Matrimonial Remedies

Hindu Law

MATRIMONIAL REMEDY DESERTION UNDER HINDU MARRIAGE ACT, 1955 Guided By: Prof. Dr. KAHKASHAN Y. DANYAL

SUBMITTED BY: MD. ABID HUSSAIN ANSARI B.A. LL.B. (HONS.) 5TH SEMESTER

Hindu Law

Acknowledgement Firstly, I would like to express my profound sense of gratitude towards the almighty “ALLAH” for providing me with the authentic circumstances which were mandatory for the completion of my project. Secondly, I am highly indebted to Prof. Prof. DR KAHKASHAN Y. DANYAL at Faculty of Law, Jamia Millia Islamia University, New Delhi for providing me with constant encouragement and guidance throughout the preparation of this project. Thirdly, I thank the Law library staff who liaised with us in searching material relating to the project. My cardinal thanks are also for my parents, friends and all teachers of law department in our college who have always been the source of my inspiration and motivation without which I would have never been able to unabridged my project. My father, a lawyer with large access to books of value has been of great help to me. Without the contribution of the above said people I could have never completed this project.

Mohd. Abid Hussain Ansari B.A.LL.B (Hons) 5th Semester 3rd Year

Hindu Law

Table of Contents 1. General Introduction to Human Rights…………………………………………………………………… ………………..4 2. The International Bill of Human Rights…………………………………………………………………… ……………….5 3. The Universal Declaration of Human Rights…………………………………………………………………… …..…….5 4. Human Rights…………………………………………………………………… ………………………………………………..6 5. Background: Right To Development………………………………………………………… ………………………………8 6. The Declaration on the Right to Development………………………………………………………… ………………..12 7. The Vienna Declaration and Programme of Action……………………………………………………………………. 13 8. What is the Right to Development….................................................................... ................................13 9. Duty bearers for the Right to Development………………………………………………………… …………………...13 10. Mandate of the High Commissioner and OHCHR concerning the Right to Development……………………..14

Hindu Law 11. What is the added value of the Right to Development………………………………………………………… ……..14 12. The Human Rights Treaty System………………………………………………………………… ……………………….16 13. Right to development as a human right……………………………………………………………………… ………….17 14. Identifying rights and obligations……………………………………………………………… …………………………22 15. Does it attract broad International support………………………………………………………………… …………..24 16. The Right To Development in Practice………………………………………………………………… …………………25 17. Conclusion……………………………………………………… ………………………………………………………………..32 18. Bibliography…………………………………………………… ………………………………………………………………..33

Introduction: Hindu Law Concept of Dharma Hindu Law is a body of principles or rules called ‘Dharma’. Dharma according to Hindu texts embraces everything in life. According to the Hindus, ‘Dharma’ includes not only what is

Hindu Law known as law in the modern sense of the term but all rules of good and proper human conduct. Dharma is used to mean justice what is right in a given circumstance, moral, religious, pious or righteous conduct, being helpful to living beings and things, duty, law and usage or custom having in the force of law and also a valid Rajashasana. From thousands of year’s people living in the Indian subcontinent has been leading their lives by following the guidelines and concepts given in the Vedas. These guidelines have evolved into rules followed by the people and enforced by the rulers and have thus become de facto law. In these modern times, the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts of which the important ones are - Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956 Origin of Hindu law The Hindu system as modified through centuries has been in existence for over five thousand years and has continued to govern the social and moral patterns of Hindu life with harmonizing the diverse elements of Hindu cultural life. Magne says, “Hindu law has the oldest pedigree of any known system of Jurisprudence and even now it shows no signs of decrepitude“. It is believed that Hindu law is a divine law. It was revealed to the people by God through Vedas. Various saints and ascetics have elaborated and refined the abstract concepts of life explained in the Vedas. Nature and scope of Hindu Law Hindu law, though believed to be of divine origin, is based essentially on immemorial custom and many of the acts of the people which were purely of a secular nature. But the secular nature of the acts has been modified to suit the religious preferences of a Brahmin community. With a desire to promote the special objects of religion or policy, they have used their intellectual superiority and religious influence to mold the customs of the people.

Who are Hindus? The term ‘Hindus’ denotes all those persons who profess Hindu religion either by birth from Hindu parents or by conversion to Hindu faith. In Yagnapurus dasji v. Muldas1, the Supreme 1 AIR 1966 SC 1119

Hindu Law Court accepted the working formula evolved by Tilak regarding Hindu religion that ‘acceptance of vedas’ with reverence, recognition of the fact that the number of Gods to be worshiped at large, that indeed is the distinguishing feature of Hindu religion. In Shastri v. Muldas2, SC has held that various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus. If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna v. State of kerala, Kerala HC, the son of Hindu father and Christian mother was held to be a Christian To whom Hindu Law apply 1. 2. 3. 4. 5. 6. 7.

Hindus by birth Off shoots of Hinduism Persons who are not Muslims, Christians, Parsis or Jews Converts to Hinduism Reconverts to Hinduism Harijans Aboriginal Tribes

To whom Hindu law does not apply 1. to converts from the Hindu to the Mohammedan faith 2. to the Hindu converts to Christianity 3. to the illegitimate children of a Hindu father by Christian mother and who are brought up as Christians

Constitution of India and the Enactments under the Hindu Law Presently, Hindu Law is applied through the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and Maintenance Act, 1956 Constitutional enactments are: 2 SC AIR 1961

Hindu Law  

Hindu Women’s Rights to Property Act, 1937 Hindu Succession Act, 1956

Impact of Hindu Law Enactments in Fundamental Rights Several principles of Hindu Law have been held invalid on the ground that they infringe the Fundamental Rights. For example, the rule of Damdupat is hit by Article 15(1) of the Constitution and as such would be void under Article 13(1). Application of Hindu Law A precise definition of Hinduism does not exist. Hence, it is impossible to define fixed criteria for determining who is a Hindu. So a negative definition of 'who is not a Hindu' is used. Further, in this land, several religions have been born and they follow the same customs and practices. So it cannot be said that Hindu Law can be applied only to people who are Hindus by religion. Due to these reasons, in general, the following people are considered to be Hindu with respect to application of Hindu Law. 

Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by religion. In Shastri v. Muldas3, SC has held that various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus. SC, in the case of Peerumal v. Poonuswami4, has held that a person can be a Hindu if after expressing the intention of becoming a Hindu follows the customs of the caste, tribe, or community, and the community accepts him. In Mohandas v. Dewaswan board5, Kerala HC has held that a mere declaration and actions are



enough for becoming a Hindu. Hindu by Birth - A person who is born of Hindu parents. If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna v. State of Kerala, Kerala HC, the son of Hindu father and Christian mother was held



to be a Christian. Persons who are not Muslim, Christian, Jew, or Parsee by religion.

3 SC AIR 1961 4 AIR 1971 5 AIR 1975

Hindu Law 

Persons who are not governed by any other religious law will be governed by Hindu Law.

Sources of Hindu Law Sources of Hindu Law can be divided into two parts - Ancient and Modern. 1. Ancient Sources: Before the codification of Hindu Law, the ancient literature was the only source of the law. These sources can be divided into four categories: i.

Shruti Shruti means "what is heard". It is believed that the rishis and munis had reached the height of spirituality where they were revealed the knowledge of Vedas. Thus, shrutis include the four vedas - rig, yajur, sam, and athrava along with their brahmanas. The brahmanas are like the apendices to the Vedas. Vedas primarily contain theories about sacrifices, rituals, and customs. Some people believe that Vedas contain no specific laws, while some believe that the laws have to be inferred from the complete text of the Vedas. Vedas do refer to certain rights and duties, forms of marriage, requirement of a son, exclusion of women from inheritance, and partition but these are not very clear-cut laws. During the vedic period, the society was divided into varns and life was divided into ashramas. The concept of karma came into existence during this time. A person will get rewarded as per his karma. He can attain salvation through "knowledge". During this period the varna system became quite strong. Since vedas had a divine origin, the society was governed as per the theories given in vedas and they are considered to be the fundamental source of Hindu law. Shrutis basically describe the life of the Vedic people. The vedic period is assumed to be between 4000 to 1000 BC. During this time, several presmriti sutras and gathas were composed. However, not much is known about them today. It is believed that various rishis and munis incorporated local customs into Dharma and thus multiple "shakhas" came into existence.

ii.

Smruti Smrit means "what is remembered". With smrutis, a systematic study and teaching of Vedas started. Many sages, from time to time, have written down the concepts given in Vedas. So it can be said that Smrutis are a written memoir of the knowledge of the sages. Immediately

Hindu Law after the Vedic period, a need for the regulation of the society arose. Thus, the study of vedas and the incorporation of local culture and customs became important. It is believed that many smrutis were composed in this period and some were reduced into writing, however, not all are known. The smrutis can be divided into two - Early smritis (Dharmasutras) and later smritis (Dharmashastras). Dharmasutras The Dharmansutras were written during 800 to 200 BC. They were mostly written in prose form but also contain verses. It is clear that they were meant to be training manuals of sages for teaching students. They incorporate the teachings of Vedas with local customs. They generally bear the names of their authors and sometime also indicate the shakhas to which they belong. Some of the important sages whose dharmasutras are known are: Gautama, Baudhayan, Apastamba, Harita, Vashistha, and Vishnu. They explain the duties of men in various relationships. They do not pretend to be anything other than the work of mortals based on the teachings of Vedas, and the legal decisions given by those who were acquainted with Vedas and local customs. Gautama - He belonged to Sam veda school and deals exclusively with legal and religious matter. He talks about inheritance, partition, and stridhan. Baudhayan - He belonged to the Krishna Yajurved School and was probably from Andhra Pradesh. He talks about marriage, sonship, and inheritance. He also refers to various customs of his region such as marriage to maternal uncle's daughter. Apastamba - His sutra is most preserved. He also belonged to Krishna Yajurveda School from Andhra Pradesh. His language is very clear and forceful. He rejected prajapatya marriage. Vashistha - He was from North India and followed the Rigveda School. He recognized remarriage of virgin widows. Dharmashastras Dharmashastras were mostly in metrical verses and were based of Dharmasutras. However, they were a lot more systematic and clear. They dealt with the subject matter in three parts.   

Aachara : This includes the theories of religious observances, Vyavahar : This includes the civil law. Prayaschitta : This deals with penance and expiation.

