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What is the difference between Desertion and Willful Separation?


FAO(HMA) No. 445/2015

Decided on: July 13, 2016

Reeta Devi
Manohar Lal
Coram:Hon’ble Mr. Justice Rajiv Sharma, Judge.
Citation:AIR 2016 (NOC) 634 HP

This appeal has been instituted against Judgment dated 15.9.2015 rendered by the learned Additional District Judge (II), Mandi, District Mandi, Himachal Pradesh in HMA No. 45/15/2010.

2. “Key facts” necessary for the adjudication of the present appeal are that the marriage between the parties was solemnised on 24.11.1988. Respondent has filed petition under Section 13 of the Hindu Marriage Act for dissolution of marriage before Additional District Judge (II) Mandi. According to the averments made in the petition, appellant left the matrimonial home in April, 1990 without any reasonable cause. Appellant has caused mental as well as physical cruelty to him. Petition was contested by the appellant. Factum of marriage was admitted. It was denied that the appellant has willfully deserted the respondent. Respondent started ill-treating the appellant immediately after marriage. Local Panchayat was informed. However, respondent did not mend his ways. Respondent without any reasonable cause ousted the appellant from the matrimonial home in April, 1990. She was forced to live with her parents. Learned trial Court framed issues on 23.3.2013. Petition was allowed by the learned Additional District Judge on 15.9.2015 and marriage was dissolved on the ground of desertion.

3. Mr. Vikram Thakur, Advocate, has vehemently argued that his client has never deserted the respondent. It is the respondent who has ousted her from his house in the month of April, 1990.

4. Mr. Devender K. Sharma, Advocate, has supported the judgment dated 15.9.2015.

5. I have heard the learned counsel for the appellant and also gone through the record carefully.

6. Respondent has led his evidence by way of affidavit Ext. PW-1/A. He has reiterated the averments made in the petition. According to him, appellant has left his company without his permission and without reasonable cause. She has filed false litigation for maintenance under Section 125 CrPC. He paid maintenance allowance. Appellant has deserted his company since April, 1990. In his cross-examination, he admitted that the marriage was solemnised on 24.11.1988. Appellant remained with him till April, 1990. He was paying `300/- to the appellant. He has also categorically admitted that since April, 1990, he has not filed any petition for restitution of marriage.

7. Sant Ram (PW-2) has also led evidence by filing affidavit Ext. PW-2/A. According to the averments made in the affidavit, marriage was solemnised 26 years back. Parties have no children. Respondent as well as father tried their best to bring appellant back to the house at village Kapahi but she did not come back. She was treated nicely by the respondent. In his cross-examination, he has admitted that he was closely related to the respondent. He also admitted in his cross-examination that Sarita Devi was residing with respondent. He did not know the relationship. He also admitted that the respondent has two children, one daughter and one son. According to him, appellant had deserted the respondent.

8. Inder Singh (PW-3) has led evidence by filing affidavit Ext. PW-3/A. According to him, appellant has deserted the respondent.

9. Appellant has appeared as RW-1. She has led evidence by filing affidavit Ext. RW-1/A (sic. RW-2/A). According to the averments made in the affidavit, after marriage, respondent started maltreating the appellant. Matter was even reported to the Panchayat. Respondent ousted her from the matrimonial home without any reasonable cause and contracted second marriage with one Sarita Devi. He was residing with Sarita Devi as her husband and one son and one daughter were born out of their union. She was constrained to file petition under Section 125 CrPC. Respondent in connivance with the Secretary, Gram Panchayat got name of the appellant struck off from the Panchayat. She came to know about it. She filed an application before the Sub Divisional Magistrate. Her name was re-entered in the Parivar register. She denied the suggestion that her father-in-law has convened the Panchayat thrice to take her back to the matrimonial home.

10. Statement of RW-1 has been corroborated by Ram Dass (RW-2) who has led evidence by filing affidavit Ext. RW-2/A. According to the averments made in the affidavit, appellant was ousted by the respondent from matrimonial home in 1990. He contracted second marriage with one Sarita Devi and was living with her.

