Desertion is a significant issue in Indian marriages that involves one spouse abandoning the other without any valid reason, disrupting the foundation of the marital relationship. It refers to the act of intentionally and unjustifiably leaving the matrimonial home and refusing to fulfil marital obligations. Desertion can have far-reaching consequences, causing emotional distress and financial challenges for the deserted spouse. In India, desertion is recognized as a ground for divorce under various Religious Personal Laws governing matrimonial relationships among people practising different religions, and it requires the deserted spouse to prove the absence of reasonable cause and a continuous period of abandonment. Understanding desertion in Indian marriage is crucial to address the legal, social, and emotional implications associated with this unfortunate situation.
Desertion is recognized as a ground for divorce in various Religious Personal Laws in India, including Hindu, Muslim, Christian, Parsi, and interfaith marriages. It refers to a situation where one spouse abandons the other without reasonable cause and without their consent or against their wish. Desertion involves the intentional and prolonged absence of one spouse from the marital relationship, leading to the disruption of the marital bond. The deserted spouse, whether Hindu, Muslim, Christian, Parsi, or belonging to an interfaith marriage, may seek divorce on the grounds of desertion. The specific requirements and legal procedures may vary under different personal laws, but the fundamental concept remains the same. Desertion, as a ground for divorce, acknowledges the significance of maintaining the commitment and fulfilment of marital obligations in order to sustain a healthy and functioning marriage.
The various legal provisions under the different Religious Personal Laws stipulating desertion as a ground for divorce are as follows -
The Hindu Marriage Act, 1955 (HMA) is applicable when both the parties to a marriage are Hindus, Sikhs, Jains or Buddhists by religion. As per Section 13(1)(ib) of the HMA, any marriage solemnized, whether before or after the commencement of this Act (i.e., 18th May, 1955), may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. As per an explanation engrafted in this 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.
The Dissolution of Muslim Marriages Act, 1939 is applicable when both the parties to a marriage are Muslims by religion. As per Section 2(iv) of the Act, a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on the ground that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.
The Divorce Act, 1869 is applicable when both the parties to a marriage are Christians by religion. As per Section 10(ix) of the Act any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001 (51 of 2001), may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has deserted the petitioner for at least two years immediately preceding the presentation of the petition.
The Parsi Marriage and Divorce Act, 1936 is applicable when both the parties to a marriage are Parsis by religion. As per Section 32(g) of the Act, any married person may sue for divorce on the ground that the defendant has deserted the plaintiff for at least two years.
The Special Marriage Act, 1954 applies to individuals of any religion or faith, including Hindus, Muslims, Christians, Sikhs, Buddhists, Jains, Parsis, and individuals who do not profess any religion. It is a secular law that provides a legal framework for interfaith marriages, as well as marriages within the same faith. As per Section 27(b) of the Act, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. As per an explanation engrafted in this 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.
Under Section 13(1)(ib) of the Hindu Marriage Act, 1955, desertion is recognized as a valid reason for divorce in Hindu marriages. Desertion, in this context, refers to the act of one party abandoning the other without a reasonable cause and without their consent or against their wishes. It includes wilfully neglecting the petitioner. To establish desertion as grounds for divorce, it must be proven that one spouse intentionally left the other with the intention of never returning, and this intent was acted upon by not resuming the marital relationship. In simpler terms, desertion occurs when one spouse deliberately leaves the other with the aim of permanently ending their cohabitation. It is worthwhile to note that the act of desertion begins when the separation and the intention to abandon (animus deserendi) coexist, although they may not necessarily start at the same time. It is possible for the separation to commence without the necessary intent, or for the separation and the intention to coincide at a point in time.
