UNIVERSITY OF PTROLEUM AND ENERGY STUDIES

DESERTION

Submitted To Submitted By

Dr. T.N.Prasad Manish Pathak

R230208033
B.A. LL.B-IIIrd Sem
C.O.L.S

Desertion
INTRODUCTION
Under Section 13(1), Hindu Marriage Act desertion is explained. The expression desertion means
the desertion of the petitioner by the other party to the marriage without reasonable cause and
without the consent or against the wish of such party, and includes the willful neglect of the
petitioner by the other party to the marriage. Desertion is a total repudiation of the obligations of
marriage; desertion is not merely an act but includes conduct. To constitute desertion, previous
cohabitation by parties is must. Without previous cohabitation there cannot be any desertion1.

Desertion: withdrawing support or help despite allegiance or responsibility; "his abandonment of

his wife and children left them penniless. The act of abandoning, particularly leaving one's spouse
and/or children without intent to return. In the law of domestic relations, abandonment or renunciation of
marital relations and obligations by either spouse, with intent not to resume relations, and without the
consent or wrongful conduct of the other. In most of the US, willful desertion is a legal cause for divorce 2.
By analogy, if applied to matrimonial law, a spouse is in desertion if he runs away from the performance
of his marital obligations. This running away may be in the sense that he actually leaves the matrimonial
home permanently or it may be that he continues to live in the matrimonial home but refuses to fulfill, or
abandons, his matrimonial obligations. This is what we mean when we say that desertion is a withdrawal
not from the place but from the state of things.

MEANING OF DESERTED WOMEN

For the accurate definition of Deserted Women, there is a need to define the term in the
terms of both social and legal aspect. Before coming into existence of Hindu Marriage
Act, 1955, the term deserted women had not been defined. The word PARITYAKTA
found its mention in the Hindu
Marriage Act for the first time. But the term deserted women has not been well defined
from the social point of view.
The term "Deserted woman" means a woman who has been deserted by her husband or a
woman whose husband does not want to continue as a life partner with her. The meaning
of the term is indeed very painful, and no one except the woman who is being deserted by
her husband can better understand the pain hidden behind this social evil.

1. Savitri Pandey v. Prem Chand Pandey, 2002 SC 591

2. wikipedia.org/wiki/Desertion

The word deserted woman finds its origin from Sanskrit Language where it is used to
represent a woman who is poor, deprived of social, economical and legal rights and
whose company has been left by her husband by throwing her out of her matrimonial
house without giving her any land, property, or any maintenance and who was compelled
to live either in her parental house or all alone. In Uttarakhand a woman whose company
has been left by her husband without divorcing her neither comes neither in the category
of divorced women nor in the category of widow. Mostly these Deserted women though
married are made to lead the life of widow. Not getting maintenance from the husband,
deserted women is deprived of the basic amenities.
The word deserted woman can be said to be having a wide meaning. The women who are
the victims of this social evil have to work hard, to bring up their children in hard
conditions, to live on the mercy of their parents and brothers. But all of them are not
always fortunate enough to live on the mercy of their parents or brothers.

Kinds of Desertion
Desertion under the Hindu Marriage Act falls under following categories:

a) Actual desertion,
b) Constructive Desertion, and
c) Willful neglect.

Actual Desertion the following are the essential constituent elements of desertion:

1. The factum of separation,

2. Animus deserdendi (intention to desert),
3. Desertion should be without any reasonable cause,
4. Desertion without the consent of the other party, and
5. The statutory period of two year must have run out before a petition is presented.

The first two elements apply to the deserting part, i.e., the deserting spouse must have left the
other party with an intention to forsake or abandon him or her permanently. The elements No.3
and No.4 apply to the deserted spouse, i.e., he or she must not have given his or consent or
provided a reasonable cause of desertion. 3 The last element is statutory requirement of the period
before expiry of which a petition is not maintainable. Thus, for the success of the petition on the
grounds of the desertion it is incumbent on the part of the petitioner to prove all the five
elements.

