Module V

MATRIMONIAL CAUSES AND REMEDIES

 Introduction

• With the change in time the institution of marriage is becoming more

and more vulnerable to frequent breakings due to increasing social
and economical pressures. When there is absence of mutual bonding
between husband and wife marriage becomes more of a burden and
only a divorce can put an end to the miseries of such bad marriages.
“Matrimonia debent esse libera”
• “MARRIAGES OUGHT TO BE FREE”
Reasons

• Woman today just cannot tolerate abusive relationships. Abusive and

violent husbands are no longer tolerated by the woman and their
families also understand the situation. As compared to old generation
Indian women are becoming more demanding in relation to physical,
financial and sexual preferences.
Reasons

• Stress, tension and pressure of modern marriages are making unhappy Indian men
to opt for separation or divorce in the urge for personal freedom. They are not
happy to accept and do not want to adjust to the changes in women as discussed
earlier. Infidelity and communication gap between spouses is also playing a role.
As the social stigma is bigger for divorced women in India than that for men, men
find it easier to opt for divorce. Men, being at dominating side when seek for
divorce, the reasons even get no significance. Divorced man can remarry easily as
compared to a divorced woman especially if she has children. But this position is
likely to change due to the higher growth rate of divorce in India.
Continued…

• For the Hindus marriage tie is irrevocable, but for the Hindu man he
can enter into several such irrevocable ties. The Hindu woman can
enter into only one such relationship. The Kanya can be given in Dana
only once, but many such Kanyadana can be received. The irony is
that Hinduism is essentially in favour of monogamy yet this is more
effective in unilateral violation.
Modes of Divorce

• Outmoded law of divorce for the Christians,

• a law based on the discredited fault theory of divorce with judicial discovery
of irretrievable breakdown of marriage dissolution for the Muslims, and

• a copious law of divorce for Hindus and for non-conformists i.e. people
marrying in civil marriage form. The Hindus can have divorce on fault
grounds, by mutual consent and on basis of breakdown of marriage.
Continued…

• The irretrievable breakdown of marriage on the basis of living apart

for a continuous period of at least three years, but an interruption of
three months at any time during this period of three years separate
living will not be treated as break in the continuity if such interruption
was with a view to effect reconciliation.
Legislation

• The Indian Divorce Act, 1869 is based on the Matrimonial Causes Act,
1857 and lays down the same grounds of divorce. At the time when the
statute was passed, it applied only to Christian marriages. The Indian
Divorce Act was extended to marriages performed under the Special
Marriage Act 1872. This Act was repealed by the Special Marriage Act,
1954. The Special Marriage Act was passed in 1954 and the Hindu
Marriage Act, 1955. Some States introduced divorce by legislation.
 Theories of Divorce

1. Indissolubility of Marriage Theory :

Marriage is an unbreakable tie between husband and wife. It is a
union of bone with bone and flesh with flesh. It is eternal.
This is the theory of the Shastric Hindu Law. The marriage could
be dissolved neither by the act of the parties nor by the death of
one of them. Divorce was an anathema. However, this was the law
for the regenerate castes, the so called upper three castes. The
shudras and tribes recognized divorce and had their customs
relating thereto. The Hindu marriage Act abandoned the shastric
position. Marriage is no more unbreakable rope even for the
regenerate caste. If the necessary conditions as given under section
13 and 13B exist, every Hindu is entitled to the dissolution of his
or her marriage. The Hindu Marriage Act is indeed a revolutionary
piece of legislation from this point of view.
Divorce at Will Theory

• Divorce at will, as the name suggests, lets one spouse to leave the
other whenever he pleases to do so without the approval of the other
spouse. It has been considered as discreditable as well as inhuman
under Hindu Law. According to this theory, Marriage is more difficult
than divorce, whereas the case should be just the opposite.
Frustration of Marriage Theory

• If the very purpose of marriage gets frustrated due to any physical or

mental condition of a spouse then it is the right of other spouse to seek
Divorce. Without there being any offence if Marriage is frustrated when
one of the spouses is suffering from any physical ailment or mental
unsoundness of mind, or changed his religion or has renounced the world
or has disappeared for a very long period. In such case, the other spouse
should be free to put an end to marriage.
Fault or guilt theory and Disability theory
of Divorce
• The guilt or offence theory of divorce is essentially a 19th century concept where the society abhorred

divorce as an evil, as devil‘s mischief, and therefore that society could agree for divorce only on that basis

that one of the parties has committed some sin, some very heinous offence against marriage.