Hindu Law While early smrutis deal mainly with Aachara and Prayaschitta, later smrutis mainly dealt with Vyavahar. Out of main dharmashastras, three are most important. Manusmriti This is the earliest and most important of all. It is not only defined the way of life in India but is also well known in Java, Bali, and Sumatra. The name of the real author is not known because the author has written it under the mythical name of Manu, who is considered to the the first human. This was probably done to increase its importance due to divine origin. Manusmriti compiles all the laws that were scattered in pre-smriti sutras and gathas. He was a brahman protagonist and was particularly harsh on women and sudras. He holds local customs to be most important. He directs the king to obey the customs but tries to cloak the king with divinity. He gives importance to the principle of 'danda' which forces everybody to follow the law. Manusmriti was composed in 200 BC. There have been several commentaries on this smruti. The main ones are: Kalluka's Manavarthmuktavali, Meghthithi's Manubhashya, and Govindraja's Manutika. Yajnavalkya Smriti Though written after Manusmruti, this is a very important smruti. Its language is very direct and clear. It is also a lot more logical. He also gives a lot of importance to customs but hold the king to be below the law. He considers law to be the king of kings and the king to be only an enforcer of the law. He did not deal much with religion and morality but mostly with civil law. It includes most of the points given in Manusmriti but also differs on many points such as position of women and sudras. He was more liberal than Manu. This was composed in around 0 BC. Vijnaneshwar's commentary 'Mitakshara' on this smruti, is the most important legal treatise followed almost everywhere in India except in West Bengal and Orissa. Narada Smriti Narada was from Nepal and this smriti is well preserved and its complete text is available. This is the only smriti that does not deal with religion and morality at all but concentrates only on civil law. This is very logical and precise. In general, it is based on Manusmriti and Yajnavalkya smriti but differ on many points due to changes in social structure. He also gives a lot of importance to customs. This was composed in 200 AD.

Hindu Law iii.

Commentaries and Digest: After 200 AD, most of the work was done only on the existing material given in Smrutis. The work done to explain a particular smriti is called a commentary. Commentaries were composed in the period immediately after 200 AD. Digests were mainly written after that and incorporated and explained material from all the smruitis. As noted ealier, some of the commentaries were manubhashya, manutika, and mitakshara. While the most important digest is Jimutvahan's Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally means 'New Word' and is paramount source of law in all of India. It is also considered important in Bengal and orissa where it relents only where it differs from dayabhaga. It is a very exhaustive treaties of law and incorporates and irons out contradicts existing in smritis. The basic objective of these texts was to gather the scattered material available in preceding texts and present a unified view for the benefit of the society. Thus, digests were very logical and to the point in their approach. Various digests have been composed from 700 to 1700 AD.

iv.

Customs Most of the Hindu law is based on customs and practices followed by the people all across the country. Even smrutis have given importance to customs. They have held customs as transcendent law and have advised the Kings to give decisions based on customs after due religious consideration. Customs are of four types:

1. Local Customs - These are the customs that are followed in a given geographical area. In the case of Subbane v. Nawab, Privy Council observed that a custom gets it force due to the fact that due to its observation for a long time in a locality, it has obtained the force of law. 2. Family Customs - These are the customs that are followed by a family from a long time. These are applicable to families where ever they live. They can be more easily abandoned that other customs. In the case of Soorendranath v. Heeramonie and Bikal v. Manjura, Privy Council observed that customs followed by a family have long been recognized as Hindu law. 3. Caste and Community Customs - These are the customs that are followed by a particular cast or community. It is binding on the members of that community or caste. By far, this is one of the most important sources of laws. For example, most of the law in

Hindu Law Punjab belongs to this type. Custom to marry brother's widow among the Jats is also of this type. 4. Guild Customs - These are the customs that are followed by traders. Requirements for a valid custom 1. Ancient: Ideally, a custom is valid if it has been followed from hundreds of years. There is no definition of ancientness, however, 40yrs has been determined to be a ancient enough. A custom cannot come into existence by agreement. It has to be existing from long before. Thus, a new custom cannot be recognized. Therefore, a new form of Hindu marriage was not recognized in Tamil Nadu. In the case of Rajothi v Selliah, a Self Respecter’s Cult started a movement under which traditional ceremonies were substituted with simple ceremonies for marriage that did not involve Shastric rites. HC held that in modern times, no one is free to create a law or custom, since that is a function of legislature. 2. Continuous: It is important that the custom is being followed continuously and has not been abandoned. Thus, a custom may be 400 years old but once abandoned, it cannot be revived. 3. Certain: The custom should be very clear in terms of what it entails. Any amount of vagueness will cause confusion and thus the custom will be invalid. The one alleging a custom must prove exactly what it is. 4. Reasonable: There must be some reasonableness and fairness in the custom. Though what is reasonable depends on the current time and social values. 5. Not against morality: It should not be morally wrong or repugnant. For example, a custom to marry one's granddaughter has been held invalid. In the case of Chitty v. Chitty6, a custom that permits divorce by mutual consent and by payment of expenses of marriage by one party to another was held to be not immoral. In the case of Gopikrishna v. Mst Jagoo7 a custom that dissolves the marriage and permits a wife to remarry upon abandonment and desertion of husband was held to be not immoral.

6 1894 7 1936

Hindu Law 6. Not against public policy: If a custom is against the general good of the society, it is held invalid. For example, adoption of girl child by nautch girls has been held invalid. In the case of Mathur v. Esa, a custom among dancing women permitting them to adopt one or more girls was held to be void because it was against public policy. 7. Not against any law: If a custom is against any statutory law, it is invalid. Codification of Hindu law has abrogated most of the customs except the ones that are expressly saved. In the case of Prakash v. Parmeshwari, it was held that law mean statutory law. Proof of Custom The burden of proving a custom is on the person who alleges it. Usually, customs are proved by instances. In the case of Prakash v. Parmeshwari, it was held that one instance does not prove a custom. However, in the case of Ujagar v. Jeo, it was held that if a custom has been brought

to

notice

of

the

court

repeated,

no

further

proof

is

required.

Existence of a custom can also be proved through documentary evidence such as in Riwaz-iam. Several treaties exist that detail customary laws of Punjab. Usage and Custom The term custom and usage is commonly used in commercial law, but "custom" and "usage" can be distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition. A usage may exist without a custom, but a custom cannot arise without a usage accompanying it or preceding it. Usage derives its authority from the assent of the parties to a transaction and is applicable only to consensual arrangements. Custom derives its authority from its adoption into the law and is binding regardless of any acts of assent by the parties. In modern law, however, the two principles are often merged into one by the courts. Modern Sources Hindu law has been greatly influenced by the British rule. While it might seem that the British brought with them the modern concepts of equity and justice, these concepts existed even in dharamashastras albeit in a different form. Narada and Katyayana have mentioned the importance of dharma (righteousness) in delivering justice. However, we did not have a practice of recording the cases and judgments delivered. So it was not possible to apply stare decisis. This process started from the British rule.

Hindu Law The following are the modern sources of Hindu law: 1. Equity, Justice, and Good conscience Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice can only be delivered through equity and good conscience. In a situation where no rule is given, a sense of 'reasonableness' must prevail. According to Gautama, in such situation, the decision should be given that is acceptable to at least ten people who are knowledgeable in shastras. Yagyavalkya has said that where ever there are conflicting rules, the decision must be based on 'Nyaya'. This principle has been followed by the Privy Council while deciding cases. 2. Precedent The doctrine of stare decis is started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws. Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state. 3. Legislation In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented. However, TN later passed an act that recognized these marriages. Also, most of the Hindu laws have now been codified as mentioned in the beginning.

Schools of Hindu Law Due to the emergence of various commentaries on SMIRITI and SRUTI, different schools of thoughts arose. The commentary in one part of the country varied from the commentary in the other parts of the country. The Mitakshara School

Hindu Law The Mitakshara School exists throughout India except in the State of Bengal and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The followers of Mitakshara are grouped together under the Mitakshara School. Mitakshara school is based on the code of yagnavalkya commented by vigneshwara, a great thinker and a law maker from Gulbarga, Karnataka. The Inheritance is based on the principle or propinquity i.e. the nearest in blood relationship will get the property. The school is followed throughout India except Bengal state. Sapinda relationship is of blood. The right to Hindu joint family property is by birth. So, a son immediately after birth gets a right to the property.    

Dravidian School Of Thought (Madras School) Maharashtra School (Bombay School Of Thought) Banaras School Of Thought Mithila School Of Thought

The Dayabhaga School It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many respects. Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased ancestors. This school is followed in Bengal state only. Sapinda relation is by pinda offerings. The right to Hindu joint family property is not by birth but only on the death of the father. The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares after the death of the father.

Introduction Marriage constitutes the very basis of social organization. Hindu law regards marriage as a sacrament- indissoluble and eternal. This sacramental character of marriage has given rise to certain anomalies. The declaration of Manu that neither by sale nor by desertion is wife released from the husband was applied only to women and not men. Thus there was an element of inherent injustice on the wife in Hindu law. To counter such inequalities among

Hindu Law spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was enacted which provided certain matrimonial remedies. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilization can exist. A marriage solemnized, whether before or after the commencement of the Hindu Marriage Act, 1955 can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. The Hindu Marriage Act, 1955 came into existence, eight years after the independence of the country. Section 13 of the Hindu Marriage Act deals with the grounds on which the parties can seek a decree of divorce from a competent court having jurisdiction to entertain such petition. In the literal sense "divorce" means a legal separation of two persons of the opposite sex who desire to respect and honor each other.8 Legally, a petition can only be filed after one year has elapsed from the date of marriage unless there are exceptional circumstances. The Hindu Marriage Act 1955 lists 9 grounds for divorce. Namely –         

Adultery Cruelty Desertion Conversion of religion Unsoundness of mind / serious mental disorder Virulent and incurable form of leprosy of partner Venereal and communicable disease suffered by a partner Renunciation of the world Unknown whereabouts of partner for more at least 7 years

In addition to the above grounds, parties may also file for dissolution of marriage on the grounds of mutual consent, no resumption of cohabitation or no restitution of conjugal rights for a period of one year or upwards after a judicial decree of separation has already been passed. Women have certain additional grounds for filing, namely – polygamous husband, rape or sodomy inflicted on her, or if she was married before she attained the age of 15 as long as the marriage was repudiated before she attains the age of 18. Because our country is a culturally and religiously diverse country, there are more than one set of Personal Laws. Muslim law does not require seven years of unknown whereabouts of husband. Four is sufficient period 8 Legal service

Hindu Law for the wife to file for divorce. Similar is the case for the wife of a man who has been under imprisonment for more than 7 years.9 Desertion In explanation to sub-section (1) of Section 13, Hindu Marriage Act, Parliament has thus explained desertion: “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 marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”10 In case of Lachman Utamchand Kripalani v. Meena11, the court said that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and reasonable cause. It is a total repudiation on the obligations of the marriage. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions are required: 1. the factum of separation, and 2. The intention to bring cohabitation permanently to an end (animus deserendi). Also in case of Ramesh v. Premlata12, the court observed that in actual desertion, it is necessary that respondent must have forsaken or abandoned the matrimonial home. Suppose a spouse every day, while he goes to bed resolves to abandon the matrimonial home the next day but continues to stay there, he had formed the intention but that intention has not been translated to action. He cannot be said to have deserted the other spouse. On the other hand, if a spouse leaves the matrimonial home for studies or business and goes to another place for some period, with the clear intention that, after completion of studies or 9www.Divorceindia.com 10 Paras Diwan 11 AIR 1964 SC 40 12 1979 MP 15

