DR.

RAM MANOHAR
LOHIYANational Law University

FINAL DRAFT

Family Law
DESERTION
AS A GROUND FOR
DIVORCE
Submitted by
Rajesh
Semester- IV, B.A. LL.B (Hons.)

Under the Guidance of

Mr. Mahendra Kumar Paswan

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 ACKNOWLEDGMENT

It is not a ritual but a heartfelt feeling that I wish to express my gratitude. I am indebted to
many in the course of this research project.

Much of the data deployed here has been taken from the books available at Dr. Madhu Limaye
Library, Dr. Ram Manohar Lohia National Law University.

I am thankful to Mr. Mahendra Paswan for always being supportive during the course of this
project.

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Contents
Introduction .................................................................................................................................................. 4
Statutory Provisions ...................................................................................................................................... 4
(i) Hindu Law ......................................................................................................................................... 4
(ii) Special Marriage Act ..................................................................................................................... 5
(iii) Christian Law ................................................................................................................................. 5
(iv) Muslim Law ................................................................................................................................... 5
(v) Parsi Law ....................................................................................................................................... 6
Classification of Desertion ............................................................................................................................ 6
Actual Desertion ....................................................................................................................................... 6
Constructive Desertion ............................................................................................................................. 7
Wilful Neglect............................................................................................................................................ 8
Case Laws ...................................................................................................................................................... 9
Bipinchandra Jaisinghbhai Shah v Prabhavati........................................................................................... 9
Savitri Pandey v Prem Chandra Pandey .................................................................................................. 10
Laxman v Meena ..................................................................................................................................... 11
Reasonable Excuse/Cause........................................................................................................................... 12
Statutory Period of Desertion ..................................................................................................................... 12
Without the Consent................................................................................................................................... 13
Termination of Desertion............................................................................................................................ 13
Burden of Proof........................................................................................................................................... 14
Desertion is ‘cruelty’ ................................................................................................................................... 14
Conclusion ................................................................................................................................................... 15
Bibliography ................................................................................................................................................ 16

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Introduction

Desertion, in simple terms, means abandonment of a ‘duty’ without permission and is done with
the intention of not returning.

In terms of family law, desertion is one of the grounds for matrimonial reliefs of divorce.

It can be defined as the deliberate withdrawal from cohabitation and abandonment of one spouse
by the other without that other’s (his/her) consent and without reasonable cause.1

A spouse is in desertion if it runs away from his marital obligations, from cohabitation. The
“running away” may mean that he actually leaves the matrimonial home permanently or living in
matrimonial home refuses to perform marital obligations, he ceases to cohabit or he abandons his
marital obligations.

The main essential ingredients of this offence in order that it may furnish a ground for relief are:

1. Physical separation
2. Animus deserendi or the intention to bring cohabitation permanently to an end
3. Both these essential ingredients should continue during the entire statutory period

Statutory Provisions

(i) Hindu Law: Under the Hindu Marriage Act 1955, prior to the 1976 amendment,
desertion was a ground for judicial separation only. However, after the Marriage Laws
(Amendment) Act 1976, it is a ground for divorce as well. Section 13(1)(ib) states-
13. Divorce.- (1) Any marriage solemnized whether before or after the commencement of
this Act, may, on a petition presented by either the husband or the wife, be dissolved by a
decree of divorce on the ground that the other party-
…….

1
See Kusum’s Family Law Lectures, page 74.

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 (ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition;
Explanation to Section 13(1) says: In this sub-section, 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 to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.

(ii) Special Marriage Act

Section 27(1)(b) of the Special Marriage Act, 1954 which enumerates the grounds for
divorce provides for desertion as one of the grounds. The provision is the same as under
the Hindu Marriage Act 1955.2

(iii)Christian Law
Under the Indian Divorce Act, 1869 (now it is Act 51 of 2001) the ground of desertion
was available only available to wife. A husband had no ground to seek dissolution of
marriage on the ground of desertion. After amendments in 2001, the ground for desertion
is available to both the husband and wife. The Provision3 states-
Any marriage solemnized whether before or after the commencement of Indian Divorce
(Amendment) Act, 2001, may on a petition presented to the District Court either by the
Husband or the wife, be dissolved on the ground that since the solemnization of marriage,
the respondent- has deserted the petitioner for at least two years immediately preceding
the presentation of the petition.