• According to this theory a marriage can be dissolved only if one of the parties to the marriage committed any

matrimonial offence which is recognized as a ground of divorce under section 13 of the Hindu Marriage Act.

This guilt theory of divorce differentiates the parties on the ground of guilt and innocence. Innocent party

has right to get divorce on the ground that other party has committed a matrimonial offence or a guilty

party. This theory was taken very far in English law, so much so that if both the parties independent of each

other, committed matrimonial offence, the marriage could not be dissolved.

Continued…
• So when both parties are guilty then divorce could not be granted,
there must be one guilty party and one innocent party. Section 13 of
the Hindu marriage Act is based on guilt theory. Some grounds of
divorce is based on the guilt of respondent.
• Section 23 of the Hindu marriage Act laid down that the petitioner
will not be allowed to take advantage of his or her own wrong or
disability in divorce petition. If guilt of the respondent is the direct or
indirect outcome of some wrong or disability of the petitioner then
petitioner will not be entitled to get matrimonial relief or divorce, it is
immaterial that petitioner has proved his case beyond all doubts.
Mutual Consent theory
• According to this theory husband and wife are free to dissolve the marriage as they entered into it. It
is the easiest way to get a divorce, in this both parties work out their terms on which they agree to
part ways file petition in the court, which is finalized in 6 months. If the husband and wife agree to
part for good, they should be permitted to get their marriage dissolved. It is they who have to live
with their marriage. If for any reason they cannot do so they must not be compelled.

• Compulsive cohabitation may give birth to matrimonial delinquencies which give rise to grounds for
divorce.

• Granting divorce before the matrimonial life is spoiled by the delinquency or degeneration of one or
both of the spouses is a positive goodness for both, for the parties to marriage and for society.
Continued…

• The question which arises for consideration in an appeal before the

court was whether the minimum period of six months under Section
13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for
passing decree of divorce on the basis of mutual consent is
mandatory or can be relaxed in any exceptional situations?
Amardeep Singh v. Harveen Kaur

• It has been held by the Supreme Court that the period of 6 months, as
mentioned in Section 13B (2) is not mandatory but directory, it will be
open to the court to exercise its discretion in the facts and circumstances
of each case where there is no possibility of parties resuming
cohabitation and there are chances of alternative rehabilitation. In
determining the question whether provision is mandatory or directory,
language alone is not always decisive.
Breakdown theory of divorce
• The guilt theory of Divorce has been found deficient as it recognizes the
divorce only on certain specified grounds. The consent theory has been found
wanting as either it makes divorce too easy or too difficult.

• Where a woman feels to dissolve the union she has right to divorce. Not only
women but also men have right to divorce. A marriage is a union of husband
and wife for life, but in any case it may happen that their relations might be
strained due to some circumstances and they would like to live away from each
other.
Continued…

• The modern approach of law recognizes the problem and says, “If you
can satisfy the court that your marriage has been broken down and
you desire to terminate a situation that has become intolerable then
your marriage shall be dissolved, whatever may be the cause.”
 Changes Brought by the Hindu Marriage
Act, 1955
• Hindu marriage is now more a result of mutual consent than sacrament
and obviously not so much concerned with religion.
• Hindu marriage act applies to Hindu, Sikh, Jains and Buddhists, and
marriages under these religions are considered as valid Hindu Marriages.
• As per section 3 of the act, the divergence between the Mitakshra and
Dayabhaga schools in connection with the prohibited degrees of the
relationship for the purpose of marriage is now removed. The strict rule
prohibiting marriages within the limit of spinda relationship, as defined in
the samrities, have been considerably relaxed. Some new degrees of
relationship have also been added. Thus one cannot now marry a person
who was the wife of the brother of other.
Continued…
• The conditions of marriage are simplified; it introduced the concept of
monogamy and made bigamy as punishable under Indian Penal Code,
1860.
• All restrictions are now eliminated relating to caste and community.
Now, one can marry inter-caste and inter-religion.
• Now the concept of different types of marriages has been abolished
and no particular form of marriage has been prescribed. The marriage
can be solemnized only according to section 7 of Hindu Marriage Act,
1955.
Continued…

• There is no difference between marriage of a maiden and the marriage of

a widow. Ancient law did not provide any age for marriage but new Act
provide it as one of the conditions of valid marriage. It prescribed the
minimum age of bride and groom as 18years and 21 years, respectively.

• Hindu Marriage Act, 1955, provides for the registration of marriage.

