THE CONCEPT OF DESERTION

UNDER HINDU LAW

Project submitted to:

Ms. Mahima Tripathi
(Faculty of Law)

Project submitted by
Siddharth Dewangan
Semester II; Section: B
Roll no. 163

14.10.2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, C.G.

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ACKNOWLEDGEMENT
I feel highly elated to work on the topic The Concept of Desertion under Hindu
Law.
Thanks to the Almighty who gave me the strength to accomplish the project with sheer
hard work and honesty. This research venture has been made possible due to the
generous co-operation of various persons. To list them all is not practicable, even to
repay them in words is beyond the domain of my lexicon.
I express my deepest regard and gratitude for Ms. Mahima Tripathi, Faculty of Law.
Her consistent supervision, constant inspiration and invaluable guidance have been of
immense help in understanding and carrying out the nuances of the project report
I take this opportunity to also thank the University and the Vice Chancellor for
providing extensive database resources in the Library and access to Internet.
Some printing errors might have crept in, which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project report.

Siddharth Dewangan
Semester II
Roll no: 163

DEWANGAN 3

CERTIFICATE OF DECLARATION

I hereby declare that the project work entitled The Concept of Desertion under Hindu Law
submitted to HNLU, Raipur, is record of an original work done by me under the able guidance
of Ms. Mahima Tripathi , Faculty Member Law, HNLU Raipur.

SIDDHARTH DEWANGAN
ROLL NO.: 163
SEMESTER II
B.A.L.L.B (Hons.)

TABLE OF CONTENTS

1. INTRODUCTION . 5

DEWANGAN 4

OBJECTIVE
RESEARCH METHODOLOGY
2. CONCEPT OF DESERTION ..

3. CONSTRUCTIVE DESERTION. 11
4. TERMINATION OF DESERTION ... .. 13
5. CONCLUSION ... 14

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INTRODUCTION
Marriage constitutes the very basis of social organization. Hindu law regards marriage as a
sacrament- indissoluble and eternal. This sacramental character of marriage has given rise to
certain anomalies. The declaration of Manu that neither by sale nor by desertion is wife
released from the husband was applied only to women and not men. Thus there was an
element of inherent injustice on the wife in Hindu law. To counter such inequalities among
spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was
enacted which provided certain matrimonial remedies.
Marriage is an institution in the maintenance of which the public at large is deeply interested.
It is the foundation of the family and in turn of the society without which no civilization can
exist. A marriage solemnized, whether before or after the commencement of the Hindu
Marriage Act, 1955 can only be dissolved by a decree of divorce on any of the grounds
enumerated in Section 13 of the Act.
The Hindu Marriage Act, 1955 came into existence, eight years after the independence of the
country. Section 13 of the Hindu Marriage Act deals with the grounds on which the parties
can seek a decree of divorce from a competent court having jurisdiction to entertain such
petition. In the literal sense "divorce" means a legal separation of two persons of the opposite
sex who desire to respect and honor each other.
Legally, a petition can only be filed after one year has elapsed from the date of marriage
unless there are exceptional circumstances. The Hindu Marriage Act 1955 lists 9 grounds for
divorce. Namely

Adultery
Cruelty
Desertion
Conversion of religion
Unsoundness of mind / serious mental disorder
Virulent and incurable form of leprosy of partner
Venereal and communicable disease suffered by a partner
Renunciation of the world
Unknown whereabouts of partner for more or atleast 7 years

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In addition to the above grounds, parties may also file for dissolution of marriage on the
grounds of mutual consent, no resumption of cohabitation or no restitution of conjugal rights
for a period of one year or upwards after a judicial decree of separation has already been
passed.
Women have certain additional grounds for filing, namely polygamous husband, rape or
sodomy inflicted on her, or if she was married before she attained the age of 15 as long as the
marriage was repudiated before she attains the age of 18. Because our country is a culturally
and religiously diverse country, there are more than one set of Personal Laws. Muslim
law does not require seven years of unknown whereabouts of husband. Four is sufficient
period for the wife to file for divorce. Similar is the case for the wife of a man who has been
under imprisonment for more than 7 years.

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OBJECTIVE
1. To have a detailed study of the concept of desertion.
2. To understand the meaning of constructive desertion.
3. To study how desertion is terminated.

RESEARCH METHODOLOGY

The method of research adopted for the project is the analytical and descriptive method.
The texts that were used for the project include articles, research papers and news given in
various websites as well as online journals

