dissertation divorce india

The Philosophy of Divorce in Indian Legal Context: A Study of Theories of Divorce

11 Pages Posted: 12 Mar 2021

Hitabhilash Mohanty

Supreme Court of India

Janice Ayarzagoitia

Central European University (CEU), Department of Legal Studies, Students

Date Written: November 9, 2020

A divorce is a court judgment ending a marriage. The court requires a "legal reason" for the divorce. In addition to the legally ending of the marriage, the court looks at other issues which need to be decided before the divorce becomes final. Divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union of the husband and wife. Manu has declared that a wife cannot be released from her husband either by sale or by abandonment, implying that the marital tie cannot be severed in any way. It, therefore, follows that the textual Hindu law does not recognize divorce. Although Hindu law does not contemplate divorce yet it has been held that where it is recognized as an established custom it would have the force of law. Under Muslim marriage: the concept of divorce, we all know, that the husband and wife is necessary to condition for happy family life. Islam, therefore, insists upon the subsistence of a marriage and prescribes that breach of the marriage- the contract should be avoided. Initially, no marriage is contracted to be dissolved in the future, but in unfortunate cases, the take place and the matrimonial contract is broken. For having a detailed analysis of the subject matter, this article delves deep into the philosophy of ‘divorce’ thereby understanding the terminology at first. For this purpose, it analyses the changing concept of marriage over time. Thereafter, this article deals with the legal provision of ‘Divorce’ embedded in section 13 of the Hindu Marriage Act, 1955 thereby explores various ‘theories of divorce’ emerging out of the applicability of the said provision.

Keywords: Divorce, Marriage, Hindu Marriage Act, Hindu Law

Suggested Citation: Suggested Citation

Hitabhilash Mohanty (Contact Author)

Supreme court of india ( email ).

Tilak Marg New Delhi, Delhi 110201 India

Central European University (CEU), Department of Legal Studies, Students ( email )

Nádor u. 9 Budapest, 1051 Hungary

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Desertion As A Ground For Divorce

In this blogpost, Sudhi Ranjan Bagri, Student, National Law Institute University, writes about what is desertion, concept and element of desertion, on which party does the burden of proof rely and the law relating to desertion in India.  

Introduction

“Desertion is not the withdrawal from a place, but from a state of things.” [1]

Halsbury’s Laws of India defines desertion as a ‘total repudiation of the obligation of marriage’. [2] The word desert literally means ‘to abandon or give up or forsake without any sufficient reason or intention to return’. [3] In a marriage, if one spouse leaves the matrimonial alliance without any sufficient cause he is said to be at ‘fault’.

Marriage is considered a sacrament and preserved as a social institution. [4] In olden times, it was believed that this special contract could be put to an end only when one of the spouses was guilty of an act which undermined the importance of this institution. This was the foundation of the fault based theory of marriage. In a bid to preserve this holy union, the society reprimands the guilty spouse and provides no remedy of divorce for him, thereby restricting the right to file for divorce to the spouse with the clean hands. The ambiguity and complexities of the law have been interpreted by the judiciary which attempts to render justice to the innocent party. In spite of this attempt, there is a scope for abuse and misuse of the law by the guilt spouse.

Concept and elements of desertion

Section 13(1) ( ib ) of the Hindu Marriage Act, 1955 deals with desertion as a ground for divorce and the explanation of the same reads: “The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of 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”. There are mainly four basic elements which are primarily to be satisfied to constitute desertion. The first two are to be present in the deserting spouse.

• The fact of separation (factum deserdendi)
• The intention to desert ( animus deserdendi) [5]

Desertion is a state which occurs only on the co-existence of both of these elements. If either of these two ingredients is absent, the petition for divorce on desertion fails. [6] The interesting  phenomenon in desertion is that either of the elements can precede the other; however, desertion will result only when both coincide and form a union. [7]  

When a petition is filed, the first step is proving the fact of separation and the intention separately while the second step is to prove their union. It is fairly easy to prove the physical act of separation either from the conductor from the state of minds. The difficulty arises on proving the animus i.e. the intention for desertion. This intention is required throughout the period of desertion. The petitioner is expected to prove intention through conduct as a person’s mind cannot be read. [8] In this process, there are two ways in which the deserting spouse has an opportunity to misuse the position of law: 

