FAMILY LAW PROJECT

TOPIC DESERTION UNDER HINDU LAW

SUBMITTED TO DR. JAI MALA

SUBMITTED BY KUNAL KAPOOR ROLL NO. 42/11 UILS PANJAB UNIVERSITY

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DESERTION UNDER HINDU LAW

ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my teacher DR. JAI MALA who gave me the golden opportunity to do this wonderful project on the topic DESERTION UNDER HINDU LAW, which also helped me in doing a lot of Research and I came to know about so many new things. I am really thankful to her. I would also like to thank my parents and friends who helped me a lot in finishing this project within the limited time. I am making this project not only for marks but to also increase my knowledge. THANKS AGAIN TO ALL WHO HELPED ME.

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DESERTION UNDER HINDU LAW

CONTENTS

1. LIST OF ABRIVIATIONS ------------------------------------------- 4 2. TABLE OF CASES--------------------------------------------------- 5-6 3. INTRODUCTION---------------------------------------------------- 7 4. WHAT IS DESERTION---------------------------------------------- 8 5. DEFINITION OF DESERTION-------------------------------------- 9 6. TYPES OF DESERTION---------------------------------------------- 10-11 7. ESSENTIAL INGRIDIENTS OF DESERTION---------------------- 12-15 8. TERMINATION OF DESERTION----------------------------------- 16-18 9. BURDEN OF PROOF------------------------------------------------ 19 10.CONCLUSION-------------------------------------------------------- 20 11.BIBLIOGRAPHY AND WEBLIOGRAPHY ------------------------- 21

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LIST OF ABREVIATIONS

AIR ALL INDIA REPORTER i.e. THAT IS eg. EXAMPLE SC SUPREME COURT MP MADHYA PRADESH P & H PUNJAB AND HARYANA AP ANDHRA PRADESH DEL DELHI Cal CALCUTTA Raj RAJHASTAN Mad MADRAS Ori - ORISSA P. - PAGE

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TABLE OF CASES

1. Savitri Pandey v. Prem Chand Pandey, 2002 SC 5912 2. Bipin Chandra V. Prabhavati AIR 1957 SC 176 3. Archana V. Ajay Kumar (1999) DMC 23 (MP) 4. Ramesh V. Prem lata, AIR 1979 MP 15 5. Gopal V. mithilesh, AIR 1979 MP 316 6. Sunil Kumar v. Usha AIR 1994 MP 1, 1994 (0) MPLJ 201 7. Pulford V. Pulford, 1923 P 18 8. Lang V. Lang 1955 AC 402 9. Jyotish Chandra Guha vs Sm. Meera Guha AIR 1970 Cal 266 10. Tara Chand V. Narain Devi, AIR 1979 P&H 300 11. Balbir V. dhir, AIR 1979 P&H 200 12. Devi Singh V. Sushila DeviAIR 1972 Raj 303 13. Anil Kumar Banerjee V. Sefali Banerjee AIR 1997 CAL 6 14. A.Bhagavati Ammal V sethu, AIR 1987 Mad 224 15. Neelam V. Vinod Kumar Midha AIR 1986 P&H 253 16. Promod Purshottam V. Vasundhara AIR 1989 Bom 75 17. Aryarama Yajulu Venkata Subha Rao V. Aryasomayajula Surya Kumar, AIR 1980 AP 318 18. Haniman V. Haniman 1909 p 23 19. Vadramma V. Krishnama 1970 1 AWR 13 20. Bhagwanti V. Sadhu Ram, AIR 1961 Punj 181 21. Holroyd V. Holroyd 1920 30 TLR 479 22. Radhakrishnan Murthy V. P.Vijayalakshmi AIR 1983 AP 380 23. Shrikant V. Saroj AIR 2001 MP 94 24. Shakuntala V. Om Prakash, AIR 1981 Del 53 25. Permod V. Vasundhara, AIR 1969 Bom 75 26. Suresh V. Gurmohinder, AIR 1983 Del 230 27. Mummery V. Mummery (1942) 1 All ER 553 28. Dhrubajyoti V. Lila AIR 1979 Ori. 93 29. Everitt V. Everitt (1949) 1 All ER 904

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30. Shyam Chand V. Janaki AIR (1965) 1 All ER 1043 31. Lewis V. lewis, 1956 p. 205 32. Herod V. Herod, (1939) p. 11 33. Ratneshwar V. Prem Lata, AIR 1986 MP 218 34. Jarnail Singh V. Shakuntala AIR 1979 P&H 68

