CONSTRUCTIVE DESERTION
"Desertion is not withdrawal from a place but from a state of things", i.e., from cohabitation.
SAVITRI PANDEY V. PREM CHAND PANDEY
It was held in Savitri Pandey v. Prem Chand Pandey, that desertion means withdrawing from matrimonial obligations and not withdrawal from place. If a party withdraws from cohabitation, it is he/she who is guilty of desertion, despite the fact that he/she continues to live in the matrimonial home.
If a spouse creates a situation or conducts himself/herself in a manner that the other spouse is compelled to leave the matrimonial home, then the spouse who forced the other party to leave the matrimonial home is the deserter and not the spouse who left the matrimonial home.
In Lang v. Lang, the House of Lords said that if one spouse by his words and conduct compels the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who is physically separated from the other.
JYOTISH CHANDRA V. MEERA,
It was a case of constructive desertion under the Special Marriage Act, 1954. The parties were married in 1945 and the wife came to live with her husband.
The averments of the wife were that she found him cold, indifferent and sexually abnormal and perverse.
Shortly after marriage, the husband left for England and the wife got busy with her M.A. Examination. On return from England, the husband continued to be very cold, and hardly spent any time with his wife. He used to return very late at night.
At the instance of the husband, the wife went to England to do her Ph.D. where she stayed from 1948 to 1951. In between she made two visits to India and found her husband more cold than what he was. On her return from England, the wife stayed for sometime with her parents at Jaipur. Thereafter she went to live with her husband. The wife’s sufferings and mental agony continued.
In 1952, she got a job of a lecturer in the Calcutta University. Realizing that she had to live a frustrated married life, she dedicated her life to work and began to observe complete reticence and indifference at the matrimonial home and apparently a defiant attitude to the husband.
There was in the husband’s house, more of physical torture and violence and mental shock to her. The wife realised that the husband wanted her to live elsewhere and that the husband developed a feeling of hatred and abhorrence for her.
In the same house they became strangers to each other. And thus(they continued to live till 1954, each of them having his or her own way.
In November, 1954 the wife left the husband’s home and shifted to a rented flat where her sister and mother were living. By this time she had made up her mind to abandon the matrimonial home.
In 1955, the wife's father tried to bring about a reconciliation between the spouses, but as he approached the husband, he was turned out and dragged to the flat where the wife was living.
There the husband had a heated discussion with his wife and offered her two alternatives, to sue for divorce or to go to Mandalay, where her father was posted. On the wife’s refusal to accept these terms, he flew into a rage and struck the wife with a stick.
When the wife’s father protested, he tried to strike him also. But the father and the wife’s sister, who was also there, caught hold of the stick and prevented him from doing so. Thereupon he gave several slaps to the father and the sister; he also twisted the arm of the sister. Under these circumstances the wife petitioned for divorce.
The court found that throughout the married life, the husband was indifferent and cold to the wife, that the relationship between the parties was most abnormal, that it was the husband’s marital lapses which caused a bitter and unfortunate situation, that in the later days of their living together the husband persisted in his attitude of utter indifference, callousness and apathy towards the wife, lived with his wife as a stranger under the same roof, that no sexual intercourse took place between the parties, and that the husband had developed an attitude of hatred and abhorrence for her.
Thus, the court said, in the context of her suffering and loneliness of a frustrated married life, the husband created such a situation that it was impossible for the wife to stay any longer in the matrimonial home. The husband, thus forcing the wife by his conduct to leave the matrimonial home, became himself guilty of desertion, even though it was the wife who had left the matrimonial home.
SHYAM CHAND V. JANKI,
In above case, where the husband asked for judicial separation on the ground of wife’s desertion, the wife in her reply stated that she was maltreated, beaten up and turned out of his house by the husband.
She further stated that her husband kept her in village Bedar, while he himself lived at Chorus and the food given to her at Bedar was meagre. She was kept there in a cow-shed, was deprived of the company of her children, was beaten up and ultimately turned out.
The wife’s averments were proved.
ANIL KUMAR V. SEFALI
The wife was turned out of the house forcibly and the husband never tried to bring her back. There was no animus deserdendi on the part of the wife. On husband’s petition, divorce was not granted as the wife was clearly not in desertion.
The ingredients of actual as well as constructive desertion are the same: both elements, factum and animus, must co-exist, in the former there is actual abandonment and in the latter, 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.
WILFUL NEGLECT
Explanation to Section 13(1), Hindu Marriage Act lays down that "desertion includes wilful neglect of the petitioner by the other party to the marriage".
It is submitted that wilful neglect adds a new dimension to the notion of desertion, in as much as if the offending spouse consciously neglects the other party without any intention to desert, it would nonetheless amount to desertion.
It connotes a degree of neglect which is shown by an abstention from an obvious duty, attended by a knowledge of the likely result of the abstention.
However, failure to discharge, or omission to discharge, every marital obligation will not amount to wilful neglect. Failure to fulfil basic marital obligations, such as denial of company or denial of martial intercourse, or denial to provide maintenance will amount to wilful neglect.
So far no case has arisen where wilful neglect has been taken as a ground.
But it is submitted that Parliament by including ‘wilful neglect’ as a species of desertion, has deliberately made
a departure from the existing meaning of desertion. This has been done considering the facts of our social life, where wives are deliberately neglected by their husbands; they are denied company, they are denied sexual intercourse (this was so in Jyotish Chander v. Meera), or are denied maintenance.
Any of these acts by itself may not amount to desertion but these are acts of wilful neglect which do cause untold misery to the wife.
It seems for this reason that Parliament specifically made ‘wilful neglect' as a special type of desertion under Hindu Law.