Elements Nos.1 & 2: Factum of separation and intention to desert-

3. Bipin Chandra V.Prabhawati, 1957 SC 176; Rohani Narendra, 1972 SC 459.

In actual desertion, it is necessary that respondent must have forsaken or abandoned the
matrimonial home. Suppose a spouse every day, while he goes to bad, resolve that next day he
will abandon the matrimonial home, but day after day he continues to live in matrimonial home.
It is clear that he formed an intention to desert, but that intention to desert has not been translated
into action and he continues to live in matrimonial with the other spouse. He cannot be said to
have deserted to other spouse.4
Constructive Desertion- Desertion is not withdrawal from the place but from the state of
thing , i.e., from cohabitation. It was held in Savitri Pandey V.Prem Chand Pandey that
desertion means withdrawing from matrimonial obligations and not withdrawal from the place if
a party withdraws from the cohabitation, it is he who is guilty of desertion, despite the fact that
he continues to live o=in a matrimonial home . If a spouse creates a situation or conducts himself
in a manner that a other spouse is compelled to leave the matrimonial home, then the spouse who
compelled the other party to leave the matrimonial home is deserter and not the spouse who left
the matrimonial home. In Lang V. Lang, 5 the House of Lords said that if one spouse by his words
and conduct compels the other spouse to leaves the marital home, the former will be guilty of
desertion, though it is the latter who is physically6 separated from other.

Willful neglect- Explanation to Section 13(1), Hindu Marriage Act 1955, lays down that
desertion includes willful neglect of the petitioner by the other party to the marriage. There it
has been said that an act of omission done by accident of inadvertence is not willful, nor is it, on
the other hand, absolutely necessary that to be willful, the act or omission should be deliberate
and intentional. Thus it will amount to willful neglect if a person consciously acts in a
reprehensible manner in the discharge of his marital obligations. In short it connotes a degree of
neglect which is shown by an abstention from an obvious duty, attended by knowledge of the
likely result of the abstention. However failure to discharge or omission to discharge, every
marital obligation will not amount to willful neglect. Failure to fulfill basic marital obligations,
such as denial of the company or denial of marital intercourse, or denial too provide maintenance
will amount to willful neglect.7

Divorce on ground of desertion allowed-

Wife had deserted husband after seven months of marriage. Parties were living separately for
almost 14 years. Wife was not prepared to lead conjugal life with husband. Attempts were made
by husband and his relatives in getting back wife to matrimonial home, but failed. Good part of
life of both the parties was consumed in this litigation. It was shown by record that parties
disliked each other. There were no chances of reconciliation. There was an irretrievable
breakdown of marriage. With a view to put a quietus to litigation inter se and bitterness between
the parties, decree of divorce on the ground of desertion could be granted.8

4. Ramesh V. Premlata, 1979 MP 15

5 (1955) AC402
6 (1925) p.192
7 Balihar V.Dhir Das
8 Durga Prasanna Tripathy V. Arundhati Tripathy, AIR 2005 SC 3297.

Situation outside India

Dunn v Dunn [1948] 2 All ER 822, CA
H was in the Navy, serving in the Far East while W and their son S lived in Northumberland.
When H returned to home waters, he tried to persuade W to move to Immingham and then to
Barrow, where his ship was based, but W refused: she was severely deaf and uncomfortable
among strangers, and S had recently started a new job. H petitioned for divorce on grounds of
W's desertion, but his petition failed. The Court of Appeal (by a majority) said the onus was on H
to show that W had no good cause for refusing to move, and that he had failed to do. Denning LJ
added obiter that there was no presumption of law that the husband had a right to decide where
the family home should be: it was a joint decision in which husband and wife should have an
equal voice.

Pizey v Pizey [1961] 2 All ER 658, CA

After admitting an act of adultery, W left home and went to live with her mother. H did not
object to her going, but over the next two years they corresponded by letter and on several
occasions H visited W and they had sex together. H subsequently petitioned for divorce on the
grounds of W's desertion (having effectively condoned the adultery), but his petition failed: the
frequent visits amounted to a course of conduct that showed the separation too had been
condoned.

Perry v Perry [1963] 3 All ER 766, Lloyd-Jones J

After twenty years' marriage, W was admitted to a mental hospital suffering from a paranoid
psychosis. She was discharged after a few months, but the symptoms returned and one day she
left home without any warning. H's subsequent petition for divorce on grounds of desertion was
denied: although W (on the medical evidence) knew what she was doing when she left home, she
was suffering from delusions that H was trying to kill her and did not truly have the mental
capacity to form an intention to desert him.

G v G [1964] 1 All ER 129, DC

After ten years' marriage H began to show signs of mental instability: his conduct frightened the
children and one daughter became seriously emotionally disturbed. H went to South Africa in the
hope of finding a new life for the family, but when he returned a few weeks later W refused to
have him back in the house, because of the effect he was having on the children. The magistrates
refused H an access order based on W's desertion, and the Divisional Court of the Family
Division affirmed the justices' decision. Simon P said the duty of a husband and wife to live
together must be set against their duty to their children: if it were necessary for the wife to live
apart from the husband for the sake of a child's health, that would be a good reason negating
desertion.

