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DESERTION
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Desertion
INTRODUCTION
Under Section 13(1), Hindu Marriage Act desertion is explained. 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. Desertion is a total repudiation of the obligations of
marriage; desertion is not merely an act but includes conduct. To constitute desertion, previous
cohabitation by parties is must. Without previous cohabitation there cannot be any desertion1.
The word deserted woman finds its origin from Sanskrit Language where it is used to
represent a woman who is poor, deprived of social, economical and legal rights and
whose company has been left by her husband by throwing her out of her matrimonial
house without giving her any land, property, or any maintenance and who was compelled
to live either in her parental house or all alone. In Uttarakhand a woman whose company
has been left by her husband without divorcing her neither comes neither in the category
of divorced women nor in the category of widow. Mostly these Deserted women though
married are made to lead the life of widow. Not getting maintenance from the husband,
deserted women is deprived of the basic amenities.
The word deserted woman can be said to be having a wide meaning. The women who are
the victims of this social evil have to work hard, to bring up their children in hard
conditions, to live on the mercy of their parents and brothers. But all of them are not
always fortunate enough to live on the mercy of their parents or brothers.
Kinds of Desertion
Desertion under the Hindu Marriage Act falls under following categories:
a) Actual desertion,
b) Constructive Desertion, and
c) Willful neglect.
Actual Desertion the following are the essential constituent elements of desertion:
The first two elements apply to the deserting part, i.e., the deserting spouse must have left the
other party with an intention to forsake or abandon him or her permanently. The elements No.3
and No.4 apply to the deserted spouse, i.e., he or she must not have given his or consent or
provided a reasonable cause of desertion. 3 The last element is statutory requirement of the period
before expiry of which a petition is not maintainable. Thus, for the success of the petition on the
grounds of the desertion it is incumbent on the part of the petitioner to prove all the five
elements.
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 bad, resolve that next day he
will abandon the matrimonial home, but day after day he continues to live in matrimonial home.
It is clear that he formed an intention to desert, but that intention to desert has not been translated
into action and he continues to live in matrimonial with the other spouse. He cannot be said to
have deserted to other spouse.4
Constructive Desertion- Desertion is not withdrawal from the place but from the state of
thing , i.e., from cohabitation. It was held in Savitri Pandey V.Prem Chand Pandey that
desertion means withdrawing from matrimonial obligations and not withdrawal from the place if
a party withdraws from the cohabitation, it is he who is guilty of desertion, despite the fact that
he continues to live o=in a matrimonial home . If a spouse creates a situation or conducts himself
in a manner that a other spouse is compelled to leave the matrimonial home, then the spouse who
compelled the other party to leave the matrimonial home is deserter and not the spouse who left
the matrimonial home. In Lang V. Lang, 5 the House of Lords said that if one spouse by his words
and conduct compels the other spouse to leaves the marital home, the former will be guilty of
desertion, though it is the latter who is physically6 separated from other.
Willful neglect- Explanation to Section 13(1), Hindu Marriage Act 1955, lays down that
desertion includes willful neglect of the petitioner by the other party to the marriage. There it
has been said that an act of omission done by accident of inadvertence is not willful, nor is it, on
the other hand, absolutely necessary that to be willful, the act or omission should be deliberate
and intentional. Thus it will amount to willful neglect if a person consciously acts in a
reprehensible manner in the discharge of his marital obligations. In short 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
marital obligation will not amount to willful neglect. Failure to fulfill basic marital obligations,
such as denial of the company or denial of marital intercourse, or denial too provide maintenance
will amount to willful neglect.7
The law also recognises the concept of "constructive desertion", where the behaviour of one
spouse is such as to leave the other no real alternative but to move out: in those circumstances,
the spouse who moves out can still claim to have been deserted by the other. The introduction of
non-molestation orders and other remedies for domestic violence has made this less important
than it used to be, but it is still of some significance.
Desertion cannot be regarded as "behaviour" justifying a petition under the previous subsection.
