UNIVERSITY OF PTROLEUM AND ENERGY STUDIES

DESERTION

Submitted To Dr. T.N.Prasad

Submitted By Manish Pathak R230208033 B.A. LL.B-IIIrd ±Sem C.O.L.S

Hindu Marriage Act desertion is explained. Savitri Pandey v. The term "Deserted woman" means a woman who has been deserted by her husband or a woman whose husband does not want to continue as a life partner with her. "his abandonment of his wife and children left them penniless´. This µrunning away¶ may be in the sense that he actually leaves the matrimonial home permanently or it may be that he continues to live in the matrimonial home but refuses to fulfill. wikipedia. and no one except the woman who is being deserted by her husband can better understand the pain hidden behind this social evil. This is what we mean when we say that desertion is ³a withdrawal not from the place but from the state of things´.Desertion INTRODUCTION Under Section 13(1). the term deserted women had not been defined. 1955. Prem Chand Pandey. To constitute desertion.org/wiki/Desertion . if applied to matrimonial law. willful desertion is a legal cause for divorce2. Without previous cohabitation there cannot be any desertion1. The meaning of the term is indeed very painful. The word ³PARITYAKTA´ found its mention in the Hindu Marriage Act for the first time. there is a need to define the term in the terms of both social and legal aspect. with intent not to resume relations. and without the consent or wrongful conduct of the other. his matrimonial obligations. In the law of domestic relations. Before coming into existence of Hindu Marriage Act. abandonment or renunciation of marital relations and obligations by either spouse. a spouse is in desertion if he µruns away¶ from the performance of his marital obligations. In most of the US. By analogy. The expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party. previous cohabitation by parties is must. and includes the willful neglect of the petitioner by the other party to the marriage. But the term deserted women has not been well defined from the social point of view. Desertion is a total repudiation of the obligations of marriage. The act of abandoning. MEANING OF DESERTED WOMEN For the accurate definition of Deserted Women. Desertion: withdrawing support or help despite allegiance or responsibility. 2002 SC 591 2. 1. particularly leaving one's spouse and/or children without intent to return. or abandons. desertion is not merely an act but includes conduct.

Kinds of Desertion Desertion under the Hindu Marriage Act falls under following categories: a) Actual desertion. Actual Desertion ± the following are the essential constituent elements of desertion: 1. 4. In Uttarakhand a woman whose company has been left by her husband without divorcing her neither comes neither in the category of divorced women nor in the category of widow. 1957 SC 176.e.. 1972 SC 459. i. Bipin Chandra V. property. for the success of the petition on the grounds of the desertion it is incumbent on the part of the petitioner to prove all the five elements. to live on the mercy of their parents and brothers. The word deserted woman can be said to be having a wide meaning. to bring up their children in hard conditions. Mostly these Deserted women though married are made to lead the life of widow. Not getting maintenance from the husband. 3. the deserting spouse must have left the other party with an intention to forsake or abandon him or her permanently. deserted women is deprived of the basic amenities. b) Constructive Desertion. The women who are the victims of this social evil have to work hard. and c) Willful neglect. .4 apply to the deserted spouse. Elements Nos. he or she must not have given his or consent or provided a reasonable cause of desertion. and The statutory period of two year must have run out before a petition is presented..1 & 2: Factum of separation and intention to desert- 3.3 The last element is statutory requirement of the period before expiry of which a petition is not maintainable. The factum of separation.e.Prabhawati. The elements No. 5. Animus deserdendi (intention to desert). deprived of social. Thus. The first two elements apply to the deserting part. economical and legal rights and whose company has been left by her husband by throwing her out of her matrimonial house without giving her any land.The word deserted woman finds its origin from Sanskrit Language where it is used to represent a woman who is poor. Rohani Narendra. Desertion without the consent of the other party. 2. i.3 and No. But all of them are not always fortunate enough to live on the mercy of their parents or brothers. or any maintenance and who was compelled to live either in her parental house or all alone. Desertion should be without any reasonable cause.

