Prakhar Gupta
Christ University, Bengaluru
Introduction:
Marriage is considered a sacrament and preserved as a social institution. 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[1]. 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. It can be said that desertion per se was not a ground for relief by way of divorce prior to the amendment of the section by the Amending Act of 1976, but was only a ground for the relief of judicial separation under clause (a) of section 10(1) of The Hindu Marriage Act of 1955[2] which was in identical terms. Desertion is not the withdrawal from a place, but from a state of things.[3] Halsbury’s Laws of India defines desertion as a ‘total repudiation of the obligation of marriage’.[4]The word desert literally means ‘to abandon or give up or forsake without any sufficient reason or intention to return’.[5] In a marriage, if one spouse leaves the matrimonial alliance without any sufficient cause he is said to be at ‘fault’.
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). Desertion is a state which happens just on the conjunction of both of these components. In the event that both of these two fixings is missing, the appeal for separation on abandonment takes into place. The intriguing phenomenon in desertion is that both of the components can go before the other; be that as it may, departure will result just when both agree and frame an association. In Bipin Chander v. Prabhavati[6], the Supreme Court, after posing the question ‘What is Desertion?’, observed that the legal position had been admirably summarized in Halsbury’s Laws of England[7] which states that desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is 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 Supreme Court made some general observations and summed up some other important principles that will afford considerable guidance in cases arising under the Act. It was pointed out that desertion is a matter of interference to be drawn from the facts and circumstance of each case.
The offence of desertion commences when the fact of separation and the animus deserendi co-exist. However, it is not necessary that they should commence at the same time. The de facto separation may be commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. For example, When the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to the close.
Origin and Development of Desertion as a Ground for Divorce in India:
Under the uncodified Hindu law, divorce was not recognized, unless it was allowed by custom. The reason was that a Hindu marriage was an indissoluble tie between the husband and the wife. How much painful cohabitation may be, divorce was not accepted by the old law. In some communities, such practices fulfilled the requisites of a valid custom.[8] Divorce puts an end to the marriage, and the parties revert back to their unmarried status and are once again free to marry. All rights and mutual obligations of husband and wife ceases. In other words, after a decree of dissolution of marriage, the marriage comes to an end and the parties cease to be husband and wife and are free to go their own ways. There remains no bond between them except in relation to Section 25[9] and Section 26[10] of Hindu Marriage Act, 1955. Matrimonial causes (i.e., legal action in respect of marriages) in their real sense did not exist in Hindu law before 1955, although some reliefs in respect of marriage could be obtained under general law. Thus, a suit for a declaration that a marriage is null and void could be filed under Section 9 of Code of Civil Procedure, 1908 [11] read with Section 34 of the Specific Relief Act, 1963[12].
Before 1857, divorce could be obtained only by a private Act of Parliament and only very rich could afford this luxury. Under the Matrimonial Causes Act, 1857, the husband could file a petition for divorce on the ground of wife’s adultery (the single act was enough), but a wife had to prove adultery coupled with either incest, bigamy, cruelty or two years desertion or alternatively, rape or any other unnatural offence. The Matrimonial Causes Act, 1923 put both spouses at par, and the wife could also sue for divorce on the ground of adultery simpliciter. The Matrimonial Causes Act, 1937 added three more grounds; cruelty, three years desertion and supervening incurable insanity. After the Second World War, a movement developed for the reform of divorce law which accepts the breakdown of marriage as the basic principle of divorce. The Indian Divorce Act, 1869 is based on the Matrimonial Causes Act, 1857 and lays down the same grounds of divorce. At the time when the statute was passed, it applied only to Christian marriages. The Indian Divorce Act was extended to marriages performed under the Special Marriage Act 1872. This Act was repealed by the Special Marriage Act, 1954. The Special Marriage Act was passed in 1954 and the Hindu Marriage Act was passed in 1955[13] Some States introduced divorce by legislation.[14]
Section 13 of the Hindu Marriage Act, 1955 has introduced a revolutionary amendment to the shastric Hindu law. It provides for the dissolution of marriage. Under Hindu law, divorce does not take place unless it has been granted by a court. Before passing of the Marriage Laws (Amendment) Act, 1976, the grounds for judicial separation and divorce were different. The Marriage Laws (Amendment) Act, 1976 makes the grounds of divorce and judicial separation common. An aggrieved party may sue for divorce or judicial separation. Under Shastric Hindu law, wedlock was unbreakable and the marital bond existed even after the death of a party to a marriage. Divorce was known only as a matter of exception in certain tribes and communities which were regarded uncivilized by the Hindu elite. The courts recognized it in these communities due to the binding force of custom. But the general Hindu law did not recognize it.[15]
The provisions regarding divorce have been twice amended since the passing of the Hindu Marriage Act, 1955:
i) by the Hindu Marriage (Amendment) Act, 1964, and
ii) by the Marriage Laws (Amendment) Act, 1976.[16]
The original provisions of the Hindu Marriage Act regarding divorce have been liberalized by the Marriage Laws (Amendment) Act, 1976. It also added a new ground namely divorce by mutual consent of the parties has been made available as a matrimonial relief under the Hindu Marriage Act, 1955.
