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INTRODUCTION

Marriage constitutes the terribly basis of social structure. Hindu law regards wedding as a
sacrament- indissoluble and eternal. This religious ceremony character of wedding has given
rise to bound anomalies. The declaration of Manu that neither by sale nor by desertion is
married woman free from the husband was applied solely to girls and not men. therefore there
was part of inherent injustice on the married woman in Hindu law. To counter such
inequalities among spouses and to shield the religious ceremony side of wedding, Hindu
wedding Act, 1955 was enacted that provided bound marital status remedies.

Marriage is an establishment within the maintenance of that the general public at giant is
deeply interested. it's the inspiration of the family and successively of the society while not
that no civilization will exist. a wedding solemnized, whether or not before or once the
commencement of the Hindu wedding Act, 1955 will solely be dissolved by a decree of
divorce on any of the grounds enumerated in Section thirteen of the Act.

The Hindu wedding Act, 1955 came into existence, eight years once the independence of the
country. Section thirteen of the Hindu wedding Act deals with the grounds on that the parties
will get a decree of divorce from a competent court having jurisdiction to entertain such
petition. within the literal sense "divorce" suggests that a legal separation of 2 persons of the
other sex WHO want to respect and honor one another.1

Theories of Divorce

There square measure primarily 3 theories for divorce-fault theory, mutual consent theory
& unrecoverable breakdown of wedding theory.

Under the Fault theory or the offences theory or the guilt theory, wedding is dissolved only
either party to the wedding has committed a married offence. it's necessary to own a guilty
Associate in Nursingd an innocent party, and solely innocent party will get the remedy of
divorce. but the foremost putting feature and disadvantage is that if each parties are guilty,
there's no remedy accessible.

Another theory of divorce is that of mutual consent. The underlying principle is that since 2
persons will marry by their discretion, they must even be allowed to maneuver out of their
relationship of their own discretion. but critics of this theory say that this approach can
promote immorality because it can result in hasty divorces and parties would dissolve their
wedding even though there have been slight incompatibility of temperament.

The third theory relates to the unrecoverable breakdown of wedding. The breakdown of
wedding is outlined as “such failure within the married relationships or such circumstances
adverse thereto relation that no affordable likelihood remains for the spouses once more

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inhabitancy as husband & better half.” Such wedding ought to be dissolved with most
fairness & minimum bitterness, distress & humiliation2.

Some of the grounds accessible underneath Hindu wedding Act is aforesaid to be underneath
the idea of frustration by reason of such as circumstances. These embody civil death,
resignation of the globe etc.

Grounds for Divorce Under Hindu Marriage Act

It is conceded all told jurisdictions that public policy, smart morals & the interests of
society need that married relation ought to be encircled with each safeguard and its severance
be allowed solely within the manner and for the cause given by law. Divorce isn't favored or
inspired, and is allowable just for grave reasons.

In the fashionable Hindu law, all the 3 theories of divorce ar recognized & divorce are
often obtained on the idea of anyone of them. The Hindu wedding Act, 1955 originally, based
mostly divorce on the fault theory, and enshrined 9 fault grounds in Section 13(1) on that
either the husband or partner might sue for divorce, and 2 fault grounds in section 13(2) on
that partner alone might ask for divorce. In 1964, by associate degree modification, bound
clauses of Section 13(1) were amended within the variety of Section 13(1A), so recognizing 2
grounds of breakdown of wedding. The 1976 modification Act inserted 2 extra fault grounds
of divorce for partner & a brand new section 13B for divorce by mutual consent.

The various grounds on which a decree of divorce can be obtained are as follows-

Adultery
While free love might not are recognized as a criminal offence altogether countries, the
marital offence of free love or the fault ground of free love is recognized in most. Even
below the Shastric Hindu law, wherever divorce had not been recognized, free love was
condemned within the most unequivocal terms. there's no clear definition of the marital
offence of free love. In free love there should be voluntary or accordant sexual issues
between a spouse equivalent and another, whether or not married or unwed, of the
alternative sex, not being the other’s relative, throughout the subsistence of wedding. Thus,
intercourse with the previous or latter partner of a polygamous wedding isn't free love.
however if the second wedding is void, then sexual issues with the second partner can
quantity to free love.

