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Desertion Under The Hindu Marriage Act, 1955

Definition and Concept
Section 13(1)(ib) of The Hindu Marriage act 1955 makes desertion a ground for divorce. In Legal context, desertion is very hard to give a comprehensive definition to, and it's well so, for any attempt to give it a definition would be to limit it so as to deny justice in cases that would have otherwise been resolved had the concept been left open to interpretation. However, a practical definition can be given for the sake of understanding.

The Oxford Dictionary provides the relevant definition of desertion as "the act of leaving somebody without help or support". Black's law dictionary defines desertion as "The act by which a person abandons and forsakes, without justification, or unauthorized, a station or condition of public or social life, renouncing its responsibilities and evading its duties".

In the case of Matrimonial law in the Indian context, a practical definition capturing the essence of the term has been given in Mulla's Principles of Hindu law [S 13.31], which says that "The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other."

The conditions which are considered essential ingredients for the offence of desertion are:

  1. The Factum of separation;
  2. Animus deserendi or the intention to bring cohabitation permanently to an end; and
  3. Element of permanence

There must be an intention to desert the other spouse. Mere physical separation without the animus deserendi would not constitute desertion. For the desertion to take place, both the factum and the animus must coincide together. Desertion is not mere withdrawal from a place, but from the 'state of things', which may be termed as 'the home'.1

There also must be an element of permanence in the desertion for the petition to succeed; the section gives a mandatory period of desertion of two years or more, upon completion of which the marriage could be dissolved by a decree of divorce.

The explanation in the section provides essential details on what may constitute as desertion or not.

The explanation says that desertion must be:
  1. Without reasonable cause
  2. Without the consent of another party
No desertion can take place when the other spouse has consented to the separation. In case when the abandoned spouse has not consented, the other spouse would be liable for desertion if his actions lack any good justification. When however, a reasonable cause exists which may justify the separation, then desertion would not exist. In cases where the domestic abuse caused the wife to abandon the matrimonial house, she can't be said to have deserted the abuser, as she would have had a justified reason for her act.

In Santosh Singh v. Amita Singh (2021), a case on appeal before Chattisgarh High Court, The wife withdrew from her matrimonial home and refused the attempts by the husband to get her back on account that the husband must come to take her back at an "auspicious time" according to the prevailing custom. 12 years passed, and the husband, based on a decree for restitution of conjugal rights granted to him, sought divorce due to desertion. The respondent-wife contended that she, being always ready to go back at the auspicious time, had never in fact deserted the appellant-husband. The court held that the excuse by the wife was not reasonable. A decree of divorce was passed.

It is held, that when the deserting spouse tries to take steps to reconcile with the deserted party, the animus deserendi ends. If, in any case, the deserting spouse is unable to get back because the other spouse refuses to accept them back, then desertion can't be said to continue. Desertion ends when the animus deserendi ends.

Thus, In the case of Bipin Chander Jaisinghbhai Shah vs Prabhawati 2, the parties belonged to the Jain community and were married according to Hindu customs. However, the wife developed an amorous relationship with one Mahendra, and upon being confronted she left her matrimonial house on the pretext of her cousin's marriage, and the plaintiff claimed that she had deserted him, and thus sought a decree for divorce. The defendant, on the other hand, claimed that she was willing to go back to her matrimonial house, but it was the conduct and attitude of the plaintiff that prevented her from doing so. The plaintiff failed to prove his case of desertion by the defendant, and thus the appeal was dismissed.