Fraser v Fraser [1969] 3 All ER 654, Brandon J

H and W separated informally by consent, but when a few years later H suggested he should
return to the family home, W disagreed. H's petition for divorce on the grounds of W's desertion
was dismissed on the facts, both H's offer and W's refusal having been somewhat tentative. But it
was clear that a rejected offer of reconciliation in these circumstances could amount to desertion,
said the judge obiter, as long as the offer was genuine (in the sense that the petitioner had both
the intention and the means to implement it) and not subject to unreasonable or unnegotiable
conditions. Moreover, if the petitioner's conduct before the original separation had been
unacceptable, the offer must be accompanied by proper expressions of regret and promises of
better behaviour in the future.

Quoraishi v Quoraishi [1985] FLR 780, CA

H and W1 were married in Bangladesh (then East Pakistan), but subsequently came to live in
England. H decided to take a second wife W2, which was permissible under the Islamic law of
Bangladesh, but continued living in England with W1. He then went to Bangladesh to
consummate the second marriage, but when he returned to England W1 refused to live with him.
H petitioned for divorce on the grounds of W1's desertion, but his petition was denied. H knew
he was endangering his first marriage by taking a second wife, and W1 had reasonable grounds
for leaving him.

The law also recognises the concept of "constructive desertion", where the behaviour of one
spouse is such as to leave the other no real alternative but to move out: in those circumstances,
the spouse who moves out can still claim to have been deserted by the other. The introduction of
non-molestation orders and other remedies for domestic violence has made this less important
than it used to be, but it is still of some significance.

Lang v Lang [1954] 3 All ER 571, PC (Australia)

H and W had been happily married for nearly 20 years, but when H returned from military
service overseas he began to abuse W. W left H for about two months, but returned when H
promised to behave. Over the next five years H repeatedly broke this promise, often "punishing"
W like a child and several times using such violence towards her that the police had to be called.
Finally H raped W in "circumstances of calculated and revolting indignity", and told her that he
would do the same again as often as he wished. W left H and petitioned for divorce on grounds
of H's constructive desertion, cruelty per se not then being a ground of divorce under the relevant
Australian law. The High Court of Australia and subsequently the Privy Council affirmed the
judge's decision to grant a decree nisi. If a man's conduct is such that a reasonable man must
know that it will probably cause his wife to leave home, the fact that the husband did not wish
this result does not rebut the inference that he intended the probable consequences of his acts.

Morgan v Morgan (1973) 117 SJ 223, Sterling J

A couple separated after 32 years' marriage; W (who owned the matrimonial home) told H to
leave, and found a room for him and bought a flat for herself. After three years' separation they
tried for reconciliation, but abandoned the attempt after three months. After two more years H
petitioned for divorce on the basis of W's desertion and unreasonable behaviour, and W cross-
petitioned on H's desertion. On the facts, the judge dismissed both the petition and the cross-
petition, saying the parting after the failed reconciliation was by mutual consent and could not
therefore constitute desertion. But obiter, an agreement to separate after a failed reconciliation
lasting under six months should not necessarily be fatal to a petition based on divorce: the object
of s.3 of the 1969 Act was to make reconciliation easier rather than harder.

Desertion cannot be regarded as "behaviour" justifying a petition under the previous subsection.

Stringfellow v Stringfellow [1976] 2 All ER 539, CA

After six years' marriage, H told W he no longer loved her, and a few weeks later H moved out of
the family home and did not return. Three months after that, W presented a petition for divorce
on the grounds that H's behaviour was such that she could not reasonably be expected to live
with him. The judge refused the petition and the Court of Appeal dismissed W's appeal. Ormrod
LJ said s.1(2)(c) would be pointless if desertion per se could be regarded as behaviour relevant to
s.1(2)(b); there must be some conduct of the respondent other than mere desertion or the steps
leading up to it.

Desertion by Non-Resident Indians

The problems of women abandoned by non-resident Indian (NRI) bridegrooms are an issue lost
amidst myriads of large issues confronting women in India. For policy makers, issues like
women trafficking, violence against women, and rehabilitation of destitute and providing pre-
natal and post-natal care for outweigh this little publicized social problem that is debilitating the
social fabric of the country. Cases of women being subjected to cruelty of false marriage,
cheating and dowry extortion have increased in proportion to the growing number of Indians
emigrating in search of green pastures abroad. Admittedly, the greed of brides family who see in
their daughter a ticket to their El Dorado and comforts of foreign shares makes them easy prey to
NRI bridegrooms on prowl. The phenomenon of women being abandoned by the bridegroom of
Indian origin is not really new. In earlier instances it was mostly bigamous marriage entered into
by men under family duress to marry within community. The husbands tended to hide their
foreign spouse and later abandoned the Indian wife. However, with burgeoning Indian NRI
population drawn from different economic and social strata spreading across the globe the
problem has become multi-dimensional. The problem has also not been state-specific as most
states have been reporting cases of women abandoned by predators disguised as grooms.