Though ab initio a divorce may be granted given that such relative was living in free love, by
the wedding Laws modification Act, 1976, the current position below the Hindu wedding Act
is that it considers even the one act of free love enough for the decree of divorce[iii].

Since free love is Associate in Nursing offence against wedding, it's necessary to ascertain
that at the time of the act of free love the wedding was subsisting. Also, it follows that

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unless one volitionally consents to the act, there is no free love. If the partner will establish
that the co-respondent raped her, then the husband wouldn't be entitled to divorce.3

In Swapna Ghose v. Sadanand Ghose[iv] the partner found her husband and also the loose
woman to be lying within the same bed at nighttime and any proof of the neighbors that the
husband was living with the loose woman as husband and partner is spare proof of free
love. the very fact of the matter is that direct proof of free love is incredibly rare.

The offence of adultery may be proved by:

 Circumstantial evidence
 Contracting venereal disease

Cruelty

The thought of cruelty could be a dynamical thought. the trendy thought of cruelty includes
each mental and physical cruelty. Acts of cruelty ar activity manifestations stirred up by
various factors within the lifetime of spouses, and their surroundings and therefore; every
case must be selected the premise of its own set of facts. whereas physical cruelty is
straightforward to see, it's troublesome to mention what mental cruelty consists of. Perhaps,
mental cruelty is lack of such marital status kindness, that inflicts pain of such a degree and
period that it adversely affects the health, mental or bodily, of the better half on whom it's
inflicted. In Pravin Mehta v. Inderjeet Mehta,[v] the court has outlined mental cruelty as ‘the
state of mind.’4

Some Instances of Cruelty are as follows-

 false accusations of adultery or unchastity

 demand of dowry
 refusal to have marital intercourse/children
 impotency
 birth of child
 drunkenness
 threat to commit suicide
 wife’s writing false complaints to employer of the husband
 incompatibility of temperament
 irretrievable breakdown of marriage

3 http://www.legalserviceindia.com/helpline/grounds_for_divorce.html

4 https://indiankanoon.org/search/?formInput=cruelty%20ground%20for%20divorce
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The following do not amount to cruelty-

 ordinary wear & tear of married life

 wife’s refusal to resign her job
 desertion per se
 outbursts of temper without rancor.

Conversion

In a country wherever laws governing wedding and divorce square measure a operate of
spiritual affiliation, conversion of 1 of the spouses produces legal complications. Conversion
to a different faith below stood| is thought} as apostasy under Muslim law, wherever it's a
ground for divorce .Conversion to a different faith could be a ground for divorce below
section 13(1)(j) of the Hindu wedding Act, 1955, and section 32(i) of the Parsi wedding and
Divorce Act, 1936.

Conversion per se isn't a ground for divorce below the Indian Divorce Act, 1869. Husband’s
bigamy and conversion could be a wife’s ground of divorce below section 10(2) and not
straightforward conversion.

Under the Special wedding Act, 1954, the question of conversion as a spherical for divorce
doesn't arise because the Act stipulates for inter-religious marriages.5

Under Hindu law, someone doesn't lose his religion by mere renunciation of it; nor will he
belong to a different religion by simply avouchment it or active it. It appears that ancient
Hindu law failed to give for conversion of followers of different religions. solely the Arya
Samajists, through the shudhi ceremony, enable conversion. In a series of cases, culminating
within the Peerumal v. Poonuswami, it's been set down that an individual might also become
a Hindu once expressing AN intention, expressly or impliedly, he lives as a Hindu and
community or caste, into the fold of that he's ushered in, accepts him as its member. In such a
case, one needs to inspect the intention and also the conduct of the convert. underneath
fashionable Hindu law, 2 propositions for the conversion of a non-Hindu to a Hindu are
established-

i) If he undergoes a proper ceremony prescribed by the community or caste he's changing to,

ii) If he expresses a authentic intention to become Hindu in the middle of conduct

unambiguously expressing the intention and acceptance of him as a member by the
community or caste he's changing to.

