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HINDU LAW — COMPREHENSIVE NOTES

Topic S-3

Desertion as Ground for Divorce — Detailed Analysis

Supplementary Topics

Relevant Sections: S.13(1)(ib) HMA

Priority: HIGH | Exam Relevance: RJS/DJS/PCS-J

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Desertion as Ground for Divorce — S.13(1)(ib) HMA

1. Definition

Section 13(1)(ib) HMA provides that a marriage may be dissolved 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. Desertion, in the legal sense, means the intentional permanent forsaking and abandonment of one spouse by the other WITHOUT reasonable cause and WITHOUT the consent or against the wish of the other.

2. Bipinchandra’s Twin-Test

The landmark Supreme Court decision in Bipinchandra Jaisinghbhai Shah v. Prabhavati (AIR 1957 SC 176) laid down the two essential elements of desertion:

• (1) Factum of Separation: There must be actual physical separation — the deserting spouse must have left the matrimonial home or compelled the other to leave.
• (2) Animus Deserendi: There must be the intention to permanently desert — the deserting spouse must have the intention to bring the matrimonial relationship to an end permanently. Mere temporary absence (for work, health, or family reasons) does NOT constitute desertion.

BOTH elements must coexist throughout the statutory period of two years. If either element is absent at any point, desertion is not established.

3. Constructive Desertion

Constructive desertion occurs when the conduct of one spouse is so grave and intolerable that it forces the other spouse to leave the matrimonial home. In such cases, the spouse who leaves is NOT the deserter — the spouse whose conduct caused the departure is the ‘constructive deserter.’ The ‘guilty’ spouse is deemed to have deserted even though they physically remained in the home.

Example: If a husband subjects his wife to persistent cruelty, forcing her to leave, the husband is the constructive deserter, even though the wife physically departed.

4. Key Distinctions

A. Desertion vs. Withdrawal from Society

In Bipinchandra, the SC distinguished desertion from withdrawal from society. Under S.9 HMA (restitution of conjugal rights), the respondent’s withdrawal from society must be without reasonable excuse. In desertion, the petitioner must prove both factum and animus. The two concepts are related but distinct.

B. Desertion vs. Separation by Agreement

If both spouses mutually agree to live separately, there is no desertion. Desertion requires the abandonment to be unilateral — against the wish of the deserted spouse. Consensual separation is NOT desertion.

C. Desertion vs. Judicial Separation

Living apart under a decree of judicial separation (S.10 HMA) is NOT desertion. The separation is court-ordered and does not carry animus deserendi.

5. Continuous Period of Two Years

• Must be continuous: Any resumption of cohabitation (even briefly) breaks the continuity and restarts the clock.
• Immediately preceding: The two-year period must be immediately before the filing of the petition, not at any earlier time.
• Offers of resumption: If the deserting spouse makes a genuine and bona fide offer to resume cohabitation and the deserted spouse refuses without good reason, the desertion may be deemed to have ended.

6. Burden of Proof

The burden lies on the petitioner to prove BOTH elements: factum of separation AND animus deserendi. The respondent can defend by showing: (a) reasonable cause for leaving; (b) consent of the petitioner; (c) constructive desertion by the petitioner; or (d) genuine offer of resumption.

7. Key Case Law

8. Exam Tips

— End of Supplementary Topic S-3 —

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