The burden of proving desertion rests on the spouse who claims to have been deserted. They must provide evidence to support their claim, such as letters, messages, witnesses, or any other relevant documentation. It is a settled legal position that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. Desertion can be either actual or constructive. If the party who withdraws from the society of the other is the one who does it without a reasonable excuse, it is called actual desertion. In this case, the physical act of leaving/withdrawing from the society coincides with a matching intention to permanently forsake the other. On the other hand, there may be instances where one of the parties physically leaves the matrimonial home or withdraws from the society of the other, but such parting or withdrawal is actually not voluntary in the real sense of the term. The spouse who leaves had to leave because there was no other alternative left with him/her. This may be due to the behaviour of the other spouse who continues to remain in the matrimonial home. Due to the situations or reasons created by the other spouse, if one is made/compelled to leave, the spouse remaining in the house would be guilty of constructive desertion, while the one who actually leaves would be termed as the aggrieved party. For example, the husband throws the wife out and closes the doors of the matrimonial home on her, or the wife is tortured/beaten by the husband and unable to take the beatings anymore and in order to save her life, she leaves the house of the husband and takes shelter at her parents' place. Here, it is the wife who physically departs, but she is made to depart or is forced to do so and had no other alternative but to go. In this case, the husband will be guilty of constructive desertion and the wife would be the aggrieved party. The spouse guilty of constructive desertion cannot seek the remedy of divorce on the grounds of desertion of the other spouse as she/he herself/himself would be the guilty party. So, the party who is guilty of either actual desertion or constructive desertion would be the guilty party and the aggrieved can proceed against him to obtain a divorce if it extends to a continuous period of two years immediately preceding the presentation of the petition. Four conditions must be present in order to prove desertion on the part of the guilty party:
Thus, desertion is a matter of inference to be drawn from the facts and circumstances of each case.
Following are some of the important judgements by the Hon'ble Supreme Court upon desertion as a ground for divorce in India & ndash
In this particular case, a five-judge bench of the Supreme Court emphasized that the burden of proof rests on the spouse filing the petition to establish, with strong and convincing evidence beyond any doubt, that the other spouse intentionally abandoned them without reasonable cause. The petitioner must demonstrate that the desertion persisted throughout the entire statutory period and that the respondent made no genuine effort to return to the marital home. Additionally, the petitioner must show that their own actions, words, or conduct did not provide a justifiable reason for the other spouse to refrain from attempting reconciliation or resuming cohabitation. However, it is important to note that if the deserted spouse's behaviour has not influenced the deserting spouse's mindset, there is no legal rule that states desertion automatically terminates due to the conduct of the deserted spouse. If the offer to return to the matrimonial home, made after the desertion had already begun, is sincere and reflects the true intentions and feelings of the deserting spouse, it would bring an end to the desertion, even if the physical separation continues. Conversely, if the offer is insincere and there is no genuine intention to return, the mere expression of such intent in letters would not interrupt the ongoing desertion.
In this case, a three-judge bench of the Supreme Court ruled that temporary emotional abandonment driven by feelings such as anger, disgust, or guilt without the intention to permanently cease cohabitation does not constitute desertion. The relationship between the parties involved in this case was generally smooth, and they had a child together. The husband frequently travelled abroad for business, and during one of his trips, the wife developed a close relationship with one of his friends. She exchanged letters with him, and when one of these letters was discovered by her father-in-law and shown to the husband upon his return, she admitted to writing it and expressed her affection for the friend. The wife hastily left the marital home the next day with their son, claiming she needed to attend a wedding in her family. The husband, upon learning about the letter and suspecting her of having an affair, sent a letter through his solicitor accusing her of infidelity and demanding that she send their son. The wife, attempting to reconcile, reached out to her cousin, uncle, and mother-in-law, and eventually decided to return to the matrimonial home on her own. She also sent the boy hoping that the husband would call her to take care of the boy, but to no avail. Her father informed the husband of her intention, but the husband responded with a telegram instructing & lsquo must not send Prabha, letter follows', which prevented her return.
After three years of separation, the husband filed a petition seeking judicial separation on the grounds of her desertion. The court concluded that once the wife had expressed her desire to return, she could no longer be considered in a state of desertion. Since the husband was unwilling to accept her back into the matrimonial home, a key requirement that the aggrieved party must be willing to live with the spouse had not been met. If the husband's actions or words prevent the other spouse from resuming cohabitation, it is the spouse preventing the reunion who would be guilty of constructive desertion. In this case, the wife's initial departure from the marital home was not driven by an intention to desert her husband but by her sense of guilt. Furthermore, as she later expressed her willingness to return but was prevented by her husband's attitude, there was no evidence that she had deserted him, let alone harboured such intentions for the required statutory period. Therefore, the husband's case was deemed unsuccessful by the court.