Unfortunately, it is the rural and middle class people that often succumb to the temptation of
acquiring foreign groom. It is only when the daughters are abandoned that the parents, who have
possibly liquidated their assets to help their daughter enter into the so-called marriage wake up
and approach the state authorities. The government needs to address the problem by considering
suggestions such as marking on the visa marriage status of the person; providing legal assistance
and financial aid to women abandoned in foreign shores; liaison with foreign governments to
book the grooms in bigamy charge; and to restrain the grant of ex-parte divorce by foreign
courts. It is with a view to understand the problems of abandoned women, its cause and effect
and to identify the areas of policy interventions that could help alleviate the problems of deserted
married women, that the institute decided to undertake this study in two states viz. Andhra
Pradesh and Punjab which have high incidences of young girls and women falling victims to
bigamous/polygamous suitors.

Conclusion
It may be common in the matrimonial parlance that a spouse has ``deserted'' the other partner, but
proving the serious charge of ``desertion'' to seek divorce is not a child's play. Merely because a spouse
lives separately for a long time does not guarantee divorce. it requires much more to get a decree of
divorce. Can a husband seek divorce on the sole ground that his wife had been living separately for a
reasonable time? or, for that matter, can the wife also resort to divorce on the ground that her husband
had been living separately, thus causing cruelty to her? in one of the rare judgments on the sole issue of
``desertion'', the supreme court (justice D.P Mohapatra and justice Doraiswamy Raju) has explained that
its meaning must be understood in the matrimonial parlance. Section 13(1)(ib) of the hindu marriage
act, 1955, deals with divorce. it says: ``any marriage solemnized, whether before or after the
commencement of this act, may, on a petition by either the husband or the wife, be dissolved by a decree
of divorce on the ground that the other party has deserted him/her for a continuous period of not less
than two years. but this period must be immediately preceding the presentation of the petition for
divorce.'' The provision has an explanation saying: ``the expression `desertion' means the desertion of
the petitioner by the other party to the marriage without reasonable cause and without the consent or
against the wish of such party and includes the willful neglect of the petitioner by the other party, and its
grammatical variations and cognate expressions shall be construed accordingly''.
thus, it is difficult to give a comprehensive definition of the term `desertion' but the essential ingredients
of this offence are : first, the factum of separation; second, the intention to bring cohabitation
permanently to an end which is also called ``animus deserdandi''; and third, the element of permanence
which is a prime condition and requires that both these essential ingredients should continue during the
entire statutory period of two years. in other words, break in this period can demolish the allegation of
desertion. The charge can also be negated by a contesting party if she or he is able to demonstrate that
his or her leaving the house was of a temporary nature in order to lodge a protest. The act has widened
the definition of desertion to include ``willful neglect'' of the petitioner spouse by the deserter. Desertion
must also be without reasonable cause and without the consent or against the wish of the petitioner. it is
clear that the legislature intended to give to the expression a wide import which includes willful neglect
of the petitioner spouse. Therefore, for the offence of desertion, two essential conditions must exist: the
factum of separation and the intention to end matrimonial relationship. Similarly, two elements are
needed as far as the deserted spouse is concerned. first, the absence of his or her consent, and, second,
absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the
necessary intention. The petitioner spouse is under an obligation to prove the two ingredients in order to
get a decree of divorce. The cause of desertion is equally important. if a spouse creates an unbearable
situation for the other leading to his or her leaving the matrimonial home, it would not amount to
desertion without consent. The doctrine of ``constructive desertion'' says that the desertion is not to be
tested by merely ascertaining which party left the matrimonial home first. if one spouse is forced by the
conduct of the other to leave home, it may be that the spouse responsible for driving the other out is
guilty of desertion. In a recent judgment, the supreme court said that the intention behind making an
offer to persuade the deserted wife to return home must be bone fide. for instance, a wife who deserts
her husband having illegitimate relationship, cannot be accused of desertion. on the contrary, the
husband can be charged with cruelty and adultery. She can reject his offer to return home yet survive the
charge of desertion if the husband's offer to break relationship with other women is not a sincere step.