Unfortunately, it is the rural and middle class people that often succumb to the temptation of
acquiring foreign groom. It is only when the daughters are abandoned that the parents, who have
possibly liquidated their assets to help their daughter enter into the so-called marriage wake up
and approach the state authorities. The government needs to address the problem by considering
suggestions such as marking on the visa marriage status of the person; providing legal assistance
and financial aid to women abandoned in foreign shores; liaison with foreign governments to
book the grooms in bigamy charge; and to restrain the grant of ex-parte divorce by foreign
courts. It is with a view to understand the problems of abandoned women, its cause and effect
and to identify the areas of policy interventions that could help alleviate the problems of deserted
married women, that the institute decided to undertake this study in two states viz. Andhra
Pradesh and Punjab which have high incidences of young girls and women falling victims to
bigamous/polygamous suitors.
Conclusion
It may be common in the matrimonial parlance that a spouse has ``deserted'' the other partner, but
proving the serious charge of ``desertion'' to seek divorce is not a child's play. Merely because a spouse
lives separately for a long time does not guarantee divorce. it requires much more to get a decree of
divorce. Can a husband seek divorce on the sole ground that his wife had been living separately for a
reasonable time? or, for that matter, can the wife also resort to divorce on the ground that her husband
had been living separately, thus causing cruelty to her? in one of the rare judgments on the sole issue of
``desertion'', the supreme court (justice D.P Mohapatra and justice Doraiswamy Raju) has explained that
its meaning must be understood in the matrimonial parlance. Section 13(1)(ib) of the hindu marriage
act, 1955, deals with divorce. it says: ``any marriage solemnized, whether before or after the
commencement of this act, may, on a petition by either the husband or the wife, be dissolved by a decree
of divorce on the ground that the other party has deserted him/her for a continuous period of not less
than two years. but this period must be immediately preceding the presentation of the petition for
divorce.'' The provision has an explanation saying: ``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, and its
grammatical variations and cognate expressions shall be construed accordingly''.
thus, it is difficult to give a comprehensive definition of the term `desertion' but the essential ingredients
of this offence are : first, the factum of separation; second, the intention to bring cohabitation
permanently to an end which is also called ``animus deserdandi''; and third, the element of permanence
which is a prime condition and requires that both these essential ingredients should continue during the
entire statutory period of two years. in other words, break in this period can demolish the allegation of
desertion. The charge can also be negated by a contesting party if she or he is able to demonstrate that
his or her leaving the house was of a temporary nature in order to lodge a protest. The act has widened
the definition of desertion to include ``willful neglect'' of the petitioner spouse by the deserter. Desertion
must also be without reasonable cause and without the consent or against the wish of the petitioner. it is
clear that the legislature intended to give to the expression a wide import which includes willful neglect
of the petitioner spouse. Therefore, for the offence of desertion, two essential conditions must exist: the
factum of separation and the intention to end matrimonial relationship. Similarly, two elements are
needed as far as the deserted spouse is concerned. first, the absence of his or her consent, and, second,
absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the
necessary intention. The petitioner spouse is under an obligation to prove the two ingredients in order to
get a decree of divorce. The cause of desertion is equally important. if a spouse creates an unbearable
situation for the other leading to his or her leaving the matrimonial home, it would not amount to
desertion without consent. The doctrine of ``constructive desertion'' says that the desertion is not to be
tested by merely ascertaining which party left the matrimonial home first. if one spouse is forced by the
conduct of the other to leave home, it may be that the spouse responsible for driving the other out is
guilty of desertion. In a recent judgment, the supreme court said that the intention behind making an
offer to persuade the deserted wife to return home must be bone fide. for instance, a wife who deserts
her husband having illegitimate relationship, cannot be accused of desertion. on the contrary, the
husband can be charged with cruelty and adultery. She can reject his offer to return home yet survive the
charge of desertion if the husband's offer to break relationship with other women is not a sincere step.