In this case, the Supreme Court ruled that in matrimonial situations, desertion refers to one party withdrawing from the marital status and obligations. Therefore, neither party in a marriage can claim desertion unless they admit that, following the formal marriage ceremonies, they recognized and fulfilled the mutual responsibilities of married life, which includes living together with the purpose of consummating the marriage. Cohabitation is an essential aspect of a valid marriage since the purpose of marriage is to facilitate the continuation of the human race through lawful procreation. In simpler terms, desertion cannot occur without prior cohabitation between the spouses. However, if a party seeks divorce on the grounds of desertion, they must demonstrate that they are not taking advantage of their own wrongdoing.
Desertion is one of the grounds for divorce under Hindu law, as well as a ground for claiming maintenance by the deserted spouse. However, the right to claim maintenance is not absolute and depends on various factors such as the conduct of the parties, the reason for desertion, the financial status of the spouse, etc. According to Section 18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife is entitled to be maintained by her husband during her lifetime, unless she is unchaste or ceases to be a Hindu by conversion. She can also live separately from her husband without forfeiting her claim to maintenance if he is guilty of desertion, cruelty, adultery, conversion, or any other justifiable cause. According to Section 125 of the Code of Criminal Procedure, 1973, any person who has sufficient means but neglects or refuses to maintain his wife who is unable to maintain herself can be ordered by a magistrate to pay a monthly allowance to her. However, this provision does not apply if the wife is living in adultery, or if she refuses to live with her husband without any sufficient reason, or if they are living separately by mutual consent. The Supreme Court has held that a wife who has been divorced on the ground of desertion by her husband is still entitled to claim maintenance under Section 125 CrPC. The court observed that once the relationship of marriage comes to an end, the wife is not under any obligation to live with her former husband and the deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose of grant of maintenance. The court also held that the husband cannot escape his liability to maintain his wife by pleading that she deserted him and that he has no regular source of income. The court said that the maintenance amount should be fixed according to the standard of living of the wife in the matrimonial home and taking into account the inflation and cost of living. Upon the grant of divorce on the ground of desertion, the wife can claim permanent alimony and maintenance from the husband as part of the proceedings for divorce. Depending on the religious personal law as is applicable to the parties, maintenance can be claimed under Section 25 of the Hindu Marriage Act, Section 3 of Muslim Women (Protection of Rights on Divorce) Act, Section 37 of the Special Marriage Act, Section 37 of the Divorce Act, Section 40 of the Parsi Marriage and Divorce Act. As far as property rights are concerned, a deserted wife does not have any right to seek partition or share in her husband's ancestral or self-acquired property during his lifetime. She can also claim her stridhan (the property given to her at the time of marriage or afterwards) from her husband or his relatives. However, she can inherit his property as a legal heir after his death, along with his other heirs, according to the Hindu Succession Act, 1956.
Counselling and mediation are valuable tools in addressing the complex issues surrounding desertion cases in marriages. They provide a platform for open communication and aim to foster understanding and reconciliation between estranged spouses. The case of Bidyut Kumar Saha v. Tapa Saha, MANU/TR/0138/2020 emphasizes the significance of counselling and mediation in resolving desertion cases. In this case, it was held that if the wife leaves the husband's house without any justifiable reason and fails to make efforts to reconcile or join him despite his sincere attempts, it can be considered as desertion. Additionally, if there are allegations of ill-treatment by the husband and the wife fails to appear before the mediation centre, disregards court orders, and intentionally prolongs the litigation, it may also amount to cruelty. In such scenarios, counselling and mediation can serve as a means to bridge the gap between the parties and explore possibilities for reconciliation. Trained professionals can assist the couple in addressing their grievances, understanding each other's perspectives, and finding mutually agreeable solutions. Through effective counselling and mediation, the parties may have an opportunity to resolve their differences, rebuild trust, and potentially save their marriage. However, the success of counselling and mediation depends on the willingness and active participation of both parties. If one party refuses to engage in the process or exhibits unreasonable behaviour, it may impact the effectiveness of the interventions. However, in cases where efforts at reconciliation fail, and the desertion and cruelty persist, the court may consider granting a decree of divorce in favour of the aggrieved spouse. Counselling and mediation can significantly contribute to the resolution of desertion cases by providing a supportive environment for dialogue, empathy, and problem-solving. By encouraging communication and fostering understanding, these processes offer an opportunity for couples to explore alternative avenues and seek amicable solutions, potentially leading to the restoration of their marital bond or a peaceful resolution in case of irretrievable breakdown.