There exist cases where the separation was consensual (like when the husband is on a voyage) with no animus to desert. [9] While separated, one of the spouses may develop the intention to bring an end to the cohabitation permanently on the expiry of the consensual period. With the separation and the consequent formation of intention, the act of desertion commences which the deserted spouse is expected to prove. The exact duration of supervening intention is difficult to prove thereby giving an edge to the deserting spouse, and the deserted spouse is in a worse off position as she had consented to something she could not object(like a husband leaving for a business trip). [10]

The quality of permanence in intention to leave the matrimonial home is one of the essential sub-elements in desertion which differentiate it from willful separation. If there is just temporary separation without the intention to leave permanently, there is no desertion. [11]

In this law, if a person decides to return just before the expiry of two years and claims to have no intention of permanent separation, the so deserted spouse will have no recourse in law

Apart from these elements in the deserting spouse, there are two other elements which have to be present in the deserted spouse:

• Absence of consent
• The absence of conduct which led to the other spouse leaving the matrimony. [12]

The deserted spouse filing the petition is the one who must sufficiently prove and provide evidence for his conduct showing unmistakably that the desertion was against his will. [13] Courts have held that it is not enough for the petitioner to show that he was unwilling that the respondent stays out rather he must have expressly declared his wishes to the deserting spouse or make it clear that the absence was against his wish. [14] With this burden on the deserted spouse, there arise times when illiterate, and submissive women cannot expressly convey their consent or rather lack it. This creates problems in discharging their burden of proof providing for the deserting spouse to take advantage of. If there is no proof of lack of consent, the consensual separation is not a matrimonial offence using volenti non fit injuria. [15]

It is additionally important to note that for a matrimonial relief on the ground of desertion, it is necessary to show the passage of the statutory period of two years and the same must be continuous. [16] Therefore, it can be illustrated that a deserting spouse has an opportunity to take advantage of the law right from the fulfillment of basic elements of desertion.

Desertion as a continuing offence

The petition for divorce on the grounds of desertion can be filed only after a period of two years from the commencement of the co-existence of animus and the factum. Desertion is known as continuing offence as the element of permanence necessarily requires that the factum and animus must continue during the entire statutory period preceding the presentation. [17] If the spouse returns before the expiry of two years and then leaves again, the waiting period of two years commences all over again from the time he left again. If such period is interrupted, the broken periods may not be added together so as to establish a summed period of two years. The legislature provided this buffer period as a sort of cooling off period so that couples can rethink and reconsider their decision before ending the holy matrimony. [18]

Desertion is known as an inchoate offence as it continues from the day it commences to the day it is terminated by the conduct of the deserting spouse or by the presentation of the petition. [19]

It becomes a complete fault based matrimonial offence only when the deserted spouse files for divorce.

Keeping the intent of the legislature in mind, providing a period of two years is also problematic in a few ways. There may be instances where the deserting spouse may return within two years on reconsideration of his decision, but the law provides for recommencement of the additional period of two years on his departure again providing him with an opportunity to abuse the leeway provided for reconciliation. The legislature overlooks the consequence on the deserted spouse who is left without any support or maintenance. The trauma of being deserted for a period just less than two years might lead to the attitude of non-acceptance of the renewal of the marriage by the deserted spouse. The legislature might have good intentions in protecting the marriages, but it seems to be working out the assumption that the deserted spouse would always want the cohabitation to resume as soon as the deserting spouse returns. This presumption by the legislature provides the deserting spouse a chance to abuse the law.

Termination of desertion

As seen above, desertion as a ground for relief differs from other such as adultery or cruelty as in that offence the cause of action of desertion is not complete until the petition seeking relief is filed. [20] This means that through an act or conduct of the deserting spouse, the desertion can be put to an end. Desertion can come to an end in the following ways:

• Resumption of co habitation
• Resumption of marital intercourse
• Supervening animus revertendi or offer of reconciliation. [21]

Resumption of cohabitation and marital intercourse should be with the intention of permanency. The deserting spouse may return just before the completion of the statutory period or engage in intercourse with the deserted spouse only to leave again. In both these cases, the offence of desertion is terminated although the deserter has no real intention to resume cohabitation but merely seeks to forestall or defeat impending judicial proceedings.      When the offer of reconciliation is made, there lies an opportunity for misuse. Courts have said that unjustified refusal of the offer of reconciliation would not only terminate desertion but also reverse the process and “put the boot on the other leg “making the innocent spouse guilty of desertion now. This can be used by the deserting spouse for defense even when he has no intention of actual reconciliation.