CONCEPT OF DESERTION

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In explanation to sub-section (1) of Section 13, Hindu Marriage Act, Parliament has thus
explained desertion: 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
marriage, and its grammatical variations and cognate expressions shall be construed
accordingly. In its essence desertion means the intentional permanent forsaking and
abandonment of one spouse by the other without that others consent and reasonable cause. It
is a total repudiation on the obligations of the marriage.1
For the offence of desertion, so far as the deserting spouse is concerned, two essential
conditions are required:
(1) the factum of separation, and
(2) the intention to bring cohabitation permanently to an end (animus deserendi).
In actual desertion, it is necessary that respondent must have forsaken or abandoned the
matrimonial home. Suppose, a spouse every day, while he goes to bed resolves to abandon the
matrimonial home the next day but continues to stay there, he had formed the intention but
that intention has not been translated to action. He cannot be said to have deserted the other
spouse.2 On the other hand, if a spouse leaves the matrimonial home for studies or business
and goes to another place for some period, with the clear intention that, after completion of
studies or work he would return home but is not able to return because of illness or other
work. In this case the factum of separation is there but, but his intention to desert is lacking,
therefore this will not constitute desertion.
Similarly, two elements are essential so far as the deserted spouse in concerned:
(1) the absence of the consent, and
(2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial
home to form the necessary intention .
If one party leaves the matrimonial home with the consent of the other party, he or she is not
guilty of desertion. For instance, if husband leaves his wife to her parents house, it is not
desertion as husbands consent is present. Again, a pregnant wife who goes to her fathers
1 Lachman Utamchand Kripalani v Meena AIR 1964 SC 40
2 Ramesh v Premlata, 1979 MP 15

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place for delivery without the consent of the husband cannot be treated in desertion. Desertion
is a matter of inference to be drawn from the facts and circumstances of each case. The
offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that both should commence at the same time. The de facto
separation may have commenced without the necessary animus or it may be that the
separation and the animus deserendi coincide in point of time. However it is not necessary
that the intention must precede the factum. For instance, a husband goes abroad for studies,
initially he is contact with wife but slowly he ceases that contact. He develops attachment
with another woman and decides not to return. From this time onwards both factum and
animus co-exist and he becomes a deserter. A mere separation without necessary animus does
not constitute desertion.3 Both factum of physical separation and animus deserendi must be
proved. It is also necessary that there must be a determination to an end to marital relation and
cohabitation. There is nothing like mutual desertion under the Act. One party has to be guilty.
Examples of desertion

The husband left his wife at her parents house for 7 to 8 years uncared; his conduct

amounted to desertion.
The wife left the matrimonial home for paucity of accommodation and the husband
refused to live separately from the members of his family due to mearge income. The act

of wife amounted to desertion.

Wife not intending to live with husband on any condition.
Notice issued by wife to the husband expressing her intention not to return to the

matrimonial home constitutes desertion commencing from the date of notice.

The wife became a Brahma Kumari and declined to perform her marital obligation.

Examples of no desertion

The husbands allegation of the wifes unchastity caused the wife to live separately from

the husband.
Continued separation without intention to willfully neglect is not desertion.
An aggrieved spouse cannot be said to in desertion.
Where the husband was guilty of cruelty to wife and of openly keeping a mistress in the
house so that the wife was compelled to leave her husbands house, it was held that the
wife did not desert the husband without reasonable cause.

3 Rohini Kumari v Narendra Singh AIR 1972 SC 459

DEWANGAN 10

Wife was turned out of house forcibly by husband and never tried to bring her back. She
was clearly not in desertion.

Burden of proof
In case of desertion, the burden of proof lies upon the petitioner. The petitioner is required to
prove the four essential conditions namely,
(1)
(2)
(3)
(4)

the factum of separation;

animus deserendi;
absence of his or her consent
absence of his/her conduct giving reasonable cause to the deserting spouse to leave the
matrimonial home.

The offence of desertion must be proved must be proved beyond any reasonable doubt and a
rule of prudence the evidence of the petitioner shall be corroborated.4 In short the proof
required in a matrimonial case is to be equated to that in a criminal case.

CONSTRUCTIVE DESERTION
Where a situation or circumstances are created either by actual use of force or by the conduct
of one spouse that the other spouse is compelled to leave the matrimonial home, it constitutes
constructive desertion of the creator of the situation or circumstances. It is not necessary for
the husband in order to desert his wife to actually turn his wife out of doors; it is sufficient if
4 Bipinchandra Shah v Prabhavati AIR 1957 SC 176

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by his conduct he compelled her to leave the house. It is now well settled that the matrimonial
court has to look at the entire conspectus of the family life and if one side by his or her words
or conduct compels the other side to leave the matrimonial home, the former would be guilty
of desertion, though it is the latter who is seemingly separated from the other. But where the
husband does not take any steps to effect reconciliation, he is not guilty of constructive
desertion.
The ingredients of both actual and constructive desertion are the same: both the elements,
factum and animus must co-exist, in former there is actual abandonment and in the latter,
there is expulsive conduct.
Under constructive desertion, the deserting spouse may continue to stay in the matrimonial
home under the same roof or even in the same bedroom. In our country, in many homes
husband would be guilty of expulsive conduct towards his wife to the extent of completely
neglecting her, denying her all marital rights, but still the wife because of social and economic
conditions, may continue to live in the same house. 5
Examples of constructive desertion

The husband accused constantly the wife of her immorality and told her to go away.
The husbands adultery.
Husbands intention was to divorce wife with a view to remarry and he forced wife to
leave matrimonial home.