(Section 8)
Continued…
• The whole provision relating to Judicial separation, Divorce and
annulment of marriage has been elaborated in detail by the Act.
Restitution of Conjugal Rights and the concept of remarrying after a
valid divorce have been provided under Hindu Marriage Act, 1955.
Provisions related to permanent alimony and maintenance, legitimacy
of children, custody and maintenance of minor children has been
elaborated by the Act.
Grounds of Divorce under Hindu Marriage
Act, 1955
• Section 13 of Hindu Marriage Act, 1955, provides for nine grounds for
divorce which are as under:
• Adultery- “Adultery” means the voluntary sexual intercourse outside a lawful
marriage. The Hindu Marriage Act, 1955 came into force on May 18, 1955,
has incorporated adultery as a ground for both judicial separation and
divorce. A decree of divorce can be obtained only if the respondent ‘is living
in adultery’ has been proved in the court.
Continued…
• Conversion- A Hindu spouse who ceased to be a Hindu by conversion
to another religion does not acquire any right under the Hindu
Marriage Act. On the other hand, he or she exposes himself or herself
to a claim for divorce by the other spouse on the ground of such
conversion. The spouse who remains a Hindu gets a right under
S.13(1)(ii) of the Hindu Marriage Act to seek dissolution of the
marriage with the spouse who since the marriage ceased to be a
Hindu by conversion to another religion. The right of non converting
spouse is indefeasible. The statute does not provide for any
qualification on such right of the non converting spouse. Nor does the
Hindu Marriage Act state that the conversion shall be a conversion
without the consent of the other spouse in order to entitle
Continued…

• such spouse to apply for divorce. A conversion does not cease to be a

conversion within the meaning of S.13(1)(ii) if it is with the consent of
the other spouse. We cannot read into the statute something which is
not intended in the context; nor can we qualify a disqualification in
the matter of conversion as one with the consent of the other spouse
so as to take it out of the purview of S.13(1)(ii).
Continued…

• Mental disorder/Unsound Mind- The Hindu Law considers a marriage

as a valid one if none of the parties is an idiot or a lunatic or suffering
from any mental disorder at the time of marriage. A Hindu marriage is
voidable according to Hindu Marriage Act, 1955, if either party to
marriage:
Continued…

(i) Does not have capability of giving a valid consent because of his/her
unsoundness of mind, or

(ii) If he or she is capable of giving a valid consent but is suffering from

such kind of mental or to such an extent that makes it unfit for
marriage and the procreation of children, or

(iii) He or she has been subject to recurrent attacks of insanity.

Venereal disease

• A disease that is in a communicable form and venereal in nature gives

birth to a ground for divorce under Hindu marriage Act, 1955. Sexual
intercourse makes a contagious disease spread. Sexually transmitted
diseases are much in number and the most common form of venereal
disease.
• The fact that the disease was contracted innocently or is curable is
immaterial under the Hindu Marriage Act. It is important here to note
that the disease must be communicable venerable disease to be a
ground for divorce.
Cruelty

• Almost all the statutes in India accepts cruelty as a ground for

Divorce in India. Cruelty, however, has not been described under
Hindu Law. It is a course of conduct of one of the spouses which
adversely affects the other. Cruelty is mainly of two types, i.e, Mental
or Physical. In Simpson v. Simpson, it was held that, “when the legal
conception of cruelty is described as being conduct of such a
character as to cause danger to life, limb or health, bodily or mental,
or to give rise to a reasonable apprehension of such danger, it is vital
to bear in mind that it comprises two distinct elements; First, the ill-
treatment complained of, and, secondly, the resultant danger or the
apprehension thereof. Thus, it is inaccurate and liable to lead to
confusion, if the word cruelty is used as descriptive only of the
conduct complained of, apart from its effect on the victim”.
 Cruelty

• It is a course of conduct of one of the spouses which adversely affects

the other.

• The concept of cruelty firstly originated in England which was derived

from the concept of "danger to life, limb or health" required at one
time by the Ecclesiastical Courts in England. (Dr. Kashaorao Krishnaji
Londhe v. Mrs. Nisha Londhe, AIR 1984 Bom 413)
Continued…