Wife was not prepared to lead conjugal life with husband. Parties were living separately for almost 14 years. from cohabitation. It was held in Savitri Pandey V. Willful neglect. He cannot be said to have deserted to other spouse. despite the fact that he continues to live o=in a matrimonial home . attended by knowledge of the likely result of the abstention. though it is the latter who is physically6 separated from other. Failure to fulfill basic marital obligations.7 Divorce on ground of desertion allowedWife had deserted husband after seven months of marriage. Suppose a spouse every day. However failure to discharge or omission to discharge. With a view to put a quietus to litigation inter se and bitterness between the parties.Prem Chand Pandey that desertion means withdrawing from matrimonial obligations and not withdrawal from the place if a party withdraws from the cohabitation. but failed. then the spouse who compelled the other party to leave the matrimonial home is deserter and not the spouse who left the matrimonial home. It is clear that he formed an intention to desert. In Lang V. i. Lang. Premlata.4 Constructive Desertion. but day after day he continues to live in matrimonial home. There it has been said that an act of omission done by accident of inadvertence is not willful. decree of divorce on the ground of desertion could be granted. absolutely necessary that to be willful. while he goes to bad. Good part of life of both the parties was consumed in this litigation. the former will be guilty of desertion. 5 the House of Lords said that if one spouse by his words and conduct compels the other spouse to leaves the marital home. every marital obligation will not amount to willful neglect.8 4. It was shown by record that parties disliked each other.³Desertion is not withdrawal from the place but from the state of thing´ . In short it connotes a degree of neglect which is shown by an abstention from an obvious duty. Ramesh V. Hindu Marriage Act 1955. but that intention to desert has not been translated into action and he continues to live in matrimonial with the other spouse. Attempts were made by husband and his relatives in getting back wife to matrimonial home. it is necessary that respondent must have forsaken or abandoned the matrimonial home. Arundhati Tripathy. the act or omission should be deliberate and intentional. it is he who is guilty of desertion.. or denial too provide maintenance will amount to willful neglect.In actual desertion. AIR 2005 SC 3297. resolve that next day he will abandon the matrimonial home.e. nor is it. lays down that ³desertion includes willful neglect of the petitioner by the other party to the marriage´. Thus it will amount to willful neglect if a person consciously acts in a reprehensible manner in the discharge of his marital obligations. There were no chances of reconciliation. such as denial of the company or denial of marital intercourse. .Dhir Das 8 Durga Prasanna Tripathy V. There was an irretrievable breakdown of marriage.Explanation to Section 13(1). on the other hand. If a spouse creates a situation or conducts himself in a manner that a other spouse is compelled to leave the matrimonial home.192 7 Balihar V. 1979 MP 15 5 (1955) AC402 6 (1925) p.

Brandon J H and W separated informally by consent. The magistrates refused H an access order based on W's desertion. but his petition failed. But it was clear that a rejected offer of reconciliation in these circumstances could amount to desertion. W was admitted to a mental hospital suffering from a paranoid psychosis. but his petition failed: the frequent visits amounted to a course of conduct that showed the separation too had been condoned. she was suffering from delusions that H was trying to kill her and did not truly have the mental capacity to form an intention to desert him. The Court of Appeal (by a majority) said the onus was on H to show that W had no good cause for refusing to move. W left home and went to live with her mother. CA After admitting an act of adultery. and the Divisional Court of the Family Division affirmed the justices' decision. . H petitioned for divorce on grounds of W's desertion. H's petition for divorce on the grounds of W's desertion was dismissed on the facts. Denning LJ added obiter that there was no presumption of law that the husband had a right to decide where the family home should be: it was a joint decision in which husband and wife should have an equal voice. H's subsequent petition for divorce on grounds of desertion was denied: although W (on the medical evidence) knew what she was doing when she left home. but over the next two years they corresponded by letter and on several occasions H visited W and they had sex together. H did not object to her going. but when he returned a few weeks later W refused to have him back in the house. both H's offer and W's refusal having been somewhat tentative. H subsequently petitioned for divorce on the grounds of W's desertion (having effectively condoned the adultery). She was discharged after a few months. When H returned to home waters. Simon P said the duty of a husband and wife to live together must be set against their duty to their children: if it were necessary for the wife to live apart from the husband for the sake of a child's health. and that he had failed to do. G v G [1964] 1 All ER 129. W disagreed. Lloyd-Jones J After twenty years' marriage.Situation outside India Dunn v Dunn [1948] 2 All ER 822. but the symptoms returned and one day she left home without any warning. but W refused: she was severely deaf and uncomfortable among strangers. CA H was in the Navy. serving in the Far East while W and their son S lived in Northumberland. that would be a good reason negating desertion. Fraser v Fraser [1969] 3 All ER 654. Perry v Perry [1963] 3 All ER 766. because of the effect he was having on the children. and S had recently started a new job. H went to South Africa in the hope of finding a new life for the family. but when a few years later H suggested he should return to the family home. Pizey v Pizey [1961] 2 All ER 658. DC After ten years' marriage H began to show signs of mental instability: his conduct frightened the children and one daughter became seriously emotionally disturbed. where his ship was based. he tried to persuade W to move to Immingham and then to Barrow.

