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INDEX

INTODUCTION
THEORIES OF DIVORCE
GROUNDS OF DIVORCE UNDER HINDU
MARRIAGE ACT
DESERTION AS A GROUND OF DIVORCE
FACTUM OF SEPERATION
BURDEN OF PROOF
DEFENCE TO DESERTION
TERMINATION OF DESERTION
CONCLUSION
BIBLIOGRAPHY
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INTRODUCTION
Marriage constitutes the terribly basis of social structure. Hindu law regards wedding as a sacrament-
indissoluble and eternal. This religious ceremony character of wedding has given rise to bound
anomalies. The declaration of Manu that neither by sale nor by desertion is married woman free from
the husband was applied solely to girls and not men. therefore there was part of inherent injustice on
the married woman in Hindu law. To counter such inequalities among spouses and to shield the
religious ceremony side of wedding, Hindu wedding Act, 1955 was enacted that provided bound
marital status remedies.

Marriage is an establishment within the maintenance of that the general public at giant is deeply
interested. it's the inspiration of the family and successively of the society while not that no
civilization will exist. a wedding solemnized, whether or not before or once the commencement of the
Hindu wedding Act, 1955 will solely be dissolved by a decree of divorce on any of the grounds
enumerated in Section thirteen of the Act.

The Hindu wedding Act, 1955 came into existence, eight years once the independence of the country.
Section thirteen of the Hindu wedding Act deals with the grounds on that the parties will get a decree
of divorce from a competent court having jurisdiction to entertain such petition. within the literal
sense "divorce" suggests that a legal separation of 2 persons of the other sex WHO want to respect
and honor one another.1

Theories of Divorce
There square measure primarily 3 theories for divorce-fault theory, mutual consent theory &
unrecoverable breakdown of wedding theory.

Under the Fault theory or the offences theory or the guilt theory, wedding is dissolved only either
party to the wedding has committed a married offence. it's necessary to own a guilty Associate in
Nursingd an innocent party, and solely innocent party will get the remedy of divorce. but the foremost
putting feature and disadvantage is that if each parties are guilty, there's no remedy accessible.

Another theory of divorce is that of mutual consent. The underlying principle is that since 2 persons
will marry by their discretion, they must even be allowed to maneuver out of their relationship of their
own discretion. but critics of this theory say that this approach can promote immorality because it can
result in hasty divorces and parties would dissolve their wedding even though there have been slight
incompatibility of temperament.

The third theory relates to the unrecoverable breakdown of wedding. The breakdown of wedding is
outlined as such failure within the married relationships or such circumstances adverse thereto
relation that no affordable likelihood remains for the spouses once more inhabitancy as husband
& better half. Such wedding ought to be dissolved with most fairness & minimum
bitterness, distress & humiliation2.

1 http://www.oxfordbibliographies.com/view/document/obo-9780199756384/obo-9780199756384-0031.xml

2 http://www.lawctopus.com/academike/divorce-under-hindu-law/
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Some of the grounds accessible underneath Hindu wedding Act is aforesaid to be underneath the idea
of frustration by reason of such as circumstances. These embody civil death, resignation of the globe
etc.

Grounds for Divorce Under Hindu Marriage Act

It is conceded all told jurisdictions that public policy, smart morals & the interests of society
need that married relation ought to be encircled with each safeguard and its severance be allowed
solely within the manner and for the cause given by law. Divorce isn't favored or inspired, and is
allowable just for grave reasons.

In the fashionable Hindu law, all the 3 theories of divorce ar recognized & divorce are often
obtained on the idea of anyone of them. The Hindu wedding Act, 1955 originally, based mostly
divorce on the fault theory, and enshrined 9 fault grounds in Section 13(1) on that either the husband
or partner might sue for divorce, and 2 fault grounds in section 13(2) on that partner alone might ask
for divorce. In 1964, by associate degree modification, bound clauses of Section 13(1) were amended
within the variety of Section 13(1A), so recognizing 2 grounds of breakdown of wedding. The 1976
modification Act inserted 2 extra fault grounds of divorce for partner & a brand new section 13B
for divorce by mutual consent.