Desertion in India can have several legal consequences, particularly in the context of marriage and family law. Here are some of the key legal consequences of desertion:
When challenging a desertion claim in Indian courts, the accused spouse can take several steps to present a strong defence. Here are some possible defences to challenge a desertion claim:
It is important for the accused spouse to gather and present evidence, such as documents, witness testimonies, or any other relevant proof, to substantiate their defence. The court will evaluate the evidence presented by both parties and make a decision based on the merits of the case.
Desertion is not a single isolated event but a continuous course of conduct that must be assessed considering all the circumstances of each case. There are several ways in which desertion can be terminated, depending on the conduct and intentions of the parties involved. These include:
These factors play a crucial role in determining whether desertion has been terminated in a particular matrimonial case in India.
Obtaining a decree of Divorce can be a challenging and emotionally trying process. It is advisable to seek the assistance of a skilled family or divorce lawyer to navigate through the legal complexities involved. Engaging the services of a divorce lawyer has several benefits in the context of seeking a decree of divorce or restitution of conjugal rights. A divorce lawyer specializing in matrimonial reliefs will not only assist you in gathering all the necessary information related to your case but also handle the extensive paperwork involved. By taking care of these legal formalities, the lawyer allows you to focus on yourself and your family during this difficult time. With their extensive experience in handling cases of desertion, an experienced divorce lawyer can provide you with expert advice tailored to your unique situation. Their knowledge of the relevant laws and legal procedures ensures that you are well informed about the best course of action to take in your specific case. Utilizing services such as LawRato's Free Legal Advice can also be beneficial as it enables you to seek guidance from expert divorce/matrimonial lawyers who can provide you with valuable insights into your case. By hiring a divorce lawyer , you can minimize the risk of making significant mistakes that may have adverse financial consequences or necessitate further legal proceedings in the future. A divorce lawyer specializing in desertion matters can guide you through the process, ensuring that all necessary steps are taken to achieve a swift and successful resolution.
Desertion is a significant issue in Indian marriages that involves one spouse abandoning the other without any valid reason, disrupting the foundation of the marital relationship. It refers to the act of intentionally and unjustifiably leaving the matrimonial home and refusing to fulfil marital obligations. Desertion can have far-reaching consequences, causing emotional distress and financial challenges for the deserted spouse. In India, desertion is recognized as a ground for divorce under various Religious Personal Laws governing matrimonial relationships among people practising different religions, and it requires the deserted spouse to prove the absence of reasonable cause and a continuous period of abandonment. Understanding desertion in Indian marriage is crucial to address the legal, social, and emotional implications associated with this unfortunate situation.
Desertion is recognized as a ground for divorce in various Religious Personal Laws in India, including Hindu, Muslim, Christian, Parsi, and interfaith marriages. It refers to a situation where one spouse abandons the other without reasonable cause and without their consent or against their wish. Desertion involves the intentional and prolonged absence of one spouse from the marital relationship, leading to the disruption of the marital bond. The deserted spouse, whether Hindu, Muslim, Christian, Parsi, or belonging to an interfaith marriage, may seek divorce on the grounds of desertion. The specific requirements and legal procedures may vary under different personal laws, but the fundamental concept remains the same. Desertion, as a ground for divorce, acknowledges the significance of maintaining the commitment and fulfilment of marital obligations in order to sustain a healthy and functioning marriage.
The various legal provisions under the different Religious Personal Laws stipulating desertion as a ground for divorce are as follows -
The Hindu Marriage Act, 1955 (HMA) is applicable when both the parties to a marriage are Hindus, Sikhs, Jains or Buddhists by religion. As per Section 13(1)(ib) of the HMA, any marriage solemnized, whether before or after the commencement of this Act (i.e., 18th May, 1955), may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. As per an explanation engrafted in this 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.
The Dissolution of Muslim Marriages Act, 1939 is applicable when both the parties to a marriage are Muslims by religion. As per Section 2(iv) of the Act, a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on the ground that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.
The Divorce Act, 1869 is applicable when both the parties to a marriage are Christians by religion. As per Section 10(ix) of the Act any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001 (51 of 2001), may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has deserted the petitioner for at least two years immediately preceding the presentation of the petition.
The Parsi Marriage and Divorce Act, 1936 is applicable when both the parties to a marriage are Parsis by religion. As per Section 32(g) of the Act, any married person may sue for divorce on the ground that the defendant has deserted the plaintiff for at least two years.
The Special Marriage Act, 1954 applies to individuals of any religion or faith, including Hindus, Muslims, Christians, Sikhs, Buddhists, Jains, Parsis, and individuals who do not profess any religion. It is a secular law that provides a legal framework for interfaith marriages, as well as marriages within the same faith. As per Section 27(b) of the Act, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. As per an explanation engrafted in this 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.
Under Section 13(1)(ib) of the Hindu Marriage Act, 1955, desertion is recognized as a valid reason for divorce in Hindu marriages. Desertion, in this context, refers to the act of one party abandoning the other without a reasonable cause and without their consent or against their wishes. It includes wilfully neglecting the petitioner. To establish desertion as grounds for divorce, it must be proven that one spouse intentionally left the other with the intention of never returning, and this intent was acted upon by not resuming the marital relationship. In simpler terms, desertion occurs when one spouse deliberately leaves the other with the aim of permanently ending their cohabitation. It is worthwhile to note that the act of desertion begins when the separation and the intention to abandon (animus deserendi) coexist, although they may not necessarily start at the same time. It is possible for the separation to commence without the necessary intent, or for the separation and the intention to coincide at a point in time.
The burden of proving desertion rests on the spouse who claims to have been deserted. They must provide evidence to support their claim, such as letters, messages, witnesses, or any other relevant documentation. It is a settled legal position that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. Desertion can be either actual or constructive. If the party who withdraws from the society of the other is the one who does it without a reasonable excuse, it is called actual desertion. In this case, the physical act of leaving/withdrawing from the society coincides with a matching intention to permanently forsake the other. On the other hand, there may be instances where one of the parties physically leaves the matrimonial home or withdraws from the society of the other, but such parting or withdrawal is actually not voluntary in the real sense of the term. The spouse who leaves had to leave because there was no other alternative left with him/her. This may be due to the behaviour of the other spouse who continues to remain in the matrimonial home. Due to the situations or reasons created by the other spouse, if one is made/compelled to leave, the spouse remaining in the house would be guilty of constructive desertion, while the one who actually leaves would be termed as the aggrieved party. For example, the husband throws the wife out and closes the doors of the matrimonial home on her, or the wife is tortured/beaten by the husband and unable to take the beatings anymore and in order to save her life, she leaves the house of the husband and takes shelter at her parents' place. Here, it is the wife who physically departs, but she is made to depart or is forced to do so and had no other alternative but to go. In this case, the husband will be guilty of constructive desertion and the wife would be the aggrieved party. The spouse guilty of constructive desertion cannot seek the remedy of divorce on the grounds of desertion of the other spouse as she/he herself/himself would be the guilty party. So, the party who is guilty of either actual desertion or constructive desertion would be the guilty party and the aggrieved can proceed against him to obtain a divorce if it extends to a continuous period of two years immediately preceding the presentation of the petition. Four conditions must be present in order to prove desertion on the part of the guilty party:
Thus, desertion is a matter of inference to be drawn from the facts and circumstances of each case.
Following are some of the important judgements by the Hon'ble Supreme Court upon desertion as a ground for divorce in India & ndash
In this particular case, a five-judge bench of the Supreme Court emphasized that the burden of proof rests on the spouse filing the petition to establish, with strong and convincing evidence beyond any doubt, that the other spouse intentionally abandoned them without reasonable cause. The petitioner must demonstrate that the desertion persisted throughout the entire statutory period and that the respondent made no genuine effort to return to the marital home. Additionally, the petitioner must show that their own actions, words, or conduct did not provide a justifiable reason for the other spouse to refrain from attempting reconciliation or resuming cohabitation. However, it is important to note that if the deserted spouse's behaviour has not influenced the deserting spouse's mindset, there is no legal rule that states desertion automatically terminates due to the conduct of the deserted spouse. If the offer to return to the matrimonial home, made after the desertion had already begun, is sincere and reflects the true intentions and feelings of the deserting spouse, it would bring an end to the desertion, even if the physical separation continues. Conversely, if the offer is insincere and there is no genuine intention to return, the mere expression of such intent in letters would not interrupt the ongoing desertion.
