Desertion as a Ground for Divorce

Marriage, considered a sacred institution in many cultures, forms the bedrock of societal stability. However, when one spouse abandons the marital relationship without reasonable cause, it constitutes desertion—a ground for divorce under many legal systems, including the Hindu Marriage Act, 1955. Desertion, as a legal concept, has evolved to encompass not just physical separation but also the intent to permanently forsake the obligations of marriage.

Definition of Desertion

Desertion is not merely the physical withdrawal of a spouse from the matrimonial home. As noted in Pulford v. Pulford (1947), “Desertion is not the withdrawal from a place, but from a state of things.” Under Section 13(1)(ib) of the Hindu Marriage Act, desertion is defined as the abandonment of one spouse by the other without reasonable cause, without the consent of the deserted spouse, and against their wishes.

Halsbury’s Laws of India describes desertion as a “total repudiation of the obligation of marriage,” emphasising the willful neglect of marital duties.

What are Elements of Desertion?

Desertion, as a matrimonial offense, requires the following elements to be established:

• Factum Deserendi (Fact of Separation): The physical act of separation by one spouse from the other. This could be evident in the spouse leaving the matrimonial home or creating circumstances that force the other to leave.
• Animus Deserendi (Intention to Desert): The intention to permanently abandon the marital relationship. This intention must persist throughout the statutory period of two years.
• Absence of Reasonable Cause: The deserting spouse must not have a valid reason for their withdrawal from the marital relationship.
• Absence of Consent: The separation must be against the consent of the deserted spouse.
• Statutory Period of Two Years: The desertion must be continuous for a minimum of two years immediately preceding the filing of the divorce petition.

The co-existence of factum deserendi and animus deserendi is crucial. If either element is absent, the claim of desertion fails.

Types of Desertion

Desertion can manifest in two forms:

• Actual Desertion: Physical separation accompanied by the intention to abandon permanently.
• Constructive Desertion: When the conduct of one spouse becomes intolerable, forcing the other spouse to leave. This includes cruelty, refusal to cohabit, or immoral behavior.

Desertion under Section 13(1)(ib) of Hindu Marriage Act

Section 13(1)(ib) of the Hindu Marriage Act provides desertion as a valid ground for divorce. The section includes “willful neglect” of the deserted spouse as a form of desertion. Courts have interpreted desertion to include a continuous course of conduct that negates marital obligations.

The landmark case Savitri Pandey v. Prem Chandra Pandey (2002) clarified that desertion is not a one-time act but a continuing offense. It requires a persistent intention to abandon the marital relationship.

Termination of Desertion

Desertion, unlike other matrimonial offenses such as adultery or cruelty, can be terminated through specific actions, including:

• Resumption of Cohabitation: When the deserting spouse returns to the matrimonial home and resumes living with the deserted spouse.
• Resumption of Marital Intercourse: Engaging in marital relations with the intent to reconcile.
• Offer of Reconciliation: A genuine attempt by the deserting spouse to repair the marital relationship.

The courts emphasise that reconciliation efforts must be genuine and not a strategy to circumvent legal proceedings. Acts of casual intercourse do not constitute the termination of desertion.

Challenges in Proving Desertion

Proving desertion involves significant challenges, particularly in establishing animus deserendi:

• Intention to Desert: Proving intention requires interpreting conduct, as direct evidence of a person’s mental state is impossible. For instance, a temporary separation may later evolve into desertion if the intention to abandon develops during the period of separation.
• Burden of Proof: The burden of proving desertion lies with the deserted spouse. They must establish all elements, including the absence of consent and reasonable cause.
• Conflicting Evidence: Desertion cases often involve conflicting testimonies, making it difficult for courts to ascertain the truth. The absence of witnesses further complicates matters.
• Statutory Period: The requirement of a continuous two-year period can be manipulated by the deserting spouse. Returning briefly before the period’s expiry resets the clock, allowing the deserter to exploit the law.

Gendered Implications

Indian courts have historically reflected patriarchal biases in cases of desertion. For example, working women are often accused of desertion for failing to fulfill traditional marital roles. In Dave Kantilal v. Bai Indumati (1956), the court noted that a woman working away from her husband’s residence could amount to desertion, highlighting gendered interpretations of marital duties.

To address these inequities, legal experts advocate adopting the principle of “deserted woman equity,” recognising a deserted woman’s right to remain in the matrimonial home and receive maintenance.

Judicial Standards of Proof

Initially, Indian courts followed the English standard of requiring proof beyond a reasonable doubt. However, the Supreme Court later held that matrimonial offenses, including desertion, could be established on the preponderance of probabilities. This shift aligns with the principles of civil litigation and reduces the burden on the deserted spouse.

Loopholes in the Law

Desertion laws, despite their intent to provide justice, are susceptible to misuse:

• Temporary Returns: The deserting spouse may return briefly to reset the statutory clock, leaving the deserted spouse without recourse.
• False Reconciliation Offers: Fake offers of reconciliation can terminate desertion, leaving the deserted spouse vulnerable to repeated abandonment.
• Manipulation of Consent: Consensual separations, such as for work or travel, may later be mischaracterised as desertion, exploiting the difficulty of proving intention.

Conclusion

Desertion remains a critical yet complex ground for divorce under the Hindu Marriage Act. While it provides a remedy for deserted spouses, its fault-based nature and procedural requirements leave room for manipulation by the deserting party. The law must evolve to reflect contemporary social norms and ensure justice for all parties. Adopting the principle of irretrievable breakdown of marriage and addressing gender biases in judicial interpretation are vital steps toward creating a fairer legal framework for matrimonial disputes.