The various grounds on which a decree of divorce can be obtained are as follows-

Adultery
While free love might not are recognized as a criminal offence altogether countries, the marital
offence of free love or the fault ground of free love is recognized in most. Even below the Shastric
Hindu law, wherever divorce had not been recognized, free love was condemned within the most
unequivocal terms. there's no clear definition of the marital offence of free love. In free love there
should be voluntary or accordant sexual issues between a spouse equivalent and another, whether
or not married or unwed, of the alternative sex, not being the others relative, throughout the
subsistence of wedding. Thus, intercourse with the previous or latter partner of a polygamous
wedding isn't free love. however if the second wedding is void, then sexual issues with the second
partner can quantity to free love.

Though ab initio a divorce may be granted given that such relative was living in free love, by the
wedding Laws modification Act, 1976, the current position below the Hindu wedding Act is that it
considers even the one act of free love enough for the decree of divorce[iii].

Since free love is Associate in Nursing offence against wedding, it's necessary to ascertain that at the
time of the act of free love the wedding was subsisting. Also, it follows that unless one volitionally
consents to the act, there is no free love. If the partner will establish that the co-respondent raped
her, then the husband wouldn't be entitled to divorce.3

In Swapna Ghose v. Sadanand Ghose[iv] the partner found her husband and also the loose woman to
be lying within the same bed at nighttime and any proof of the neighbors that the husband was
living with the loose woman as husband and partner is spare proof of free love. the very fact of the
matter is that direct proof of free love is incredibly rare.

3 http://www.legalserviceindia.com/helpline/grounds_for_divorce.html
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The offence of adultery may be proved by:

Circumstantial evidence
Contracting venereal disease

Cruelty

The thought of cruelty could be a dynamical thought. the trendy thought of cruelty includes each
mental and physical cruelty. Acts of cruelty ar activity manifestations stirred up by various factors
within the lifetime of spouses, and their surroundings and therefore; every case must be selected the
premise of its own set of facts. whereas physical cruelty is straightforward to see, it's troublesome to
mention what mental cruelty consists of. Perhaps, mental cruelty is lack of such marital status
kindness, that inflicts pain of such a degree and period that it adversely affects the health, mental or
bodily, of the better half on whom it's inflicted. In Pravin Mehta v. Inderjeet Mehta,[v] the court has
outlined mental cruelty as the state of mind.4

Some Instances of Cruelty are as follows-

false accusations of adultery or unchastity

demand of dowry
refusal to have marital intercourse/children
impotency
birth of child
drunkenness
threat to commit suicide
wifes writing false complaints to employer of the husband
incompatibility of temperament
irretrievable breakdown of marriage

The following do not amount to cruelty-

ordinary wear & tear of married life

wifes refusal to resign her job
desertion per se
outbursts of temper without rancor.

4 https://indiankanoon.org/search/?formInput=cruelty%20ground%20for%20divorce
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Conversion

In a country wherever laws governing wedding and divorce square measure a operate of spiritual
affiliation, conversion of 1 of the spouses produces legal complications. Conversion to a different
faith below stood| is thought} as apostasy under Muslim law, wherever it's a ground for divorce
.Conversion to a different faith could be a ground for divorce below section 13(1)(j) of the Hindu
wedding Act, 1955, and section 32(i) of the Parsi wedding and Divorce Act, 1936.

Conversion per se isn't a ground for divorce below the Indian Divorce Act, 1869. Husbands bigamy
and conversion could be a wifes ground of divorce below section 10(2) and not straightforward
conversion.

Under the Special wedding Act, 1954, the question of conversion as a spherical for divorce doesn't
arise because the Act stipulates for inter-religious marriages.5

Under Hindu law, someone doesn't lose his religion by mere renunciation of it; nor will he belong to a
different religion by simply avouchment it or active it. It appears that ancient Hindu law failed to give
for conversion of followers of different religions. solely the Arya Samajists, through the shudhi
ceremony, enable conversion. In a series of cases, culminating within the Peerumal v. Poonuswami,
it's been set down that an individual might also become a Hindu once expressing AN intention,
expressly or impliedly, he lives as a Hindu and community or caste, into the fold of that he's ushered
in, accepts him as its member. In such a case, one needs to inspect the intention and also the conduct
of the convert. underneath fashionable Hindu law, 2 propositions for the conversion of a non-Hindu to
a Hindu are established-

i) If he undergoes a proper ceremony prescribed by the community or caste he's changing to,

ii) If he expresses a authentic intention to become Hindu in the middle of conduct unambiguously
expressing the intention and acceptance of him as a member by the community or caste he's changing
to.

