11/14/2014

DESERTION AS A GROUND FOR DIVORCE - sarin advocate

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IMPORTANT JUDGMENT

HINDU MARRIAGE ACT 1955

JUDGMENT USEFUL FOR WOMEN

DRAFTING AND PLEADING

INDIAN SUCCESSION ACT, 1925

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DRAFTING IN MATRIMONIAL CASES

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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. According
to the said Section, a marriage can be dissolved only if one of the
parties to marriage has committed some matrimonial offence
recognised as a ground for divorce.
"Desertion", for the purpose of seeking divorce under the
Act, means the intentional permanent forsaking and
abandonment of one spouse by the other without that
other's consent and without reasonable cause. In other
words it is a total repudiation of the obligations of marriage.
Desertion is not the withdrawal from a place but from a
state of things. Desertion, therefore, means withdrawing
from the matrimonial obligations, i.e., not permitting or
allowing and facilitating the cohabitation between the
parties. The proof of desertion has to be considered by
taking into consideration the concept of marriage which in
law legalises the sexual relationship between man and
woman in the society for the perpetuation of race,
permitting lawful indulgence in passion to prevent
licentiousness and for procreation of children. Desertion is
not a single act complete in itself, it is a continuous
course of conduct to be determined under the facts and
circumstances of each case. After referring to host of
authorities and the views of various authors, this Court in
Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR
1957 SC 176] held that if a spouse abandons the other in a
state of temporary passions, for example, anger or disgust
without intending permanently to cease cohabitation, it will
not amount to desertion. It further held:

"For the office of desertion, so far as the

deserting spouse is concerned, two essential
conditions must be there, namely (1) the
factum of separation, and (2) the intention to
bring cohabitation permanently to an end
(animus deserendi). Similarly two elements

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DESERTION AS A GROUND FOR DIVORCE - sarin advocate

are essential so far as the deserted spouse is

concerned: (1) the absence of consent, and
(2) absence of conduct giving reasonable
cause to the spouse leaving the matrimonial
home to form the necessary intention
aforesaid. The petitioner for divorce bears
the burden of proving those elements in the
two spouses respectively. Here a different between
the English law and the law as enacted by the Bombay
Legislature may be pointed out. Whereas under the English
law those essential conditions must continue throughout
the course of the three years immediately preceding the
institution of the suit for divorce, under the Act, the period
is four years without specifying that it should immediately
precede the commencement of proceedings for divorce.
Whether the omission of the last clause has any practical
result need not detain us, as it does not call for decision in
the present case. Desertion is a matter of inference to be
drawn from the facts and circumstances of each case. The
inference may be drawn from certain facts which may not
in another case be capable of leading to the same
inference; that is to say, the facts have to be viewed as to
the purpose which is revealed by those acts or by conduct
and expression of intention, both anterior and subsequent
to the actual acts of separation. If, in fact, there has been a
separation, the essential question always is whether that
act could be attributable to an animus deserendi. The

offence of desertion commences when the

fact of separation and the animus deserendi
co-exist. But it is not necessary that they
should commence at the same time. The de
facto separation may have commenced
without the necessary animus ort it may be
that the separation and the animus deserendi
coincide in point of time; for example, when
the separating spouse abandons the marital
home with the intention, express or implied,
of bringing cohabitation permanently to a
close. The law in England has prescribed a three years
period and the Bombay Act prescribed a period of four
years as a continuous period during which the two
elements must subsist. Hence, if a deserting spouse takes
advantage of the locus poenitentiae thus provided by law
and decide to come back to the deserted spouse by a bona
fide offer of resuming the matrimonial home with all the
implications of marital life, before the statutory period is out
or even after the lapse of that period, unless proceedings
for divorce have been commenced, desertion comes to an
end and if the deserted spouse unreasonably refuses to
offer, the latter may be in desertion and not the former.
Hence it is necessary that during all the period that there
has been a desertion, the deserted spouse must affirm the
marriage and be ready and willing to resume married life on
such conditions as may be reasonable. It is also well
settled that in proceedings for divorce the plaintiff must
prove the offence of desertion, like and other matrimonial

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DESERTION AS A GROUND FOR DIVORCE - sarin advocate

offence, beyond all reasonable doubt. Hence, though

corroboration is not required as an absolute rule of law the
courts insist upon corroborative evidence, unless its
absence is accounted for to the satisfaction of the court."
Following the decision in Bipinchandra's case (supra)
this Court again reiterated the legal position in
Lachman Utamchand Kirpalani v. Meena alias Mota
[AIR 1964 SC 40] by holding that 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. For the
offence of desertion so far as deserting spouse is
concerned, two essential conditions must be there (1) the
factum of separation and (2) the intention to bring
cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted
spouse is concerned: (1) the absence of consent, and (2)
absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary
intention aforesaid. For holding desertion proved the
inference may be drawn from certain facts which may not
in another case be capable of leading to the same
inference; that is to say the facts have to be viewed as to
the purpose which is revealed by those acts or by conduct
and expression of intention, both anterior and subsequent
to the actual acts of separation.