Recognizing this loophole, the Courts have sought to restrict such abuse of this provision by laying down stipulations such as casual acts of intercourse are not to be considered as proof of resumption of the marital relationship. Additionally, the offer of reconciliation must be genuine and in good faith. There may be instances where the deserting spouse has given just cause for leaving the matrimonial home. In these instances, the deserted spouse cannot possibly be expected to subject herself to a risk of recurrence and should be allowed to refuse reconciliation. Under the Matrimonial Clauses Act, 1973, if parties resume cohabitation during the period of desertion with a view to effect reconciliation, but the same does not come about, desertion will not be terminated but the period during which parties lived together will be deducted. This should also be accepted by the Indian courts. They must do so by taking into account the facts and circumstances both prior and subsequent to the desertion and also determine whether the deserting spouse can be reasonably said to be ready and willing to resume the marital relationship.

Burden and problem of proof

The Court has held that the onus of proving desertion and all its elements rests on the petitioner as, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with common-sense as it is “so much easier to  prove a positive than a negative”. However, the Courts are often faced with a problem of conflicting evidence, and it is difficult to decide which of the conflicting factual version given by the two spouses is correct. This is especially so since such cases occur within the privacy of the four walls of the house and in the absence of witnesses to corroborate evidence, the circumstances are hostile to the discovery of the truth. This translates into an advantage for the deserting spouse. Following the English Courts, the Supreme Court initially held that such proof must be beyond reasonable doubt. Eventually, the courts held that matrimonial offence may be proved on the preponderance of probabilities. However, there have been cases which have been decided on the beyond reasonable doubt standard thereby placing an immense burden on the innocent party to get relief and letting the deserter go scot free.

Due to the subjectivity and absence of any guidelines for the determination of desertion petitions, the discretion and prejudices play a huge role in the process. It is true that every case needs to be weighed according to the individual facts and background, however for consistency in dispensing justice; there is a need to introduce guidelines for the judges.

 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 today’s 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 woman’s right to reside in the matrimonial home because of her right to the consortium and the husband’s 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

[1] Pulford v. P ulford (1947) 1 All E.R . 32.

[2] Halsbusry’s Laws o f India: Volume 26 (New Delhi: Butterworth’s, 2007) at 267.

[3] M. N. N., “Desertion” as a Ground for Divorce´ 83(7) University of Pennsylvania Law Review and American Law Register (May, 1935) at 906.

[4] Dr. G. Kameswari, “Divorce and Judicial Separation -Need for a Uniform and Progressive Law´ All India Reporter (2002) at 97.

[5] Dr. P. Diwan and P. Diwan, Modern Hind u Law (Codified and Uncodified) (12 th edn.,Haryana:Allahabad Law Agency, 1998) at118.

[6] Rajini v. Ram swaroop (1995) 2 Civ LJ 74 (All). 

[7] Rajini v. Ram swar oop (1995) 2 Civ LJ 74 (All). 

[8] K. C .Sikroni v.Sarla Sikroni (1989) 2 HLR 356 (Raj). 10

[9] P ardy v. P ardy(1939) 3 All ER 779.

[10] S. M. Cretney, Principles of Family Law (2 nd edn., London: Sweetand Maxwell, 1976) at105-106.

[11] Dr. Sir H. S. Gour, The Hindu Code: II (6 th edn., Allahabad:Law Publishers Pvt. Ltd., 1998) at1082.

[12] Supra note 6 at 118.

[13] A. N. Saha, Marr iage and Divorce (5 th edn., Calcutta:Eastern Law House, 1996) at 197.

[14] Dave Kantilal v. Bai Indumati  AIR 1956 SC 115.

[15] Supra note 8 at214.

[16] S. A. Desai, Mulla Hindu Law:II (17thedn., New Delhi:Butterworths, 1998) at 797

[17] Supra note 17 at 104.

