Date: 24 May 2024
Name of the Researcher: Sorna, Intern
CASE STUDY
Case Number: CR01906
Cause Title: Family/ Divorce Bundle Number: 2935
Stage of Research: Cross-examination of RWI
Synopsis: Petitioner demands Divorce on the grounds of cruelty and desertion. Respondent seeks to set aside the same.
Judgement favouring the synopsis:
Under Hindu Law, specific grounds allow a person to file for a divorce petition, even if their spouse is unwilling to consent. However, if such grounds are alleged but cannot be substantiated with relevant documents or evidence in court, it may result in the dismissal of the divorce petition.
Sushila Bai v. Prem Narayan, AIR 1986 MP 226
The Court held the following as defences to a suit for restitution of conjugal rights.
- The respondent may seek matrimonial relief as a counterclaim to the suit.
- Any evidence establishing that the petitioner is guilty of misconduct can be presented.
- When it becomes impossible for both spouses to live together, the court may consider this a valid ground.
Bai Jivi vs Narsing Lalbhai, (1927) 29 BOM LR 332
The court held that no person can be forced to return to their marriage against their will.
K. Srinivas Rao v. D.A. Deepa, AIR 2013 SC 2176
The court holds harassment as a defence for restitution of cohabitation.
CRUELTY
Section 13, Hindu Marriage Act, 1955
A marriage, whether solemnised before or after the commencement of this Act, may be dissolved by a divorce decree upon a petition filed by either the husband or the wife on the ground that the other party has subjected the petitioner to cruelty after the solemnisation of the marriage.
2. DESERTION
Section 13, Hindu Marriage Act, 1955
A marriage, whether solemnised before or after the commencement of this Act, may be dissolved by a decree of divorce upon a petition presented by either the husband or the wife 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.1
Elements of Desertion
- Factum deseredendi
- Intention to desert (animus deserendi)2
The deserted person must prove there was physical desertion from their spouse and no consent from them. However, the presence of intention to permanently abandon should be determined by the court.
Rajini v. Ram swaroop (1995) 2 Civ LJ 74 (All).
“Absence of consent, which led to the other spouse leaving the matrimony, is an important element. The deserted spouse must prove that they were deserted against their will. If there is no proof of lack of consent, the consensual separation is not a matrimonial offence as it attracts the legal principle volenti non-fit injuria.”
The quality of permanence in the intention to leave the matrimonial home is one of the essential sub-elements in desertion that differentiate it from willful separation. There is no desertion if
there is just temporary separation without the intention to leave permanently.3
Continuous Period
It is necessary to prove the gap between two continuous years and the statutory requirement for two years for relief concerning desertion. Returning after two years to a spouse makes that another period to be counted from the last exit of leaving.
Termination of Desertion
Rajini v. Ram swaroop (1995) 2 Civ LJ 74 (All)
1 Desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and the consent 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
2 Dr. P. Diwan and P. Diwan, Modern Hindu Law (Codified and Uncodified), 12th ed., Haryana, Allahabad Law Agency, 1998, p. 118.
3 Dr. Sir H. S. Gour, The Hindu Code: II (6th ed., Allahabad: Law Publishers Pvt. Ltd., 1998) at1082
Through an act or conduct of the deserting spouse, the desertion can be put to an end.
Desertion can end by supervening animus reverted or offering reconciliation.4
Jivubhai v. Nigappa AIR 1963 Mys. 3.
“Ordinary desertion is when a spouse withdraws from the society and marital home without any cause or consent with the permanent intention of not resuming cohabitation.”
[There is harassment by the Petitioner and their family, which coerced the Respondent to leave the house in each instance. After each time of leaving, the Respondent returned to the matrimonial home in about 20 days.]
Bhagwanti v. Sadhu Ram AIR 1961 Punj. 181
The courts have stated that mere refusal or neglect to perform one or more acts of marital obligations will not amount to desertion as long as the intention to cohabit continues. Therefore, the mere refusal to have sexual intercourse is not desertion.
[The Petitioner’s constant claim that the Respondent not fulfilling their duties as a wife is cruelty and leads to desertion is not solid]
CONSTRUCTIVE DESERTION
The deserting party [Respondent] left the marriage house and institution due to the acts and conduct of the deserted party [Petitioner].
Jyotish Chandra. Meera GuhaAIR 1970 Cal 266
The law has been framed so that the person who leaves the home is not
always the one who deserts. If one spouse expels the other from the marital home by conduct or words, making it impossible for the other to live there, the former is in desertion and not the one leaving.5
[The Petitioner and their family have abused the Respondent via words, actions and force, leading to her leaving the house.
Laxman v. Meena 1964 sc 40
Willful neglect can also add to the ground of constructive desertion6
[The Petitioner has not taken care of the Respondent, which have been highlighted in several instances in the Counter filed by the Respondent]
4 Rajini v. Ram swaroop (1995) 2 Civ LJ 74 (All).
5 Jyotish Chandra. Meera GuhaAIR 1970 Cal 266
6 Laxman v. Meena 1964 SC 40
The test abandoning should not be on the one who leaves or the deserted party but on the reason for the same and the intention of the deserting party.78
[The actions of the Respondent leaving the house were because her mental state was affected by staying along with the Petitioner and their family. The cited Articles talk in-depth about the requisites and reasons for constructive desertion]
Arguments Against:
N. B. Rukmani v. P. M. Srivastava AIR 1984 Kant. 131.
In this case, the wife left the matrimonial house because she did not get along with the
husband’s family. She later came back to take away her jewellery and clothes. Despite several attempts by the husband, she couldn’t be persuaded to return. The court established the presence of Desertion.
Other ARGUMENTS
- Bhagat vs. D Bhagat (1994) 1 SCC 337
The Supreme Court held that false accusations of unchastity and excessive demands for dowry are factors of cause of mental cruelty.
[The respondent in Counter has stated that the Petitioner requested Dr. Madhini at BSS Hospital to check whether she was fertile enough to bear a child]
[Respondent says constant dowry claims were made by the Petitioner’s brother and mother on different occasions]
Opposite side case/ facts synopsis:
Counter to their points of law:
Law points & Judgements involved in the Otherside case: Acts and Sections Involved:
- Section 13, Hindu Marriage Act, 1955
- Section 498A – Indian Penal Code, 1860
- Protection of Women from Domestic Violence Act, 2005
- Matrimonial Clauses Act, 1973 Additional Grounds:
- Hurt, Voluntarily Causing Hurt, Section 321.
7 A. A. M. Irvine, “Expulsive Conduct" as an Ingredient of Constructive Desertion” 29(4)The Modern Law Review (July 1966) at 438.
8 F. Bates, “Animus Deserendi in Constructive Desertion” 33(2)The Modern Law Review (March 1970) p.149.7
- Husband or Relative of Husband of a Woman Subjecting her to Cruelty, Section 498A
- Section 504, Intentional insult intending to provoke peace breach 4.
Judgement and Operative Path: