Free Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian Page A

who leaves the matrimonial home in these situations, the man then often proceeds to claim on this basis that the woman has deserted him in a petition for judicial separation or divorce. Legislators guarded against this possibility by stipulating in Section 23(1)(a) of the HMA that individuals could not take advantage of their “own wrong” or disability to claim judicial separation or divorce. Menski explored the increased attention of courts to such situations from the late 1960s. 67 The caselaw on desertion was limited in India until independence, and the Indian courts drew significantly from understandings of desertion in British law from the 1950s. 68 They borrowed the notion of “constructive desertion” to reject many petitions of men to change their matrimonial status after they or their parents had evicted their wives or induced them to leave by making life difficult for them, as well as to grant the divorce, separation, and maintenance pleas of women whose husbands or in-laws had made them leave their matrimonial homes. 69 Some of them derived justification for this from the HMA’s equation of the “willful neglect” of one’s spouse with desertion.
    Agnes identified
Bipin Chander Jaisinghbhai Shah v. Prabhawati
(1956) as an important case, which shaped how courts used the notion of constructive desertion. 70 In it, the Bombay High Court rejected the man’s divorce petition because it took him to have resisted the woman’s efforts to resume their matrimonial relationship. 71 The Supreme Court disagreed with the lower court’s finding that the man had engaged in constructive desertion, insofar as it believed that the woman left the matrimonial home of her own accord because she could not face her husband and her in-laws, who suspected her of infidelity for good reason, a feature of the case Agnes did not note. It indicated thereby that a finding of constructive desertion is appropriate only when the deserted spouse does not initiate the change in the marital relationship. The Supreme Court nevertheless concurred with the high court’s decree because the man resisted the woman’s later efforts to resume cohabitation, signaling that a finding of desertion is appropriate only if the deserter remains disinclined to resume the relationship and the deserted individual does not consent to the spouses living apart at any point.
    Many courts rejected men’s desertion petitions from the 1950s onward if they found that the man had given his wife good reasons to leave the matrimonial home. They did so, for instance, in
Kuppanna Goundan v. Palani Ammal
(1955) because a bigamist, whose second marriage predated the ban on Hindu bigamy, refused to provide his first wife a separate residence and maintenance, to which bigamists’ first wives became eligible in 1946, and in
Sirigiri Pullaiah v. Sirigiri Bushings Amma
(1962) because another bigamist contracted his second marriage after Hindu bigamy was banned. Courts also rejectedmen’s claims of desertion by their wives because they had rejected their wives’ efforts to resume living with them in
Perumal Naicker v. Sithalakshmi Ammal
(1955) and
Shyam Chand v. Janki
(1966); the man had acted similarly and got remarried while the woman could still appeal the lower court’s divorce decree in
Snehlata Seth v. Kewal Krishan Seth
(1986); the man made unfounded accusations of adultery in
Lachman Utamchand Kiriplani v. Meena alias Mota
(1964); the man beat and otherwise mistreated his wife to extract dowry, and refused to make a commitment that he would end his violence and provide her a separate room in his house in
Shri Kishan Chand v. Smt. Munni Devi
(2003); the man ended his sexual relationship with his wife in
Jyotish Chandra Guha v. Meera Guha
(1969) and
Lt. Col. Mohinder Pal Singh v. Kulwant Kaur
(1975); the man started an informal relationship with another woman in
Renganayaki v. Arunagiri
(1993); the man rejected his wife’s demand that they live apart from his