In this blogpost, Sudhi Ranjan Bagri, Student, National Law Institute University, writes about what is desertion, concept and element of desertion, on which party does the burden of proof rely and the law relating to desertion in India. 

Introduction

“Desertion is not the withdrawal from a place, but from a state of things.”[1]

Halsbury’s Laws of India defines desertion as a ‘total repudiation of the obligation of marriage’.[2]The word desert literally means ‘to abandon or give up or forsake without any sufficient reason or intention to return’.[3]In a marriage, if one spouse leaves the matrimonial alliance without any sufficient cause he is said to be at ‘fault’.

Marriage is considered a sacrament and preserved as a social institution.[4]In olden times, it was believed that this special contract could be put to an end only when one of the spouses was guilty of an act which undermined the importance of this institution. This was the foundation of the fault based theory of marriage. In a bid to preserve this holy union, the society reprimands the guilty spouse and provides no remedy of divorce for him, thereby restricting the right to file for divorce to the spouse with the clean hands. The ambiguity and complexities of the law have been interpreted by the judiciary which attempts to render justice to the innocent party. In spite of this attempt, there is a scope for abuse and misuse of the law by the guilt spouse.

Concept and elements of desertion

Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with desertion as a ground for divorce and the explanation of the same reads: “The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly”. There are mainly four basic elements which are primarily to be satisfied to constitute desertion. The first two are to be present in the deserting spouse.

1. The fact of separation (factum deserdendi)
2. The intention to desert ( animus deserdendi)[5]

Desertion is a state which occurs only on the co-existence of both of these elements. If either of these two ingredients is absent, the petition for divorce on desertion fails.[6]The interesting phenomenon in desertion is that either of the elements can precede the other; however, desertion will result only when both coincide and form a union.[7] 

When a petition is filed, the first step is proving the fact of separation and the intention separately while the second step is to prove their union. It is fairly easy to prove the physical act of separation either from the conductor from the state of minds. The difficulty arises on proving the animus i.e. the intention for desertion. This intention is required throughout the period of desertion. The petitioner is expected to prove intention through conduct as a person’s mind cannot be read.[8]In this process, there are two ways in which the deserting spouse has an opportunity to misuse the position of law: 

There exist cases where the separation was consensual (like when the husband is on a voyage) with no animus to desert.[9]While separated, one of the spouses may develop the intention to bring an end to the cohabitation permanently on the expiry of the consensual period. With the separation and the consequent formation of intention, the act of desertion commences which the deserted spouse is expected to prove. The exact duration of supervening intention is difficult to prove thereby giving an edge to the deserting spouse, and the deserted spouse is in a worse off position as she had consented to something she could not object(like a husband leaving for a business trip).[10]

The quality of permanence in intention to leave the matrimonial home is one of the essential sub-elements in desertion which differentiate it from willful separation. If there is just temporary separation without the intention to leave permanently, there is no desertion.[11]

In this law, if a person decides to return just before the expiry of two years and claims to have no intention of permanent separation, the so deserted spouse will have no recourse in law

Apart from these elements in the deserting spouse, there are two other elements which have to be present in the deserted spouse:

1. Absence of consent
2. The absence of conduct which led to the other spouse leaving the matrimony.[12]

The deserted spouse filing the petition is the one who must sufficiently prove and provide evidence for his conduct showing unmistakably that the desertion was against his will.[13]Courts have held that it is not enough for the petitioner to show that he was unwilling that the respondent stays out rather he must have expressly declared his wishes to the deserting spouse or make it clear that the absence was against his wish.[14]With this burden on the deserted spouse, there arise times when illiterate, and submissive women cannot expressly convey their consent or rather lack it. This creates problems in discharging their burden of proof providing for the deserting spouse to take advantage of. If there is no proof of lack of consent, the consensual separation is not a matrimonial offence using volenti non fit injuria.[15]

It is additionally important to note that for a matrimonial relief on the ground of desertion, it is necessary to show the passage of the statutory period of two years and the same must be continuous.[16] Therefore, it can be illustrated that a deserting spouse has an opportunity to take advantage of the law right from the fulfillment of basic elements of desertion.

