International Journal of Innovative and Informative Multidisciplinary Research

Volume 1, Issue 3 (February 2019) 19-24

www.ijiimr.com

Desertion as a Ground for Divorce as per Section 13 of the

Hindu Marriage Act, 1955

Mr. Prakhar Gupta

(Student, School of Law, Christ (Deemed to be University), Bengaluru, India)

Abstract: Desertion in English and Welsh law is defined as one person in the marriage deserting the other for a
continuous period of at least two years. This basically means that one person has left the other without
agreement or for a good reason. The paper will focus mainly on three main concepts: Desertion, Separation and
Animus Deserendi. Further, it will be explained that how desertion is a continuous offence of not less than two
years. This paper will start by tracing the history as to how desertion and its various types came into force and
what are the loopholes which gave rise to it. Also, how wilful neglect, mutual desertion, good cause for
separation and remarriage of husband could be a ground for divorce. For establishing this aspect, certain
landmark cases have been used which clearly highlight the reason as to why these all are considered as a ground
for divorce. The paper will also analyse the cause, course and consequences of desertion and termination of
desertion which means that after deciding to take divorce, the spouses changed their mind and does not want
divorce. It could be done by cohabitation, offer of reconciliation etc. which will be explained in the paper.
Following this, the paper will deal with the similarities and differences between desertion and cruelty with some
case laws. Lastly, this paper will analyse the onus and standard of proof that desertion is a ground for divorce
and the relation between desertion and doctrine of condonation. In the conclusion, the importance to reduce
desertion as a ground for divorce will be highlighted and more emphasis will be laid on the need to again unite
the spouses.

Keywords: animus deserendi, cohabitation, reconciliation, doctrine of condonation

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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 may be noticed 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 19552 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

1 Dr. G. Kameswari, “Divorce and Judicial Separation-Need for a Uniform and Progressive Law´ All India Reporter (2002)
at 97.
2 Hereinafter 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.
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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 are missing, the appeal to for
separate on abandonment comes up short. 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. Prabhavati6, the Supreme Court, after posing the question
‘What is Desertion?’, observed that the legal position had been admirably summarized in Halsbusry’s
Laws of England7 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.
However painful cohabitation may be, divorce was not accepted by the old law. In some
communities, such customs fulfilled the requisites of a valid custom. 8 Divorce puts the marriage to an
end, 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 cease. 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 remain no bonds between them except in relation to Section 259 and Section
2610 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, 196312 .

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 (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 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

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 accepting 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.
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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 the 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 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 divorce 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 other 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 a 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 separate since a period of fourteen years. Wife was not willing to live with husband in spite of
all efforts. Better part of their lives was wasted in litigation and the parties disliked each other. There
was irretrievable breakdown of 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.

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.
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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 Gupta19, husband filed a petition for divorce on the
ground of desertion by wife. There was no cohabitation between the parties since they separated.
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 petition. The court held that the husband would be entitled to decree
of divorce. But, in Vinod v. Smt. Sangeeta20, husband filed a petition for divorce on the ground of
desertion by wife. In this case, husband and his family members were convicted on complaint filed
u/S. 498-A and 406, I.P.C. The court held that circumstances which led to such filing of complaint and
even conviction at hands of 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 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 decree of divorce.

Apart from the above two cases, in Smt. Sunita v. Ramesh Kumar21, a petition was filed on the grounds
of desertion and cruelty by 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 matter of separation, no effort was made by wife to join
matrimonial home. In most of criminal cases, she was not able to substantiate claim made by her. The
court held that, in such cases, grant of divorce on 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 divorce on 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 wife. Wife made allegations
against husband that he was having illicit relationship with his brother’s wife in complaint lodged to
Deputy Commissioner. The said allegation proved to be false. Leveling such false allegations amounts
to cruelty. Wife also did not allow husband to have sexual access. Wife left 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 defense even when he has no intention of actual reconciliation23.

19 AIR 2010 (NOC) 543 (P&H).

20 AIR 2010 Raj 68.
21 AIR 2011 P&H 20.
22 AIR 2011 HP 27.
23 https://blog.ipleaders.in/desertion-ground-divorce/#_ftnref6.
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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 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 scot 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 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 exists 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 a well-established legislation there are still loopholes and some missing elements
which prevent the legislations from being an absolute success.

Like discussed above under the termination of desertion chapter, 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

24 1 (2002) DMC 735.

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cruelty. Like in Sheetal Raju v. Raju Malhotra25, 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 charge 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 a
new legislation which tackles these opportunities of misuse or move towards the concept of
irretrievable breakdown of marriage to provide no necessity for the deserting spouse to abuse the
legal provision of desertion.

Mr. Prakhar Gupta. “Desertion as a Ground for Divorce as per Section 13 of the
Hindu Marriage Act, 1955”. International Journal of Innovative and Informative
Multidisciplinary Research. Vol. 1 Issue 3, Feb. 2019, pp. 19-24.

25 2005 (2) Mah LJ 250: II (2005) DMC 487 (Bom).

26 http://jcil.lsyndicate.com/wp-content/uploads/2016/03/DESERTION-AS-A-GROUND-FOR-DIVORCE-
Radhika.pdf.
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