Also, the Hindu wedding Act, 1955, the subsequent 2 conditions ought to glad, so as to invoke
conversion as a ground for divorce [64] -

Respondent has ceased to be a Hindu

Respondent has regenerate to a different religion: This ground can solely be obtainable once the
respondent converts to a non-Hindu religion, i.e., not together with religion, Jainism, Buddhism etc.

According to the Dissolution of the Muslim wedding Act, 1939 -

i- The apostasy of the husband still leads to a moment dissolution of wedding.

ii- If a Muslim partner reconverts to a religion, that she originally belonged to, it still leads to a
moment dissolution of wedding.

iii- The apostasy of a Muslim partner doesn't lead to the dissolution of the wedding.

5 http://www.legalserviceindia.com/helpline/grounds_for_divorce.html
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Mere renunciation of Islam amounts to apostasy underneath Muslim law. thus will conversion to a
different faith. it's going to be categorical or inexplicit.

The Indian Divorce Act, 1869 permits a partner to divorce her husband if he has regenerate to a
different faith, and married another lady. however if the partner converts, the husband has no such
rights.

Insanity
Insanity as a ground of divorce has the following two requirements-

1. i) The respondent has been incurably of unsound mind

2. ii) The respondent has been suffering continuously or intermittently from mental disorder of
such a kind and to such an extent that the petitioner cannot reasonably be expected to live
with the respondent.

Leprosy
Leprosy is a ground for divorce under all the other Indian personal laws with the exception of the
Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936. Under Muslim law it is only
a wifes ground for divorce. Under the old Hindu law leprosy was a disqualification from inheritance.
Under the Hindu Marriage Act, 1955 leprosy has to be virulent and incurable , while under the
Special Marriage Act, 1954 the respondent must be suffering from leprosy which has not been
contracted from the petitioner . On the other hand, under the Dissolution of the Muslim Marriage Act,
1939 the only thing that needs to be shown is that the respondent is suffering from leprosy. 6

It appears to be odd that under the Special Marriage Act, 1954 leprosy of any type, whether virulent
or non-virulent and whether curable or incurable is a ground for divorce, just as it is under Muslim
law.

Venereal Diseases
Venereal disease may be a ground for divorce below the Hindu wedding Act, 1955 , the Special
wedding Act, 1954 , the Dissolution of the Muslim wedding Act, 1939 and also the religionist
wedding and Divorce Act, 1936 whereas on the opposite hand it's not thought of as a ground for
divorce or order below the Indian Divorce Act, 1869.

However, below the Dissolution of the Muslim wedding Act, 1939, the illness ought to be virulent.
below the religionist wedding and Divorce Act, 1936, needs infection of litigator by the litigator

6 highcourtchd.gov.in/hclscc/subpages/pdf
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Renunciation Of The World

Renunciation of the world" could be a ground for divorce solely below Hindu law, as renunciation of
the globe could be a typical Hindu notion. The lifetime of a Hindu is claimed to be ruled by the Hindu
deity varnashrama system. The ashramas square measure stages during a mans life on the thanks to
his final liberation. The sanyasa ashrama is that the last stage during a mans life, wherever he leads a
lifetime of total renunciation. although a section of Hindu faith, it's still been created a ground for
divorce, because the following of ones religion mustn't quantity to hardships for ones relative.
Now, fashionable written Hindu law lays down that a relative could get divorce if the opposite party
has renounced the globe and has entered a order.

Presumption Of Death
Under the Act, someone is probable to be dead, if he/she has not been detected of as existence for a
amount of a minimum of seven years. The burden of proof that the whereabouts of the respondent
don't seem to be illustrious for the requisite amount is on the petitioner beneath all the married laws.
this can be a presumption of universal acceptance because it aids proof in cases wherever it'd be very
tough if not not possible to prove that fact. A decree of divorce granted beneath this clause is valid
& effective notwithstanding it later transpires that the respondent was actually alive at the time
once the decree was passed.

Desertion

Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking
or abandonment of one spouse by the other without any reasonable cause and without the consent of
the other. It means a total repudiation of marital obligation.