• The term 'cruelty' has not been defined properly neither under
English legal system nor under Indian legal system. The reason given
by the judiciary of both the countries is that it is a dynamic concept
which differs and varies from person to person. An act or conduct may
be cruel to a spouse but the same act or conduct may not be cruel to
the other spouse.
• Acts provided in law in different religions
• 1. Hindu Marriage act, section 13(1) (i) (a) and section 10.
• 2. Special Marriage Act 1956, section 27 (1) (d) and 23.
• 3. Indian Divorce Act section 10 (x) and 22.
• 4. Parsi Marriage and Divorce Act 1869 section 32 (dd) and 34.
• 5. Dissolution of Muslim Marriage Act, 1939 section 2 (ix).
• 6. IPC section 498 A.
• 7. IPC section 304-B.
• 8. Dowry Prohibition Act 1961.
• 9. Domestic Violence Act, 2005.
Continued…

• the Hindu Marriage Act of 1955 has recognised it only as a ground of

judicial separation but with the amendment in the Act in 1976, it has
made a ground not only for judicial separation but also for divorce.
Judicial separation
Section 10 of the Hindu Marriage Act
•  (1) Either party to a marriage, whether solemnized before or after the
commencement of this Act, may present a petition praying for a decree
for judicial separation on any of the grounds specified in sub-section (1)
of section 13, and in the case of a wife also on any of the grounds
specified in sub-section (2) thereof, as grounds on which a petition for
divorce might have been presented.]
• (2) Where a decree for judicial separation has been passed, it shall no
longer be obligatory for the petitioner to cohabit with the respondent,
but the court may, on the application by petition of either party and on
being satisfied of the truth of the statements made in such petition,
rescind the decree if it considers it just and reasonable to do so.
Judicial separation

• Section 10 of the Hindu Marriage Act 

• Judicial separation is an instrument devised under law to afford some time

for introspection to both the parties to a troubled marriage. Law allows an
opportunity to both the husband and the wife to think about the
continuance of their relationship while at the same time directing them to
live separate, thus allowing them the much needed space and independence
to choose their path.
IPC Section 304 B (Dowry death)

• Under this section women has right to get the justice. It is a drastic nature of IPC
section 498 A. In this the act of cruelty must be done within 7 years of marriage
because 7 years is sufficient period to settle for the parties. Provision

• 1. There must be demand of dowry and torture or harassment must be for

property or valuable security.

• 2. The death of the woman must be occurred.

• 3. The death must be under unnatural circumstances.

Continued…

• In this, The woman should be caused bodily injuries or she must be

burnt by her husband and in laws. The death must be within 7 years
of marriage. The woman must be suffered the harassment by her
husband and her in laws. The harassment must be for dowry or
valuable security.
Dowry Prohibition Act, 1961

• Dowry is any property or valuable security to be given directly or indirectly by one

party to other party at the time of marriage, after the marriage or before marriage
in consideration of marriage. In this giver as well as taker both are punished.
Provisions Where death of a woman is caused by

• 1. Body burns 2. Physical injury 3. Death must be other than normal circumstances
within 7 years of marriage and it must be related to the demand of dowry.

• Relief: Life imprisonment can be granted by court.

Indian Divorce Act Section 113-A and section
113 B in this cruelty is described.
• Section 113 A –Abetment of suicide and death of woman within 7
years of marriage. Section 113-B- Death of woman within 7 years of
marriage is not a natural death.
Domestic Violence Act, 2005

• This act is provided for the protection of woman and her human rights
guaranteed under Art. 14, 15, 21 of the constitution of India. The act
intends to protect the woman from being the victims of domestic
violence and to prevent the occurrence of domestic violence in society.
Provision Actual abuse or threat or physical, sexual, verbal, economical or
emotional. Relief Punishment according to the nature of the act of cruelty
and fine.
Dissolution of Muslim Marriage Act, 1939
• Dissolution of Muslim Marriage Act, 1939 section 2(ix) Somewhat
difference in the grounds in Hindu Marriage Act and Muslim Marriage
Act. In Hindu law, bigamy is a ground for matrimonial relief but in
Muslim law it is not considered as cruelty. Polygamy (more than four
wives at a time) is an offence under Muslim law. Adultery is not a
ground for matrimonial relief but if husband associate with woman of
evil repute or leads to wife infamous life then it will amount to cruelty
and it is a ground for matrimonial relief.
Continued…
• There are two categories of divorce under the Muslim law:
1.) Extra judicial divorce, and
2.) Judicial divorce
• The category of extra judicial divorce can be further subdivided into
three types, namely,
-By husband- ila, and zihar.
-By wife- talaaq-i-tafweez, lian.
-By mutual agreement- khula and mubarat.
Ila
• In Ila, the husband takes an oath not to have sexual intercourse with his wife.
Followed by this oath, there is no consummation for a period of four months.
After the expiry of the fourth month, the marriage dissolves irrevocably. But if
the husband resumes cohabitation within four months, Ila is cancelled and the
marriage does not dissolve.
• In case of sunnis such a conduct of the husband will amount to single irrevocable
divorce ad the marriage will dissolve automatically at the expiry of 4 months.
•
In case of Shias the marriage do not dissolve automatically rather it gives the
wife the right of judicial divorce  u/s 2(ix) of the Dissolution of Muslim Marriages
Act 1939.
Zihar