[18] P. M.Bromley, Family Law (5thedn., London: Butterworths, 1976) at 254

[19] Supra note 6 at114-115.

[20] Supra note 19 at 780.

[21] Supra note 6 at 125.

RELATED ARTICLES MORE FROM AUTHOR

Lakshmi kant pandey vs. union of india (1986), commissioner of income-tax vs. gomedalli lakshminarayan (1935), vellikannu vs. r. singaperumal and ors. (2005) .

What if the location of deserter spouse is unknown ?

Desertion or abandonment is gender neutral. Please do not use HE only in your blog.

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DIVORCE UNDER THE HINDU MARRIAGE ACT, 1955: PROVISIONS, CASES, AND PROCEDURE

• Post author: Team LawFoyer
• Post published: 1 September 2024
• Post category: Articles / Family Law
• Reading time: 13 mins read

Author Name: SHRADDHA PATIL

Editor Name: Krishna Parmar

Marriage refers to an institution where two people get involved in a stable and socially permissible relationship legally bound by different personal laws. In the case of Hindus, a marriage is bound by the Hindu Marriage Act, of 1955. The procedures to be followed during the marriage commission are binding on both parties in a Hindu marriage. Similarly, if both parties wish to dissolve their marriage, the procedures to be followed according to the rule of law are formulated in Section 13 of the Hindu Marriage Act, 1955. It lays down nine grounds on which the separation of husband and wife is permitted. Divorce can either be through mutual consent or judicial proceedings when one of the parties does not agree with the terms of marriage.

INTRODUCTION:

The term ‘divorce’ has not been defined in any legal body or act of law, but it pertains to the legal dissolution of a marriage with the use of judicial proceedings and legal machinery. In medieval India, the term divorce was very unknown. With time, there was a need to include divorce in marital rights due to increased awareness regarding human rights and individuality. Before 1955, divorce was denounced due to the notion that marriages were not only to be continued till the death of husband and wife in the real world but also after that. However, changing societal needs created a place for divorce in the Hindu Marriage Act, of 1955.

• Hindu Marriage Act
• Hindu marriage
• Grounds of divorce
• Divorce petition
• Divorce provisions
• Divorce case laws

PROVISIONS:

Recently, the Supreme Court said that it may utilize the authority conferred by Article 142, which gives the Supreme Court the power to administer comprehensive justice, to dissolve any marriage, or to issue a divorce judgment if it has irretrievably broken down. People will find it simpler to approach the Supreme Court right away and skip the waiting time as a result. Let’s explore a few of the significant clauses included in the Hindu Marriage Act:

Section 5: Conditions for Hindu Marriage

Marriage may be solemnized between any two Hindus if the below conditions are fulfilled:

• Both parties should not have a living spouse at the time of marriage.
• At the time of the marriage, neither party was capable of giving valid consent to it, was unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity.
• The groom must be 21 years old, and the bride must be 18 years old at the time of the marriage.
• The parties are not within the degree of a prohibited relationship unless the custom or usage permits it.
• The parties are not spindles of each other unless custom or usage permits it.

Section 10: Judicial Separation

Section 10 of the Hindu Marriage Act is concerned with judicial separation and the steps required to get a divorce considered legal, such as applying in family court. As per sections 13 (i) and (ii), the petition can mention the cause for the separation and also other sections that may be necessary.

Section 13: Divorce

Section 13 of the Hindu Marriage Act is an entirely separate section, designated for divorce. Under this section are listed various grounds for divorce that are relevant in proceedings for a marriage dissolution. It is important to note that Section 13(2) permits a woman to file for divorce, and Section 13(1) permits both men and women to file for divorce.

Any marriage can be dissolved by a decree of divorce on the ground that the other party—

• ADULTERY : has had sexual intercourse with any person other than his or her spouse after marriage
• CRUELTY : caused harm to the petitioner, either physically or emotionally.
• DESERTION : has abandoned the petitioner for a continuous period of 2 or more years before the filing of the petition.
• RELIGIOUS CONVERSION : has ceased to be a Hindu by conversion to another religion
• INCURABLE INSANITY : has been incurable of an unsound mind or has been suffering from a mental disorder
• VENEREAL DISEASE : has been suffering from venereal disease in a communicable form.
• SANYASA, or renunciation, has renounced the world by entering any religious order.
• PRESUMPTION OF DEATH : has not been heard of as being alive for seven years or more.
• RESTITUTION OF CONJUGAL RIGHT: if there has been no resumption of cohabitation between the parties for 1 year or more after the judicial separation or if there has been no restitution of conjugal rights.