Desertion as a continuing offence

The petition for divorce on the grounds of desertion can be filed only after a period of two years from the commencement of the co-existence of animus and the factum. Desertion is known as continuing offence as the element of permanence necessarily requires that the factum and animus must continue during the entire statutory period preceding the presentation.[17]If the spouse returns before the expiry of two years and then leaves again, the waiting period of two years commences all over again from the time he left again. If such period is interrupted, the broken periods may not be added together so as to establish a summed period of two years. The legislature provided this buffer period as a sort of cooling off period so that couples can rethink and reconsider their decision before ending the holy matrimony.[18]

Desertion is known as an inchoate offence as it continues from the day it commences to the day it is terminated by the conduct of the deserting spouse or by the presentation of the petition.[19]

It becomes a complete fault based matrimonial offence only when the deserted spouse files for divorce.

Keeping the intent of the legislature in mind, providing a period of two years is also problematic in a few ways. There may be instances where the deserting spouse may return within two years on reconsideration of his decision, but the law provides for recommencement of the additional period of two years on his departure again providing him with an opportunity to abuse the leeway provided for reconciliation. The legislature overlooks the consequence on the deserted spouse who is left without any support or maintenance. The trauma of being deserted for a period just less than two years might lead to the attitude of non-acceptance of the renewal of the marriage by the deserted spouse. The legislature might have good intentions in protecting the marriages, but it seems to be working out the assumption that the deserted spouse would always want the cohabitation to resume as soon as the deserting spouse returns. This presumption by the legislature provides the deserting spouse a chance to abuse the law.

Termination of desertion

As seen above, desertion as a ground for relief differs from other such as adultery or cruelty as in that offence the cause of action of desertion is not complete until the petition seeking relief is filed.[20]This means that through an act or conduct of the deserting spouse, the desertion can be put to an end. Desertion can come to an end in the following ways:

1. Resumption of co habitation
2. Resumption of marital intercourse
3. Supervening animus revertendi or offer of reconciliation.[21]

Resumption of cohabitation and marital intercourse should be with the intention of permanency. The deserting spouse may return just before the completion of the statutory period or engage in intercourse with the deserted spouse only to leave again. In both these cases, the offence of desertion is terminated although the deserter has no real intention to resume cohabitation but merely seeks to forestall or defeat impending judicial proceedings.      When the offer of reconciliation is made, there lies an opportunity for misuse. Courts have said that unjustified refusal of the offer of reconciliation would not only terminate desertion but also reverse the process and “put the boot on the other leg “making the innocent spouse guilty of desertion now. This can be used by the deserting spouse for defense even when he has no intention of actual reconciliation.

Recognizing this loophole, the Courts have sought to restrict such abuse of this provision by laying down stipulations such as casual acts of intercourse are not to be considered as proof of resumption of the marital relationship. Additionally, the offer of reconciliation must be genuine and in good faith. There may be instances where the deserting spouse has given just cause for leaving the matrimonial home. In these instances, the deserted spouse cannot possibly be expected to subject herself to a risk of recurrence and should be allowed to refuse reconciliation. Under the Matrimonial Clauses Act, 1973, if parties resume cohabitation during the period of desertion with a view to effect reconciliation, but the same does not come about, desertion will not be terminated but the period during which parties lived together will be deducted. This should also be accepted by the Indian courts. They must do so by taking into account the facts and circumstances both prior and subsequent to the desertion and also determine whether the deserting spouse can be reasonably said to be ready and willing to resume the marital relationship.

Burden and problem of proof

The Court has held that the onus of proving desertion and all its elements rests on the petitioner as, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with common-sense as it is “so much easier to  prove a positive than a negative”. However, the Courts are often faced with a problem of conflicting evidence, and it is difficult to decide which of the conflicting factual version given by the two spouses is correct. This is especially so since such cases occur within the privacy of the four walls of the house and in the absence of witnesses to corroborate evidence, the circumstances are hostile to the discovery of the truth. This translates into an advantage for the deserting spouse. Following the English Courts, the Supreme Court initially held that such proof must be beyond reasonable doubt. Eventually, the courts held that matrimonial offence may be proved on the preponderance of probabilities. However, there have been cases which have been decided on the beyond reasonable doubt standard thereby placing an immense burden on the innocent party to get relief and letting the deserter go scot free.

