Anonymous
Asked January 13, 2017

Calculation of time of desertion

  • 1 Answer
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Sir/Madam, How to calculate or count desertion period. In mean time RCR filed and decreed. these time will be counted for desertion period or not .... please say in detail, if RCR case period will count with the continuing desertion period of 2 years, please provide decided citations... please.

Answer 1

Dear sir/madam,

The answer to your 1st question would be :

Referring to the law in this regard - The period of desertion starts the very day when either of the spouse shows an intention not to live with the other. Now this can be in any  form and manner – example being (1) leaving the matrimonial home (2) denial of marital obligations (3) wilful neglect by the spouse (4) not showing any intention to live together. The aforersaid examples are a part of well established law under various case laws. The burden of proving the facts asserted in such a case rests with the petitioner, who is filing the suit.

The subsequent decree obtained in the case (as mentioned in the query), after filing for Restitution of Conjugal Rights (RCR), needs to be obeyed, honoured and satisfied within a period of 1 year otherwise creating a ground for divorce.

Restitution of Conjugal Rights is a concept that suggests the living of both the spouses together. And by together i mean mentally + physically, thereby obeying all the aspects of a legally wed couple and not just for the sake of it.

Therefore, if Restitution of Conjugal Rights is applied for, before the court and the period of RCR is to be counted then, logically, how can it constitute of a period of staying separately or living in a deserted state. Both the concepts (Desertion and RCR) are “anti” to each other, so to say. On the same lines, RCR will be filed by the party who is interested in keeping the relationship alive (after desertion). However, desertion was the option of the other spouse. RCR time period will obviously be counted from the moment of cohabitation. The basic concept of Restitution of Conjugal Rights suggests a second innings, provided to save the subsisting marriage, which ultimately gets frustrated if desertion time period continues. Thus, desertion period comes to an end as soon as the couple resumes cohabitation as per Restitution of Conjugal Rights. When desertion goes on for a continuous period of 2 years, a valid ground of filing for Divorce is levelled.

Answering the 2nd part of the query :-

Lachman Utamchand Kirpalani v. Meena[1]  is a ruling by the Hon’ble Supreme Court that defines the essential conditions, which are necessary to be proven in order to seek relief on the ground of Desertion.

Bipinchandra Jaisinghbhai Shah v. Prabhavati[2]  - not necessary for the deserting spouse to leave the home in order to constitute desertion.

A case law by the name Mrs. X Vs. Mr. Y[3] In The High Court Of Judicature At Bombay is the appropriate and desired citation on the point referred in the query. This is in relation to the On and Off relationship of the couple i.e. the desertion period mixed with RCR decree. Judgement in this case further goes on to explain the granting of a decree of divorce under section 13 (1) (ib) on the ground of desertion.

 

 

 

[1] AIR 1964 SC 40

[2] AIR 1957 SC 176

[3] 2010(1) Mh.LJ 735

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