but abandoned the attempt after three months. as long as the offer was genuine (in the sense that the petitioner had both the intention and the means to implement it) and not subject to unreasonable or unnegotiable conditions. the fact that the husband did not wish this result does not rebut the inference that he intended the probable consequences of his acts. but continued living in England with W1. But obiter. but when he returned to England W1 refused to live with him. He then went to Bangladesh to consummate the second marriage. CA H and W1 were married in Bangladesh (then East Pakistan). but returned when H promised to behave. an agreement to separate after a failed reconciliation lasting under six months should not necessarily be fatal to a petition based on divorce: the object of s. If a man's conduct is such that a reasonable man must know that it will probably cause his wife to leave home. Finally H raped W in "circumstances of calculated and revolting indignity". The High Court of Australia and subsequently the Privy Council affirmed the judge's decision to grant a decree nisi. H petitioned for divorce on the grounds of W1's desertion. the offer must be accompanied by proper expressions of regret and promises of better behaviour in the future. Over the next five years H repeatedly broke this promise. Moreover. and told her that he would do the same again as often as he wished. where the behaviour of one spouse is such as to leave the other no real alternative but to move out: in those circumstances.3 of the 1969 Act was to make reconciliation easier rather than harder. and W1 had reasonable grounds for leaving him. . but his petition was denied. H decided to take a second wife W2. if the petitioner's conduct before the original separation had been unacceptable. Quoraishi v Quoraishi [1985] FLR 780. Sterling J A couple separated after 32 years' marriage. Lang v Lang [1954] 3 All ER 571. which was permissible under the Islamic law of Bangladesh. The introduction of non-molestation orders and other remedies for domestic violence has made this less important than it used to be. and W crosspetitioned on H's desertion. cruelty per se not then being a ground of divorce under the relevant Australian law. W left H for about two months. but when H returned from military service overseas he began to abuse W. W left H and petitioned for divorce on grounds of H's constructive desertion. After two more years H petitioned for divorce on the basis of W's desertion and unreasonable behaviour. PC (Australia) H and W had been happily married for nearly 20 years. the spouse who moves out can still claim to have been deserted by the other. but subsequently came to live in England. H knew he was endangering his first marriage by taking a second wife. Desertion cannot be regarded as "behaviour" justifying a petition under the previous subsection. often "punishing" W like a child and several times using such violence towards her that the police had to be called. the judge dismissed both the petition and the crosspetition. but it is still of some significance. saying the parting after the failed reconciliation was by mutual consent and could not therefore constitute desertion. Morgan v Morgan (1973) 117 SJ 223. The law also recognises the concept of "constructive desertion". and found a room for him and bought a flat for herself. On the facts.said the judge obiter. After three years' separation they tried for reconciliation. W (who owned the matrimonial home) told H to leave.