(iv) Muslim Law

Desertion is not a ground, as such, a ground for divorce in Muslim law. However, under
the Section 2 (iv) of the Dissolution of Muslim Marriages Act 1939, a wife may seek a
decree of dissolution of marriage on the ground that her husband has failed to perform

2
Section 27, SMA 1954
3
Section 10 (Ix), Indian Divorce Act, 1869.

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 without reasonable cause, his marital obligations for a period of 3 years.

(v) Parsi Law

Under the Parsi Marriage and Divorce Act 1936, section 32(g) contains the ground of
divorce on the basis of desertion. It lays down that a spouse may sue for divorce on the
ground that the defendant has deserted he plaintiff for at least two years.

Classification of Desertion

Desertion may be classified as-

(i) Actual Desertion

(ii) Constructive Desertion
(iii)Wilful Neglect

Actual Desertion: Factual separation is an absolute requirement of actual desertion.

Abandonment of the matrimonial home as a fact situation is essential in actual desertion. Mere
intention to abandon without actual abandonment of matrimonial home is not enough. 4 It is also
that the factual separation without an intention to desert is not enough. It is mandatory to
establish intention to desert.

To constitute desertion factum and animus deserendi must co-exist, and the moment they co-
exist, it amounts to desertion. Whether intention precedes factum, is not necessary. A leading
case relating to this is Bipinchandra Jaisinghbhai Shah v Prabhavati, which has been discussed
later.

4
Paras Diwan, Family Law 146

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Constructive Desertion: It is stated that ‘desertion is not the withdrawal from a place but
from a state of things’5. To constitute constructive desertion, there must be separation of
households, not a separation of houses. Even though the concerned parties may be living under
one roof, but still they can be in desertion.

The doctrine of constructive desertion is that the conduct or behaviour of the respondent is such
that in the nature of things, the petitioner cannot reasonably be expected to live with the
respondent. Where separation is compelled, it is impossible to infer from the mere fact of
withdrawal from cohabitation any intention to bring cohabitation permanently to an end. In other
words, the spouse who intends bringing cohabitation to an end and whose conduct in fact causes
its termination commits the act of desertion.

In Shyam Chand v Janki (1966 Himachal Pradesh High Court Decision)6, where the husband
asked for judicial separation on the ground of wife’s desertion, the wife in her reply stated that
she was maltreated, beaten up and turned out of his house by the husband. She further stated that
her husband kept her in village and food given to her there was meager. She was kept there in a
cow-shed, was deprived of the company of her children, was beaten up and ultimately turned out.
The wife’s averments were proved.

In Anil Kumar v Shefali (1997 Calcutta High Court Decision)7, the wife was turned out of the
house forcibly and husband never tried to bring her back. There was no animus deserendi on the
part of the wife. On husband’s petition, divorce was not granted as the wife was not in desertion.

Similarly, if the conduct of the husband was such that it was impossible for the wife to continue
to live there and therefore she was forced to leave the matrimonial home, she is not guilty of
desertion.8 Also, if persistent demands of dowry forced the wife to leave matrimonial home, she
is not guilty of desertion. ‘In constructive desertion, intention to desert is expressed when by his
expulsive conduct or expulsive words, deserter spouse acts and behaves in such a manner as to

5
Savitri Pandey v Prem Chandra Pandey, (2002) 2 SCC 73, at 80.
6
Quoted from Modern Hindu Law by Dr. Paras Diwan, page 140.
7
Ibid
8
Jyotish Chandra Guha v Meera Guha (1970 Calcutta High Court Decision)

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drive the other party out of the matrimonial home or when he brings about cohabitation to and an
end.’9

Wilful Neglect: Wilful neglect is taken as a type of desertion under the Hindu Marriage Act
1955 and the Special Marriage Act 1954. Explanation to Section 13(1), HMA states that
“desertion includes willful neglect of the petitioner by the other party to the marriage.” It will
amount to willful neglect if a person consciously acts in a reprehensible manner in the discharge
of his marital obligations, or consciously fails in a reprehensible manner in the discharge of these
obligations. Failure to fulfil basic marital obligations, such as denial of company or denial of
marital intercourse, or denial to provide maintenance will amount to willful neglect. In Tara
Chand v Narain Devi10, the husband petitioned for judicial separation on the ground of wife’s
desertion. But the averment made by the husband constituting desertion was found to be false.
The facts that emerged were that, on account of exculpatory conduct and words of the husband,
the wife was forced to leave the matrimonial home. It was observed that he had never gone to the
house of the parents of the wife to fetch her after that incident. He did not write any letter to her
to return to the matrimonial home and he also did not send any letter to the father of the wife to
send her back to the matrimonial home. He did not send any maintenance allowance to her
either. This constituted wilful neglect and the court found that in fact it was the husband who was
guilty of matrimonial misconduct of “willfully neglecting” his wife. The learned judge said that
“wilful neglect” means that the guilty spouse has been acting knowingly or has been consciously
failing in a reprehensible manner in the discharge of his or her marital obligations.

