Bipinchandra v. Prabhavati

Desertion is the ground on which candidates most often lose marks, because it looks factual and is in fact highly technical. Two elements must coexist, the period runs only from the moment they coexist, and the whole thing is a matter of inference from conduct. Bipinchandra v. Prabhavati is the case that supplies the definition and the timing rule.

Desertion became a ground of divorce only in 1976, by the insertion of clause (ib) in section 13(1): the respondent "has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition". Before that it founded judicial separation alone, and the 1955 Act's section 10(1)(a) used the same two-year period.

The Explanation to section 13 provides that "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 the marriage".

Four things are packed into that sentence: desertion by the other party, absence of reasonable cause, absence of the petitioner's consent, and the inclusion of wilful neglect. The last limb is important and easy to miss — a spouse who remains under the same roof but wilfully neglects the other may be in desertion. Physical departure is not required.

"In its essence desertion means the intentional personal forsaking and abandonment of one spouse by the other (Bipinchandra Vs. Prabhavati). It is the total repudiation of the obligation of the marriage." The same proposition is supported by Devi Singh v. Susheela and Jyotichandra v. Meera Guha.

"For desertion two essentials are to be proved. 1) The factum of separation 2) Animus deserendi i.e., intention to bring cohabitation permanently to an end without the consent of the other party."

Factum is the physical fact of separation, or of the withdrawal from the matrimonial relationship that wilful neglect amounts to. Animus deserendi is the mental element: an intention that cohabitation shall end permanently.

Add the two negative elements from the Explanation — no reasonable cause, and no consent — and the offence has four ingredients, not two. A separation by agreement is not desertion however long it lasts, and a spouse who leaves for reasonable cause, such as the other's cruelty, does not desert.

"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."

Work the consequences, because this is where problems are set.

Departure without intention. A spouse who goes away for employment, for study, or to nurse a relative separates in fact but without animus. He is not in desertion. If he later forms the intention never to return, desertion begins on that later date, and the two-year period runs from then — not from his departure.

Intention without departure. A spouse who forms the intention to abandon while still living in the house is not in desertion until the factum exists. Wilful neglect can supply the factum without a physical departure.

Both together. Where a spouse leaves intending to end cohabitation permanently, desertion begins on the day of leaving.

Termination. Because desertion is a continuing offence, it ends when either element ceases — by a genuine offer to return that is unreasonably refused, by resumption of cohabitation, or by the petitioner's consent.

"Desertion is a matter of inference to be drawn from the various facts and circumstances." Nobody testifies to his own animus deserendi, so the intention is proved by conduct: what was said on leaving, whether maintenance was offered or sought, whether attempts at return were made and how they were met, whether belongings were removed, how long the silence lasted.

The standard of proof is the ordinary civil one. On the same footing as cruelty, the court is satisfied on a preponderance of probabilities; the leading authority on the standard is Dastane v. Dastane.

The other cases named on desertion are Tickler v. Tickler, Lakshman v. Meena, where a wife wilfully deserted her husband, and Brewer v. Brewer.

As always, proof of the ground is only the first stage: section 23(1) requires that the petitioner not be "taking advantage of his or her own wrong or disability", that he has not connived at or condoned the conduct, that there is no collusion, and that there has been no "unnecessary or improper delay in instituting the proceeding". A petitioner whose own conduct drove the respondent away fails at that gate, because the respondent then left for reasonable cause and the petitioner is the deserter in law.

Desertion also runs through the rest of the paper on the same definition. Section 18(2)(a) of the Hindu Adoptions and Maintenance Act entitles a Hindu wife to live separately and claim maintenance where the husband "is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her" — the same four ingredients, in the same words.

Desertion is not leaving. It is leaving with the intention never to return, without cause and without consent — and the clock starts on the day those things first exist together.