Desertion is a ground of divorce under the Hindu Marriage Act, 1955.
It is contained under Section 13(1)(ib) of the Act.
The essentials of desertion as a ground of divorce are:
- Desertion of the petitioner by the other party to the marriage
- For a continuous period of 2 years
- Without a reasonable rationale or against the wish of such party
Burden of proof is on the petitioner.
In laymen words, desertion merely means run away. Desertion means not to withdraw from a place but to withdraw from a state of things. It doesn’t mean to merely desert, as its literal meaning, but to leave from the society of the spouse. Even if the spouse left the house but still contacts her through phone or other means, it cannot be a ground for desertion. Desertion is to leave the life of the deserted spouse, without any reasonable cause, vacuumed. The spouse doesn’t care about the deserted one and ceases to live together renouncing his or her marital obligation and duties. The intention of the spouse to desert the other is the very essence of the desertion. The conceptualisation of “desertion” is incorporated in the Explanation to Section 13(1) of the Hindu Marriage Act, 1955. The Explanation goes as follows:
“In this subsection, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without a reasonable rationale and without 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 desertion is considered as one of the grounds for divorce. Desertion as a ground is defined under section 13(1)(ib) of the Hindu Marriage Act, 1955. It provides for various conditions which are necessary for desertion as a ground of divorce. These are, firstly, petitioner has to be deserted for a continuous period of not less than 2 years before the petition is presented and secondly, the reason for desertion should be reasonable. The petitioner has a burden of proving and has to prove it beyond reasonable doubt to use desertion as a ground. It is not the single act but the conduct for a continuous period.
AMBIGUITY ON PERIOD OF TWO YEARS
These conditions are in itself vague and faulty. The very first condition, i.e., the desertion for a continuous period of two years, is too arbitrary. The period of 2 years doesn’t actually mean the aggregate of 2 years but the time by which the parties left the other spouse’s society till the continuous period they did not live together during this continuous stretch. The major contention raised is why the period of two years is fixed and why not the period less or more than 2 years. In some cases, the desertion acts as a deterrent for the spouse deserted. Taking an illustration, the husband shifted abroad for business purposes and for 3 years provided wife and child with the maintenance. But at a later stage, he stopped the maintenance. The wife approached the court for maintenance. The wife has been put to an endless wait for two years to apply for divorce with the desertion as a ground. The deserted spouse knows that the person has deserted him or her but the continuous period of two years acts as a stringent condition. The word “continuous” is too harsh to the spouse deserted even if the spouse is deserted for one year but in later stage contacted her, the condition of two years is not fulfilled. Therefore, the condition of two years in itself left a lot of gaps and has to be reviewed.
WHEN CRUELTY BECOMES GROUND FOR DESERTION
Another lacuna as to desertion is when cruelty becomes ground for desertion. No one should tolerate cruelty and torture in any form either it be physical, mental or psychological. Therefore, it becomes necessary for the spouse to take a step back from the matrimonial obligations and lives a free life. But desertion is being used in a negative manner. It serves as a double-edged knife for the spouse; if the spouse lives with her matrimonial obligation she would be tortured and live a horrible life being subject to cruelty and torture from the other spouse. And on another hand, if the spouse leaves the matrimonial obligation, she will be served with a divorce on the ground of desertion. This established that even after having long-stretched drafted legislation there still persist a lot of loopholes which need to be fulfilled. In case if the spouse is a woman, as it is known that Indian society is not much liberal, the wife is fearful in sustaining herself and hesitant in living a life with the dignity and self-respect. To prove the above contention, an illustration should be given - the wife is being subjected to a lot of harm and torture by the husband but she cannot prove it in the court of law. In such a case, if she refuses to re-join the matrimonial obligation, it will be cruelty by the wife on her behalf. Therefore, the simple contention is if all the concepts of desertion overshadow the cruelty, then why there is a need to have desertion as a separate ground and why not be included within the ambit of cruelty. But comparing both grounds i.e. cruelty and desertion, there seems to be existing sufficient differences. Firstly, desertion as a ground of divorce can be raised when the petitioner files the case whereas a ground like adultery and cruelty arises as soon as it occurs. Desertion seems to be a softer ground as it gives time to the spouse to reconcile, but the grounds likes cruelty and adultery leave no such scope to reconcile. The lacuna lies in the fact the wife is being inflicted with so much pain and being forced to leave the house and on the other hand upon leaving the house she is said to have deserted the husband. Being a land of diverse culture and with thousands of customary laws being followed, one of the solutions is provided by the Mizo customary Law which provides that when the husband seems to have deserted his wife and family, everything belonging to him i.e. house, property etc becomes the part of wife’s property. In fact, not just the property, but the custody of the children also goes to the wife.
Therefore, considering the circumstances which have been seen in various cases, and speed with which quantum of cases is raising, it becomes a serious challenge to the petitioner to prove such conditions. This condition not only violates human dignity and respect but also is a violation of Article 21 of the Constitution of India. Article 21 provides every citizen to live a life with self-respect and human dignity. But these conditions force the spouse to live under such circumstances which violate their right to life.
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