Hindu Law work he would return home but is not able to return because of illness or other work. In this case the factum of separation is there but, but his intention to desert is lacking; therefore this will not constitute desertion. Similarly, two elements are essential so far as the deserted spouse in concerned: 1. the absence of the consent, and 2. Absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention. If one party leaves the matrimonial home with the consent of the other party, he or she is not guilty of desertion. For instance, if husband leaves his wife to her parent’s house, it is not desertion as husband’s consent is present. In Indira Devi v. Kumarian13, Again, a pregnant wife who goes to her father’s place for delivery without the consent of the husband cannot be treated in desertion. In Mallika v. Rajendran14, it was established that husband was guilty of adultery and desertion. The wife was granted a decree of divorce. While under the act husband can sue for divorce on the ground of wife’s adultery simpliciter, the wife has to prove that husband is guilty of more than adultery that is to say adultery should be incest, or coupled with cruelty, or coupled with desertion, without reasonable cause for two year or more coupled with bigamy etc. The burden of proof that the respondent committed adultery is on the petitioner who must prove it beyond reasonable doubt. 15 ‘Proof beyond reasonable doubt’ means such proof as precludes every reasonable hypothesis except that which tends to support it.16 In Venei v. Nirmala17, when the spouse left the matrimonial home (for business, pleasure, trip etc.), he has all the intentions to return home, but subsequently if he forms the intention not to return, the moment such an intention is formed he becomes a deserter. If a spouse leaves the matrimonial home without any reason, he or she is a deserter. 13 1982 Ker 78 14 AIR 1995 Mad. 100 15 Bipin V. Prabha AIR 1957 SC176; White v. White AIR 1958 SC 441 16 Sachindranath v. Nilima AIR 1970 cal. 38 17 AIR [1987] Del. 79

Hindu Law In Bipinchandra Shah v. Prabhavati18, it was observed that the desertion is a matter of inference to be drawn from the facts and circumstances of each case. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that both should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. However it is not necessary that the intention must precede the factum. For instance, a husband goes abroad for studies, initially he is contact with wife but slowly he ceases that contact. He develops attachment with another woman and decides not to return. From this time onwards both factum and animus co-exist and he becomes a deserter. A mere separation without necessary animus does not constitute desertion.19 Both factum of physical separation and animus deserendi must be proved.20 It is also necessary that there must be a determination to an end to marital relation and cohabitation. There is nothing like mutual desertion under the Act. One party has to be guilty. In Atmaram v. Narbada Devi21, it was held that in a petition filed after 6'/2 years after the date of separation, relief could not be denied on the ground of delay, as incessant efforts were made for amicable settlement and the petition was filed as a last resort, when the withdrawal from the society of the wife by the husband was proved, the burden was on the husband to show that there was reasonable excuse for such withdrawal from the society of the wife and if the same is found to be without any just and reasonable cause, the petition for divorce could be maintained on the ground of desertion. In Smt. Ambujam v. T. S. Rama-swamy22, it was held that the evidence on record showed that in spite of the wife's repeated pleadings with the husband to take her back on any terms or at any cost, he completely neglected her and that by the course of conduct the husband was 18 AIR 1957 SC 176 19 Rohini Kumari v. Narendra Singh AIR 1972 SC 459 20 Biswasnath Das v. Maya Das AIR 1994 NOC 364 21 1980 Mat LR. 63 : (AIR 1980 Raj 35) 22 AIR 1973 Delhi 46

Hindu Law guilty of desertion. After pleading with the husband for such a long time to take her back, the wife reached a stage when she became convinced that there was no point in further pleading with him and so she thought that she must obtain separation, so that she may live at peace. In Mst. Daljit Kaur v. Balwant Singh23, it was held that the wife left the house of the husband on her own accord and was not driven out by the husband, who was always willing and wanted to live with her, but she refused to return to the matrimonial home. It was also held that there was no reasonable excuse for the wife to live separately from the husband. In such circumstances, it was held that desertion was proved as it was a matter to be decided on the basis of inference to be drawn from the facts and circumstances of each case. Dr. Samir Kr. Das v. Aparna Das @ Tripti Das24, A suit was filed by the present appellant for a decree of divorce on the ground of desertion of the appellant (husband) by the respondentwife and same was dismissed. Examples of desertion 

The husband left his wife at her parent’s house for 7 to 8 years uncared; his conduct

 

amounted to desertion.25 Party taking unreasonable attitude resulting in separation is guilty of desertion.26 In case of Indu v. Rajeshwar Pershad27, it was decided that the wife left the matrimonial home for paucity of accommodation and the husband refused to live separately from the



members of his family due to meager income. The act of wife amounted to desertion. In Kulwinder Kaur v. Harsi Singh28, it was held that the wife not intending to live with



husband on any condition. In Shimla devi v. Kuldeep Sharma29, the wife took no step to disprove charge of desertion.

23 1981 WLN (UC) 230 24 on 9 August, 2000 25 1969 Cur LJ 319 26 (1967)69 Punj LJ 566 27 AIR 1982 Del 458 28 1997(3) Civ LJ 247 (P&H)

Hindu Law 

Husband filing application for restitution of conjugal rights and wife filing for judicial



separation on the ground of cruelty constitute desertion.30 In Pramod v. Vasundhara31, the court said that the notice issued by wife to the husband expressing her intention not to return to the matrimonial home constitutes desertion



commencing from the date of notice. In Jagannath v. Krishna32, the court decided that the wife became a Brahma Kumari and declined to perform her marital obligation. Examples of no desertion



In Lachman Utamchand Kripalani v. Meena33, the court said that the husband’s



allegation of the wife’s un-chastity caused the wife to live separately from the husband. In Bejoy Daw v. Sm. Alokha Daw34, it was decided that where the husband himself



reached his wife to her mother’s place for confinement, there is no desertion. In S. Kripal Singh v. Smt. Harbans Kaur35, held that the continued separation without



intention to willfully neglect is not desertion. In Devi Singh v. Sushila Devi 36, it was observed that an aggrieved spouse cannot be said



to in desertion. In case of Kamini v. Balaji37, the court took a view that after abortion of pregnancy through the husband, the wife was staying with her parents for better treatment, there was

29 AIR 1991 Raj 181 30 AIR 2004 Mad 43 31 AIR 1989 Bom 75 32 1982 PLR 83 33 Ibid 11 34 AIR 1969 Cal 477 (DB) 35 AIR 1967 Del 19 36 AIR 1972 Raj 303 37 AIR 1988 Ori 93

Hindu Law no adverse inference that the wife intended to remain separate and she did not want to 

come back to her husband’s place. In Bhagwanti v. Sadhu Ram38, held that the wife was living separately in a room provided by the husband under compromising in the proceeding under Section 488, Cr PC (old) and the husband had another wife living with him. Separation does not amount to



desertion. Where the husband was guilty of cruelty to wife and of openly keeping a mistress in the house so that the wife was compelled to leave her husband’s house, it was held that the



wife did not desert the husband without reasonable cause.39 In Sunil Kumar v. Usha40, it was decided that when wife leaves the matrimonial house



due to unpalatable atmosphere does not amount to desertion. In Anil Kumar v. Sefali41, the court held that the wife was turned out of house forcibly by



husband and never tried to bring her back. She was clearly not in desertion. In J. Shyamala v. P. Sunder Kumar42, it was held that the wife was going to the house of



her parent’s on false allegation of her immorality. In case of Palwinder v. Saroj43, the court said that the wife spending more time with mother doesn’t amount to desertion.

Burden of proof In case of desertion, the burden of proof lies upon the petitioner held in Lachman Kripalani v. Meena44. The petitioner is required to prove the four essential conditions namely, 1. the factum of separation; 2. animus deserendi; 3. absence of his or her consent 38 AIR 1961 Punj 181 39 AIR 1961 Mad 391 40 1994 MP 1 41 1997 Cal 6 42 AIR 1991 NOC 29 43 (2004) I CLT 323 (P&H) 44 Ibid 11

Hindu Law 4. Absence of his/her conducts giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved must be proved beyond any reasonable doubt and a rule of prudence the evidence of the petitioner shall be corroborated held in Bipinchandra Shah v. Prabhavati45. In short the proof required in a matrimonial case is to be equated to that in a criminal case. Constructive desertion Where a situation or circumstances are created either by actual use of force or by the conduct of one spouse that the other spouse is compelled to leave the matrimonial home, it constitutes constructive desertion of the creator of the situation or circumstances. It is not necessary for the husband in order to desert his wife to actually turn his wife out of doors; it is sufficient if by his conduct he compelled her to leave the house held in Jones v. Jones46. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife, and the case of a man who compels his wife by his conduct, with the same intention, to leave him.47 In Ashok Kumar v. Shabnam48, it was decided that it is now well settled that the matrimonial court has to look at the entire conspectus of the family life and if one side by his or her words or conduct compels the other side to leave the matrimonial home, the former would be guilty of desertion, though it is the latter who is seemingly separated from the other. But where the husband does not take any steps to effect reconciliation, he is not guilty of constructive desertion held in Bharat Lal v. Ram Kali Devi49. The ingredients of both actual and constructive desertion are the same: both the elements, factum and animus must co-exist, in former there is actual abandonment and in the latter, 45Ibid 14 46 [1952]2 TLR 225(CA) 47 Halsbury’s Laws of England, 3rd Ed. Vol. 12 pg. 246 48 AIR 1989 Del 121 49 AIR 1984 All 274

Hindu Law there is expulsive conduct. Under constructive desertion, the deserting spouse may continue to stay in the matrimonial home under the same roof or even in the same bedroom. In our country, in many homes husband would be guilty of expulsive conduct towards his wife to the extent of completely neglecting her, denying her all marital rights, but still the wife because of social and economic conditions, may continue to live in the same house.50 Examples of constructive desertion 

In Marsden v. Marsden51, held that the husband accused constantly the wife of her



immorality and told her to go away. In Hutchimson v. Hutchimson52, it was held that the willful and unjustifiable refusal of

  

sexual intercourse by the respondent. The husband’s adultery.53 The husband used sexual malpractices on the wife.54 Husband’s intention was to divorce wife with a view to remarry and he forced wife to



leave matrimonial home.55 The spouse who by his conduct compels the other spouse to matrimonial home, the



former would be guilty of desertion.56 In Shaym Chand v. Janki57, the court held that the husband asked for judicial separation on the ground of wife’s desertion, the wife stated that she was maltreated, beaten up and turned out of house by husband. The wife’s averments were proved.