A wife may also present a petition for a decree of divorce because:

• The husband had either remarried or any of his previous wives were still alive at the time of the solemnization of the marriage.
• That the husband has been guilty of rape, sodomy (anal sexual intercource), or bestiality (sexual relations between a human being and an animal).
• That her marriage was solemnized before she turned fifteen years old, and she rejected the marriage after 15 years of age but before eighteen years of age.

Section 13B: Divorce by mutual consent

On the ground that they have been living apart for a year or more and have mutually decided that their marriage should be ended.

Section 14: No petition for divorce is to be presented within one year of marriage.

As per the Hindu Marriage Act of 1955, it is forbidden to dissolve a marriage if a year hasn’t passed since the marriage date. Nonetheless, if the sections and sufficient evidence are submitted with the petition, exceptions may be made. It also takes the birth of a child or children from a marriage very seriously.

Section 15: Divorced persons may marry again.

It is legal for either party to a divorce to remarry after the marriage has been dissolved by a decree of divorce if there is either no right of appeal against the decree, the deadline for appealing has passed without an appeal being filed, or an appeal has been filed but dismissed.

Section 25: Permanent alimony and maintenance

Either of the parties to a divorce may make an application to receive maintenance or support as a gross sum or periodical sum for the lifetime of the applicant, keeping in mind the income and other property of both the respondent and the applicant. If required, a charge on immovable property may also be created. Several factors, such as future expenses, lifestyle expenses, costs of education in the case of children, inflation, medical expenses, etc., may be considered while deciding on the sum.

The court may see this as a just order to secure such a payment through the

decree of divorce. Such an order may be modified or rescinded by the court if it observes a change in the circumstances of either party. The court may also modify or rescind the order if either party has remarried or has had sexual intercourse outside of marriage.

Section 26: Custody of children

This section talks about the powers of the court to decide upon custody.

guardianship, support, and education of children (under the age of 18) after the divorce while considering the interests and wishes of the children.

IMPORTANT CASES:

Samar Ghosh v. Jaya Ghosh (2007): In Samar Ghosh v. Jaya Ghosh (2007), the Supreme Court of India discussed the basis of divorce due to cruelty. The court came up with a list of actions that may be concretely categorized as mental cruelty, insisting that marriage dissolution should sometimes be allowed as it all depends on the particular cases and situations involved.

Naveen Kohli v. Neelu Kohli (2006) In Naveen Kohli v. Neelu Kohli (2006), the Supreme Court of India allowed the divorce on the grounds of an irreconcilable breakdown of the marriage, implying cruelty and incompatibility. The court reiterated the stand that long separation and incompatibility are reasons enough to part, suggesting the legislature exercise wise steps and introduce the cause of irretrievable breakdown as one of the grounds for divorce.

Akanksha vs. Anupam Mathur (2018) In this case, the Supreme Court remarked that the couple made the choice of a voluntary divorce, and the divorce should not be delayed for six months. Consequently, the court ruled out the six months, and the marriage came to an end.

Sureshta Devi v. Om Prakash (1991): In the case of Sureshta Devi v. Om Prakash, the Supreme Court ruled that mutual consent for divorce under Section 13B of the Hindu Marriage Act must be continuous until the decree. Due to consent withdrawn by any party even before the decree, the application will not be eligible for the petition.