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Also, the Hindu wedding Act, 1955, the subsequent 2 conditions ought to glad, so as to
invoke conversion as a ground for divorce [64] -

Respondent has ceased to be a Hindu

Respondent has regenerate to a different religion: This ground can solely be obtainable once
the respondent converts to a non-Hindu religion, i.e., not together with religion, Jainism,
Buddhism etc.

According to the Dissolution of the Muslim wedding Act, 1939 -

i- The apostasy of the husband still leads to a moment dissolution of wedding.

ii- If a Muslim partner reconverts to a religion, that she originally belonged to, it still leads to
a moment dissolution of wedding.

iii- The apostasy of a Muslim partner doesn't lead to the dissolution of the wedding.

Mere renunciation of Islam amounts to apostasy underneath Muslim law. thus will
conversion to a different faith. it's going to be categorical or inexplicit.

The Indian Divorce Act, 1869 permits a partner to divorce her husband if he has regenerate to
a different faith, and married another lady. however if the partner converts, the husband has
no such rights.

Insanity

Insanity as a ground of divorce has the following two requirements-

1. i) The respondent has been incurably of unsound mind

2. ii) The respondent has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.

Leprosy

Leprosy is a ground for divorce under all the other Indian personal laws with the exception of
the Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936. Under Muslim
law it is only a wife’s ground for divorce. Under the old Hindu law leprosy was a
disqualification from inheritance. Under the Hindu Marriage Act, 1955 leprosy has to be
virulent and incurable , while under the Special Marriage Act, 1954 the respondent must be
suffering from leprosy which has not been contracted from the petitioner . On the other hand,
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under the Dissolution of the Muslim Marriage Act, 1939 the only thing that needs to be
shown is that the respondent is suffering from leprosy. 6

It appears to be odd that under the Special Marriage Act, 1954 leprosy of any type, whether
virulent or non-virulent and whether curable or incurable is a ground for divorce, just as it is
under Muslim law.

Venereal Diseases
Venereal disease may be a ground for divorce below the Hindu wedding Act, 1955 , the
Special wedding Act, 1954 , the Dissolution of the Muslim wedding Act, 1939 and also the
religionist wedding and Divorce Act, 1936 whereas on the opposite hand it's not thought of
as a ground for divorce or order below the Indian Divorce Act, 1869.

However, below the Dissolution of the Muslim wedding Act, 1939, the illness ought to be
virulent. below the religionist wedding and Divorce Act, 1936, needs infection of litigator by
the litigator

Renunciation Of The World

“Renunciation of the world" could be a ground for divorce solely below Hindu law, as
renunciation of the globe could be a typical Hindu notion. The lifetime of a Hindu is claimed
to be ruled by the Hindu deity varnashrama system. The ashramas square measure stages
during a man’s life on the thanks to his final liberation. The sanyasa ashrama is that the last
stage during a man’s life, wherever he leads a lifetime of total renunciation. although a
section of Hindu faith, it's still been created a ground for divorce, because the following of
one’s religion mustn't quantity to hardships for one’s relative. Now, fashionable written
Hindu law lays down that a relative could get divorce if the opposite party has renounced the
globe and has entered a order.

Presumption Of Death

Under the Act, someone is probable to be dead, if he/she has not been detected of as
existence for a amount of a minimum of seven years. The burden of proof that the
whereabouts of the respondent don't seem to be illustrious for the requisite amount is on the
petitioner beneath all the married laws. this can be a presumption of universal acceptance
because it aids proof in cases wherever it'd be very tough if not not possible to prove that fact.
A decree of divorce granted beneath this clause is valid & effective notwithstanding it
later transpires that the respondent was actually alive at the time once the decree was passed.

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Desertion

Desertion means the rejection by one party of all the obligations of marriage- the permanent
forsaking or abandonment of one spouse by the other without any reasonable cause and
without the consent of the other. It means a total repudiation of marital obligation.

