Course Hero Logo

SECTIONAL TEST 2.docx - LEGAL SECTIONAL TEST 2 PASSAGE 1...

Course Hero uses AI to attempt to automatically extract content from documents to surface to you and others so you can study better, e.g., in search results, to enrich docs, and more. This preview shows page 1 - 3 out of 13 pages.

LEGAL SECTIONAL TEST 2PASSAGE 1Section 13 of the Hindu Marriage Act 1955 mentions deserted the petitioner for a continuous period of notless than two years immediately after which petition for a divorce can be presented. Therefore, it can beinferred that the clause provides for basic necessities to be fulfilled in order to make desertion as a groundfor divorce: first, that such desertion or separation must be for a continuous period of minimum two years:and second, such period of two years should be in immediate continuity with time of presentation of suchpetition. To make it more clear, there should not be a gap between the period of two years and presentationof the petition.Desertion, in brevity, means an absolute repudiation of marital obligations, i.e., putting an end to maritaltogetherness. In layman terms, desertion can be interpreted as "running away", i.e., running away of onespouse from his/her marital obligations. InBhagirathabai v. Bapurao Devrao, it was held that in theExplanation towards the end of Section 13(1), the expression "desertion" means the desertion of thepetitioner by the other party to the marriage either without a reasonable reason or against the consent or wishof the other spouse party to marriage and includes the wilful neglecting behaviour by that other party to themarriage towards the petitioner. The Supreme Court in Lachman v. Meena interpreted that desertion in itsvery essence means the intentional permanent abandonment by one spouse of the other without the other'sconsent and without reasonable or just cause or justification. It was also held to include wilful neglect of oneof the parties towards the other in a marriage.In order to prove desertion, there are two elements that are absolute necessities, first isfactum deserendiandsecondly,animus deserendi. Hence, the fact of being separated alone cannot amount to desertion, but has tobe accompanied with intention to desert as well. Similarly, only the intention or the thought of wanting toseparate from the spouse without any actus reus will not amount to desertion. This view was enumerated inBhupinder Kaur v. Budhi Singhwherein it was observed that merely living way for a long time periodcannot attribute animus deserendi on that party.The period of two years does not mean an aggregate period of two years, but it meant an unbrokencontinuous period which started off when the parties began to live apart and did not live together during thiscontinuous stretch. This, however, implies that desertion will continue even if parties continue to live apartfor more than two years and will be actionable per se until and unless a petition for separation or divorcemaking desertion a ground would not be filed.1.Eshan and Disha have been married for 4 years, staying in Hyderabad, India. In the fifth year ofmarriage, Disha decides to pursue a Ph.D. from Germany, the course funded for 4 years. She leavesin 2015 due to return in 2019. However, after finishing her Ph.D. program, she found a job in Berlin,on contract for 2 years. She promises Eshan that she would return after her job, but she finds otheropportunities. However, she does not return even after 3 years have passed. Eshan decides to file fordivorce on grounds of desertion. Which of the following statements is true?a)Disha has deserted Eshan as she has stayed away for more than two years.b)Disha can't be said to have deserted Eshan as there is no animus deserendi.c)Disha has deserted Eshan as she hasn't returned even after promising to do so.d)Disha can't be said to have deserted Eshan as she had informed Eshan of her job contract.
2.Consider that Disha returned from Berlin after completing her Ph.D. program in 2019. She stays withEshan for a period of two years after which she receives a teaching position in Berlin in 2021. Shetakes it up, leaving for Berlin in 2021 and stays there till 2024, flying in between Indian and Berlin tomeet her family. Does this constitute desertion by Disha?
d)

Upload your study docs or become a

Course Hero member to access this document

Upload your study docs or become a

Course Hero member to access this document

End of preview. Want to read all 13 pages?

Upload your study docs or become a

Course Hero member to access this document

Term
Fall
Professor
N/A
Tags

Newly uploaded documents

Show More

Newly uploaded documents

Show More

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture