Fsmily Law Speech

Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with desertion as a
ground for divorce . 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 wilful neglect of the
petitioner by the other party to the marriage.
. 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)
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. 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. The word desert literally means ‘to abandon or give
up or forsake without any sufficient reason or intention to return’
Section 13 of the Hindu Marriage Act, 1955 has introduced a revolutionary

amendment to the shastric Hindu law. It provides for the dissolution of
marriage. Under Hindu law, divorce does not take place unless it has been
granted by a court. Before passing of the Marriage Laws (Amendment) Act,
1976, the grounds for judicial separation and divorce were different. The
Marriage Laws (Amendment) Act, 1976 makes the grounds of divorce and
judicial separation common. An aggrieved party may sue for divorce or judicial
separation. Under Shastric Hindu law, wedlock was unbreakable, and the
marital bond existed even after the death of a party to a marriage. Divorce was
known only as a matter of exception in certain tribes and communities which
were regarded uncivilized by the Hindu elite. The courts recognized it in these
communities due to the binding force of custom. But the general Hindu law did
not recognize it. The provisions regarding divorce have been twice amended
since the passing of the Hindu Marriage Act, 1955: 1. By the Hindu Marriage
(Amendment) Act, 1964, and 2. By the Marriage Laws4 (Amendment) Act,
1976. The original provisions of the Hindu Marriage Act regarding divorce have
been liberalized by the Marriage Laws (Amendment) Act, 1976. It also added a
new ground namely divorce by mutual consent of the parties has been made
available as a matrimonial relief under the Hindu Marriage Act, 1955.
Desertion was a ground only for judicial separation under Hindu Marriage Act,
1955. However, after passing of the Act of 1976, this is a ground for both
divorces as well as judicial separation under Section 13 (1) (i-b). Desertion may
be actual or constructive. Constructive desertion may contain the characteristics
of cruelty. In actual desertion, there is forsaking of the matrimonial home while
in constructive desertion, there is forsaking of the matrimonial relationship. This
forsaking of the matrimonial relationship must be accompanied by the animus
deserendi. It is the neglecting spouse that is solely responsible for constructive
desertion. If by words or conduct, a spouse makes it impossible for the other
spouse to live in his or her company and as a result, the other spouse leaves the
matrimonial home, the other spouse cannot be said to be the deserter.
Desertion is a continuing offence. It is possible to bring the state of desertion to
an end by some act or conduct on the part of deserting spouse. It may come to
an end in the following ways: Resumption of cohabitation, resumption of
marital intercourse and supervening animus revertendi, or offer of
reconciliation. In Gagandeep Gupta v. Dr. Sonika Gupta5 , the husband filed a
petition for divorce on the ground of desertion by the wife. There was no
cohabitation between the parties since they separated. The wife continued to
remain in matrimonial home by asserting her right of residence in spite of
matrimonial discord. Wife had deserted husband without any reasonable cause
for more than two years preceding presentation of the petition. The court held
that the husband would be entitled to a decree of divorce.
Talking about the loopholes in the laws of desertion in India, Recognizing the
loophole in the law of desertion, the Courts 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. At the end, it can be suggested that 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. The deserted spouse is left with no option
but to wait for the deserting spouse and in cases wherein the deserted spouse is
aware that the deserting spouse has deserted him or her, he or she still do not
possess the qualification to knock the door of the Court for being granted a
divorce, since that 2-year condition sword is hanging which needs to be
necessarily fulfilled.

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Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with desertion as a

ground for divorce . Desertion means the desertion of the petitioner by the other

Section 13 of the Hindu Marriage Act, 1955 has introduced a revolutionary

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