The following 5 conditions must be present to constitute a desertion; they must co-exist to
present a ground for divorce:

 the factum of separation

 animus deserdendi (intention to desert)
 desertion without any reasonable cause
 desertion without consent of other party
 statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati the Supreme Court held that where the respondent leaves the
matrimonial home with an intention to desert, he will not be guilty of desertion if
subsequently he shows an inclination to return & is prevented from doing so by the
petitioner.7

Wife’s Special Grounds For Divorce

Besides the grounds enumerated above, a wife has been provided four additional grounds of
divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

Pre-Act Polygamous Marriage

This clause states the bottom for divorce as, “That the husband has another woman from
before the commencement of the Act, alive at the time of the celebration of the wedding of
the petitioner. as an example, the case of Venkatame v. Patil wherever a person had 2 wives,
one among whom sued for divorce, and whereas the petition was unfinished, he single the
second woman. He then averred that since he was left solely with one woman, and therefore
the petition ought to be fired. The Court rejected the plea.

Such a ground is on the market if each the marriages square measure valid marriages &
the opposite woman (2nd wife) ought to be gift at the time of filing of the petition. However,
nowadays this ground is not any a lot of of sensible importance.

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Rape, Sodomy Or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since the
solemnization of the marriage, been guilty of rape, sodomy or bestiality.

Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C.,
1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation
has not been resumed between parties after one year or upwards, then this is a valid ground
for suing for divorce.

Repudiation Of Marriage

This provision provides a ground for divorce to the spouse once the wedding was solemnized
before she earned the age of fifteen years, and he or she has disowned the wedding, however
before the age of eighteen. Such repudiation could also be categorical (written or spoken
words) or could also be implicit from the conduct of the spouse (left husband & refused
to return back). Moreover, this right (added by the 1976 amendment) has solely a
retrospective impact i.e. it are often invoked no matter the very fact that the wedding was
solemnized before or once such amendments.

Irretrievable Breakdown Of Marriage

Irrespective of the 3 remedies offered to parties that is: restitution of legal right, edict and
divorce, the judiciary in Asian nation is hard to please unretrievable breakdown of wedding
as a special ground for divorce, as typically courts face some difficulties in granting the
decree of divorce thanks to a number of the technical loopholes within the existing theories
of divorce. each the Supreme Court and Law Committee take into account the
implementation of such a theory as a boon to parties WHO for one or the opposite reasons
area unit unable to hunt the decree of divorce. so within the opinion of the Supreme Court
and Law Commission of Asian nation, it's terribly essential to form it a special and separate
ground mission that introduction of unretrievable breakdown of wedding, as a special
ground can do any public smart.

Under Hindu wedding Act, 1955 primarily there area unit 3 theories underneath that divorce
is granted:

(i) Guilt theory or Fault theory,

(ii) Consent theory,

(iii) Supervening circumstances theory.

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The unretrievable breakdown theory of divorce is that the fourth and therefore the most
disputable theory in legal jurisprudence, supported the principle that wedding may be a union
of 2 persons supported love feeling and respect for every different. If any of those is
hampered thanks to any reason and if the marital relation between the spouses reaches to such
an extent from wherever it becomes fully irreparable, that's a degree wherever neither of the
mate will live peacefully with one another and acquire the advantages of a marital relations,
than it's higher to dissolve the wedding as currently there's no purpose of stretching such a
dead relationship, that exist solely in name only and not in reality.