Types of Desertion

Desertion can further be divided into three broad types, namely:
  1. Actual Desertion:
    Actual Desertion is nothing but what has already been discussed. It's an offence where one spouse leaves the other spouse without reasonable cause or the consent of the party, with the intention to end the matrimonial relationship. Here, the breakdown of marriage is essentially the fault of the deserting party, and the innocent deserted party has the remedy by way of a decree of divorce, as has been discussed just before.
  2. Constructive desertion:
    In constructive desertion, on the other hand, the deserted spouse is made to leave the matrimonial house by the conduct of the offending spouse. Conduct that falls short of Cruelty may justify the leaving of one spouse by the other. It is the offending spouse who has deserted, by expelling the innocent spouse, and not the other way around. In the case of Narayan Prasad v Prabhadevi3 before the Madhya Pradesh High Court, the deserting spouse was maltreated by the mother-in-law and husband because she wasn't subservient to them. The Defendant claimed that the plaintiff-husband left her in the custody of her father, and refused to take her back. The wife even tried on occasion to get back to her husband, but was denied. The court held in favour of the defendant-wife, and dismissed the appeal.
  3. Willful Desertion or Willful Neglect:
    Willful Desertion, or more accurately willful neglect has been used in the explanation of section 13 of HMA, and has been used to explain the ambit of "desertion" so that it includes as wide of an area as possible. As used in the explanation, any special meaning has not been allotted to the word "willful". It would seem however to mean the conscious failure of discharge of marital obligation. Thus, an act or omission caused by accident and not the fault of the party themselves would not constitute "willful neglect", but rather it must be the conscious decision of one party. However, Mere refusal to Intercourse would not amount to willful neglect if the parties were cohabiting together, yet willful failure to maintain the wife would amount to desertion.

Termination of Desertion

Desertion can be said to be terminated when the animus deserendi, or the intention to desert ends. This can be done by an express animus revertendi or an offer to return to marital cohabitation. Such an offer, when expressed genuinely by the deserting spouse, would effectively signal an end of desertion. However, consideration would be given in cases of constructive desertion, where it was the conduct of the offending spouse which led to the subsequent desertion. In such a case, the offer must be accompanied by a genuine feeling of shame and repentance, guaranteeing that such an act would not happen again.

The deserted spouse can include reasonable terms and condition in the negotiation, but the spouse can't refuse a reasonable offer to get back together. When a reasonable offer is given, the desertion would be deemed to have ended as well, and in the case where the previously deserted spouse refuses the offer without any valid justification, that itself would constitute desertion.

Another way in which desertion can simply end is by resumption of cohabitation, living together being the direct opposite of desertion. Other than that, sexual intercourse is also considered to be a good proof of the warming up of the relationship, or at least be taken as a sign of the desire for reconciliation. It must be noted however that sexual intercourse would only be a strong proof, not a decisive one. Mere casual intercourse without any further sign of reconciliation would fail to be a convincing evidence. In England, for example, it has been held that mere casual intercourse would not amount to an end of desertion when the wife has, in all other matters, not shown signs of reconciliation.5

A marital relationship is one in which two parties agree to provide the other with support and companionship, not only to the body but also to the mind. In such a case when one spouse abandons the other without any reasonable justification, and therefore refuses to perform his share of the duty and deprives the other of the happiness of the matrimonial household for a long and continuous period, the other spouse is entitled to be set free from such a relationship by a decree of divorce, and thus be free to seek happiness elsewhere. Therefore, for this purpose, Desertion has been made a ground for divorce in the Hindu Marriage Act, 1955. Desertion must be for a continuous period of 2 years before the petition is presented, to show the quality of permanence in the desertion.

The court may however consider the desertion to have been terminated if the parties started living together, or expressed a genuine desire to reconcile, or based on interaction between them (like sexual intercourse) deem the reconciliation to have taken place. However, in the end it would depend on the facts of the case and on the discretion of the court on whether they grant divorce, or based on facts take the desertion to have been terminated.

  1. Halsbury's Laws of England, 4th Edn, Vol 13, para 576�77.
  2. Bipin Chander Jaisinghbhai Shah vs Prabhawati (1956) 1956 SCR 838
  4. Mulla's Principles of Hindu law, 23rd edition. s13.35
  5. Perry v Perry, (1952) 1 All ER 1076; Whitney v Whitney, (1951) 1 All ER 301.

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