Willful neglect 50 Ibid 11 51 [1967]1 All ER 967 52 [1963]1 WLR 180 53 Roe v. Roe [1956]1 WLR 1380 54 D.B. v. W.B. [1935] P 80 55 Baljit Singh v. Harjit Kaur 1997(1) Civ LJ 177 (P&H) 56 Lang v Lang 1955 AC 402 57 1966 HP 70

Hindu Law It connotes a degree of neglect, which is shown by an abstention from an obvious duty, attended by knowledge of the likely result of the abstention. However, failure to discharge or omission to discharge, every material obligation will not amount to willful neglect. Failure to fulfill basic marital obligations, such as denial of company or denial of marital intercourse, or denial to prove maintenance will amount to willful neglect held in case of Balidhar v. Dhir Das58. Though in Laxman v. Meena59, Subha Rao J. Obitter observed that wilful neglect was designated to cover constructive desertion, and therefore should fulfil all the ingredients of desertion. Without the consent If one party leaves the matrimonial home with the consent of the other party, he or she is not guilty of desertion. When the parties are living apart from each other under a separation agreement, or by mutual consent, it is a clear consent of living away with the consent of the other held in case of Vadranama v. Krishnama60. In Bipinchandra Shah v. Prabhavati61, the court held that the wife when living away from the husband, husband sends a telegram ‘must not send wife’ to wife’s father expressed his wish to live separate. Desertion must be for a continuous period of two years To constitute a ground for judicial separation or divorce, desertion must be for the entire statutory period of two years held in Shakuntala v. Om Prakash62, preceding the date of presentation of the petition held in case of Amarjit v. Kiran63, Desertion is an continuing offence; it is an inchoate offence. This means that once desertion begins it continues day after 58 1979 P&H 162 59 Ibid 11 60 (1970) 1 AWR 13 61 AIR 1957 SC 176 62 1981 Del 53 63 1985 P&H 356

Hindu Law day till it is brought to an end by the act or the conduct of the deserting party. It is not complete even if the period of two years is complete. It becomes complete only when the deserted spouse files a petition for a matrimonial relief. Wife’s act of withdrawing jewellery from the locker and remaining away from her husband for two years clearly proved her desertion held in case of Suresh Bala v. Gurmodinder Singh64. Offer to return If a deserting party spouse genuinely desires to return to his or her partner, that partner cannot in law refuse to reinstate him or her.65 An offer to resume cohabitation must be genuine or bona fide for which two elements must be present. First, an offer to return permanently, if accepted, must be implemented; secondly, it must contain an assurance as to the termination of the conduct by the deserting party which caused the separation. 66 A refusal to such an offer would convert the deserted party to the deserting party. The offer to return to resume married life by the deserting spouse before the expiry of the statutory period of desertion must not be stratagem. The deserting spouse must be ready and anxious to resume married life.67 Defences to desertion The following are the main defences to desertion:

Agreement to separation does not amount to separation. But such agreement may be changed to desertion without resumption of cohabitation. Separation in such cases loses

   

its consensual element.68 There may be animus deserendi without a separation. Physical inability to end desertion, such as imprisonment. Absence of just cause of separation. Absence of animus deserendi.

64 1983 Del 230 65 Perry v. Perry [1952] 1 All ER 1076 66 Gaskell v. Gaskell [1963] 1 All ER 1052 67 Pratt v Pratt [1939] 3 All ER 437 (HL) 68 Gallagher v Gallagher [1965] 2 All ER 967

Hindu Law Termination of desertion Desertion is a continuing offence. This character and quality of desertion makes it possible to bring the state of desertion to an end by some act or conduct on the part of deserting spouse. It may be emphasized that the state of desertion may be put to an end not merely before the statutory period has run out, but also at any time, before the presentation of the petition. Desertion may come to an end by the following ways: I. II. III.

Resumption of cohabitation. Resumption of marital intercourse. Supervening animus revertendi, or offer of reconciliation.

Resumption of cohabitation – if parties resume cohabitation, at any time before the presentation of the petition, the desertion comes to an end. Resumption of cohabitation must be by mutual consent of both parties and it should imply complete reconciliation. The desertion ends only when the deserting parties goes to the matrimonial home mentally prepared to end the cohabitation. It is necessary to prove that marital intercourse was also resumed. Resumption of marital intercourse – Resumption of marital intercourse is an important aspect of resumption of cohabitation. Sometimes resumption of marital intercourse may terminate desertion. If resumption of marital intercourse was a step towards the resumption of cohabitation, it will terminate desertion even if the deserted spouse backs out. Supervening animus revertendi – if the party in desertion expresses an intention to return, this would amount to termination of desertion. Animus revertendi means intention to return. Desertion may be brought to an end by the deserting spouse’s genuine and bonafide offer of reconciliation. It should not be just to forestall or defeat the impending judicial proceedings.

Important Judgment on desertion Case 1

Hindu Law Mrs. X: Appellant v. Mr. Y: Respondent IN THE HIGH COURT OF JUDICATURE AT BOMBAY FAMILY COURT APPEAL NO.204 OF 2007 DATED: DECEMBER 02, 2009 JUDGES - S. A. BOBDE & S. J. KATHAWALLA, JJ Facts of the Case i.

The parties got married on 1st May 1987. It appears that soon thereafter on 25th January 1989, the appellant wife left the company of the respondent husband, but later she filed a petition for restitution of conjugal rights (Petition No. 789/89), which was decreed on 11th April 1990. She resumed cohabitation with the respondent after he paid her a sum of Rs. 24,500/-.

ii.

The parties apparently lived together for the period between 1st July 1993 and 15th January 1994. On 7th April 1994, she left the company of the respondent again. She returned the next

iii.

day and lodged a criminal complaint against him for harassment, which she ultimately iv.

withdrew on being paid Rs. 10,000/- by the respondent. According to the respondent, on 1st August 1996, he was transferred to Valsad, but she refused to accompany him there as she was working and giving tuitions at Surat at the time. On 12th January 1997, when he visited her at Surat, she threw him out of the very premises, which he had rented for her to live in and further threatened him of dire

v.

consequences if he entered again. Since this incident, the parties have not cohabited till the date of filing of the divorce

vi.

petition on 8th October 2003 and thereafter. This as an appeal filed by the wife against the Judgment of the Vth Family Court, Mumbai, decided on 28th September 2007, decreeing the petition for divorce filed by the Respondent (Petition No. A – 1804 of 2003), under sections 13 (1) (ia) and 2 13 (1) (ib) of the Hindu Marriage Act, 1955, on the grounds of cruelty and desertion. Decision

i.

