, the main elements that constitute desertion would be
- the fact of separation;
- the intention to desert or animus deserendi;
- such desertion is intentional;
- such separation sustain for a period of 2 continuous years;
Similarly, there are 2 more essential elements that must be fulfilled by the abandoned spouse;
- The absence of consent on the part of abandoned spouse and;
- Absence of such conduct that gives reasonable cause to the deserting spouse to desert.
The last two elements, which are essential on the part of the abandoning spouse, have been a very important mandate of the Courts to decide desertion cases.
TIME OF 2 YEARS:
The 2-year period does not mean an aggregate period of 2 years, but an uninterrupted continuous period that began when the parties began to live separately and did not coexist during this continuous stretch. However, this implies that desertion will continue even if the parties continue to live apart for more than 2 years and will not be prosecutable per se until and unless the petition for separation or divorce makes desertion a reason. In Satgunj vs. Rahmat Dil Murad, the Court held that 2 years does not mean several periods of refusal to live together, but an uninterrupted period of 2 years.
There was another case of Rakesh Ranjan vs. Dr. Anita Sood that showed that the mere fact of living estrangement from spouses for a continuous period of 2 years would not prove desertion. In this case the wife stayed with husband for approximately 3 to 4 days after marriage, after which husband went to Kanhwara in Katni district to resume his duties, and thereafter, 25 days also joined a hospital. She had written letters to her husband in which she clearly stated that she was willing to live with him as his wife, but she did not want to live with his entire family as the house was congested. In this case, the court founded absence of animus deserendi and therefore held that it was not desertion.
TYPES OF DESERTION:
Mainly, desertion is of two types which are actual and constructive desertion.
- Actual desertion
Actual desertion is said to occur when the spouse in the literal sense “runs away” from his or her matrimonial obligations. It means when the spouse explicitly refuses to fulfill his marital obligations and acts in disobedience to the other spouse or stops living with the other spouse. It means that when a spouse gets rid of all their matrimonial duties and actually escapes or permanently abandons the marital home. It will also be said that when the factum of separation and animosity to desert falls on the same spouse, then it is said that the actual desertion.
- Constructive desertion
Constructive desertion is when the behavior of one spouse makes it impossible for the other to live with the first. This states that the defendant’s conduct is such that it cannot be expected by the petitioner to reside with the respondent. This is called as constructive desertion.
AS A GROUND OF DIVORCE:
At this point, it is very clear that desertion can be grounds for divorce and a divorce petition can be filed by making desertion a reason. It is also clear that the responsibility for proving the act of desertion rests with the petitioner. However, a divorce will not be granted if the applicant is found guilty. The plain and simple rule of “who is guilty” would be taken. In the case of Leela Devi vs. Suresh Kumar, a petition for divorce was filed by the husband, who withdrew it later on receiving guarantee from the wife that she would live with him but she didn’t. Then there was again a new petition presented by the husband for divorce. Furthermore, the wife had left the house and also stated that she was unwilling to live with him. Her behavior of leaving the house showed an implicit intention not to live and expresses her unwillingness was an explicit expression of her intention to leave. The husband was therefore granted the divorce for desertion. In Jagannath vs. Krishna, the wife became Brahma kumari and left the marital home. Therefore, the husband was granted a divorce. This unique case portrays that it is not always necessary for the spouse to have complaints against the other spouse, but sometimes there may be such spiritual and religious reasons also that can lead to the end of a marriage.
Desertion in the literal sense means abandonment of one of the spouses by the other. It can also be said that desertion is the denial of coexistence, that is, when a conjugal partner ceases to live together renouncing all your marital duties and obligations. It is provided as a basis for divorce under section 13 (1) (ib) of the Hindu Marriage Act 1955. It is pertinent to note that desertion can be taken as grounds for divorce only when the abandonment or separation has occurred over a continuous period of 2 years. There should be no gap, that is, to say that the period of 2 years must be continuous. Spouses must have lived apart for a minimum of 2 years to turn desertion into grounds for divorce. Desertion is not withdrawing from a place, but a state of affairs.