9
See Paras Diwan, Law of Marriage and Divorce, page 417.
10
AIR 1976 P&H 162

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Case Laws

Bipinchandra Jaisinghbhai Shah v Prabhavati11

The case is related to Bombay Hindu Divorce Act 1947. The husband, appellant in this case, was
the petitioner. Misunderstanding and problems cropped up in the marriage because of a friend of
the husband with whom the wife became intimate when the husband was on a short trip abroad.
There were letters also to establish the intimacy. The defendant wife having been discovered in
her correspondence with the supposed person could not face her husband and his family and
went to her parents’ place on the pretext of a marriage in her family. The husband sent solicitor’s
letter to her charging her of intimacy and asking her to send back the child to him. He also asked
his father-in-law not to send the defendant back. After 4 years, the husband filed a petition for
divorce on the ground that the defendant had been in desertion from four years without
reasonable cause and without his consent and against his will (four years of separation was a
statutory requirement under the Bombay Hindu Divorce Act, 1947). The wife pleaded
constructive desertion by the husband alleging that she was forcibly turned out of the house. The
husband denied this. He succeeded at the trial court but lost on appeal by the wife at the High
Court. The Supreme Court decided in favour of the wife. The husband had failed to discharge the
burden of proof of desertion throughout the whole period of four years. He had refused the
reconciliation offers made by the wife and her family. The Apex Court explained the concept of
desertion. It held that if a spouse abandons the other in a state of temporary passion without
intending permanently to cease cohabitation; it will not amount to desertion. According to SC,
there are following ingredients of desertion as a ground for matrimonial relief:

(i) Factum of desertion by deserting spouse

(ii) Intention to bring cohabitation permanently to an end or animus deserendi
(iii) Absence of consent to such separation by the deserted spouse
(iv) Absence of conduct reasonably causing the deserting spouse to form his or her necessary
intention
(v) The petitioner bears the burden of proof

11
AIR 1957 SC 176

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 (vi) The offence of desertion commences when the fact of separation and animus deserendi co-
exist
(vii) The desertion must have continued at least for the prescribed statutory period
(viii) Desertion comes to an end if the deserting spouse comes back to the deserted spouse
before the statutory period is out or unless the proceedings for divorce have been started
(ix) If the deserted spouse refuses the offer made by the deserting spouse unreasonably, the
latter will be in desertion and not the former.

Savitri Pandey v Prem Chandra Pandey12

The wife sought divorce on the ground of desertion and cruelty under s. 13 of HMA. The trial
court and the High Court found, on facts as also on evidence led in support of cruelty that she
failed to establish that she was treated with cruelty. The court emphasized that ordinary wear and
tear of family life cannot be equated with cruelty. Also, the wife had admitted that there was no
cohabitation between the parties. According to the court, “Court cannot be decided on the basis
on sensitivity if the petitioner and has to be adjudged on the basis of the course of conduct which
would, in general be dangerous for a spouse to live with the other. The trial court, however,
granted divorce on the ground of desertion but the High court, on appeal, set aside the decree.
The Supreme Court emphasized that there can be no desertion without cohabitation.

The court remarked: “Cohabitation by the parties is an essential ingredient of a valid marriage as
the object of the marriage is to further perpetuation of the race by permitting lawful indulgence
in passions for procreation of children. In other words, there can be no desertion without
previous cohabitation by the parties. The basis for this theory is built upon the recognized
position of law in matrimonial matters that no one can desert who does not actively ort willfully
bring to an end the existing state of cohabitation. However, such a rule is subject to just
exceptions which may be found in a case on the ground of mental or physical incapacity or other
peculiar circumstances of the case. However, the party seeking divorce on the ground of
desertion is required to show that he/she is not taking advantage of his or her own wrong.”

12
AIR 2002 SC 591

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In this case, it was the wife herself who had declined and did not permit the husband to have
cohabitation for consummating the marriage, thus implying that it is she who deserted.