• The husband and wife file a petition in family court, as represented by their respective counsel. This petition comprises all the information about the parties’ separation, their terms, and the pieces of evidence essential for the divorce.
• The parties are given a date on which they must appear in person before the family court with their respective counsel to go over all the details of the petition, including family histories, properties possessed, the reason for the divorce, child custody (if applicable), identification documentation, and more.
• Because Hindu marriage is considered sacred and viewed as an indissoluble or permanent relationship, the court may also send both parties to mediation before this to see if there is any possibility of reconciliation. However, the family court’s procedures are followed if both parties reject any chance of reconciliation.
• The family court has complete power to add or modify conditions following the law if there is any dispute regarding alimony or maintenance amount and agreement, or if there are issues about child custody or visitation rights, after carefully reviewing and verifying all available evidence and statements from both parties.
• Following this, the first motion is approved, and the parties are given six months to change their minds and see if there is still a possibility to get back together. The time frame may be extended to 18 months from the family court petition date.
• If both parties attempt to get back together and wish to stay together, they can file an appeal for the divorce to be canceled through legal counsel at this time. If both parties refuse to work things out, the divorce will proceed according to the order, and the parties’ final declarations will be recorded in the second motion.
• Following the recording of the statement, the spouses sign the entire and final agreement to ensure that there are no future disputes or problems regarding child custody, alimony, or maintenance.
• The court issues a decree of divorce and declares the marriage null and void once it is satisfied with the arguments made by both parties and determines that there is no possibility of reconciliation in the final motion.

SUGGESTIONS:

In the Hindu Marriage Act, of 1955, there are more grounds for divorce, for example, adultery, cruelty, desertion, conversion, unsoundness of mind, leprosy, venereal disease, renunciation, and presumption of death. These bases are comprehensive; however, they can be put in a new, clearer form with more contemporary problems like emotional abuse and digital infidelity. Even though the Act is silent on the point of “irretrievable breakdown of marriage,” it is increasingly admitted by the courts. A change proposal to put up this cause for divorce would make it easier, and the waiting period for definite proof of such marriages would likely reduce.

Although the Act is written in a more gender-neutral way, its application is sometimes gender-biased. It is so important that everyone, women as well as men, be protected by the law. The Autonomous Board supports mediation and conciliation before you proceed with a divorce to help you solve conflicts calmly. Reassessing and boosting the role of the alternative dispute resolution thingies can make it less likely that the divorce trials will lead to an antagonistic situation and will positively affect family reunion efforts.

There are many people in the dark as to their rights and responsibilities under the Hindu Marriage Act. An increase in public legal awareness and the provision of easy access to legal support can be major ways to rebuild a person’s understanding of matrimonial disputes.

CONCLUSION:

Since previous generations, divorce has been considered a bad notion. There can be several reasons for a couple to get divorced. In India, these problems have a separate dimension. The culture of India is such that a male or female is considered to be a possession of the foster parents as they nurture the child. Such treatments can be pleasing, but they are also one of the main reasons for the increased number of divorces in India.

The other reason may be the communication gap in marriages. Where there is no proper communication, misunderstandings are bound to happen. Both males and females are separate entities in marriage, having their own rights. But some of the rights have to be common for better communication and a successful marriage. Divorces can also happen due to undue influences without the knowledge of both parties, which may take different turns after marriage. Misappropriation at the time of marriage, or hiding the true identity and gender, can also be a reason for the breakdown of the machinery of marriage.

REFERENCES:

Websites referred:

• https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/
• https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955/
• https://districts.ecourts.gov.in/
• https://lawfoyer.in/divorce/

Statutes referred:

• Hindu Marriage Act, 1955

Cases referred:

• Samar Ghosh v. Jaya Ghosh (2007)
• Naveen Kohli v. Neelu Kohli (2006)
• Akanksha vs. Anupam Mathur (2018)
• Sureshta Devi v. Om Prakash (1991)

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From Layman to Lawman

Desertion as a ground for divorce -What to prove?

Nitish Banka

• May 2, 2016

Divorce by Desertion

Desertion is also ground for divorce in India , but the most difficult part is how to prove desertion in court of law. A layman may think desertion as his/her spouse is living separately for the period of 2 years that’s it.

But actually what courts in India require are the 4 things which areto be established by the spouse who is seeking divorce on this ground.

1.. Animus deserendi-This means the intention to desert, if husband or wife decides to leave the martial co habitation as they does not want to continue with martial obligations or may be called husband/wife under the eyes of the society this means they have developed animus deserendi, once this intention is formed this fulfills one criteria for proving desertion.