Adhyatma Bhattar Alwar v. Adhyatma Bhattar

Sri Devi, reported in 2001 AIR SCW 4641 :
AIR 2002 SC 88. In this case at Para 6 on
page No. 91, the Hon'ble Supreme Court has
observed thus :
"The clause lays down the rule that
desertion 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. This
clause has to be read with the
Explanation. The Explanation has
widened the definition of desertion to
include 'wilful neglect' of the
petitioning spouse by the respondent.
It states that to amount to a
matrimonial offence desertion must
be without reasonable cause and
without the consent or against the
wish of the petitioner. From the
Explanation it is abundantly clear that
the legislature intended to give to the
expression a wide import which
includes wilful neglect of the
petitioner by the other party to the

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DESERTION AS A GROUND FOR DIVORCE - sarin advocate

JURISDICTION OF
COURT
LAW OF CONTRACT
INDIAN EVIDENCE ACT
WORDS AND PHRASES
Hindu Marriage Act, 1955.
Under Section 24
Hindu Marriage Act, 1955.
Under Section 25
Cr.P.C. Section 125
Protection of Women from
Domestic Violence Act
PARTITION SUIT
GIFT
PROVINCIAL SMALL
CAUSES COURTS
ACT,1872
MODELS OF PLAINT IN
PARTITION SUIT
SOME IMPORTANT
DEFENCES
DECREE
UNREGISTERED
AGREEMENT TO SELL
OF IMMOVABLE
PROPERTY
DAUGHTERS RIGHT IN
THE PROPERTY
Lease and license
Applicability Of Order XV
Rule 5 CPC

0
0

today is

today is
0

marriage, therefore, for the offence of

desertion, so far as the deserting
spouse is concerned, two essential
conditions must be there, namely, (1)
the factum of separation, and (2) the
intention to bring cohabitation
permanently to an end (animus
deserendi). Similarly, no elements are
essential so far as the deserted
spouse is concerned; (1) absence of
consent, and (2) absence of conduct
giving reasonable cause to the spouse
leaving the matrimonial home to form
the necessary intention aforesaid. The
petitioner for divorce bears the
burden of proving those elements in
the two spouses respectively and
their continuance throughout the
statutory period."
case of Savitri Pandey v. Prem Chandra
Pandey, reported in 2002 AIR SCW 182 :
[2002 (2) GLR 1369 (SC)].
The Hon'ble Supreme Court in Para 7A on
page 187 has observed as under :
"Desertion", for the purpose of seeking divorce
under the Act, means the intentional permanent
forsaking and abandonment of one spouse by
the other without that other's consent and
without reasonable cause. In other words, it is a
total repudiation of the obligations of marriage.
Desertion is not the withdrawal from a place but
from a state of things. Desertion, therefore,
means withdrawing from the matrimonial
obligations, i.e., not permitting or allowing and
facilitating the cohabitation between the parties.
The proof of desertion has to be considered by
taking into consideration the concept of marriage
which in law legalises the sexual relationship
between man and woman in the society for the
perpetuation of race, permitting lawful
indulgence in passion to prevent licentiousness
and for procreation of children. Desertion is not
a single act complete in itself, it is a
continuous course of conduct to be
determined under the facts and
circumstances of each case "
Gujarat High Court
Bhargavkumar Pranshankar Shukla vs

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DESERTION AS A GROUND FOR DIVORCE - sarin advocate