The breakdown of relationship is likely actual. the actual fact that parties to wedding live one
by one for fairly longer amount of your time (say 2 or 3 years), with any affordable cause
(like cruelty, adultery, desertion) or perhaps with none affordable cause (which shows the
disposition of the parties or perhaps of 1 of the party to measure together) and everyone their
makes an attempt to reunite unsuccessful, it'll be likely by law that relationship is dead
currently.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli has counseled AN change to the
Hindu wedding Act, whereby either mate will cite unretrievable breakdown of wedding as a
reason to hunt divorce. Expressing the priority that divorce couldn't be granted in range of
cases wherever marriages were nearly dead thanks to the absence of the availability of
unretrievable breakdown, the court powerfully advocated incorporating this idea within the
law visible of the modification of circumstances.8

The Court discovered that public interest demands that the married standing ought to, as way
as attainable, as long as attainable and whenever attainable, be maintained. However,
wherever a wedding has been destroyed on the far side any hope of being repaired, public
interest needs the popularity of the actual fact. The judgment notes that there's no acceptable
method during which a mate will be compelled to resume life with the consort which things
inflicting misery mustn't be allowed to continue indefinitely as law encompasses a
responsibility to adequately reply to the wants of the society. The profound reasoning is that
in things once there's fully no probability to measure once more collectively or once it's on
the far side repair, in such a case it'd be futile to stay the matrimonial tie alive. Here the
bottom of unretrievable breakdown is admittedly required. however it mustn't be oblivious
that the bottom, once introduced, has to offer safeguards to make sure that no party is
exploited.

DESERTION AS A GROUND OF DIVORCE

In rationalization to sub-section (1) of Section thirteen, Hindu wedding Act, Parliament has
therefore explained desertion: “The expression ‘desertion’ suggests that the desertion of the
petitioner by the opposite party to the wedding while not cheap cause and while not the
consent or against the would like of such party, and includes the delinquency of the petitioner
by the opposite party to wedding, and its grammatical variations and cognate expressions
shall be construed consequently.” In its essence desertion suggests that the intentional
permanent forsaking and abandonment of 1 spouse equivalent by the opposite while not that

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other’s consent and cheap cause. it's a complete repudiation on the obligations of the
wedding.

For the offence of desertion, to date because the deserting spouse equivalent is bothered, 2
essential conditions ar required: (1) the factum of separation, associate degreed (2) the
intention to bring inhabitation for good to an finish (animus deserendi). In actual desertion,
it's necessary that respondent should have abandoned or abandoned the married home.
Suppose, a spouse equivalent a day, whereas he goes to bed resolves to abandon the married
home successive day however continues to remain there, he had shaped the intention however
that intention has not been translated to action. He can not be aforesaid to possess deserted
the opposite spouse equivalent. On the opposite hand, if a spouse equivalent leaves the
married home for studies or business and goes to a different place for a few amount, with the
clear intention that, when completion of studies or work he would come back home however
isn't ready to come back as a result of ill health or alternative work. during this case the
factum of separation is there however, however his intention to abandon is lacking, so this
may not represent desertion.

Similarly, 2 parts ar essential to date because the deserted spouse equivalent in concerned: (1)
the absence of the consent, and (2) absence of conduct giving cheap cause to the spouse
equivalent feat the married home to make the mandatory intention . If one party leaves the
married home with the consent of the opposite party, he or she isn't guilty of desertion. as an
example, if husband leaves his adult female to her parent’s house, it's not desertion as
husband’s consent is gift. Again, a pregnant adult female UN agency goes to her father’s
place for delivery while not the consent of the husband can not be treated in desertion.
Desertion may be a matter of logical thinking to be drawn from the facts and circumstances
of every case. The offence of desertion commences once the actual fact of separation and
therefore the hostility deserendi co-exist. however it's not necessary that each ought to begin
at constant time. The actual separation could have commenced while not the mandatory
hostility or it should be that the separation and therefore the hostility deserendi coincide in
purpose of your time.. but it's not necessary that the intention should precede the factum. as
an example, a husband goes abroad for studies, at the start he's contact with adult female
however slowly he ceases that contact. He develops attachment with another girl and decides
to not come back. From this point onward each factum and hostility co-exist and he becomes
a deserter. A mere separation while not necessary hostility doesn't represent desertion.each
factum of physical separation and hostility deserendi should be verified. it's conjointly
necessary that there should be a determination to associate degree finish to marital status
relation and inhabitation. there's nothing like mutual desertion beneath the Act. One party
needs to be guilty.9

Desertion means to abandon, leave or run # away. Deserted women are a group of women
who have been abandoned or left out by their husbands after marriage without any time
limitation. The period of marital life among the deserted women varies from a few days to
many years. The reasons for desertion are many. However, the most important reason for
desertion of women irrespective of their socio-economic, religious, and cultural status are the
extramarital relationship or bigamy of husbands. Moreover, demand of excess dowry after
marriage and ill treatment of wives without any reason also leads to desertion.

