DESERTION AS A GROUND OF DIVORCE

Desertion as a ground of divorce is given under Section 13(1)(ib) of Hindu Marriage Act, 1955. According to this section the decree of divorce can be granted if one party has deserted the other party for a continuous period of not less than two years immediately preceding the presentation of the petition. According to Explanation ‘desertion’ means the desertion of petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of the party.

Desertion means withdrawing from matrimonial obligations. It is a negation of living together which is essence of any matrimonial relationship. It is total repudiation of marital obligations. Following are the essential requirements of desertion – 

1.     Factum of separation of one spouse from other.

2.     Animus deserendi, i.e., intention to desert permanently.

3.     The deserted spouse must not have agreed to the desertion.

4.     The desertion must be without reasonable cause.

5.     This state of affairs must have continued for at least two years.

To obtain divorce on this ground, it must be shown that the other party has deserted the petitioner for continuous period of not less than two years immediately preceding the presentation of petition without reasonable excuse or against the wish of petitioner. However, before granting the decree of divorce on this ground, the court must be fully satisfied that the respondent had animus deserendi i.e. intention to desert and for that purpose the circumstances and the purpose for which desertion has taken place shall be examined. In case of genuine cause, the animus deserendi would be missing.

In Bipin Chandra v. Prabhawati, AIR 1957 SC 173, the wife peacefully resided with her husband. He went to England for few months and in his absence, the wife developed intimacy with the old friend of husband. They exchanged letters which fell in the hands of father-in-law of wife. When her husband asked her about this, she didn’t answer and left for her parent’s house next day. Later the husband wrote her a letter to send the child. He refused to let his wife return back and later filed for divorce on ground of desertion. The Supreme Court held that even though the wife left matrimonial home without any cause, she will not be guilty of desertion if she subsequently shows an intention to return and is prevented from doing so by the petitioner. So, there was no ‘animus deserendi’ throughout the statutory period. The offence of desertion commences when factum of separation and animus deserendi co-exist. But it is not necessary that they should commence at the same time.

Desertion may be actual or constructive. Desertion is not withdrawal from a particular place, but it is withdrawal from a particular state of things i.e., cohabitation. It has been held by Supreme Court in Lachman Utamchand Kiriplani v. Meena alias Mota, AIR 1964 SC 40, that desertion may not always be a physical separation rather it may be in the form of virtual separation i.e. the spouses may be staying together but may not be fulfilling the conjugal obligation. If one spouse intentionally neglects another spouse then it will be case of constructive desertion even though they are living in same house.

Where the husband creates a condition in which the wife is compelled to leave his company and live separately, the wife will not be held guilty of desertion but the husband himself would be guilty of desertion. In Jyotish Chandra v. Meera, AIR 1970 Cal. 266, the wife and husband lived together but it was alleged by the wife that the husband was cold, indifferent and sexual abnormal or perverse. He used to return very late from the club and hardly spent time with her. He sent his wife for higher studies to England for three years and his behaviour did not change when she returned. She therefore started living separately. When her father tried to meddle between them, he misbehaved with him and beat her family members. The court held it to be a case of constructive desertion and husband was held guilty as deserter.

Author & Former Judge

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