According to Hindus, marriage is considered sacred where nuptial knots are tied to bring the souls together whereas a divorce is a judgment from the court ending the marriage when the spouses are not willing to live together. Desertion is also a ground for divorce in India, but the most interesting part is how it can be proved before the court of law. To end the marriage, the court has to look into some legal aspects before the divorce becomes final. Desertion for a calculated continuous period is one of the grounds for the annulment of marriage in India.
WHAT IS DESERTION?
The term “desertion” means the desertion of the spouse petitioner by the other party to the marriage without a valid reason which includes the willful neglect of the petitioner by the other party to the marriage. Desertion does not necessarily mean the withdrawal from a place but a state of things[1]. It is mainly nothing but matrimonial obligations. If the situation creates any circumstances for a party to leave another and if the desertion continues for more than two years then it shall be the ground for divorce. It is also understood from the explanation that the interpretation can vary with the facts and circumstances of each case.
ELEMENTS OF DESERTION
Few basic elements are primarily to be satisfied to constitute desertion and the first two elements should be present in the deserting spouse.
- The fact of separation (factum deserdendi)
- The intention to desert ( animus deserdendi)
Proving the fact of separation and the intention behind the separation is the first step. Desertion is a co-existence of these two elements. The offence of desertion commences when these two factors co-exist. Hence the co-existence of both these elements constitutes a state of desertion but it does not need to begin at the same time. Likely, it was also stated in a case that “desertion is that either of the elements can precede the other but desertion will result only when both coincide and form a union[2] The petition for divorce fails if both the above-mentioned ingredients are absent[3]. It is easier to prove the physical act of separation but the intention is a difficult part to be proven because the intention is required throughout the time of desertion. The petitioner likely has to prove the intention through a person’s conduct as the minds cannot be read[4]. So the petitioner seeking divorce has the burden of proving these elements in the spouses and their continuance throughout the entire satisfactory period.
Other important elements are
- Desertion without any reasonable cause
- Desertion without the consent of the applicant
- Continuous desertion for two years
Evidence has to be sufficiently proven that desertion was against the will of the petitioner and without any reason from the side of the petitioner. Sometimes a meekly obedient woman cannot express her consent and this creates an opportunity for the deserting spouse to take advantage. It is also held that if there is no proof of lack of consent, the consensual separation cannot be termed as a matrimonial offence involving volenti non-fit injuria. It is also essentially significant to show that the separation has been taking place for two years continuously. These acts fulfill the basic elements of desertion that prove a ground for matrimonial relief. The petitioner spouse always bears the burden of proving those elements in both the spouses respectively.
TYPES OF DESERTION:
ACTUAL DESERTION
When a spouse completely abandons from performing any obligations that arise out of a matrimonial alliance without any reasonable cause and the consent of the other partner, then it is called actual desertion. This is also called Animus separation. In this case, the spouse permanently ceases to co-habitat and refuses to stay in the matrimonial home. It was held in a famous case that the desertion shall not be done with consent as desertion demands guilt by one of the parties and desertion by consent is not considered desertion[5]
CONSTRUCTIVE DESERTION
Although the fact of separation is an important element, it does not mean that a spouse is a deserter if that party leaves a matrimonial home. So it is not abandoning the place but even when the spouse lives under the same roof and he/she abandons the matrimonial relationship then it is called constructive desertion. In a case, desertion under Hindu law is explained by the Gujarat High Court which held that the withdrawal of a party from marital home does not itself constitute desertion by that party but it is the party by whose conduct cohabitation comes to an end is guilty of desertion.[6]
DESERTION – AN IMPORTANT GROUND FOR MATRIMONIAL RELIEF
Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with desertion as a ground for divorce. This ground does form a significant part of divorce proceedings since it is a total repudiation of the marriage obligations and willful neglect on the part of the respondents. Also, the court has stated that desertion cannot take place without any previous cohabitation of parties. [7] The act of deserting a spouse will come to the point of the surface after matrimonial friction occurs between the couple and it ends once the cohabitation resumes. In that case, a divorce cannot be granted based on desertion where the parties start to live together to bring reconciliation.
The prescribed period for desertion and its permanency cannot be disrupted. If such a period is broken then a continuous period of two years cannot be established. The legislature has provided this buffer period as a cooling-off period so that couples can rethink and reconsider their decision before ending the holy matrimony.[8] The wife is entitled to claim maintenance who has been deserted by her husband but on the ground that the wife has deserted the husband, the wife is not entitled to claim maintenance under section 125 of CRPC.
Mutual desertion exists where both the parties are in desertion individually. In this case, if both the parties are made guilty of committing the act of desertion, then neither party can be given any kind of relief. Likewise in a case, the husband has filed for divorce after seven years of alleged desertion and never made any efforts to understand the problems of a working wife, whereas the wife was willing to live with her husband at her flat in the place of her service. In this case, the High Court stated that there is nothing like mutual desertion and one party has to be guilty[9].
HOW TO PROVE DESERTION ?
If the party relies upon this ground of divorce, then the difficulty to prove the intention of the other party lies with them. It is a burden of the petitioner to prove that the husband or wife has left without a good justifiable reason, without any agreement from the plaintiff, and has abandoned to end the relationship. Also, it has to be made sure that the question of desertion is a matter of Inference that has to be derived from the circumstances of the case and the 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 after the actual act of separation[10]. The court will also look into the details where the petitioner spouse has attempted to get in contact with the other party and it is an obligation to prove that the marital cessation was the intention of the respondent. Therefore like any other matrimonial offence, this offence of desertion has to be proved beyond all reasonable doubt.
The discretion of the court has to be exercised in determining whether the conduct of the petitioner had created any impact in changing the intention of the other party to live separately. Therefore the consent of the deserted spouse may be inferred by words or by behaviour and desertion has the potentiality to be a ground for divorce under Hindu law.
RESTITUTION OF CONJUGAL RIGHTS:
The legal definition is given under Section 9 of the Hindu marriage act, 1955[11]. If a spouse wants to live together to protect their marriage and to resume cohabitation, this remedy is available. Conjugal rights came up in personal law where it is a positive remedy that gives the deserted spouse a right to file a petition for restitution of conjugal rights. This remedy allows the spouses to live together. Resumption of cohabitation is available under Hindu law to preserve the marriage. However, in India, the Restitution of conjugal rights is sometimes used as a route to divorce and Adultery is the use of law to enforce a husband’s ownership over his wife.
[1] Pulford v. P ulford (1947) 1 All E.R . 32.
[2] Rajini v. Ram swar oop (1995) 2 Civ LJ 74 (All).
[3] Rajini v. Ram Swaroop (1995) 2 Civ LJ 74 (All).
[4] K. C .Sikroni v.Sarla Sikroni (1989) 2 HLR 356 (Raj). 10
[5] Gur Bachan Kaur v. Preetam Singh 1998 (1) AWC 275
[6] Bhargav Kumar Pranshankar Shukla v. Chhayaben Bhargavkumar Shukla[7](2002)
[7] Savitri Pandey v. Prem Chand Pandey 2002 SC 591
[8] P. M.Bromley, Family Law (5thedn., London: Butterworths, 1976) at 254
[9] Smt. Guru Bachan Kaur vs Preetam Singh 1998 (1) AWC 275
[10] Sanat Kumar Agarwal v. Smt. Nandini Agarwal reported in AIR 1990 SC 594.
[11] https://indiankanoon.org/doc/322349/
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