The following 5 conditions must be present to constitute a desertion; they must co-exist to present a
ground for divorce:

the factum of separation

animus deserdendi (intention to desert)
desertion without any reasonable cause
desertion without consent of other party
statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati the Supreme Court held that where the respondent leaves the
matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently he
shows an inclination to return & is prevented from doing so by the petitioner.7

7 https://indiankanoon.org/search/?formInput=divorce%20on%20the%20ground%20of%20desertion
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Wifes Special Grounds For Divorce

Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce
under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

Pre-Act Polygamous Marriage

This clause states the bottom for divorce as, That the husband has another woman from before the
commencement of the Act, alive at the time of the celebration of the wedding of the petitioner. as an
example, the case of Venkatame v. Patil wherever a person had 2 wives, one among whom sued for
divorce, and whereas the petition was unfinished, he single the second woman. He then averred that
since he was left solely with one woman, and therefore the petition ought to be fired. The Court
rejected the plea.

Such a ground is on the market if each the marriages square measure valid marriages & the
opposite woman (2nd wife) ought to be gift at the time of filing of the petition. However, nowadays
this ground is not any a lot of of sensible importance.

Rape, Sodomy Or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since the solemnization of
the marriage, been guilty of rape, sodomy or bestiality.

Non-Resumption Of Cohabitation After A Decree/Order Of

Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973 or a
decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not been
resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.

Repudiation Of Marriage

This provision provides a ground for divorce to the spouse once the wedding was solemnized before
she earned the age of fifteen years, and he or she has disowned the wedding, however before the age
of eighteen. Such repudiation could also be categorical (written or spoken words) or could also be
implicit from the conduct of the spouse (left husband & refused to return back). Moreover, this
right (added by the 1976 amendment) has solely a retrospective impact i.e. it are often invoked no
matter the very fact that the wedding was solemnized before or once such amendments.
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Irretrievable Breakdown Of Marriage

Irrespective of the 3 remedies offered to parties that is: restitution of legal right, edict and divorce,
the judiciary in Asian nation is hard to please unretrievable breakdown of wedding as a special
ground for divorce, as typically courts face some difficulties in granting the decree of divorce thanks
to a number of the technical loopholes within the existing theories of divorce. each the Supreme
Court and Law Committee take into account the implementation of such a theory as a boon to
parties WHO for one or the opposite reasons area unit unable to hunt the decree of divorce. so
within the opinion of the Supreme Court and Law Commission of Asian nation, it's terribly essential
to form it a special and separate ground mission that introduction of unretrievable breakdown of
wedding, as a special ground can do any public smart.

Under Hindu wedding Act, 1955 primarily there area unit 3 theories underneath that divorce is
granted:

(i) Guilt theory or Fault theory,

(ii) Consent theory,

(iii) Supervening circumstances theory.

The unretrievable breakdown theory of divorce is that the fourth and therefore the most disputable
theory in legal jurisprudence, supported the principle that wedding may be a union of 2 persons
supported love feeling and respect for every different. If any of those is hampered thanks to any
reason and if the marital relation between the spouses reaches to such an extent from wherever it
becomes fully irreparable, that's a degree wherever neither of the mate will live peacefully with one
another and acquire the advantages of a marital relations, than it's higher to dissolve the wedding as
currently there's no purpose of stretching such a dead relationship, that exist solely in name only and
not in reality.

The breakdown of relationship is likely actual. the actual fact that parties to wedding live one by one
for fairly longer amount of your time (say 2 or 3 years), with any affordable cause (like cruelty,
adultery, desertion) or perhaps with none affordable cause (which shows the disposition of the parties
or perhaps of 1 of the party to measure together) and everyone their makes an attempt to reunite
unsuccessful, it'll be likely by law that relationship is dead currently.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli has counseled AN change to the Hindu
wedding Act, whereby either mate will cite unretrievable breakdown of wedding as a reason to hunt
divorce. Expressing the priority that divorce couldn't be granted in range of cases wherever marriages
were nearly dead thanks to the absence of the availability of unretrievable breakdown, the court
powerfully advocated incorporating this idea within the law visible of the modification of
circumstances.8

The Court discovered that public interest demands that the married standing ought to, as way as
attainable, as long as attainable and whenever attainable, be maintained. However, wherever a
wedding has been destroyed on the far side any hope of being repaired, public interest needs the
popularity of the actual fact. The judgment notes that there's no acceptable method during which a
mate will be compelled to resume life with the consort which things inflicting misery mustn't be
allowed to continue indefinitely as law encompasses a responsibility to adequately reply to the wants

8 http://www.legalserviceindia.com/articles/break_mar.htm
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of the society. The profound reasoning is that in things once there's fully no probability to measure
once more collectively or once it's on the far side repair, in such a case it'd be futile to stay the
matrimonial tie alive. Here the bottom of unretrievable breakdown is admittedly required. however it
mustn't be oblivious that the bottom, once introduced, has to offer safeguards to make sure that no
party is exploited.