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INTRODUCTION

Desertion Under Section 13(1), Hindu Marriage Act 1955 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 desertion. [1]

1. Savitri Pandey v. Prem Chand Pandey, 2002 SC 5912.

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WHAT IS DESERTION
Desertion, what is? Halsburys Laws of England defines desertion as follows: In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that others consent and without reasonable cause. It is a total repudiation of the obligation of marriage Desertion is not the withdrawal from a place but from a state of things .The person who actually withdrawal from cohabitation is not necessarily the deserting party. In the case of Bipin Chandra V. Prabhavati[2] , desertion, as a matrimonial relief, was extensively discussed. It quoted the above passage from Halsbury and concluded that (i) In every case of desertion there must co-exist: (a) The factum of separation; and (b) Animus deserendi, i.e. an intention on the part of the guilty spouse of forsaking the aggrieved spouse; (ii) The two elements (i.e. de facto separation and animus deserendi need not commence at the same time, one can follow the other ; and The two elements, as stated above, must subsist during the whole of the statutory duration. But as specifically pointed out by S.B. Sakrikar J in the case of Archana V. Ajay Kumar[3], there is a third element which must also remain present to complete the allegation of desertion. Such third ingregient isAbsence of his or her consent and the absence of his or conduct giving reasonable cause to deserting spouse to leave the matrimonial home.

(iii)

2. AIR 1957 SC 176 3. (1999) DMC 23 (MP)

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DEFINITION
(a) Section 13(1) in The Hindu Marriage Act, 1955 - clause (ib) has deserted the petitioner
for a continuous period of not less than two years immediately preceding the presentation of the petition; 1[ Explanation.- In this sub- section, 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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

(b) Section 27(1) in The Special Marriage Act, 1954 - clause(b) has deserted the petitioner
for a continuous period of not less than two years immediately preceding the presentation of the petition; Explanation.- In this sub- section, the expression" desertion" means 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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;]

(c) Indian Divorce Act, 1869 - Section3 (9)"Desertion."-"desertion" implies an abandonment against the wish of the person charging it; (d) Hindu Adoptions And Maintenance Act, 1956 - section 18(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her;

All these definitions are qualified by the expressions without reasonable cause, without consent, against wish, against the will, etc. In other words, there is no desertion if there is reasonable cause for absence.[4]

4. MARRIAGE SEPARATION AND DIVORCE, 4TH EDITION, MOOKERJEE, KAMAL LAW HOUSE, P. 228

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TYPES OF DESERTION
Desertion is of three types: (1) Actual desertion- In actual desertion abandonment of the matrimonial home as a fact situation is essential. Mere intention to abandon without actual abandonment of the matrimonial home is not enough.[5] Similarly, factual separation without an intention to desert is also not enough. Intention to desert must be established.[6] LacHhman V. Meena [7] Wife was from rich family. She was required to live in joint family of husband. She went back to her parents. She kept making fake promises of returning back but she never did. The court held it as desertion. Sunil kumar V. Usha[8] Wife left due to unpalatable atmosphere of torture in husbands house. The court held wife has not done any desertion.

(2) Constructive Desertion- If a spouse creates an environment that forces the other spouse to leave, the spouse who created such an environment is considered as the deserter. In Pulford V. Pulford[9] it was observed that Desertion is not the withdrawal from a place but from the state of things In Lang V. Lang[10] the Privy Council explained the Doctrine of Constructive Desertion: It has been recognized that the party truly guilty of disrupting the home is not necessarily or in all cases the party who first leaves it. The party who stays behing may be by reason of conduct on his part making it unbearable for a wife with reasonable self-respect, or power of endurance to stay with him, so that he is the party really responsible for the breakdown of marriage. He has deserted her by expelling her, by driving her out. 5. Ramesh V. Prem lata, AIR 1979 MP 15 6. Gopal V. mithilesh, AIR 1979 MP 316 7. AIR 1964 SC 40 8. Sunil Kumar v. Usha AIR 1994 MP 1, 1994 (0) MPLJ 201 9. Pulford V. Pulford, 1923 P 18 at 21, Per Lord Merrivale 10. 1955 AC 402

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In Jyotish Chandra Guha vs Sm. Meera Guha[11] Husband was not interested in wife, he was cold, indifferent, sexually, abnormal and perverse. He went to England. Then came back and sent wife to England for PhD. When wife came back, he did not treat her well. Abused here and his in laws physically. Wife was forced to live separately. The court held desertion by husband.