The respondent deposed before the Learned Trial Court that the appellant used to lose her temper on trivial matters, which was insulting and humiliating for him, as a result of which he could not sleep peacefully, and this in turn disturbed his work.

Hindu Law ii.

This is a temperamental problem, which the appellant may have had and by itself is insufficient to establish cruelty towards the respondent, particularly in the absence of any specific instances from which it could have been inferred that this temperamental flaw was so disturbing, that it would constitute cruelty towards the respondent in itself. In the contention of desertion of the respondent by the appellant. Section 13 (1) (ib) of the

iii.

Hindu Marriage Act, provides that a decree of divorce may be granted on the ground that the other party has deserted the petitioner for a continuous period of not less than two iv.

years immediately preceding the presentation of the petition. In Bipinchandra Jaisinghbhai Shah v. Prabhavati69, it has made it clear that it is not necessary for the deserting spouse to leave the home in order to constitute desertion. If one spouse by his or her words compels the other side to leave the matrimonial home or stay away therefrom, without reasonable cause, the former would be guilty of desertion, though it is the latter that is seemingly separated from the other. The ejection of the other spouse from the home with the intention not to cohabit equally constitutes desertion. This

v.

is the principle of ‘Constructive Desertion.’ In the present case, we find that the respondent has established and in fact, the appellant has not denied, that she did not allow the respondent to cohabit with her at the house in

vi.

Surat, when he visited on 12th January 1997. She threw him out of the very house, which he had rented for her to live in, and threatened him with dire consequences if he dared to enter. This incident occurred over and above the fact that she herself had refused to travel and reside with him at Valsad, after he was posted there on 1st August 1996, ostensibly because she was teaching and

vii.

giving tuitions at the time in Surat. The Learned Family Court has observed that there is no challenge by the appellant to the evidence of the respondent that she was not interested in cohabiting with him at Valsad. In any case, we find that merely because the respondent had moved to Valsad, due to his transfer, it cannotbe considered to be reasonable cause for the appellant refusing to cohabit with him when he visited her in Surat, and in fact constitutes wilful neglect on her

viii.

part. Her conduct on the whole, is evidence of animus deserdendi. The incident at Surat clearly compelled the respondent to leave and stay away from the matrimonial home. There is no dispute as to the factum of separation i.e. that the parties did not reside together from the date of the incident at Surat i.e. 12th January 1997, until this petition was presented on 8th October 2003 and thereafter. 69 Ibid 14

Hindu Law ix.

At this stage, we may note that the Learned Family Court has not passed any orders as regards maintenance, as no prayer for such orders was made by the appellant. However, Mr. Vashi, the learned advocate for the appellant has submitted that the appellant has preferred an application for maintenance before this Court. It would be proper if this application is heard and decided by the Family Court itself. Accordingly, the learned advocate for the appellant seeks leave to withdraw the

x.

application and present it, in accordance with the law, before the Family Court. The said application is allowed to be withdrawn. In the result, the divorce decree is upheld under section 13 (1) (ib) against the appellant

xi.

on the ground of desertion. The appeal is hence dismissed. Case 2 Vikas Sharma – Appellant v. Mrs. Anita Sharma – Respondent IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No.58 of 2010 DATED – March 10, 2011 Bench - V.K. Bist, J., Prafulla C. Pant,J. Facts of the Case i.

07.10.2005 Vikas Sharma got married to respondent Anita. Vikas is a rifle-man in Indian Army and was posted in Manipur at the time of his marriage. 04.07.2006 A son was born

ii.

out of the wed-lock. The appellant filed a petition under section 13 of Hindu Marriage Act, for a decree of divorce against his wife on the ground that she (Anita) has withdrawn from the society of the appellant/petitioner without any sufficient cause and as such deserted him. It is also pleaded that he moved a petition under section 9 of Hindu Marriage Act, 4 1955, for restitution of conjugal rights, but the same was got dismissed as not pressed. In substance divorce petition was filed on the ground of desertion and cruelty. Decision

i.

It has come on the record that the parties to the matrimony could live together only for a brief period after their marriage, and the respondent left at the time she was carrying pregnancy to her parents’ home and she did not go back to the house of her husband. The

Hindu Law allegation and counter allegations are that the husband says that his wife has deserted him without any sufficient cause; on the other hand, the wife alleges that she is ready to live with her husband but not with his parents. Morally, the stand taken by the wife may not be correct but legally speaking when the husband is posted in Army and not taking his wife with him to his place of posting she cannot be said to have faulted in declining to ii.

stay with parents of her husband. Merely not obliging the petitioner to stay in his parental house, where he himself is not residing, in our opinion cannot be said to be desertion of the husband. That being so, we find that trial court has committed no error of law in appreciating the evidence on record and coming to the conclusion that the petitioner could not make out the case for divorce either on the ground of desertion or cruelty. We have already mentioned above that no incident of cruelty is mentioned in the petition and the period for which couple living

iii.

together was a brief period. Having considered submissions of learned counsel for the appellant, and after going through the papers on record, we do not find force in these two appeals filed by the appellant (husband) against the impugned judgment and order dated 25.08.2010, passed in suit no. 70 of 2008. Therefore, both the appeals are dismissed.