Another significant fact in the case is that the wife re-married pending husband’s appeal in the
High Court. The court took serious note of this and remarked: “If despite pendency of appeal the
appellant chose to solemnize the second marriage, the adventure is deemed to have been
undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal
pending in the High Court. No person can be permitted to flout the course of justice by his or her
overt or cover acts.”

Laxman v Meena13

In this case, the husband petitioned for judicial separation on the ground of wife’s desertion.
Meena, the daughter of an affluent businessman having business houses all over the South East
Asia, was married to a physician whose father was also a businessman. Parties were married in
1946. They had a child in 1947. In 1954, Meena left her husband’s house and went to Poona with
her father and from there she went to several South-East Aisa towns where her father had
business establishments. The husband wrote several letters to her requesting her to join him and
to every letter she replied that she would come as soon as her health would permit. But a time
reached when Laxman lost his patience and started hurling wild and nasty allegations in his
letters and ultimately crossed the threshold of the court by suing for judicial separation on the
ground of desertion. Meena’s story reveals that she had no freedom in her husband’s house, that
she was abused and insulted by her parents-in-law and sisters-in-law, that she was not allowed to
look after her husband and the child and that whenever there was any trouble between her and
her in-laws her husband always took the side of her in-laws. It was in these circumstances that
she was left with no alternative but to leave the matrimonial home. According to Laxman, Meena
was disrespectful and indifferent to her him and was proud and arrogant and that she was very
disrespectful, disobedient and rude to his parents. She used to leave for her parents’ house very
often, and sometimes without informing, she had no love and affection for him, and in her
father’s house she indulged in smoking, drinking and playing cards. The trial court passed decree

13
AIR 1964 SC 40

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in favour of the husband. The High Court reversed the decree. In the Supreme Court, the
majority decided in favour of the husband. According to the majority, the wife left the
matrimonial home without the consent of the husband and the nasty letters that the husband
wrote to her while she was abroad did not have such impact on her mind as to prevent her from
joining her husband. The Court held that the burden of proof lies on the petitioner who has to
show that desertion was without reasonable cause and without consent or against the wish of the
petitioner and that it subsisted throughout the statutory period.

Reasonable Excuse/Cause

Any matrimonial misconduct which is grave and weighty will amount to reasonable excuse.
Reasonable excuse includes the following: (i) a ground for relief in any matrimonial cause, (ii) a
matrimonial misconduct not amounting to a ground of a matrimonial cause, yet sufficiently
weighty and grave, or (iii) such an act, omission or conduct which makes it impossible for the
respondent to live with petitioner.

It can also be stated that it would amount to reasonable excuse, if the petitioner is guilty of such
conduct or act which makes it impossible for the respondent to live with the petitioner.

Statutory Period of Desertion

Desertion as a ground for divorce differs from other statutory grounds of divorce (like cruelty
and adultery) in that it is inchoate until the proceedings are instituted. It is a course of conduct
which must persist for the statutory period upto the presentation of the petition. Once desertion
begins, it continues day after day, till it is brought to an end by the conduct of the deserting
spouse. It also means that desertion is not complete even if the statutory period has expired. It
may still be brought to an end by an act or conduct of the deserting spouse. It becomes complete
only when the deserted spouse files a petition for matrimonial relief. In Sanjay Kumar v Pratima
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Devi (2010 Patna High Court Judgment)14, where a husband filed a divorce petition on ground of
wife’s desertion after one year and two months of her separating from the home, the same was
dismissed as there was no desertion for a continuous period of not less than two years as
provided in Hindu law.

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 case of living away with the consent of the other. In
Bhagwati v Sadhu Ram (1961 Punjab High Court Judgment)15, the wife was living separate from
her husband in a rented house under a compromise in maintenance proceedings under S. 488
CrPC and the court held that she was not in desertion.

Termination of Desertion

Desertion may be terminated at any times by resumption of cohabitation, because a resumption

of cohabitation is the exact negation of a state of desertion. There must be common or mutual
intention of the parties to resume cohabitation in circumstances showing that a true reconciliation
has been effected. A spouse may at any time before institution of proceedings by the other
spouse terminate the desertion by resumption of cohabitation or even by a sufficient offer of
reconciliation. The requirements of a valid offer at reconciliation or resuming cohabitation are:
offer must be genuine; offer must not be hedged with unreasonable conditions; and offerer must
not be guilty of any other matrimonial misconduct (adultery, cruelty). If the deserting spouse
genuinely desires to return, the other spouse cannot refuse the offer unreasonably. The desire to
come back must be brought to the notice of the deserted spouse.