(3) Willful Neglect If a spouse intentionally neglects the other spouse without physically deserting, it is still desertion. In Lachman V. Meena[12] Subha Rao, J., Obiter, Observed that willful neglect was designated to cover constructive desertion, and therefore should fulfil all the ingredients of desertion[13]. in our social background, it happens that the husbands deliberately neglect their wives, by refusing to have marital intercourse with them, by denying maintenance to them, or by declining to give company to them. Thus, a spouse may not totally withdraw from cohabitation, yet his conduct or act may be sufficiently grave and weighty; may cause untold misery and deprivations to the other. These will constitute willful neglect. Failure to discharge or omission to discharge, every marital obligation will not amount to willful neglect. But failure to discharge basic marital obligations will amount to willful neglect. Failure to provide maintenance may also amount to willful neglect.[14]

11. AIR 1970 Cal 266 12. AIR 1964 AC 402 13. See also Tara Chand V. Narain Devi, AIR 1979 P&H 300 14. Balbir V. dhir, AIR 1979 P&H 200

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ESSENTIAL INGRIDIENTS OF DESERTION

Desertion has the following Constituent elements:
(i) Factum of separation coupled with animus deserendi To constitute desertion the fact of separation and animus deserndi(intention to desert) must co-exist, it is not necessary that they should commenced at the same time.[15] the parties may have involuntarily separated for the exigencies of life. But if subsequently one of the parties voluntarily and purposely rejects all the opportunities of coming together, there is desertion. In Anil Kumar Banerjee V. Sefali Banerjee the court observed that to constitute desertion, the spouse who has been deserted is required to prove the factum of desertion only. It is not necessary for him or her to further prove the existence of animus deserendi[16] In A.Bhagavati Ammal V sethu - Where the intention to abandon is formed subsequent to the separation, that intention would not relate back to the date of separation for the purpose of desertion. The period of desertion must be calculated only from the time the intention is manifested or proved to have been formed. Such intention being within the knowledge of the deserting spouse, onus lies on him/her to prove it.[17] In Neelam V. Vinod Kumar Midha, the wife was prepared to return to the husband but on condition of his good conduct. Her application under Section 125 of Cr.P.C (maintenance) as also the case for return of dowry were pending, held, desertion by wife was clearly writ large.[18] In Promod Purshottam V. Vasundhara the court held, in the event of a notice having been issued by a spouse to the other expressing the intention not to return to matrimonial hom, desertion would commence from the date of such notice.[19]

15. Devi Singh V. Sushila DeviAIR 1972 Raj 303 16. AIR 1997 CAL 6 17. AIR 1987 Mad 224 18. AIR 1986 P&H 253 19. AIR 1989 Bom 75

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(ii)

Lack of consent There cannot be any desertion if the separation is by consent.[20] But the context of desertion has to be construed strictly. Buckley,LJ oserved: Desertion does not necessearily involve that the wife desires her husband to remain with her. She may be thankful that he has gone, but he may nevertheless have deserted her[21] It is in this context that the Special marriage Act and The Hindu Marriage Act use two expressions: (1) without consent (2) against the wishes of such party The real test of lack of consent is whether separation is really due to the conduct of the deserting spouse or the others consent to a permanent separation. When parties are living separate and apart under a separation agreement, it is clear case of separation by consent.[22] Similar is the case where wife is living separate from her husband under a compromise agreement entered into in maintenance proceedings. [23] Consent may be expressed or implied. Whether or not there is consent to the separation is a question of fact. If the consent of separation is withdrawn, desertion will automatically begin, provided other conditions of desertion are satisfied. Consent must be free. Thus, in Holroyd V. Holroyd, where a wife has signed a separation agreement under great mental strain, with no intention legal advice because she thought that this would be the only means of obtaining maintenance from her husband, the court held that the wife had not given her consent freely to live separate and apart.[24]

20. Aryarama Yajulu Venkata Subha Rao V. Aryasomayajula Surya Kumar, AIR 1980 AP 318 21. Haniman V. Haniman 1909 p 23 22. Vadramma V. Krishnama 1970 1 AWR 13 23. Bhagwanti V. Sadhu Ram, AIR 1961 Punj 181 24. 1920 30 TLR 479

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(iii)