11. Ashwani Kumar (RW-3) deposed that he was Secretary, Gram Panchayat Sari. He had brought the record pertaining to Parivar register. Coy of Parivar register is Ext PW- 3/A. Earlier name of respondent was stuck off from the Parivar register of respondent. Later on, on the order of SDM, her name was re-entered.

12. What emerges from the discussion of the evidence herein above is that the marriage between the parties was solemnised on 24.11.1988. They lived together for one year. According to the respondent, appellant has deserted him in the month of April, 1990. However, fact of the matter is that as per evidence led by the appellant, she was ousted from the matrimonial home in April, 1990. She was maltreated by the respondent. She had no choice than to live with her parents. It has also come on record that the respondent had contracted second marriage with one Sarita Devi and had two children from her. Appellant was constrained to file a petition under Section 125 CrPC seeking maintenance. Maintenance was allowed and thereafter it was also enhanced. Respondent, in his cross examination admitted that he never filed any petition for conjugation of marriage nor taken any steps to bring back the appellant to matrimonial home. Appellant denied the suggestion that her father-in-law had convened Panchayat thrice to take her back to the matrimonial home. It has also come on record that the appellant was always ready and willing to live with the respondent. He has refused to take her back. Respondent can not be allowed to take advantage of his own wrongs, firstly by neglecting the appellant and then also contracting second marriage. He has got name of the appellant deleted from the Parivar register. However, same was re-entered on the basis of orders of the SDM. This fact is duly proved from Ext. RW-3/A. Learned trial Court has not discussed the evidence adduced by the parties and has abruptly come to the conclusion that the appellant has deserted the respondent. In order to prove desertion, it was necessary for the respondent to prove animus deserendi. Order whereby maintenance was allowed to the appellant under Section 125 CrPC is Ext. RW-2/B, whereby she was granted maintenance @ `375/- and thereafter same was enhanced as per Ext. RW-2/C dated 8.6.2010. Respondent has also not led any evidence that the appellant has caused any mental or physical cruelty to him, rather it is the respondent who has caused mental and physical cruelty to the appellant by neglecting her and ousting her from the matrimonial home in the month of April, 1990 and by also not taking any steps for bringing her back.

13. Their Lordships of the Hon’ble Supreme Court in Manisha Tyagi vs. Deepak Kumar reported in 2010(1) Divorce & Matrimonial Cases 451, have explained the term ‘cruelty’ as under:

“24. This is no longer the required standard. Now it would be
sufficient to show that the conduct of one of the spouses is so
abnormal and below the accepted norm that the other spouse
could not reasonable be expected to put up with it. The conduct
is no longer required to be so atrociously abominable which
would cause a reasonable apprehension that would be harmful
or injurious to continue the cohabitation with the other spouse.
Therefore, to establish cruelty it is not necessary that physical
violence should be used. However, continued ill-treatment
cessation of marital intercourse, studied neglect, indifference of
one spouse to the other may lead to an inference of cruelty.
However, in this case even with aforesaid standard both the
Trial Court and the Appellate Court had accepted that the
conduct of the wife did not amount to cruelty of such a nature
to enable the husband to obtain a decree of divorce.”

14. Their Lordships of the Hon’ble Supreme Court in Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC 476, have explained the term ‘cruelty’ as under:

“19. It may be true that there is no definition of cruelty under
the said Act. Actually such a definition is not possible. In
matrimonial relationship, cruelty would obviously mean
absence of mutual respect and understanding between the
spouses which embitters the relationship and often leads to
various outbursts of behaviour which can be termed as cruelty.
Sometime cruelty in a matrimonial relationship may take the
form of violence, sometime it may take a different form. At
times, it ma be just an attitude or an approach. Silence in some
situations may amount to cruelty.

20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial case can be of infinite variety – it may be subtle or even brutal and may be by gestures and word. That possible explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial case are never closed.