Due to the subjectivity and absence of any guidelines for the determination of desertion petitions, the discretion and prejudices play a huge role in the process. It is true that every case needs to be weighed according to the individual facts and background, however for consistency in dispensing justice; there is a need to introduce guidelines for the judges.

Conclusion

 In recent times, to ensure that divorce is granted the petitioner combines the charges of adultery and desertion. However, courts have held that if adultery is not proved the petition under desertion falls too. There has been no room provided for spouses who genuinely believe that the other has been adulterous and leave the matrimonial home. Desertion itself is not cruelty however it is difficult to draw a line between them, especially for constructive desertion. The contradictory pleas of cruelty and desertion always fail as there is a necessity to prove both of them separately.

Due to the patriarchal nature of Indian society, the courts have held that if a woman is working elsewhere, she is not fulfilling her marital obligations resulting in desertion. In addition, the deserted woman has a right to maintenance but no right to a separate residence in today’s day and age of perceived equality and social justice, to force a woman to resign her job merely because she is living away from her husband would result in cutting off her source of independence and subjecting her to beliefs that continue to confine women to patriarchal ideals. There also is a need to duplicate the English stand of deserted woman equity which recognizes a deserted woman’s right to reside in the matrimonial home because of her right to the consortium and the husband’s reciprocal duty to maintain her.

In conclusion, it can be said that desertion might be considered a fault-based ground for divorce, but there are ways that the guilty spouse can maneuver around the law and deny justice to the deserted spouse. There are two probable solutions to this problem: either to adopt a new legislation which tackles these opportunities of misuse or move towards the concept of irretrievable breakdown of marriage to provide no necessity for the deserting spouse to abuse the legal provision of desertion

[1] Pulford v. P ulford (1947) 1 All E.R . 32.

[2] Halsbusry’s Laws o f India: Volume 26 (New Delhi: Butterworth’s, 2007) at 267.

[3] M. N. N., “Desertion” as a Ground for Divorce´ 83(7) University of Pennsylvania Law Review and American Law Register (May, 1935) at 906.

[4] Dr. G. Kameswari, “Divorce and Judicial Separation -Need for a Uniform and Progressive Law´ All India Reporter (2002) at 97.

[5] Dr. P. Diwan and P. Diwan, Modern Hind u Law (Codified and Uncodified) (12^th edn.,Haryana:Allahabad Law Agency, 1998) at118.

[6] Rajini v. Ram swaroop (1995) 2 Civ LJ 74 (All). 

[7]Rajini v. Ram swar oop (1995) 2 Civ LJ 74 (All). 

[8] K. C .Sikroni v.Sarla Sikroni (1989) 2 HLR 356 (Raj). 10

[9] P ardy v. P ardy(1939) 3 All ER 779.

[10] S. M. Cretney, Principles of Family Law (2^nd edn., London:Sweetand Maxwell, 1976) at105-106.

[11] Dr. Sir H. S. Gour, The Hindu Code: II (6^th edn., Allahabad:Law Publishers Pvt. Ltd., 1998) at1082.

[12] Supra note 6 at 118.

[13] A. N. Saha, Marr iage and Divorce (5^th edn., Calcutta:Eastern Law House, 1996) at 197.

[14] Dave Kantilal v. Bai Indumati  AIR 1956 SC 115.

[15] Supra note 8 at214.

[16] S. A. Desai, Mulla Hindu Law:II (17thedn., New Delhi:Butterworths, 1998) at 797

[17] Supra note 17 at 104.

[18] P. M.Bromley, Family Law (5thedn., London: Butterworths, 1976) at 254

[19] Supra note 6 at114-115.

[20] Supra note 19 at 780.

[21] Supra note 6 at 125.