•       
In this mode, the husband compares his wife to a woman within his prohibited
relationship e.g, mother or sister etc. The husband would say that from today the
wife is like his mother or sister. After such a comparison the husband does not
cohabit with his wife for a period of four months. Upon the expiry of the said period,
Zihar is complete. After the expiry of the fourth month the wife has following rights:
• She may go to the court to get a decree of judicial divorce.
• She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said
period, the wife cannot seek a judicial divorce. It can be revoked if:
• The husband observes fast for a period of two months, or,
• He provides food at least sixty people, or,
• He frees a slave.
In Masroor Ahmed Vs. State (Nct of Delhi) and anr
2008 (103) DRJ 137
• The high Court of Delhi observed that “Ila and Zihar as modes of divorce are
virtually non-existent in India. However, lian is sometimes resorted to. If a
man accuses his wife of adultery (zina), but is unable to prove the allegation,
the wife has the right to approach the qazi for dissolution of marriage. In
India, a regular suit has to be filed. Once such a suit is filed by the wife, the
husband has the option of retracting his charge of adultery, whereupon the
suit shall fail. However, if he persists then he is required to make four oaths in
support of the charge. The wife makes four oaths of her innocence, after
which the court declares the marriage dissolved. This is the process of
dissolution of marriage by lian”
 Khula 
•    
Khula is a form of divorce with the consent of wife and at her own instance in which she
gives or agrees to give certain consideration to the husband for her release/redeption
from the marital tie. Following conditions are necessary for a valid Khula: 
  
1. There must be an offer from the wife.
    
2.She gives or agrees to give consideration to the husband for her release

3. Acceptance of the offer by the husband.

• Such proposal may be retracted by the wife at any time before the acceptance is made
by the husband. According to Muslim personal law 3 days time has been given by
various jurists to both husband and wife. The moment offer is accepted by the husband
it stands as single irrevocable divorce i.e there marital relationship ends the moment
the husband accepts the offer.
By Mutual Agreement

 It is also known as Mubarat. Mubarat is also a form of dissolution of a

marriage contract. It signifies a mutual discharge from the marriage claims.
In mubarat the aversion is mutual and both the sides desire separation.
Thus it involves an element of mutual consent.In this mode of divorce, the
offer may be either from the side of wife or from the side of the husband.
When an offer mubarat is accepted, it becomes an irrevocable divorce and
iddat is necessary.
JUDICIAL DIVORCE

•  Under Dissolution of Muslim Marriage Act, 1939 the legislature has made provisions for
the divorce on the application of wife. There are several grounds in which judicial divorce
can be pronounced. Grounds on which a female can claim divorce under this act are:
• Whereabouts of the husband are not known,
• Failure to maintain for a period of two years.
• When husband sentenced to imprisonment.
• Failure to perform marital obligations.
• Impotency
• Insanity, leprosy or virulent venereal diseases.
• Repudiation of marriage.
• Cruelty.
• False accusation of adultery.
• Conversion of the spouse to another religion.
Shayara Bao Vs. Union Of India
• Facts: Shayara Bao was married to her husband for 15 years, and later,
he diveorced her in 2016 through the method of triple talaq. She
went to the Supreme Court seeking justice, stating that this concept
in unconstitutional. She alleged that it violates several fundamental
rights such as Article 14, 15(1), 21, and also Article 25. Her petition
also highlighted how these traditional practices of Islamic men hinder
the women's rights of Muslim Women as well. Various NGOs and
even the Union Government of India was supporting the cause of this
petition.
Issue:

• Whether the practice of Triple Talaq is valid and whether it is an

essential religious practice for the Muslims.
 Judgment:

