Desertion as a ground for Divorce

Marriage has been an institution in which the society mandates as a pre-requisite for stabilizing family relations and maintaining a civilized society. Article 16 of the Universal Declaration of Human Rights, 1948 recognizes the right to marry and to have a family. The Constitution of our country under the category of Article 21 recognizes the right of privacy of a person to marry, have children, and live life without any interference. Desertion as a ground for divorce is discussed below.

Each person has their own attributes and character which develops due to their circumstances and their inherent values. When two people of different background and character get married, there is no mandate as to how their life will turn out. If at some point in their life, when either of the partner or if both of them feels that they can no longer continue in the marriage, they can resort to get legally separated.

The term ‘divorce’ comes from the word ‘divortium’ which means to turn aside, to separate. It is the legal cessation of a matrimonial bond. J.Duncan in his book[1] remarks that ‘Divorce was introduced into Hindu Law for the protection of helpless women when they were ill-treated. It was never Parliament’s intention to give husbands matrimonial variety at their option so long as they retain a pleader’.

Statutory Provisions of Desertion

  1. Section 13 of Hindu Marriage Act, 1955

Desertion is defined by the Halsbury’s Law of India as a ‘total repudiation of the obligation of marriage’. In Savitri Pandey v. Prem Chandra Pandey[2], the Apex court remarked that desertion for the purpose of seeking divorce under the Hindu Marriage Act, 1955 means the intentional permanent forsaking and abandonment of one spouse by the other without the other’s consent and without reasonable cause. It is not the withdrawal from a place, but from a state of things.

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Desertion is one of the grounds for seeking divorce and judicial separation under the Hindu Marriages Act, 1955. Before the amendment in 1976, desertion was only a ground for judicial separation, but after the amendment it is a ground for both divorce and judicial separation. In Bipinchandra Jai Singhbai Shah v. Prabhavati[3], the court explained that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation will amount to desertion.

  • Special Marriage Act, 1954

Section 27 of the Special Marriage Act, 1954 enumerates desertion as a ground for divorce and judicial separation.[4]

  • Indian Divorce Act,1869

Indian Divorce Act, 1869 which governs the legal cessation of marriage among Christians, defines in Section 3(9) of the Act as abandonment against the wish of the person charging it Section 10 of the Act recognises desertion as a ground for dissolution of marriage.

  • Parsi Marriage and Divorce Act,1936

Section 34 of the Act recognises desertion as a ground for divorce and judicial separation.

Ingredients of Desertion

A petition for divorce on the ground of desertion will be allowed if following elements are present:

  1. Factum of desertion by the deserting spouse.
  2. Animus Deserendi or intention to end cohabitation permanently.
  3. Absent of consent to such separation by the deserted spouse.
  4. There is no reasonable reason for the deserting spouse to bring the cohabitation to an end.
  5. In most of the Statutory provision only after two years of continuous desertion will the deserted spouse can claim desertion as ground for divorce.
  6. The deserting spouse can come back within the 2 years and put an end to desertion and the deserted spouse will not be able to claim it as a ground for divorce.
  7. If on the event of coming back of the deserting spouse, the deserted spouse refuses to cohabit the former will be considered to be deserted by the latter.
  8. Desertion can only be claimed when the fact of separation and animus deserendi co-exist[5].
  9. The party leaving the matrimonial house need not necessarily be the one who deserts the other. It is often the other party who creates situations compelling the other spouse to leave the house. In these cases, the party who creates such situation will be guilty of desertion [6].This concept is known as constructive desertion.
  10. In matrimonial cases, desertion can be proved while living under the same roof and physical separation is not mandatory. It may not be unlikely that the parties are living in the same house, and yet one might have deserted the other, and conversely, they may be living physically separate and yet not in desertion[7].
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Termination of Desertion

Desertion can come to an end:

  1. If the deserting spouse returns before the period of two years.
  2. If the matrimonial bond is resumed.
  3. When the intention of animus deserendi supervenes and there is reconciliation among the spouses.

There cannot be hard and fast rules stating that only on these circumstances a petition for desertion shall be allowed, as each matrimonial dispute is different from one another based on their facts. It is upon the court to allow petitions of divorce on the ground of desertion examining the facts of the case and by interpreting them in accordance with the statutory provisions.

Also read Ceremonies and Their Rigidity in a Hindu Marriage

[1] J. Duncan M. Derett.’A Critique of Modern Hindu Law’,(1970) at 329

[2] (2002) 2 S.C.C. 73

[3]A.I.R 1957 S.C.176(India)

[4] Section 23 of the Special Marriage Act,1954

[5] Devi Singh v. Sushila,

  A.I.R 1980 Raj 48.

[6]Rishi Raj Arora v. Chander Kanta,

 (1985) 2 D.M.C. 28(Del)

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