WILLFUL NEGLECT
It connotes a degree of neglect, which is shown by an abstention from an obvious duty,
attended by knowledge of the likely result of the abstention. However, failure to discharge or
omission to discharge, every material obligation will not amount to willful neglect. Failure to
fulfill basic marital obligations, such as denial of company or denial of marital intercourse, or
denial to prove maintenance will amount to willful neglect.
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
5 Lachman Kripalani v Meena AIR 1964 SC 40

DEWANGAN 12

agreement, or by mutual consent, it is a clear consent of living away with the consent of the
other. Wife when living away from the husband, husband sends a telegram must not send
wife to wifes father expressed his wish to live separate.6
DESERTION MUST BE FOR A CONTINUOUS PERIOD OF TWO YEARS
To constitute a ground for judicial separation or divorce, desertion must be for the entire
statutory period of two years7, preceding the date of presentation of the petition. Desertion is
an continuing offence; it is an inchoate offence. This means that once desertion begins it
continues day after day till it is brought to an end by the act or the conduct of the deserting
party. It is not complete even if the period of two years is complete. It becomes complete only
when the deserted spouse files a petition for a matrimonial relief. Wifes act of withdrawing
jewellery from the locker and remaining away from her husband for two years clearly proved
her desertion.
OFFER TO RETURN
If a deserting party spouse genuinely desires to return to his or her partner, that partner cannot
in law refuse to reinstate him or her.8 An offer to resume cohabitation must be genuine or bona
fide for which two elements must be present. First, an offer to return permanently, if accepted,
must be implemented; secondly, it must contain an assurance as to the termination of the
conduct by the deserting party which caused the separation. A refusal to such an offer would
convert the deserted party to the deserting party. The offer to return to resume married life by
the deserting spouse before the expiry of the statutory period of desertion must not be
stratagem. The deserting spouse must be ready and anxious to resume married life.

TERMINATION OF DESERTION

6 Bipinchandra Shah v Prabhavati AIR 1957 SC 176

7 Shakuntala v Om Prakash, 1981 Del 53
8 Perry v Perry [1952] 1 All ER 1076

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Desertion is a continuing offence. This character and quality of desertion makes it possible to
bring the state of desertion to an end by some act or conduct on the part of deserting spouse. It
may be emphasized that the state of desertion may be put to an end not merely before the
statutory period has run out, but also at any time, before the presentation of the petition.
Desertion may come to an end by the following ways:
i.
ii.
iii.

Resumption of cohabitation.
Resumption of marital intercourse.
Offer of reconciliation.

Resumption of cohabitation If parties resume cohabitation, at any time before the

presentation of the petition, the desertion comes to an end. Resumption of cohabitation must
be by mutual consent of both parties and it should imply complete reconciliation. The
desertion ends only when the deserting parties goes to the matrimonial home mentally
prepared to end the cohabitation. It is necessary to prove that marital intercourse was also
resumed.
Resumption of marital intercourse Resumption of marital intercourse is an important
aspect of resumption of cohabitation. Sometimes resumption of marital intercourse may
terminate desertion. If resumption of marital intercourse was a step towards the resumption of
cohabitation, it will terminate desertion even if the deserted spouse backs out.
Offer of reconciliation If the party in desertion expresses an intention to return, this would
amount to termination of desertion. Animus revertendi means intention to return. Desertion
may be brought to an end by the deserting spouses genuine and bonafide offer of
reconciliation. It should not be just to forestall or defeat the impending judicial proceedings.
However, if the deserted spouse refuses to take back the deserting spouse then, he himself
becomes the deserter.

CONCLUSION

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Desertion in the literal sense means deserting or forsaking or abandonment of one spouse by
the other. Desertion can also be said to be negation of living together, i.e. when a marital
couple ceases to live together renouncing all their marital duties and obligations. It is
provided as a ground for divorce under section 13 (1) (ib) of the Hindu Marriage Act, 195584.
It is pertinent to note that desertion can be taken as a ground for divorce only when the
abandonment or separation has occurred for a continuous period of 2 years. There must not be
any gap i.e. to say, that the period of 2 years should be continuous. The spouses must have
been living separately for minimum 2 years in order to make desertion as a ground for
divorce. Desertion in order to seek divorce under the Act means the deliberate permanent
forsaking and abandonment by one spouse of the other without that others consent and
without reasonable and just reason. In other words, it can be termed as absolute repudiation of
the obligations of marriage. Desertion is not withdrawing from a place, but from a state of
things. It is pertinent to note that desertion was not recognized as a ground for divorce earlier
and it was only after the amendment act.

BIBLIOGRAPHY/WEBLIOGRPHY

DEWANGAN 15

Books:

Modern Hindu Law(2013), Dr. Paras Diwan, Allahabad Law Agency

Family Law I (2011), Professor Kusum, LexisNexis Publication.

http://indian-laws.blogspot.in/2011/12/desertion-under-hindu-marriage-act-

1955.html
http://blog.ipleaders.in/desertion-ground-divorce/
http://jcil.lsyndicate.com/wp-content/uploads/2016/03/DESERTION-AS-A-

Websites:

GROUND-FOR-DIVORCE.html