In this case, a three-judge bench of the Supreme Court ruled that temporary emotional abandonment driven by feelings such as anger, disgust, or guilt without the intention to permanently cease cohabitation does not constitute desertion. The relationship between the parties involved in this case was generally smooth, and they had a child together. The husband frequently travelled abroad for business, and during one of his trips, the wife developed a close relationship with one of his friends. She exchanged letters with him, and when one of these letters was discovered by her father-in-law and shown to the husband upon his return, she admitted to writing it and expressed her affection for the friend. The wife hastily left the marital home the next day with their son, claiming she needed to attend a wedding in her family. The husband, upon learning about the letter and suspecting her of having an affair, sent a letter through his solicitor accusing her of infidelity and demanding that she send their son. The wife, attempting to reconcile, reached out to her cousin, uncle, and mother-in-law, and eventually decided to return to the matrimonial home on her own. She also sent the boy hoping that the husband would call her to take care of the boy, but to no avail. Her father informed the husband of her intention, but the husband responded with a telegram instructing & lsquo must not send Prabha, letter follows', which prevented her return.
After three years of separation, the husband filed a petition seeking judicial separation on the grounds of her desertion. The court concluded that once the wife had expressed her desire to return, she could no longer be considered in a state of desertion. Since the husband was unwilling to accept her back into the matrimonial home, a key requirement that the aggrieved party must be willing to live with the spouse had not been met. If the husband's actions or words prevent the other spouse from resuming cohabitation, it is the spouse preventing the reunion who would be guilty of constructive desertion. In this case, the wife's initial departure from the marital home was not driven by an intention to desert her husband but by her sense of guilt. Furthermore, as she later expressed her willingness to return but was prevented by her husband's attitude, there was no evidence that she had deserted him, let alone harboured such intentions for the required statutory period. Therefore, the husband's case was deemed unsuccessful by the court.
In this case, the Supreme Court ruled that in matrimonial situations, desertion refers to one party withdrawing from the marital status and obligations. Therefore, neither party in a marriage can claim desertion unless they admit that, following the formal marriage ceremonies, they recognized and fulfilled the mutual responsibilities of married life, which includes living together with the purpose of consummating the marriage. Cohabitation is an essential aspect of a valid marriage since the purpose of marriage is to facilitate the continuation of the human race through lawful procreation. In simpler terms, desertion cannot occur without prior cohabitation between the spouses. However, if a party seeks divorce on the grounds of desertion, they must demonstrate that they are not taking advantage of their own wrongdoing.
Desertion is one of the grounds for divorce under Hindu law, as well as a ground for claiming maintenance by the deserted spouse. However, the right to claim maintenance is not absolute and depends on various factors such as the conduct of the parties, the reason for desertion, the financial status of the spouse, etc. According to Section 18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife is entitled to be maintained by her husband during her lifetime, unless she is unchaste or ceases to be a Hindu by conversion. She can also live separately from her husband without forfeiting her claim to maintenance if he is guilty of desertion, cruelty, adultery, conversion, or any other justifiable cause. According to Section 125 of the Code of Criminal Procedure, 1973, any person who has sufficient means but neglects or refuses to maintain his wife who is unable to maintain herself can be ordered by a magistrate to pay a monthly allowance to her. However, this provision does not apply if the wife is living in adultery, or if she refuses to live with her husband without any sufficient reason, or if they are living separately by mutual consent. The Supreme Court has held that a wife who has been divorced on the ground of desertion by her husband is still entitled to claim maintenance under Section 125 CrPC. The court observed that once the relationship of marriage comes to an end, the wife is not under any obligation to live with her former husband and the deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose of grant of maintenance. The court also held that the husband cannot escape his liability to maintain his wife by pleading that she deserted him and that he has no regular source of income. The court said that the maintenance amount should be fixed according to the standard of living of the wife in the matrimonial home and taking into account the inflation and cost of living. Upon the grant of divorce on the ground of desertion, the wife can claim permanent alimony and maintenance from the husband as part of the proceedings for divorce. Depending on the religious personal law as is applicable to the parties, maintenance can be claimed under Section 25 of the Hindu Marriage Act, Section 3 of Muslim Women (Protection of Rights on Divorce) Act, Section 37 of the Special Marriage Act, Section 37 of the Divorce Act, Section 40 of the Parsi Marriage and Divorce Act. As far as property rights are concerned, a deserted wife does not have any right to seek partition or share in her husband's ancestral or self-acquired property during his lifetime. She can also claim her stridhan (the property given to her at the time of marriage or afterwards) from her husband or his relatives. However, she can inherit his property as a legal heir after his death, along with his other heirs, according to the Hindu Succession Act, 1956.