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This study being on “desertion of married women”, it is important to highlight the laws
related to desertion. The following pages discuss the laws related to the desertion discussed
by Sagar Chand Jain in his book, The Law Relating to Marriage and Divorce ( 1986.)

Desertion means the intentional permanent forsaking and abandonment of one spouse by the
other without the other's consent and without reasonable cause. It is a total repudiation of the
obligation of marriage. In view of the large variety of circumstances and modes of life
involved, the courts have discouraged attempts at defining desertion, there being no general
principle to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks
to enforce as the recognition and discharge of the common obligations of the married state,
the state of things may usually be termed, for short, the home. There can be desertion without
previous cohabitation by the parties, or without the marriage having been consummated. The
person who actually withdraws from cohabitation is not necessarily the deserting party. The
fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a
charge of desertion. The offence of desertion is a course of conduct which exists
independently of its duration, but as a ground for divorce it must exist for a period of at least
two years immediately preceding the presentation of the petition or where the offence appears
as a cross-charge of the answer. Desertion as a ground of divorce differs from the statutory
ground of adultery and cruelty in that the offence founding the cause of action of desertion is
not complete, but is inchoate, until the suit is instituted. Desertion is a continuing offence.

“For the offence of desertion, so far as the deserting spouse is concerned, two essential
conditions must be there, namely: (i) factum of separation, and (ii) the intention to bring
cohabitation permanently to an end (animus deserendi). Similarly two elements are essential
so far as the deserted spouse is concerned: (i) the absence of consent, and (ii) absence of
conduct giving reasonable cause to the spouse leaving the matrimonial home to form the
necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts
and circumstances of each case. The inference may be drawn from certain facts which may
not, in another case, be capable of leading to the same inference; that is to say, the facts have
to be viewed as to the purpose which is revealed by those acts or by conduct and expression
of intention, both interior and subsequent to the actual acts of separation. If, in fact, there has
been a separation, the essential question always is whether that act could be attributable to an
animus deserendi. The offence of desertion commences when the fact of separation and the
animus deserendi co-exist. But it is not necessary that they should commence at the same
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time. The de-facto separation may have commenced without the necessary animus or it may
be that the separation and the animus deserendi coincide the point of time; for example, when
the separating spouse abandons the matrimonial home with the intention, expressed or
implied, of bringing cohabitation permanently to a close”.

Factum of Separation

One of the essential ingredients of desertion is separation of one spouse from another and
there can be no desertion while the parties are living together. In certain cases there may be
desertion, although husband and wife are living in the same house, if there is such a forsaking
and abandonment by one spouse of the other that the court can say that the spouse had ceased
to be one household and become two households. Desertion as a ground of divorce differs
from the statutory grounds of adultery and remains inchoate, until the presentation of the
petition, however long might have been the period of previous desertion. To compute the
statutory period of 2 years separation, it is not permissible, if the period is broken, to add the
broken periods together so as to make a sum of two years.

Even living together of spouses for a very short period as husband and wife, during two
years preceding the presentation of a petition of divorce on the ground of desertion, defeats
the petition. The separation of two years should be continuous and uninterrupted.