Without Reasonable Cause Under all the matrimonial laws whenever withdrawal from the society of the petitioner is shown to be with reasonable cause, it is a complete defense for restitution of conjugal rights. Desertion should be there without any reasonable cause otherwise it will not be desertion. Lachhman Kripalani V. Meena A husband making serious allegations against the wife about adultery. Allegations were unfounded. Wifes living apart is not without reasonable cause and consequently not desertion[25] Radhakrishnan Murthy V. P.Vijayalakshmi Evidence of the wife and other witnesses show ill-treatment of the wife. Her lawyers notice to husband alleging ill-treatment has not been denied specifically. Held, wife has a reasonable cause to stay away from husband, it is not desertion.[26] Shrikant V. Saroj, If wife is forced to live separately to avoid constant demand of dowry and misbehavior of the husband and in-laws for the fulfillment thereof, the same cannot be said to be desertion.[27] The Statutory Period of Two years the desertion must subsist continuously for the whole of the statutory period immediately preceding the presentation of the petition. Desertion is a continuing offence. It cannot be for by aggregating the different installments of desertion( Perry V. Perry)[28] Desertion to constitute a ground for divorce or judicial separation must be for continuous period of two years.[29] Desertion is a continuing offence, it is an inchoate offence i.e., once desertion begins, it continues day after day, till it is brought to an end by the conduct of the deserting spouse. It also means that desertion is not complete even if the statutory period has expired. It may still be brought to an end by an act or conduct of the deserting spouse.it is inchoate. It becomes complete only when the deserted spouse files a petion for matrimonial relief. It is this aspect of desertion which distinguishes it from all other matrimonial offences.

(iv)

25. AIR 1964 SC 40 26. AIR 1983 AP 380 27. AIR 2001 MP 94 28. (1952) 1 All ER 1076 29. Shakuntala V. Om Prakash, AIR 1981 Del 53

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In Bipin Chandra V. Prabha, [30]the wife was clearly in desertion. But the wife expressed an intention to resume cohabitation before the husband filed a petition for divorce, and thus terminated the desertion. If a spouse gave a notice not to return, desertion commences from the date of notice,[31] wifes withdrawal of jewellery from the locker may be tantamount to desertion and desertion commences from the date of withdrawal of jewellery.[32]

30. AIR 1957 SC 176 31. Permod V. Vasundhara, AIR 1969 Bom 75 32. Suresh V. Gurmohinder, AIR 1983 Del 230

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TERMINATION OF DESERTION
The Desertion is not complete until the petition founded on this cause is filed, and something may happen before it to terminate the desertion. The most outstanding and interesting aspect of desertion is this that the offence can be brought to an end by the guilty party. The character and quality of desertion makes it possible to bring the state of desertion to an end by some act or conflict of the deserting spouse. Desertion may come to an end in the following cases: (a) Resumption of cohabitation If at any time before the presentation of petition, spouses resume cohabitation, cohabitation comes to an end. In Mummery V. Mummery[33] it was held that Resumption of cohabitation must be by mutual consent and it should imply complete reconciliation. Thus where the deserting spouse comes and stay in the matrimonial home for a couple of days without any intention to reconcile, desertion will not terminate. Does resumption of matrimonial intercourse terminate desertion? If resumption of matrimonial intercourse is a step towards resumption of cohabitation, it will terminate desertion, even though parties are not able to live together. In Dhrubajyoti V. Lila[34] wife left her husbands home and did not return to the matrimonial home for more than 2 years. Thereafter one day she went to her husbands house with her relations and left it before her husband returned. It was held that the wife continued in desertion. (b) When separation becomes consensual- if the spouses enter into a separation agreement, desertion would be at end. Similarly, if a decree of judicial separation is obtained, the desertion would come to an end from the date of judicial separation.