Now this intention can be from both sides or may be a constructive animus deserendi, In constructive animus deserendi when one of the spouse asks the other spouse to leave the house or leave him/her that is constructive animus deserendi other the other form is that the a spouse can leave the other spouse with his/her own will that is willful desertion. in both the situation the affected spouse i.e the spouse which was made to leave in the case of constructive animus deserendi or the spouse which was left alone can pursue the proceeding for divorce if other requirements are satisfied.

2. Separation- Now the  Animus deserendi is followed by actual separation, now this separation can be physical or mental one, normally itrs the physical one here the actual action takes place merely forming an intention or telling a spouse that I will leave you is not suffice if it is not followed by some action. Merely an action without the intention is also not suffice both intention to leave and followed by action is mandatory in proving desertion.Sometime there is first physical separation and then followed by intention and sometimes its vice versa, both should takes place for a continuous period of 2 years.

3. No reasonable just cause to leave- There should not be any reasonable cause available to the spouse who is leaving the matrimonial ties, generally cruelty is alleged by defending spouse to defeat the proceedings of desertion in such cases the burden is on the defending spouse to prove cruelty by examining witnesses and medical examinations etc. But if defending spouse fails to prove any of the just causes then this ingredient stand proved.

4. without the consent- if the deserting spouse does not consents such desertion this final ingredient also stands proved, but how to prove this ingredient? now let us suppose a spouse leaves then there must be continuous efforts from the other side to b ring back the spouse, it should not be the case where the other spouse sits mutely while the other spouse has deserted. efforts should be made to render reconciliation. here contact with parents, mother father or other relatives are essential. reconciliation at its own level at first and then involvement of relative is essential, this would satisfy the court that deserted spouse never consented for such a desertion.

Proving all the aforementioned ingredients are essential to prove desertion i n court, if any one element is missing divorce cannot be granted. Gene really cases fall short in 3rd and 4th ingredient. merely living separately even willfully does not guarantee divorce to deserting partner.

Now there are two views can be adopted by the courts

The issue whether a case of desertion is made out or not, depends on the facts of each case and is a matter of drawing an inference on the basis of evidence on record. The appellant who was examined as PW-1, in his evidence, has stated that the marriage between the parties was performed on 22.11.2000. He has stated that the respondent deserted the matrimonial home in May 2001. The respondent who has been examined as RW-1, in her cross-examination, has admitted that she has stayed in the matrimonial home only for a period of 4 months from the date of marriage. Thus, from the evidence on record, it is evident that the appellant and respondent are residing separately after 4 months of their marriage. The Family Court, also in paragraph 26 of the judgment, has found that the parties are residing separately for more than 5 years. It is pertinent to note here that the respondent neither sent a notice nor filed a petition under Section 9 of the Act seeking restitution of conjugal rights. From the aforesaid conduct of the respondent, it can safely be inferred that she was not interested in joining the matrimonial home. The parties now are admittedly residing separately for past about 21 years. In the result, the judgment and decree passed by the Family Court dated 13.01.2014 is set aside and the marriage between the parties is dissolved by a decree of divorce on the ground of desertion under Section 13(1)(ib) of the Act. The appellant is under an obligation to pay the amount of arrears of maintenance due to the respondent under the proceeding filed under the Protection of Women from Domestic Violence Act. Therefore, taking into account the income of the appellant which was stated to be Rs. 10,000/-in the year 2014, we direct the appellant to pay a sum of Rs. 10,00,000/-inclusive of the arrears of maintenance due to the respondent, before the Registry of this Court within a period of three months from today. N.P. Rajesh vs. Hemalatha (18.10.2022 – KARHC) : MANU/KA/4841/2022