Counselling and mediation are valuable tools in addressing the complex issues surrounding desertion cases in marriages. They provide a platform for open communication and aim to foster understanding and reconciliation between estranged spouses. The case of Bidyut Kumar Saha v. Tapa Saha, MANU/TR/0138/2020 emphasizes the significance of counselling and mediation in resolving desertion cases. In this case, it was held that if the wife leaves the husband's house without any justifiable reason and fails to make efforts to reconcile or join him despite his sincere attempts, it can be considered as desertion. Additionally, if there are allegations of ill-treatment by the husband and the wife fails to appear before the mediation centre, disregards court orders, and intentionally prolongs the litigation, it may also amount to cruelty. In such scenarios, counselling and mediation can serve as a means to bridge the gap between the parties and explore possibilities for reconciliation. Trained professionals can assist the couple in addressing their grievances, understanding each other's perspectives, and finding mutually agreeable solutions. Through effective counselling and mediation, the parties may have an opportunity to resolve their differences, rebuild trust, and potentially save their marriage. However, the success of counselling and mediation depends on the willingness and active participation of both parties. If one party refuses to engage in the process or exhibits unreasonable behaviour, it may impact the effectiveness of the interventions. However, in cases where efforts at reconciliation fail, and the desertion and cruelty persist, the court may consider granting a decree of divorce in favour of the aggrieved spouse. Counselling and mediation can significantly contribute to the resolution of desertion cases by providing a supportive environment for dialogue, empathy, and problem-solving. By encouraging communication and fostering understanding, these processes offer an opportunity for couples to explore alternative avenues and seek amicable solutions, potentially leading to the restoration of their marital bond or a peaceful resolution in case of irretrievable breakdown.
Desertion in India can have several legal consequences, particularly in the context of marriage and family law. Here are some of the key legal consequences of desertion:
When challenging a desertion claim in Indian courts, the accused spouse can take several steps to present a strong defence. Here are some possible defences to challenge a desertion claim:
It is important for the accused spouse to gather and present evidence, such as documents, witness testimonies, or any other relevant proof, to substantiate their defence. The court will evaluate the evidence presented by both parties and make a decision based on the merits of the case.
Desertion is not a single isolated event but a continuous course of conduct that must be assessed considering all the circumstances of each case. There are several ways in which desertion can be terminated, depending on the conduct and intentions of the parties involved. These include:
These factors play a crucial role in determining whether desertion has been terminated in a particular matrimonial case in India.
Obtaining a decree of Divorce can be a challenging and emotionally trying process. It is advisable to seek the assistance of a skilled family or divorce lawyer to navigate through the legal complexities involved. Engaging the services of a divorce lawyer has several benefits in the context of seeking a decree of divorce or restitution of conjugal rights. A divorce lawyer specializing in matrimonial reliefs will not only assist you in gathering all the necessary information related to your case but also handle the extensive paperwork involved. By taking care of these legal formalities, the lawyer allows you to focus on yourself and your family during this difficult time. With their extensive experience in handling cases of desertion, an experienced divorce lawyer can provide you with expert advice tailored to your unique situation. Their knowledge of the relevant laws and legal procedures ensures that you are well informed about the best course of action to take in your specific case. Utilizing services such as LawRato's Free Legal Advice can also be beneficial as it enables you to seek guidance from expert divorce/matrimonial lawyers who can provide you with valuable insights into your case. By hiring a divorce lawyer, you can minimize the risk of making significant mistakes that may have adverse financial consequences or necessitate further legal proceedings in the future. A divorce lawyer specializing in desertion matters can guide you through the process, ensuring that all necessary steps are taken to achieve a swift and successful resolution.
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