DESERTION AS A GROUND OF DIVORCE: LAW ENUNCIATED

DESERTION as a ground of divorce: Law enunciated

The Section 13 (1) (ib) of The Hindu Marriage Act (HMA) 1955 Act provides for grant of divorce on the ground of desertion for a continuous period of not less than two year immediately preceding the presentation of the petition. As per the provision a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. It is worth mentioning here that “desertion”, as a ground for divorce, was inserted to Section 13 of the HMA in 1976. Earlier, it was only a ground for judicial separation.

The very concept of desertion finds apt and holistic mention in a matter reported as Savitri Pandey Vs Prem Chandra Pandey (2002) 2 SCC 73. The Supreme Court has held that:-

""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….”

The concept of desertion has evolved all the while and now "desertion" may be defined as intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. The “desertion” is included as one of the grounds for the purpose of seeking divorce under the Hindu Marriage Act 1955. What therefore implies is that in order to attract the ground of desertion, there has to be a permanent forsaking or abandonment of one spouse by other and that is without the consent of other spouse. The other pre-requisite is that it should be intentional. Thus, it is a total repudiation of the obligations of marriage.

Dealing with the concept further, “desertion”, 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.

A mere withdrawal from a place may not tantamount to desertion, but it should be a withdrawal from a state of things. Thus, it is a composite act and a continuous course of conduct and that cannot be ascertained by way of any straitjacket formula, but by virtue of facts and circumstances of each case. The earliest judicial references in this regard comes from Supreme Court in Bipin chandra Jaisingh Bhai Shah v. Prabhavati [AIR 1957 SC 176]. It is held:

"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 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…”

It is clear that the offence of desertion commences when the fact of separation and the animus deserendi co-exist. However, it is not necessary that they should commence at the same time. There may be instance where the de facto separation may have commenced, but in that point in time there may have been no animus. It is quite probable that the separation and the animus deserendi coincide in point of time. 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. The court may also seek corroborative evidence in this context, however, seeking corroboration is not required as an absolute rule of law. Moreover, if there are causes which shows that absence of corroborative evidence is accounted for, the same also could be considered by the court.

What is equally important is that if a spouse abandons the other in a state of temporary passions eg. anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.

"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 a host of authorities and the views of various authors, the Supreme Court in Bipinchandra Jaisinghbai Shah v. Prabhavati has held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion."

In Bebananda Tamuli Vs Smt Kaumoni kataky Civil appeal 1339/2022, the Supreme Court, by referring to and relying upon Lachman Utamchand Kripalani Vs Meena @ Mota (1964) 4 SCR 331 has held that:

“The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home….”

If one takes the law of desertion in perspective, then following judgments are also worth mentioning.

(i)              Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558,

(ii)            Sanghamitra Ghosh vs. Kajal Kumar Ghosh (2007) 2 SCC 220 

(iii)            Samar   Ghosh   vs.   Jaya Ghosh  (2007) 4 SCC 511 

The broad contour of the aforesaid judgment revolves around the fact that if a long period of continuous separation are established and the marriage becomes a fiction, it   would   be appropriate to dissolve such marriage.

The aforesaid discussion, therefore, leads to an inference that in order to succeed for a decree of divorce on the ground of desertion, aggrieved spouse should establish (i) animus of desertion & (ii) act of desertion & (iii) permanent abandonment i.e continuous period of desertion for long duration. Though, in this context corroborative evidence may not be required, still, courts may also go into corroborative evidence, in order to come to a just conclusion. It is an absolute principle that a decree of divorce cannot be passed in an ordinary course, rather after meticulously analyzing facts and circumstances of each case and by weighing the principles and evidence adequately. It is necessary, since, dissolution of marriage shall lead to permanent closure of relationship between the spouse and have its fallout on a family and society as a whole.

                                  --------

Anil K Khaware

Founder & Senior associate

Societylawandjustice.com