33. (1942) 1 All ER 553 34. AIR 1979 Ori. 93

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(c) Offer to return- In desertion there is an intention to destroy the marriage. But if the deserting spouse seeks to return, makes an offer to return, the intention to destroy the marriage is no longer there and therefore desertion will come to an end; the basic principle being that a spouse who has been deserted must take back his deserter spouse. The moment the deserter spouse makes an offer to return, the desertion is at an end. In Perry V. Perry[35] it was held that if he will not receive her, he becomes himself the deserter and he cannot say, you have deserted me. I will not forgive you for running away and therefore you cannot return During the whole of the intention to return is an essential element; his motive for making an offer to return is not relevant. In a simple case of desertion, offer to return will be sufficient. Thus, in Bipin Chandra V. Prabha[36], the wife made offer to return but the husband by sending the telegram do not send Prabha frustrated her intention to come back and thereby terminated. But if deserting spouse has been guilty of a behavior which entitles the other to stay away, such as when deserter has been guilty of adultery, the simple offer to return will not be enough to terminate desertion, and the deserted spouse is not bound to accept it; were not so it would amount to forcing condonation on him.[37] In such a case, the deserter spouse must give the other such credible assurances that conduct complained of will never be repeated in future. Any offer to return must satisfy the following two conditions : (i) It must be genuine and bona fide offer to return permanently, and the offerer must have the means and the intention to implement if it is accepted by the other party. If offer is made just to forestall or defeat impending proceeding in a court of law, offer cannot be said to be genuine and bona fide. In Shyam Chand V. Janaki[38] a wife who was turned out by the husband from the matrimonial home filed maintenance proceedings. These proceedings were compromised and the husband agreed to have the wife back and maintain her. But subsequently he backed out and filed proceedings for divorce. His petition was rejected. He filed an appeal. At the hearing of his appeal, he made an offer to take back his wife. The wife rejected it. The court held that offer was not genuine and sincere.

35. (1963) 3 All ER 766 36. AIR 1957 SC 176 37. Everitt V. Everitt (1949) 1 All ER 904 38. AIR (1965) 1 All ER 1043

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The offer should not be subject to unreasonable conditions - Illustration In 1951, the wife deserted her husband taking with her three daughters of the marriage whose ages range between 17 to 19 years after a while, the husband asked her to return but refuse to have the daughters back. The wife decline the offer. In the husbands petition for divorce on the ground of wifes desertion, the court held that desertion terminated when the husband refuse to take the daughters, since there was nothing in the conduct of the daughters to justify him in refusing to have them back and it was not unreasonable of the mother to decline to leave them to fend for themselves in view of their ages. On the other hand, if the deserter spouse has given the other spouse just cause to live separate and apart from him, the deserted spouse is entitled to refuse an offer to return either outright or to put conditions on the deserter spouse that he would abide by the assurances of better behavior in the future.[39] (d) Supervening event if the deserted spouse commits an act which justifies the other to continue to live apart, desertion will stand terminated unless it can be shown that the deserter would not, in any case, have returned.[40] If the deserted spouse subsequently consents to the living apart of the deserter spouse, it will terminate desertion.

(ii)

39. Lewis V. lewis, 1956 p. 205 40. Herod V. Herod, (1939) p. 11

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BURDEN OF PROOF
It is established law that the burden of proving all aspects of desertion are on the petitioner. Thus, it is for the petitioner to establish both animus factum of desertion. It for him to establish that desertion was without reasonable cause and against his wishes and without the consent, and that it subsisted throughout the statutory period. At one time it was the established view that desertion must be proved beyond all reasonable doubt [41] However, the present view is that it may be established by balance of probabilities. Jarnail Singh V. Shakuntala[42], presents a difficult situation. Wife failed to prove her allegations of desertion and cruelty and expressed her willingness to live with the husband without any pre conditions. Husband who had developed illicit relationship with the woman refuse to keep the wife. There were two daughters of marriageable age and three minor children of marriage. Refusing to grant wifes petition, the court, strangely held that the marriage should not, in the circumstances of the case, be disrupted.

41. Ratneshwar V. Prem Lata, AIR 1986 MP 218 42. AIR 1979 P&H 68

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CONCLUSION

Under most of the personal laws in India, desertion is recognized as ground for divorce and judicial separation. The Hindu Marriage Act and The Special Marriage Act lay down that Desertion as a ground for divorce or judicial separation should be for a continuous period of two years. Desertion should have the factum of separation; Animus deserendi; without consent of petitioner; without any reasonable cause and for statutory period of two years as its essential ingredients.

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BIBLIOGRAPHY
Dr. Paras Diwan, Family law, 9th Edition, Allahabad Law Agency

Mookerjee, Marriage, Separation and Divorce, 4th Edition, Kamal Law House

WEBLIOGRAPHY
http://www.scribd.com/doc/44990603/Desertion

http://www.lawisgreek.com/hindu-marriage-law-legal-implications-of-desertion-as-a-groundfor-divorce

http://www.allindiareporter.in/

http://www.indiankanoon.org/

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