DESERTION 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 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 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 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 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 two-in-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 :

(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 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