Two years of desertion must be immediately preceding the presentation of the petition. A
petition filed before the expiry of this statutory period has to be dismissed as premature. If the
wife lives with the husband for one or two nights in pursuance of the order of the court in
reconciliation proceedings or in pursuance or warrants under section 97 Code of Criminal
Procedure, it does not wipe out the earlier desertion by the husband.10

Intention to bring cohabitation permanently to an end (animus deserendi)

The question of desertion cannot be decided by merely enquiring which party left the
matrimonial home. The husband may well live in the place but make it absolutely impossible
for the wife to live there and if in that state of things the wife leaves the matrimonial home, it
can legitimately be held that it is the husband that has deserted the wife and not the other way
round. In case a spouse is forced by the conduct on the other to live separately or to stay
away, desertion would not be attributed to the spouse who lives separately or stays away for

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the simple reason that the said situation has been brought about by the act of the person who
was guilty of misconduct.

Desertion must be a voluntary act by the other party. If the husband throws out the wife and
closes the door of his house to her, in no way does it imply that wife has deserted her
husband.

In dealing with human relation one has to keep in view the fact that social position of an
abandoned woman is quite inferior in Indian society. Moreover, the wife does not ordinarily
abandon the husband. Young girls seldom leave the society of the husband unless forced to
do so. All the ingredients of desertion should be proved.
In order to establish desertion, the petitioner must show that the separation of the respondent
is against the wishes and without the consent of the petitioner. A separation, however long
with consent or acquiescence of the petitioner, cannot constitute desertion for the purpose of
a decree for divorce, or judicial separation. The conduct of the parties may be looked at to
find out if the opposite party has actually withdrawn from cohabitation and if so, the
inference of desertion may be properly drawn. It is necessary for the husband to make offer to
his wife to resume marital life. If wife unreasonably refuses to accept offer of husband, court
can infer animus deserendi on her part.

If the husband is less educated than wife and is earning less than her, she may have
superiority complex and give rise to conditions of cruelty and possibility of deserting him,
although it is not true in each and every case. The withdrawal from the society of the husband
may be real or physical but without any intention to shun his company, in that case she
cannot be held guilty of desertion.

A husband or a wife cannot claim divorce or judicial separation if desertion is by him or her
even if a marriage has irretrievably broken down. No relief can be given to such a party as
nobody can take the benefit of his or her own wrongs. Such relief is available in England
where the theory of 'No Faculty, Divorce' is prevalent under Divorce ReformsAct, 1969.

This is very unfortunate that our matrimonial law is based on doctrine of matrimonial offence
and divorce is for a real matrimonial wrong. There is no provision in the Hindu marriage Act,
that a marriage which is broken down irretrievably should be dissolved.

Examples of desertion

1.The husband left his wife at her parent’s house for 7 to 8 years uncared; his conduct
amounted to desertion.
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2 Party taking unreasonable attitude resulting in separation is guilty of desertion.

3.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 meager income. The act of wife
amounted to desertion.

4.Wife not intending to live with husband on any condition.

5 Wife took no step to disprove charge of desertion.

6 Husband filing application for restitution of conjugal rights and wife filing for judicial
separation on the ground of cruelty constitute desertion.

7 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.

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

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) the factum of separation; (2) animus
deserendi; (3) absence of his or her consent (4) 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. 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
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
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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.

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
agreement, or by mutual consent, it is a clear consent of living away with the consent of the
other.[44] Wife when living away from the husband, husband sends a telegram ‘must not
send wife’ to wife’s father expressed his wish to live separate.

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 years, 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. Wife’s act of
withdrawing jewellary 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. 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.

Defences to desertion

The following are the main defences to desertion:-

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1. Agreement to separation does not amount to separation. But such agreement may be changed
to desertion without resumption of cohabitation. Separation in such cases loses its consensual
element.

2. There may be animus deserendi without a separation.

3. Physical inability to end desertion, such as imprisonment.

4. Absence of just cause of separation.
5. Absence of animus deserendi.

Termination of desertion

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:

(a) Resumption of cohabitation.

(b) Resumption of marital intercourse.

(c) Supervening animus revertendi, or 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
resume

BIBLIOGRAPHY

•Desai S.A., Mulla Hindu Law, 19thedition (2005), Vol-2Lexis-Nexis, New Delhi,

•Diwan Paras, Dr. Paras diwan on Hindu Law, 2ndedition(2002) Orient PublishingCompany, New
Delhi,
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