What is constructive desertion? Give examples.

The Foundation of the Doctrine

Desertion, as the Explanation to Section 13(1)(ib) of the Hindu Marriage Act, 1955 makes clear, includes not only actual abandonment but also "wilful neglect" of the petitioner by the other party. This Explanation was deliberately worded to encompass constructive desertion — that category of cases where one spouse, by expulsive conduct, drives the other out of the matrimonial home and then stands in the position of the deserting party, even though it is the aggrieved spouse who has physically left.

The doctrine rests on a deceptively simple but profound proposition: desertion is not a withdrawal from a place, but from a state of things. The Privy Council articulated this brilliantly in Lang v. Lang (1955 AC 402) — a decision that continues to guide Indian courts — by observing that the party who stays behind may, by reason of his own conduct, be making it unbearable for a spouse with reasonable self-respect or powers of endurance to stay, and is therefore the party truly responsible for the breakdown. He has deserted her by expelling her, by driving her out.

The Ingredients

Even in constructive desertion, both the essential ingredients of the matrimonial offence — the factum of separation and the animus deserendi (intention to bring cohabitation permanently to an end) — must be proved. The practical difference between ordinary and constructive desertion, as Rayden precisely observed, is that while in simple desertion the proof lies in showing abandonment, in constructive desertion the proof lies in establishing expulsive conduct on the part of the staying spouse.

The law further requires that this expulsive conduct must be grave and convincing in character. Irritating habits, domestic squabbles, or personality clashes that get on a spouse's nerves and cause the other to leave would not constitute constructive desertion, as such minor frictions are part of the ordinary lottery of married life, which every spouse accepts for better or for worse. The court must be satisfied that the conduct crossed from blameworthy behaviour causing unhappiness into conduct equivalent to expulsion from the matrimonial home.

A further important principle — drawn from Lang v. Lang and affirmed in Indian decisions — is that a person is presumed to intend the probable consequences of their acts. If the whole of a spouse's conduct is such that a reasonable person must know it will probably result in the departure of the other from the matrimonial home, the inference that the staying spouse intended the departure cannot easily be rebutted merely by claiming that the departure was not desired.

Illustrative Examples

The following situations have been recognised in decided cases and legal literature as giving rise to constructive desertion:

• A husband who physically expels his wife from the matrimonial home, using clear words ordering her to leave — the departure is hers, but the desertion is his. In Shyam Chand v. Janaki (AIR 1966 HP 70), a wife proved that she was maltreated, beaten, kept in a cowshed, deprived of her children's company, and ultimately turned out. The husband was held guilty of constructive desertion.

• A husband who keeps a concubine or mistress in the matrimonial home, making it impossible for a self-respecting wife to continue living there — the wife's departure in such circumstances constitutes justifiable withdrawal, not desertion.

• A husband who is indifferent, cold, callous and apathetic, treating the wife as a stranger under the same roof, refusing all marital intercourse, and creating an atmosphere of such utter loneliness and frustration that the wife finds it impossible to continue — here the courts have found the husband guilty of constructive desertion even though he never physically left.

• A wife forced to leave by persistent dowry harassment — the courts have uniformly held that it is not the wife but the husband who is guilty of desertion when she leaves because of his relentless harassment.

• Unreasonable refusal of marital intercourse — where a spouse's unjustified persistent refusal to have sexual intercourse makes it impossible for the other to continue in the marriage, this may amount to expulsive conduct and constructive desertion, having regard to the circumstances of the case.

Constructive Desertion and Cruelty: The Overlap

One of the most interesting features of constructive desertion is how closely it overlaps with cruelty. Courts have repeatedly noted that the same facts may, in many cases, constitute both expulsive conduct founding a charge of constructive desertion and an element of conduct founding a charge of cruelty. As the English Court of Appeal observed in Cade v. Cade, it is sometimes impossible to draw the line between the two, because the facts are so mixed that it is impossible to extricate one from the other. The court has, however, insisted that cruelty, even when the facts overlap, must be distinctly pleaded and proved as a separate charge if relief is sought on that ground.

The Reversal of Roles

The doctrine also operates in reverse. Once constructive desertion is established, and the deserting spouse (the one whose conduct drove the other away) subsequently makes an offer of reconciliation, a mere offer by word or letter may not suffice to terminate the desertion. The spouse who was driven out is entitled to impose reasonable conditions — expressions of genuine repentance and credible assurances of amendment — before accepting the offer. The law will not compel the aggrieved spouse to return to an unchanged situation simply because the offending spouse has changed their rhetoric.