Desertion as a Ground for Divorce – Explanation with Relevant Case Laws

By | April 16, 2018

Introduction 

Section 13 of the Hindu Marriage Act 1955 deals with the various grounds of divorce.  Among these grounds, desertion is also an important ground which is given in Section 13(1) (iii). It actually means when a party to the marriage permanently leaves the other party without any valid reason and without the consent of another party. This may also include the ignorance of the one party to the other party. Thus, it is not only the abandonment of place but it is also of the situation and if this situation of desertion continues for more than two years, then it shall be the ground of divorce.[1]

In the case of Savitri Pandey vs. Premchand pandey[2] (1998) the Supreme Court held that “the desertion actually means the ignorance from matrimonial duties, by either party instead of leaving any place. It also requires the existence of cohabitation between the parties earlier”.[3]

Elements of Desertion

  1. The fact of separation
  2. The intention to desert
  3. Desertion without any reasonable cause
  4. Desertion without the consent of the applicant
  5. Desertion continues for two years

Types

  1. Actual desertion
  2. Constructive desertion

Actual Desertion

It mainly requires the intention of desertion without any reasonable cause and the situation when one party leaves the matrimonial home permanently without the consent of the other partner. This situation should be continued for two years and then it became the ground of the divorce. This is also called as physical separation and Animus Desertion. In the case of Gur Bachan Kaur v. Preetam Singh[4] (1998) the court held that the desertion shall not be done by the consent as desertion requires the guilt by one of the parties and desertion by the consent isn’t considered as desertion.[5]

Constructive desertion

As we have already read above, desertion is not always the abandonment of place, sometimes it is an abandonment of situation and it is known as constructive desertion.  It can also be said as that desertion means not abandoning the place, rather it is ignoring the matrimonial obligations while living under the same roof. In the case of Jyotish Chandra Guha v. Meera Guha[6] (1970), it was held that when one partner behaves in such a manner that it becomes difficult for the other partner to live under the same roof or is compelled to leave the matrimonial home. Then it will be considered as desertion by the first party.

In the case of Bhargav Kumar Pranshankar Shukla v. Chhayaben Bhargavkumar Shukla[7](2002) Gujarat High Court held that the desertion under the Hindu law is said as the withdrawal of a party from marital home does not itself constitute desertion by that party but it is the party by whose conduct cohabitation comes to an end is guilty of desertion.[8]

Situation when desertion may terminate:

  1. The resumption of marital life
  2. Resume cohabitation, or
  3. Express the willingness to go to matrimonial home.

Conclusion

Desertion is not a single act for the divorce but it is a continuous act or conduct and it is to be determined by the court from facts and circumstances of each case.

Click Here to Read Notes on Hindu Law


By – Akshita Shukla

Campus Amicus at Legal Bites


[1] Hindu Marriage Act, 1955, Sec 13 (1) (ib).

[2] 1998 (3) AWC 1903, II (1998) DMC 446

[3] R Mahajan, Savitri Pandey vs. Prem Chandra Pandey, (Apr 9, 7.00 pm) https://indiankanoon.org/doc/1360278/

[4] 1998 (1) AWC 275

[5] RK Mahajan, Smt Gurubachan kaur vs. Preetam Singh, (Apr 10, 9.00 pm) https://indiankanoon.org/doc/647150/.

[6] AIR 1970 Cal 266

[7] II (2003) DMC 428, (2003) 1 GLR 865

[8] Desertion as a ground for divorce, SARIN ADVOCATE (Apr. 10, 2018, 10.04 pm), https://sites.google.com/site/sarinadvocate/family-court/hindu-marriage-act-1955/


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