Desertion was a ground only for judicial separation under Hindu Marriage Act, 1955.[17] However, after passing of the Act of 1976, this is a ground for both divorces as well as judicial separation under Section 13 (1) (i-b). Desertion may be actual or constructive. Constructive desertion may contain the characteristics of cruelty. In actual desertion, there is forsaking of the matrimonial home while in constructive desertion, there is forsaking of the matrimonial relationship. This forsaking of the matrimonial relationship must be accompanied by the animus deserendi. It is the neglecting spouse that is solely responsible for constructive desertion.
If by words or conduct, a spouse makes it impossible for the other spouse to live in his or her company and as a result, the other spouse leaves the matrimonial home, the other spouse cannot be said to be the deserter. On the other hand, the spouse who makes it impossible for another spouse to continue matrimonial relations would be the deserter. If the wife leaves her matrimonial home and lives apart this would be desertion by her. But if she shows that there was cruelty on the part of the husband and so she had quit the matrimonial home, there would be no legal desertion by her. On the contrary, it would be treated desertion by the husband who had driven here out. So the question of legal desertion cannot be established merely by showing who left the matrimonial home. Thus desertion has to be inferred from the state of things. This is known as constructive desertion.
To constitute a ground for judicial separation or divorce, desertion must be for a continuous period of two years preceding the date of presentation of the petition. In Durga Prasanna Tripathy v. Arundhati Tripathy,[18] the wife had deserted the husband after seven months of marriage and the parties were living separately since a period of fourteen years. The wife was not willing to live with husband in spite of all efforts. The better part of their lives was wasted in litigation and the parties disliked each other. There was an irretrievable breakdown of the marriage. Therefore, to put an end to litigation and to put an end to the bitterness between the parties, divorce on the ground of desertion can be granted.
Termination of Desertion Based on Circumstances:
Desertion is a continuing offence. It is possible to bring the state of desertion to an end by some act or conduct on the part of deserting spouse. It may come to an end in the following ways: Resumption of cohabitation, resumption of marital intercourse and supervening animus revertendi, or offer of reconciliation. In Gagandeep Gupta v. Dr. Sonika Gupta[19], the husband filed a petition for divorce on the ground of desertion by the wife. There was no cohabitation between the parties since they separated. The wife continued to remain in matrimonial home by asserting her right of residence in spite of matrimonial discord. Wife had deserted husband without any reasonable cause for more than two years preceding presentation of the petition. The court held that the husband would be entitled to a decree of divorce.
But, in Vinod v. Smt. Sangeeta[20], the husband filed a petition for divorce on the ground of desertion by the wife. In this case, the husband and his family members were convicted on a complaint filed u/S. 498-A and 406, I.P.C. The court held that circumstances which led to such filing of a complaint and even conviction at hands of the trial court may give sufficient reason to wife to even leave matrimonial home to save her life and acquire peace from harassment. Such leaving of a matrimonial home cannot amount to desertion for furnishing ground of divorce under the Hindu Marriage Act, 1955 and held that the husband was not entitled to a decree of divorce.
Apart from the above two cases, in Smt. Sunita v. Ramesh Kumar[21], a petition was filed on the grounds of desertion and cruelty by the wife. In this case, after marriage, the parties lived together only for about a week. Wife thereafter joined the company of husband nearly after six months and stayed there for about five days only. She involved husband and his family members in number of criminal as well as civil cases. Though Panchayat had settled the matter of separation, no effort was made by the wife to join the matrimonial home. In most criminal cases, she was not able to substantiate the claim made by her. The court held that, in such cases, the grant of divorce on the ground of desertion and cruelty would be proper. After giving the judgement that it should be proper, one more case came up by which one party can get a divorce on the ground of desertion and cruelty.
In Smt. Rajna Choudhary v. Sh. Raghubir Singh[22], divorce petition was filed on the grounds of desertion and cruelty by the wife. Wife made allegations against the husband that he was having an illicit relationship with his brother’s wife in a complaint lodged to Deputy Commissioner. The said allegation proved false. Levelling such false allegations amounts to cruelty. The wife also did not allow the husband to have sexual access. Wife left the matrimonial home on her own. The court held that the husband was entitled to divorce on grounds of desertion and cruelty. Thus, it can be seen that the termination of desertion depends from case to case basis and it would prima facie seem unreasonable that an act which is accorded such a decisive effect as an affirmation by the injured party of the married state should be able to take place consistently with the uninterrupted continuance of a state of desertion which while it continues, amounts to a negation of married state.
A deserting spouse may at any time before the institution of proceedings, by the other spouse bring the desertion to an end by sufficient offer of reconciliation. It must be an offer to return and must involve readiness and willingness to resume cohabitation in the ordinary sense of the word. In a case of mere desertion, the offer to return may be enough. A case of constructive desertion may raise different considerations. There may be cases where the situation created by the conduct of the deserting spouse was such that a mere offer by word of mouth or by letter to resume cohabitation may not suffice unless it is accompanied by expressions of repentance and contrition. 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 defence even when he has no intention of actual reconciliation[23].