14
Quoted from Kumud Desai’s Indian Law of Marriage and Divorce, page 610.
15
Cited from Modern Hindu Law by Paras Diwan, page 141.

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Burden of Proof

It was an established view that the burden of proof lies on the petitioner who has to show that
desertion was without reasonable cause and without consent or against the wish of the petitioner
and that it subsisted throughout the statutory period.16 It is for the petitioner to establish both
animus deserendi and factum of desertion. When animus deserendi is not proved, a party is not
entitled to a decree. After Dastane v Dastane(1975 Supreme Court Decision), it has been held
that desertion may be proved on preponderance of probabilities.17

In case of constructive desertion, a mere wish or intention that the other spouse should leave is
insufficient by itself to constitute constructive desertion. It is the conduct of the parties, along
with the intention or wish that has to be considered.

Desertion is ‘cruelty’

The Bombay High Court ruled out in January 2014 that deserting one’s spouse without a valid
reason amounts to cruelty and a ground for divorce.18 The facts of this case are: Seema Patil
married Sandeep Patil in 1992. Within months, there were problems among the two, as Seema
did not want to stay in a joint family and they moved to an independent house. In 1993, she went
to her parent’s house for the birth of her son and never returned. Pradeep, in 1994, moved the
court for restitution of marriage, but after reconciliation efforts failed, he filed a divorce
application. In 1998, the family court granted divorce, which Seema challenged in the High
Court. She alleged that she was subject to physical abuse at the matrimonial home and driven out
of the house as she could not meet her husband’s monetary demands. But the High Court said
Seema could not prove the ill-treatment claims. The HC said that Seema had not given any
justifiable reason to leave her matrimonial home and also, reconciliation was not affected by
Seema.

16
Bipinchandra v Prabhavati, AIR 1957 SC 1957; Laxman v Meena, AIR 1964 SC 40.
17
See Paras Diwan, Law of Marriage and Divorce, page 437.
18
www.timesofindia.indiatimes.com/city/mumbai/Desertion-is-cruelty-ground-for-divorce-
HC/articleshow/2865573.cms

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Conclusion

On the basis of the case laws, it can be concluded that:

1) There cannot be anything like “mutual desertion”, because for desertion to exist, one
party has to be guilty. There may be wilful neglect or constructive desertion, but a
situation might never arise when both the spouses are guilty of deserting each other.
2) If we were to look into Bipinchandra v Prabhavati case or Laxman v Meena, then it was
well established that the burden of proof lies on the petitioner who has to show that
desertion was without reasonable cause and without consent or against the wish of the
petitioner and that it subsisted throughout the statutory period. But after the Dastane v
Dastane judgment, desertion may be proved on preponderance of probabilities.
3) Intention to desert and the factum of desertion are both required to prove desertion.
4) If the deserted spouse has impelled the other spouse to leave because of his/her
behaviour, it is the case of constructive desertion and it is the former who would be
guilty.
5) After the Bombay High Court judgment, desertion may be treated as ‘cruelty’. However,
this decision is not binding on other courts.
6) There can be no desertion without cohabitation.
7) Desertion comes to an end if the deserting spouse comes back to the deserted spouse
before the statutory period is out or unless the proceedings for divorce have been started.
However, if the deserted spouse refuses the offer made by the deserting spouse
unreasonably, the latter will be in desertion and not the former.

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Bibliography

Books

1. Diwan, Paras, Law of Marriage and Divorce, Universal Law Publishing Co., New Delhi,
6th edition, 2011.
2. Diwan, Paras,Modern Hindu Law,Allahabad Law Agency,New Delhi, 22nd edition, 2013.
3. Diwan, Paras, Family Law, Sage Publications, New Delhi, 21st edition, 2012.
4. Kusum, Family Law Lectures Family Law I, LexisNexis, Nagpur, 2nd edition.
5. Mulla’s Hindu Law
6. Desai, Kumud, Indian Law of Marriage and Divorce, LexisNexis, Nagpur, 8th edition,
2011.

Online Newspapers

1. The Times of India

www.timesofindia.indiatimes.com/city/mumbai/Desertion-is-cruelty-ground-for-divorce-
HC/articleshow/2865573.cms

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