DESERTION AS A GROUND OF DIVORCE

In rationalization to sub-section (1) of Section thirteen, Hindu wedding Act, Parliament has therefore
explained desertion: The expression desertion suggests that the desertion of the petitioner by the
opposite party to the wedding while not cheap cause and while not the consent or against the would
like of such party, and includes the delinquency of the petitioner by the opposite party to wedding,
and its grammatical variations and cognate expressions shall be construed consequently. In its
essence desertion suggests that the intentional permanent forsaking and abandonment of 1 spouse
equivalent by the opposite while not that others consent and cheap cause. it's a complete repudiation
on the obligations of the wedding.

For the offence of desertion, to date because the deserting spouse equivalent is bothered, 2 essential
conditions ar required: (1) the factum of separation, associate degreed (2) the intention to bring
inhabitation for good to an finish (animus deserendi). In actual desertion, it's necessary that
respondent should have abandoned or abandoned the married home. Suppose, a spouse equivalent a
day, whereas he goes to bed resolves to abandon the married home successive day however continues
to remain there, he had shaped the intention however that intention has not been translated to action.
He can not be aforesaid to possess deserted the opposite spouse equivalent. On the opposite hand, if a
spouse equivalent leaves the married home for studies or business and goes to a different place for a
few amount, with the clear intention that, when completion of studies or work he would come back
home however isn't ready to come back as a result of ill health or alternative work. during this case
the factum of separation is there however, however his intention to abandon is lacking, so this may
not represent desertion.

Similarly, 2 parts ar essential to date because the deserted spouse equivalent in concerned: (1) the
absence of the consent, and (2) absence of conduct giving cheap cause to the spouse equivalent feat
the married home to make the mandatory intention . If one party leaves the married home with the
consent of the opposite party, he or she isn't guilty of desertion. as an example, if husband leaves his
adult female to her parents house, it's not desertion as husbands consent is gift. Again, a pregnant
adult female UN agency goes to her fathers place for delivery while not the consent of the husband
can not be treated in desertion. Desertion may be a matter of logical thinking to be drawn from the
facts and circumstances of every case. The offence of desertion commences once the actual fact of
separation and therefore the hostility deserendi co-exist. however it's not necessary that each ought to
begin at constant time. The actual separation could have commenced while not the mandatory
hostility or it should be that the separation and therefore the hostility deserendi coincide in purpose of
your time.. but it's not necessary that the intention should precede the factum. as an example, a
husband goes abroad for studies, at the start he's contact with adult female however slowly he ceases
that contact. He develops attachment with another girl and decides to not come back. From this point
onward each factum and hostility co-exist and he becomes a deserter. A mere separation while not
necessary hostility doesn't represent desertion.each factum of physical separation and hostility
deserendi should be verified. it's conjointly necessary that there should be a determination to associate
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degree finish to marital status relation and inhabitation. there's nothing like mutual desertion beneath
the Act. One party needs to be guilty.9

Desertion means to abandon, leave or run # away. Deserted women are a group of women who have
been abandoned or left out by their husbands after marriage without any time limitation. The period of
marital life among the deserted women varies from a few days to many years. The reasons for
desertion are many. However, the most important reason for desertion of women irrespective of their
socio-economic, religious, and cultural status are the extramarital relationship or bigamy of husbands.
Moreover, demand of excess dowry after marriage and ill treatment of wives without any reason also
leads to desertion.

This study being on desertion of married women, it is important to highlight the laws related to
desertion. The following pages discuss the laws related to the desertion discussed by Sagar Chand
Jain in his book, The Law Relating to Marriage and Divorce ( 1986.)

Desertion means the intentional permanent forsaking and abandonment of one spouse by the other
without the other's consent and without reasonable cause. It is a total repudiation of the obligation of
marriage. In view of the large variety of circumstances and modes of life involved, the courts have
discouraged attempts at defining desertion, there being no general principle to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to
enforce as the recognition and discharge of the common obligations of the married state, the state
of things may usually be termed, for short, the home. There can be desertion without previous
cohabitation by the parties, or without the marriage having been consummated. The person who
actually withdraws from cohabitation is not necessarily the deserting party. The fact that a
husband makes an allowance to a wife whom he has abandoned is no answer to a charge of
desertion. The offence of desertion is a course of conduct which exists independently of its
duration, but as a ground for divorce it must exist for a period of at least two years immediately
preceding the presentation of the petition or where the offence appears as a cross-charge of the
answer. Desertion as a ground of divorce differs from the statutory ground of adultery and cruelty
in that the offence founding the cause of action of desertion is not complete, but is inchoate, until
the suit is instituted. Desertion is a continuing offence.