• The court had a divided opinion of 3:2, where the majority held that the
practice of Triple Talaq is unconstitutional and violates the Fundamental Rights
of Muslim Women. The majority found that the practice of Triple Talaq is not
essential to religion. Therefore, as per the majority, it was held that triple talaq
was not to be protected under Article 25 of the Indian Constitution as it is not
an essential element of the religion. In fact, the Hanafi school of Muslims
considers this as a sinful practice.
• The court held that the meaning od essential religious practices are those based
on which the religion finds its base. Only such practices can be protected under
Article 25 of the Constitution. This judgment, which held the practice to be
unconstitutional, has been widely appreciated throughout the country. This was
indeed a success because there were many failures in history in the same
matter. This judgment proved that the Constitution is the supreme law of the
land and that the law will not bend down against any philosophy or religion.
Parsi Marriage and Divorce Act, 1869

• Dissolution of marriage, the relief available only to wife. Parsi

Marriage and Divorce Act, 1869 section32 (dd) and 34 under section
32 (dd) by 1988 amendment of the act cruelty is considered as
aground for matrimonial relief.
Continued…
• In Parsi law divorce act any of the spouses can get the marriage dissolved by the
following three modes:-
• Suits for nullity: A marriage can be declared null or void by either party if the
consummation is impossible because of natural causes.
• Grounds of divorce: Under the Parsi Law divorce act, any married person may sue
for divorce on any one or more of the following grounds, namely:
• The marriage has not been consummated within 1 year after its solemnization because of the
wilful refusal of the defendant to consummate it.
• The defendant at the time of the marriage was mentally ill or of unsound mind and has been
habitually so up to the date of the suit.
• That the defendant was at the time of marriage pregnant by some person other than the
plaintiff:
Provided that divorce shall not be granted on this ground, unless
Continued…
• the plaintiff was at the time of the marriage unaware of the fact
alleged,
• the suit has been filed within 2 years of the date of marriage,
• and marital intercourse has not taken place after the plaintiff came to
know of the fact.
• Suits for dissolution of marriage: If a husband or wife have been
absent from each other
• for a space of 7 years.
Leprosy

• Under the Hindu marriage act, the ground runs: respondent “has been
suffering from virulent and incurable form of leprosy.”And also under the
act where leprosy is a ground for divorce of judicial separation, the
duration of leprosy is not specified. According to the Hindu Marriage Act,
1955 if one of the spouses is suffering from leprosy that is ‘virulent and
incurable’, the other can file a petition for divorce based on this ground.
 Desertion

• It means desertion of the petitioner by the other party to the marriage without any
reasonable cause and without the consent or against the wishes of such party and
includes willful neglect of the petitioner by the other party to the marriage and its
grammatical variations and alike expressions.

• Traditionally, desertion has been defined as abandonment of the one spouse by the other
without any reasonable cause and without the consent of the other. The desertion is
withdrawal not from the place but from the state of things. In other words ‘desertion’ is a
total repudiation of marital obligations. Though previously it was a ground for judicial
separation, the Amendment Act of 1976, for divorce, added it.
Continued…

• A. Actual desertion:
• It means the fact of actual abandonment of matrimonial home. Mere
intention to abandon without actual abandonment of matrimonial home is
not enough. A person may go out on business, study etc. and may be stranded
there for two years or more; it would not amount to the desertion. To
constitute desertion the Factum (fact of desertion) and Animus Deserendi
(intention to desert) must co-exist, and the moment they co-exist, it amounts
to desertion. However it is not necessary that intention must precede factum.
It was ruled in Venei v. Nirmala (AIR 1987 Del. 79), when the spouse left the
matrimonial home (for business, pleasure, trip etc.), he has all the intentions
to return home, but subsequently if he forms the intention not to return, the
moment such an intention is formed he becomes a deserter. If a spouse
leaves the matrimonial home without any reason, he or she is a deserter.
Continued…

• B. Constructive desertion:

• The doctrine of constructive desertion state that it is not to be tested by merely

ascertaining which party left the matrimonial home first. If one spouse is force by the
conduct of the other to leave home, it may be that the spouse responsible for the driving
out is guilty of desertion. There is no substantial difference between the case of a man who
intends to cease cohabitation and leaves his wife, and the case of a man who compels his
wife by his conduct, with the same intention, to leave him. In constructive desertion it is the
behaviour of one party that makes him the deserter, though he continues to live in the
matrimonial home.
Continued…

• Wilful Neglect:

Willful neglect means that the act was done deliberately and intentionally
rather by accident or inadvertence, so that the mind of the person who
does the act goes with it. In short it means omit to do something
purposely. So far, before the Indian courts, no case has come where wilful
neglect has been taken as ground for divorce, or judicial separation.
• In Laxman v. Meena (AIR 1964 SC 40.)

• Observed that wilful neglect was designated to cover constructive

desertion, and therefore should fulfil all the ingredients of desertion.