21. This Court is reminded of what was said by Lord Reid in Gollins v. Gollins about judging cruelty in matrimonial cases. The pertinent observations are (AC p.660)

“.. In matrimonial cases we are not concerned with the
reasonable man as we are in cases of negligence. We are
dealing with this man and this woman and the fewer a
priori assumptions we make about them the better. In
cruelty cases one can hardly ever even start with a
presumption that the parties are reasonable people,
because it is hard to imagine any cruelty case ever
arising if both the spouses think and behave as
reasonable people.”
22. “ About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi at AIR p. 123, para 5 of the report: (SCC p.108, para 5)

“5. It will be necessary to bear in mind that there has
been (a) marked change in the life around us. In
matrimonial duties and responsibilities in particular, we
find a sea change. They are of varying degrees from
house to house or person to person. Therefore, when a
spouse makes complaint about the treatment of cruelty
by the partner in life or relations, the court should not
search for standard in life. A set of facts stigmatized as
cruelty in one case may not be so in another case. The
cruelty alleged may largely depend upon the type of life
the parties are accustomed to or their economic and
social conditions. It may also depend upon their culture
and human values to which they attach importance. We,
the Judges and lawyers, therefore, should not import
our own notions of life. We may not go in parallel with
them. There may be a generation gap between us and
the parties.”

15. Their Lordships of the Hon’ble Supreme Court in Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957 SC 176 have held that two essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held that desertion is a matter of inference to be drawn from the facts and circumstances of each case. Their Lordships have held as under:

“What is desertion? “Rayden on Divorce” which is a standard
work on the subject at p.128 (6th Edn.) has summarized the
case-law on the subject in these terms:-
“Desertion is the separation of one spouse from the other, with
an intention on the part of the deserting spouse of bringing
cohabitation permanently to an end without reasonable cause
and without the consent of the other spouse; but the physical
act of departure by one spouse does not necessarily make that
spouse the deserting party”.

The legal position has been admirably summarized in paras 453 and 454 at pp. 241. to 243 of Halsbury’s Laws of England (3rd Edn.), VoL 12, in the following words:-

“In its essence desertion means the intentional permanent
forsaking and abandonment of one spouse by the other without
that other’s consent and without reasonable cause. It is a total
repudiation of the obligations of marriage. In view of the large
variety of circumstances and of modes of life involved, the Court
has discouraged attempts at defining desertion, there being no
general principle applicable to all cases. Desertion is not the
withdrawal from a place but from the state of things, for what
the law seeks to enforce is the recognition and discharge of the
common obligations of the married state; the state of things
may usually be termed, for short, ‘the home’. There can be
desertion without previous cohabitation by the parties, or
without the marriage having been consummated. The person
who actually withdraws from cohabitation is not necessarily the
deserting party. The fact that a husband makes an allowance to
a wife whom he has abandoned is no answer to a charge of

The offence of desertion is a course of conduct which exists
independently of its duration, but as a ground for divorce it
must exist for a period of at least three years immediately
preceding the presentation of the petition where the offence
appears as a cross-charge, of the answer. Desertion as a ground
of divorce differs from the statutory grounds of adultery and
cruelty in that the offence founding the cause of action of
desertion is not complete, but is inchoate, until the suit is
constituted. Desertion is a continuing offence”.

Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances to each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co- exist. But it is not necessary that they 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; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this connection the following observations of Lord Goddard CJ. in the case of Lawson v. Lawson, 1955-1 All E R 341 at p. 342(A), may be referred to :-

“These cases are not cases in which corroboration is required as
a matter of law. It is required as a matter of precaution……. ”

With these preliminary observations we now proceed to examine the evidence led on behalf of the parties to find out whether desertion has been proved in this case and, if so, whether there was a bona fide offer by the wife to return to her matrimonial home with a view to discharging marital duties and, if so, whether there was an unreasonable refusal on the part of the husband to take her back.

16. In view of the discussion and analysis made herein above, appeal is allowed. Judgment dated 15.9.2015 rendered by the learned Additional District Judge (II), Mandi, District Mandi, Himachal Pradesh in HMA No. 45/15/2010 is set aside. Pending applications, if any, are disposed of.

(Rajiv Sharma)
July 13, 2016


1 thought on “What is the difference between Desertion and Willful Separation?

  1. One of my cousin got mutual divorce five years back and at the time of divorce his ex wife jointly file divorce and affidavit that she will withdraw all the cases and allegations from all different case. Now the 6 month waiving preiod is completed and both are mutually seprated from each other and she withdraw final allomeny from court but till the date she not withdraw cases from the court. As this is become state case…it presuing as it is even she clearly mentioned in mutual consent that she withdraw all cases.

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