For the offence of desertion, so far as the deserting spouse is concerned, two essential
conditions must be there, namely: (i) factum of separation, and (ii) the intention to bring
cohabitation permanently to an end (animus deserendi). Similarly two elements are essential
so far as the deserted spouse is concerned: (i) the absence of consent, and (ii) absence of conduct
giving reasonable cause to the spouse leaving the matrimonial home to form the necessary
intention aforesaid. Desertion is a matter of inference to be drawn from the facts and

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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 interior 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 or it may be that the
separation and the animus deserendi coincide the point of time; for example, when the separating
spouse abandons the matrimonial home with the intention, expressed or implied, of bringing
cohabitation permanently to a close.

Factum of Separation

One of the essential ingredients of desertion is separation of one spouse from another and there
can be no desertion while the parties are living together. In certain cases there may be
desertion, although husband and wife are living in the same house, if there is such a forsaking
and abandonment by one spouse of the other that the court can say that the spouse had ceased
to be one household and become two households. Desertion as a ground of divorce differs
from the statutory grounds of adultery and remains inchoate, until the presentation of the
petition, however long might have been the period of previous desertion. To compute the
statutory period of 2 years separation, it is not permissible, if the period is broken, to add the
broken periods together so as to make a sum of two years.

Even living together of spouses for a very short period as husband and wife, during two
years preceding the presentation of a petition of divorce on the ground of desertion, defeats
the petition. The separation of two years should be continuous and uninterrupted.

Two years of desertion must be immediately preceding the presentation of the petition. A
petition filed before the expiry of this statutory period has to be dismissed as premature. If the
wife lives with the husband for one or two nights in pursuance of the order of the court in
reconciliation proceedings or in pursuance or warrants under section 97 Code of Criminal
Procedure, it does not wipe out the earlier desertion by the husband.10

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Intention to bring cohabitation permanently to an end

(animus deserendi)
The question of desertion cannot be decided by merely enquiring which party left the
matrimonial home. The husband may well live in the place but make it absolutely impossible for
the wife to live there and if in that state of things the wife leaves the matrimonial home, it can
legitimately be held that it is the husband that has deserted the wife and not the other way round.
In case a spouse is forced by the conduct on the other to live separately or to stay away, desertion
would not be attributed to the spouse who lives separately or stays away for the simple reason
that the said situation has been brought about by the act of the person who was guilty of
misconduct.

Desertion must be a voluntary act by the other party. If the husband throws out the wife and
closes the door of his house to her, in no way does it imply that wife has deserted her
husband.

In dealing with human relation one has to keep in view the fact that social position of an
abandoned woman is quite inferior in Indian society. Moreover, the wife does not ordinarily
abandon the husband. Young girls seldom leave the society of the husband unless forced to
do so. All the ingredients of desertion should be proved.
In order to establish desertion, the petitioner must show that the separation of the respondent
is against the wishes and without the consent of the petitioner. A separation, however long
with consent or acquiescence of the petitioner, cannot constitute desertion for the purpose of
a decree for divorce, or judicial separation. The conduct of the parties may be looked at to
find out if the opposite party has actually withdrawn from cohabitation and if so, the
inference of desertion may be properly drawn. It is necessary for the husband to make offer to
his wife to resume marital life. If wife unreasonably refuses to accept offer of husband, court
can infer animus deserendi on her part.

If the husband is less educated than wife and is earning less than her, she may have
superiority complex and give rise to conditions of cruelty and possibility of deserting him,
although it is not true in each and every case. The withdrawal from the society of the husband
may be real or physical but without any intention to shun his company, in that case she cannot be
held guilty of desertion.

A husband or a wife cannot claim divorce or judicial separation if desertion is by him or her even
if a marriage has irretrievably broken down. No relief can be given to such a party as nobody can
take the benefit of his or her own wrongs. Such relief is available in England where the theory of
'No Faculty, Divorce' is prevalent under Divorce ReformsAct, 1969.
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This is very unfortunate that our matrimonial law is based on doctrine of matrimonial offence and
divorce is for a real matrimonial wrong. There is no provision in the Hindu marriage Act, that a
marriage which is broken down irretrievably should be dissolved.

Examples of desertion
1.The husband left his wife at her parents house for 7 to 8 years uncared; his conduct amounted to

desertion.

2 Party taking unreasonable attitude resulting in separation is guilty of desertion.

3.The wife left the matrimonial home for paucity of accommodation and the husband refused to live
separately from the members of his family due to meager income. The act of wife amounted to
desertion.

4.Wife not intending to live with husband on any condition.

5 Wife took no step to disprove charge of desertion.

6 Husband filing application for restitution of conjugal rights and wife filing for judicial separation on the
ground of cruelty constitute desertion.

7 Notice issued by wife to the husband expressing her intention not to return to the matrimonial home
constitutes desertion commencing from the date of notice.

8 The wife became a Brahma Kumari and declined to perform her marital obligation.

Burden of proof
In case of desertion, the burden of proof lies upon the petitioner. The petitioner is required to prove
the four essential conditions namely, (1) the factum of separation; (2) animus deserendi; (3) absence
of his or her consent (4) absence of his/her conduct giving reasonable cause to the deserting spouse to
leave the matrimonial home. The offence of desertion must be proved must be proved beyond any
reasonable doubt and a rule of prudence the evidence of the petitioner shall be corroborated. In short
the proof required in a matrimonial case is to be equated to that in a criminal case

Constructive desertion
Where a situation or circumstances are created either by actual use of force or by the conduct of one
spouse that the other spouse is compelled to leave the matrimonial home, it constitutes constructive
desertion of the creator of the situation or circumstances. It is not necessary for the husband in order
to desert his wife to actually turn his wife out of doors; it is sufficient if by his conduct he compelled
her to leave the house. It is now well settled that the matrimonial court has to look at the entire
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conspectus of the family life and if one side by his or her words or conduct compels the other side to
leave the matrimonial home, the former would be guilty of desertion, though it is the latter who is
seemingly separated from the other. But where the husband does not take any steps to effect
reconciliation, he is not guilty of constructive desertion.
The ingredients of both actual and constructive desertion are the same: both the elements, factum and
animus must co-exist, in former there is actual abandonment and in the latter, there is expulsive
conduct. Under constructive desertion, the deserting spouse may continue to stay in the matrimonial
home under the same roof or even in the same bedroom. In our country, in many homes husband
would be guilty of expulsive conduct towards his wife to the extent of completely neglecting her,
denying her all marital rights, but still the wife because of social and economic conditions, may
continue to live in the same house.

Willful neglect
It connotes a degree of neglect, which is shown by an abstention from an obvious duty, attended by
knowledge of the likely result of the abstention. However, failure to discharge, or omission to
discharge, every material obligation will not amount to willful neglect. Failure to fulfill basic marital
obligations, such as denial of company or denial of marital intercourse, or denial to prove
maintenance will amount to willful neglect.

Without the consent

If one party leaves the matrimonial home with the consent of the other party, he or she is not guilty of
desertion. When the parties are living apart from each other under a separation agreement, or by
mutual consent, it is a clear consent of living away with the consent of the other.[44] Wife when
living away from the husband, husband sends a telegram must not send wife to wifes father
expressed his wish to live separate.

Desertion must be for a continuous period of two years

To constitute a ground for judicial separation or divorce, desertion must be for the entire statutory
period of two years, preceding the date of presentation of the petition. Desertion is an continuing
offence; it is an inchoate offence. This means that once desertion begins it continues day after day till
it is brought to an end by the act or the conduct of the deserting party. It is not complete even if the
period of two years is complete. It becomes complete only when the deserted spouse files a petition
for a matrimonial relief. Wifes act of withdrawing jewellary from the locker and remaining away
from her husband for two years clearly proved her desertion.

Offer to return

If a deserting party spouse genuinely desires to return to his or her partner, that partner cannot in law
refuse to reinstate him or her. An offer to resume cohabitation must be genuine or bona fide for which
two elements must be present. First, an offer to return permanently, if accepted, must be implemented;
secondly, it must contain an assurance as to the termination of the conduct by the deserting party
which caused the separation. A refusal to such an offer would convert the deserted party to the
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deserting party. The offer to return to resume married life by the deserting spouse before the expiry of
the statutory period of desertion must not be stratagem. The deserting spouse must be ready and
anxious to resume married life.