Conclusion It may be common in the matrimonial parlance that a spouse has ``deserted'' the other partner.1(2)(b). Three months after that.1(2)(c) would be pointless if desertion per se could be regarded as behaviour relevant to s.Stringfellow v Stringfellow [1976] 2 All ER 539. H told W he no longer loved her. It is with a view to understand the problems of abandoned women. CA After six years' marriage. In earlier instances it was mostly bigamous marriage entered into by men under family duress to marry within community. The phenomenon of women being abandoned by the bridegroom of Indian origin is not really new. liaison with foreign governments to book the grooms in bigamy charge. For policy makers. with burgeoning Indian NRI population drawn from different economic and social strata spreading across the globe the problem has become multi-dimensional. cheating and dowry extortion have increased in proportion to the growing number of Indians emigrating in search of green pastures abroad. and a few weeks later H moved out of the family home and did not return. providing legal assistance and financial aid to women abandoned in foreign shores. violence against women. The government needs to address the problem by considering suggestions such as marking on the visa marriage status of the person. who have possibly liquidated their assets to help their daughter enter into the so-called marriage wake up and approach the state authorities. Unfortunately. the greed of bride¶s family who see in their daughter a ticket to their El Dorado and comforts of foreign shares makes them easy prey to NRI bridegrooms on prowl. It is only when the daughters are abandoned that the parents. The judge refused the petition and the Court of Appeal dismissed W's appeal. Ormrod LJ said s. issues like women trafficking. Desertion by Non-Resident Indians The problems of women abandoned by non-resident Indian (NRI) bridegrooms are an issue lost amidst myriads of large issues confronting women in India. that the institute decided to undertake this study in two states viz. Andhra Pradesh and Punjab which have high incidences of young girls and women falling victims to bigamous/polygamous suitors. W presented a petition for divorce on the grounds that H's behaviour was such that she could not reasonably be expected to live with him. and to restrain the grant of ex-parte divorce by foreign courts. However. but . The problem has also not been state-specific as most states have been reporting cases of women abandoned by predators disguised as grooms. its cause and effect and to identify the areas of policy interventions that could help alleviate the problems of deserted married women. it is the rural and middle class people that often succumb to the temptation of acquiring foreign groom. Admittedly. Cases of women being subjected to cruelty of false marriage. there must be some conduct of the respondent other than mere desertion or the steps leading up to it. The husbands tended to hide their foreign spouse and later abandoned the Indian wife. and rehabilitation of destitute and providing prenatal and post-natal care for outweigh this little publicized social problem that is debilitating the social fabric of the country.

the husband can be charged with cruelty and adultery. cannot be accused of desertion. The doctrine of ``constructive desertion'' says that the desertion is not to be tested by merely ascertaining which party left the matrimonial home first. The cause of desertion is equally important. the absence of his or her consent. second. be dissolved by a decree of divorce on the ground that the other party has deserted him/her for a continuous period of not less than two years. on a petition by either the husband or the wife. . if one spouse is forced by the conduct of the other to leave home. whether before or after the commencement of this act. absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention. Desertion must also be without reasonable cause and without the consent or against the wish of the petitioner. may. Can a husband seek divorce on the sole ground that his wife had been living separately for a reasonable time? or. on the contrary. can the wife also resort to divorce on the ground that her husband had been living separately. the factum of separation. but this period must be immediately preceding the presentation of the petition for divorce. Section 13(1)(ib) of the hindu marriage act. deals with divorce. and. the element of permanence which is a prime condition and requires that both these essential ingredients should continue during the entire statutory period of two years. and its grammatical variations and cognate expressions shall be construed accordingly''. first. it requires much more to get a decree of divorce. it is difficult to give a comprehensive definition of the term `desertion' but the essential ingredients of this offence are : first. the supreme court said that the intention behind making an offer to persuade the deserted wife to return home must be bone fide. for the offence of desertion.proving the serious charge of ``desertion'' to seek divorce is not a child's play. In a recent judgment. if a spouse creates an unbearable situation for the other leading to his or her leaving the matrimonial home.'' The provision has an explanation saying: ``the expression `desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party. The petitioner spouse is under an obligation to prove the two ingredients in order to get a decree of divorce. for that matter. it may be that the spouse responsible for driving the other out is guilty of desertion. Merely because a spouse lives separately for a long time does not guarantee divorce. two essential conditions must exist: the factum of separation and the intention to end matrimonial relationship. two elements are needed as far as the deserted spouse is concerned. the supreme court (justice D. the intention to bring cohabitation permanently to an end which is also called ``animus deserdandi''. The act has widened the definition of desertion to include ``willful neglect'' of the petitioner spouse by the deserter. for instance.P Mohapatra and justice Doraiswamy Raju) has explained that its meaning must be understood in the matrimonial parlance. it would not amount to desertion without consent. it is clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner spouse. thus causing cruelty to her? in one of the rare judgments on the sole issue of ``desertion''. and third. 1955. a wife who deserts her husband having illegitimate relationship. She can reject his offer to return home yet survive the charge of desertion if the husband's offer to break relationship with other women is not a sincere step. in other words. break in this period can demolish the allegation of desertion. thus. Similarly. The charge can also be negated by a contesting party if she or he is able to demonstrate that his or her leaving the house was of a temporary nature in order to lodge a protest. second. Therefore. it says: ``any marriage solemnized.

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