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.
Need for Amendment of Laws:
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 a 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 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. The deserted spouse is left with no option but to wait for the deserting spouse and in cases wherein the deserted spouse is aware that the deserting spouse has deserted him or her, he or she still do not possess the qualification to knock the door of the Court for being granted a divorce, since that 2-year condition sword is hanging which needs to be necessarily fulfilled.
A situation like this had arisen in Darshan Kaur v. Kashmir Singh[24] wherein, the husband had left India and gone abroad and for 3 years continued to send the money as maintenance for his wife and child which thereafter he stopped and nothing was heard of him as well. On the wife approaching the Court with a petition for divorce, the Court held that there was no evidence to illustrate desertion and showcase that the husband had permanently brought cohabitation to an end. This case in my opinion put forwards before us that there exist some lacunae pertaining to the clause of desertion and its ingredients to be proved as a valid ground for divorce. Since in the instant matter, the wife would be left to an endless wait for her husband and it would be as per the husband whether to contact her or not, he may even be living with some other lady abroad but the wife here in the eyes of law is entitled to get divorce merely because animus could not be well established and she in her country is left with no right to move forward in life and instead is stuck in that marital bond of which she is neither sure nor of which her husband is fulfilling obligations. Such instances portrait that in spite of having well-established legislation there are still loopholes and some missing elements which prevent the legislations from being an absolute success.
Like discussed above, herein if the husband wishes to re-join the wife and family it is completely left up to the wishes of the wife as to whether does she want him back or not and if she doesn’t she is entitled to the house and the entire property. Moreover, another point of conflict in the researcher’s mind came at the point that when does desertion become cruelty. Like in Sheetal Raju v. Raju Malhotra[25], the wife had withdrawn from the society of the husband and gave the reason as cruelty for her such act which however could not be established. Now, in this case, the refusal of the wife to come back was construed as cruelty upon the husband by the wife. In such cases, the feeble and gutless wives are instead charged with cruelty for being unable to prove the cruelty inflicted by the husband[26].
On one hand, it was struck with a question that if at all the concept of desertion also concedes with cruelty then why to have desertion as a separate ground and why should it not be included in the very ambit of cruelty. However, this question was answered after reading instances wherein desertion as a ground for divorce actually stood successfully independent of cruelty and without cruelty as a ground for divorce being seen in a case. Thus to prove desertion no doubt in few cases ends up being a kind of cruelty being inflicted on the other spouse, but in maximum cases, it has proved to be of much importance for allowing the incompatible marital couples to undergo divorce on the very ground of desertion.
Conclusion:
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 has deserted and violated the law and therefore there is a need of justice for the deserted spouse. There are two probable solutions to this problem: either to adopt new legislation which tackles these opportunities of misuse or move towards the concept of irretrievable breakdown of the marriage to provide no necessity for the deserting spouse to abuse the legal provision of desertion.
REFERENCES:
[1] Dr. G. Kameswari, “Divorce and Judicial Separation – Need for a Uniform and Progressive Law´ All India Reporter (2002) at 97.
[2] Hereafter referred to as HMA 1955.
[3] Pulford v. Pulford (1947) 1 All E.R . 32.
[4] Halsbusry’s Laws of India: Volume 26 (New Delhi: Butterworth’s, 2007) at 267.
[5] M. N. N., “Desertion” as a Ground for Divorce 83(7) University of Pennsylvania Law Review and American Law Register (May, 1935) at 906.
[6] AIR 1957 SC 176 (husband’s petition for judicial separation dismissed – wife treated badly even after birth of child.
[7] Fourth edn, vol 13, para 576-77.
[8] Sankaralingam v. Suan, 1894 ILR Mad 479.
[9] Permanent alimony and maintenance.
[10] Custody, maintenance and education of minor children.
[11] Section 9 of C.P.C. reads as under: “The court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
[12] Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion, make therein a declaration that he is so entitled, and the plaintiff need not in such suit, ask for any further relief provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
[13] Dr. Paras Diwan- Family Law, 6th edn. 2001, p.124, Allahabad Law Agency, Faridabad (Haryana).
[14] Bombay Hindu Divorce Act, 1947; Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 Saurashtra Hindu Divorce Act, 1952.
[15] Swarajya Lakshmi v. Padma Rao AIR 1974 SC 165.
[16] Ramesh Chandra Nagpal- Modern Hindu Law, 1st edn. 1983, p.144 , Eastern Book Company, Lucknow.
[17] Sec. 10 (1) (a) of the Hindu Marriage Act , 1955.
[18] AIR 2005 SC 3297.
[19] AIR 2010 (NOC) 543 (P&H).
[20] AIR 2010 Raj 68.
[21] AIR 2011 P&H 20.
[22] AIR 2011 HP 27.
[24] 1 (2002) DMC 735.
[25] 2005 (2) Mah L J 250: II (2005) DMC 487 (Bom).