Chhayaben Bhargavkumar Shukla on 21

October, 2002
"desertion under the Hindu Law is a withdrawal
of a party from the marital home does not by
itself constitute desertion by that party. It is the
party who by his or her conduct brings
cohabitation to an end that is guilty of
desertion."
The essential ingredients of this offence in
order that it may furnish a ground for relief
are :
(a) the factum of separation; and
(b) the intention to bring cohabitation
permanently to an end - animus deserendi
(c) the element of permanence which is a prime
condition requires that both these essential
ingredients should continue during the entire
satisfactory period.
8.3 "Desertion, in short, means a total
repudiation of marital obligation. An end to twoin-oneship and to marital togetherness which is
the kernel of marriage. To explain it with an
analogy: most of us are familiar with the term
desertion deserter from the army. A deserter
from the army is one who runs away from his
post or from his duty. A spouse is in desertion if
it runs away from his marital obligations, from
cohabitation. The "running away" may mean that
he actually leaves the matrimonial home
permanently or living in matrimonial home
refuses to perform marital obligations; he ceases
to cohabit or he abandons his matrimonial
obligations. The latter aspect of desertion is
termed as constructive desertion.
Thus, desertion may be classified under the
following heads :(a) Actual desertion,
(b) Constructive desertion, and
(c) Wilful neglect : this expression is used both
under the Special Marriage Act, 1954 and the
Hindu Marriage Act, 1955 and in some cases, it
has been considered part of constructive
desertion.
The main elements of desertion are :

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DESERTION AS A GROUND FOR DIVORCE - sarin advocate

(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 or
against the wishes. Further, to examine the
elements of desertion, the following two
preliminary observations are necessary to note
with a view to clearly comprehending the legal
concept of desertion :
(A) Until an action is brought desertion remains
an inchoate offence, that is to say, it can be
terminated by the party in desertion by either
resuming cohabitation or expressing an
unequivocal intention to resume cohabitation.
(B) Although fact of separation is an essential
element of desertion, it does not mean that the
party who leaves the matrimonial home is
necessarily the deserter. It may be'that a party
who stays behind may by conduct or act on his
part had made it intolerable for the other spouse
to stay pn in the matrimonial home. This aspect
of desertion is called constructive desertion."
Kerala High Court
Suchithra D/O. M.Radhakrishnan ... vs Anil
Krishnan, S/O. G.K.Pillai on 13 April, 2007
As per the explanation to Section 13(1)(ib) of
Hindu
marriage Act, "desertion" means "the desertion
of the petitioner by the other party to the
marriage without reasonable cause and without
the consent or against the wishes of such party
and includes the "willful neglect" of the petitioner
by the other party to the marriage. Thus, there
need not even be a physical withdrawal from the
society of the spouse by the other spouse.

"Willful neglect" can be inferred if there

is failure to discharge the matrimonial
obligations."
PROVEING OF DESERTION:
To prove desertion in matrimonial matter it is not always
necessary that one of the spouse should have left the
company of the other as desertion could be proved while
living under the same roof. Desertion cannot be equated
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DESERTION AS A GROUND FOR DIVORCE - sarin advocate

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 be

kept in mind that the question of desertion is

a matter of inference to be drawn from the
facts and circumstances of each case.
The basis for this theory is built upon the
recognised position of law in matrimonial
matters that no-one can desert who does not
actively or wilfully bring to an end the
existing state of cohabitation. However, such a
rule is subject to just exceptions which may be found in a
case on the ground of mental or physical incapacity or
other peculiar circumstances of the case. However, the

party seeking divorce on the ground of

desertion is required to show that he or she
was not taking the advantage of his or her
own wrong.
Supreme Court of India Savitri Pandey vs
Prem Chandra Pandey on 8 January, 2002
"Para 5 : It is well settled that the question of
desertion is a matter of interference to be
drawn from the facts and circumstances of
each case and those facts have to be viewed
as to the purpose which is revealed by those
facts or by conduct and expression of
intention, both interior and subsequent to the
actual act of separation."
Supreme Court in the case of Sanat Kumar
Agarwal v. Smt. Nandini Agarwal, reported in
AIR 1990 SC 594. (Para 5)
Section 23(1) Clauses (a), (b) and (e) of the
Hindu Marriage Act which are quoted below:23. Decree in proceedings.- (1) In any
proceeding under this Act, whether defended or
not, if the Court is satisfied that
(a) any of the grounds for granting relief exists
and the petitioner except in cases where the
relief is sought by him on the ground specified in
sub-clause (a), sub-clause
(b) or sub-clause (c) of clause (ii) of section 5
any way taking advantage of his or her own
wrong or disability for purpose of such relief, and
(b) where the ground of the petition is the ground
specified in clause (i) of sub-section (1) of
Section 13, the petitioner has not in any manner
been accessory to or connived at or condoned
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DESERTION AS A GROUND FOR DIVORCE - sarin advocate

the act or acts complained of or where the

ground of the petition is cruelty the petitioner has
not in any manner condoned the cruelty, and
(c)
(d)
(e) there is no other legal ground why relief
should not be granted, then, and in such a case,
but not otherwise, the Court shall decree such
relief accordingly.

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