Defences to desertion

The following are the main defences to desertion:-

1. Agreement to separation does not amount to separation. But such agreement may be changed to
desertion without resumption of cohabitation. Separation in such cases loses its consensual element.

2. There may be animus deserendi without a separation.

3. Physical inability to end desertion, such as imprisonment.

4. Absence of just cause of separation.
5. Absence of animus deserendi.

Termination of desertion

Desertion is a continuing offence. This character and quality of desertion makes it possible to bring
the state of desertion to an end by some act or conduct on the part of deserting spouse. It may be
emphasized that the state of desertion may be put to an end not merely before the statutory period has
run out, but also at any time, before the presentation of the petition.
Desertion may come to an end by the following ways:

(a) Resumption of cohabitation.

(b) Resumption of marital intercourse.

(c) Supervening animus revertendi, or offer of reconciliation.

Resumption of cohabitation if parties resume cohabitation, at any time before the presentation of the
petition, the desertion comes to an end. Resumption of cohabitation must be by mutual consent of
both parties and it should imply complete reconciliation. The desertion ends only when the deserting
parties goes to the matrimonial home mentally prepared to end the cohabitation. It is necessary to
prove that marital intercourse was also resumed.

Resumption of marital intercourse Resumption of marital intercourse is an important aspect of

resumption of cohabitation. Sometimes resumption of marital intercourse may terminate desertion. If
resumption of marital intercourse was a step towards the resumption of cohabitation, it will terminate
desertion even if the deserted spouse backs out.

Supervening animus revertendi if the party in desertion expresses an intention to return, this would
amount to termination of desertion. Animus revertendi means intention to return. Desertion may be
brought to an end by the deserting spouses genuine and bonafide offer of reconciliation. It should not
be just to forestall or defeat the impending judicial proceedings.
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Conclusion
In recent times, to ensure that divorce is granted the petitioner combines the charges of adultery and
desertion. However, courts have held that if adultery is not proved the petition under desertion falls
too. There has been no room provided for spouses who genuinely believe that the other has been
adulterous and leave the matrimonial home. Desertion itself is not cruelty however it is difficult to
draw a line between them, especially for constructive desertion. The contradictory pleas of cruelty and
desertion always fail as there is a necessity to prove both of them separately.
Due to the patriarchal nature of Indian society, the courts have held that if a woman is working
elsewhere, she is not fulfilling her marital obligations resulting in desertion. In addition, the deserted
woman has a right to maintenance but no right to a separate residence in todays day and age of
perceived equality and social justice, to force a woman to resign her job merely because she is living
away from her husband would result in cutting off her source of independence and subjecting her to
beliefs that continue to confine women to patriarchal ideals. There also is a need to duplicate the
English stand of deserted woman equity which recognizes a deserted womans right to reside in the
matrimonial home because of her right to the consortium and the husbands reciprocal duty to
maintain her.

In conclusion, it can be said that desertion might be considered a fault-based ground for divorce, but
there are ways that the guilty spouse can maneuver around the law and deny justice to the deserted
spouse. There are two probable solutions to this problem: either to adopt a new legislation which
tackles these opportunities of misuse or move towards the concept of irretrievable breakdown of
marriage to provide no necessity for the deserting spouse to abuse the legal provision of desertion
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BIBLIOGRAPHY

Desai S.A., Mulla Hindu Law, 19thedition (2005), Vol-2Lexis-

Nexis, New Delhi,

Diwan Paras, Dr. Paras diwan on Hindu Law,

2ndedition(2002) Orient PublishingCompany, New Delhi,

Kusum, family Law Lectures Family Law-I, 2ndedition

(2007) Lexis-Nexis, NewDelhi,

Mayne, Hindu Law & Usage, 15thedition (2003) Bharat Law

House , New Delhi
http://indian-laws.blogspot.in/2011/12/desertion-under-hindu-
marriage-act-1955.html
https://sites.google.com/site/sarinadvocate/family-court/hindu-
marriage-act-1955/desertion-as-a-ground-for-divorce
http://www.lawctopus.com/academike/divorce-under-hindu-
law/
https://www.scribd.com/doc/9411637/DIVORCE-UNDER-
HINDU-MARRIAGE-ACT-1955
http://www.lawteacher.net/free-law-essays/family-law/family-
law-research-paper-divorce-law-essays.php
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