The appellant/husband had also raised ground that without sufficient reasons the respondent/wife had withdrawn herself from his company and left the matrimonial house. She had deserted him. The appellant/husband had alleged that on 02/05/2004, the respondent/wife quarreled with him by saying that she is desiring to do the job and she wants to terminate the pregnancy. After several attempts the respondent/wife had not returned back. The appellant/husband had adduced his evidence to support his contention. He testified that in the month of June i.e. on 07/06/2004 he contacted the respondent/wife by telephonic call and asked her to return at matrimonial house. Thereafter she called him on 10/07/2004 and asked him to come at her maternal house to fetch her back. Accordingly he went there. The sum and substance of his evidence is that after his attempts the respondent/wife and her father both denied to join the company of the appellant/husband by the respondent/wife for cohabitation. He specifically admitted during cross-examination that he never contacted either by telephonic call or letter to the respondent/wife. He relied on the letter which was addressed to the respondent/wife by him dated 05/12/2004. Admittedly, said letter was not received by the respondent/wife and it returned back to the appellant/husband as not claimed. Though he testified that he sent second letter dated 28/06/2005 but there is no evidence that said letter is received by the respondent/wife. The respondent/wife denied that she received any such letter. Admittedly, the appellant/husband had not issued any legal notice to the respondent/wife asking her to return for cohabitation. Though the appellant/husband had adduced the evidence of Ashok Pundalikrao Tidke which shows that he visited the maternal house of the respondent/wife along with the appellant/husband on 09/10/2012. Thus, there is no evidence that prior to 09/10/2012, the appellant/husband had visited the house of the respondent/wife to bring her back. The respondent/wife as well as her witnesses also admitted that the visit of the appellant/husband at the parents house of the respondent/wife on 09/10/2012. Though the respondent/wife admitted his visit but she denied that the appellant/husband came to fetch her back. Thus, the evidence is sufficient to show that from 2004 to 2012 the appellant/husband had not taken any efforts to bring the respondent/wife back for cohabitation. As already observed earlier he had also not adduced the evidence that the respondent/wife had terminated her pregnancy. On the other hand, the respondent/wife had come with the case that the appellant/husband as well as his sisters suspecting her character, therefore, she constrained to leave matrimonial house. Admittedly, no other reason came forward that the respondent/wife had left the house for other reason. The appellant/husband had suggested the reason that as she wants to do the job and, therefore, she left the house. It is evident that she expressed her desire to do the job after the marriage to her husband. She had completed her post-graduation. The expression of her desire could not be said to be abnormal as every qualified person wants to use the knowledge acquired by him or her. There is no evidence that for acquiring the said job her behaviour was rude and arrogant towards her husband. General allegation is made by the appellant/husband that she had harassed him. As per the allegation of the appellant/husband immediately after the marriage she started harassing him but the evidence shows that thereafter she stayed along with the appellant/husband for four years. From the said wedlock a child was begotten. The evidence of the appellant/husband shows that the respondent/wife not only stayed along with him at Mehkar but at matrimonial house at Buldhana along with other family members. The time and manner in which the appellant/husband harassed was nowhere stated. In the light of above circumstances, the reason mentioned by the respondent/wife to live separately appears more probable. She assigned the reason that not only the appellant/husband but his sisters used to suspect her character which constrained her to leave the matrimonial house. This evidence is to be accepted in the background that the respondent/wife stayed along with the appellant/husband for four years and never complained previously. The suspicion about her character by the appellant/husband constrained her to leave the matrimonial house. She had filed petition for restitution after the appellant/husband had filed petition for dissolution of marriage. She had not issued any notice to the appellant/husband. She filed petition for restitution of conjugal rights mentioning the reason that she constrained to leave the matrimonial house as her character was suspected. It is obvious that whenever a character was suspected, it is difficult for a woman to stay in a matrimonial house. This contention appears to be probable as no other reason came forward which made the respondent/wife to leave the matrimonial house after cohabitation of four years.

Pundlik Martandrao Yevatkar vs. Ujwala (04.10.2022 – BOMHC) : MANU/MH/3534/2022

After giving thoughtful consideration to the controversy we are of the view that the appellant/husband failed to prove the ground of cruelty to obtain a decree of dissolution of marriage. The manner in which the appellant/husband faced cruelty is not proved. Mere annoyance or irritation or normal wear or tear differences does not constitute cruelty. The cruelty should be such in which it is not reasonably accepted to live together. The appellant/husband has not proved the desertion by the respondent/wife. Merely because the respondent/wife staying separately an inference of desertion cannot be drawn. The marriage between the parties cannot be dissolved on the averments made by one of the parties that the marriage between them has broken down. The irretrievable breakdown of the marriage is not a ground by itself to dissolve it. As regards the allegation made by the appellant/husband are not believable. As observed earlier except the ground enumerated under Section 13 of Hindu Marriage Act, 1955 the marriage solemnized under the Act cannot be dissolved on any other ground.

( Advocate Supreme court)

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Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997

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