FAMOUS CASE OF DESERTION by Bishrant Khatiwada

 FAMOUS CASE OF DESERTION

Lets change the name and timelines, as the case hasnot be published/decided. This is the summary of facts from news! The events are actual but the names and dates have been changed for the purpose of the article.

Nitesh and Neena were married in June 2015. After the marriage, Nitesh started torturing Neena physically and mentally. Ultimately Nitesh drove Neena out of the matrimonial house in January 2016 and she had to go to the house of her parents. Neena and her parents made several efforts for reconciliation, but Nitesh gave no response and prevented Neena from coming back to the matrimonial home. In November 2017, Nitesh filed a petition for divorce on the ground of desertion by Neena. 

Marriage, often known as matrimony or wedlock, is a legally and culturally recognized relationship between two persons known as spouses. It outlines their rights and duties, as well as their rights and obligations to their children and in-laws. Separation refers to the fact that you are living apart from your spouse but are still legally married until you obtain a divorce decree. Although a separation does not end your marriage, it does have an impact on your and your spouse's financial obligations until the divorce is finalized. Every situation/scenario or circumstance defines abandonment or desertion differently, but in general, it means that one spouse departs the family home and relationship without notice or communication. You'll need to look up facts properly to find out what terms and definitions apply to divorce in the given circumstances.

Analyzing the scenario at hand and establishing the facts

1. Nitesh and Neena were married in June 2015

2. After marriage, Nitesh started ill-treating Neena and went as far as to torture her both physically and mentally

3. Nitesh drove Neena out of the matrimonial home in January 2016, which is just after a year from their marriage

4. Neena had to go to her parents’ house after Nitesh drove her out of the house

5. Neena and her parents made several efforts for reconciliation but Nitesh gave no response

6. Despite Neena and her parents efforts for reconciliation Nitesh prevented Neena from coming back to the matrimonial home

7. In November, 2017 Nitesh filed a divorce against Neena on the grounds of desertion

The criteria of divorce in Hindu marriages are addressed in Section 13 of Hindu Marriage Act. Any marriage solemnized before or after the start of this Act can submit a petition for divorce, which can be brought by either the husband or the wife, and that can be dissolved by a decree of divorce, according to Section 13(1) of the same act. 

Two of the conditions must be satisfied for desertion by spouse

1. Factum decendi (The fact of the desertion) or the withdrawl from the matrimonial home

2. Animus Decendi or the intention to bring cohabitation to end permanently

FACTUM DECENDI

The fact of separation (factum deserdendi): which shows that Nitesh was the cause. He abused her and tortured her. Even he was the one to push her away and he himself filed a case for desertion which cannot establish a case for divorce on grounds of desertion on his part. In case of BWIN CHANDER JAISINGHBHAT SHAll VS. PRABHAWATI AIR 1957 SC 176, it was found that the petitioner bears both the "factum" and the "animus deserendi," and he or she must demonstrate beyond a reasonable doubt, to the satisfaction of the Court, desertion during the full two-year period before the petition, as well as that such desertion was without fair cause. In other words, even if the deserting spouse fails to establish fair cause for her separation, the petitioner-husband must still persuade the Court that the separation was without cause.

This can be seen as constructive Desertion of a sort. When one spouse's behavior makes it hard for the other to live with the former, this is known as constructive desertion. This argument states that the respondent's behavior is such that the petitioner cannot reasonably be expected to live with the respondent. It is known as compulsive desertion, in which the petitioner feels compelled to leave the usual course of wedded life. Where in current scenario, Nitesh is making it impossible for Neena to return. But considering the fact that Nitesh is the one filing the petition on grounds of desertion there is no possible way for that argument to make sense.

ANIMUS DECENDI

The intention to desetion shows that Neena had no intention to leave. Furthermore, she made several efforts to return back but wasn’t allowed by Nitesh. So he cannot claim to be deserted by her in any way possible.

As established in Stickert v. Stickert 7 (1899) P. 278 at 284; that desertion is not determined solely on the basis of the fact that who left the matrimonial home which was also upheld in case of Buchler v. Buchler, (1947) I All ER 319

CONSENT OF DESERTING SPOUSE

If the deserting spouse does not consent to the desertion, the final item is also proven; but, how can this ingredient be shown? Now, if a spouse quits, the other spouse must make constant efforts to bring the spouse back; it should not be the situation that the other spouse sits silently while the other spouse has abandoned. Efforts should be made to bring people together. Contact with parents, mothers, fathers, and other relatives is critical in this situation. This would satisfy the court that the abandoned spouse never consented to such desertion by first reconciling on their own level and then involving relatives.

In another case of Charter v. Charter (1901) 84 L T 227, it was held that the act of departure from the other spouse draws its significance from the purpose with which it is done, as revealed by conduct or other expressions of intention. In this case despite Neena’s efforts and the fact that he used to torture Neena physically and mentally establishes the fact that he wanted divorce and the act of desertion is just a mere setup for getting divorce on the same grounds.

Yet in another case of PRAfl' V. PR&fl', 1939A C 417 At P.420, the court was of the opinion that what is required of a petitioner for divorce on the grounds of desertion is proof that the respondent has been in desertion without reason for the last three years. This case at hand related to Nitesh and Neena, from the established facts we can see that He wanted to get rid of Neena and after torture and stuffs where she didn’t wanted to leave him, from the facts we can clearly see that it is a setup to get divorce on the grounds of desertion which isn’t permissible by the court.

In conclusion, accordingly after fact checking every elements to file divorce on grounds of desertion the established facts and arguments I am of the opinion that Nitesh has no right to file case on grounds of desertion, it should be Neena who has every right to file the case on grounds of desertion. India is a country where masculinity tries to overcome female feelings. Men try to suppress women and treat them like a doll or a play thing and consider them as cook/maid during day and sex object during the night. Taking their innocence for granted they make constructive scenario and leave them in a mess which should be punishable and shouldn’t be let go off so easily.in the case where Nitesh didn’t allow her to return back and before that he tortured and abused her both physically and mentally which establishes his ulterior motive and it can be established that he merely wants to get rid of her. So according to above mentioned arguments and cases along with maims, I am of the opinion that Nitesh will not succeed to get divorce on the grounds of desertion.