Under the statutes of Hindu Marriage and Special Marriage Act
Under the statutes of Hindu Marriage and Special Marriage Act, desertion includes the “willful neglect” of the petitioner by the other party to the marriage. Under The Dissolution of Muslim Marriage Act, 1939, the husband’s failure or neglect to provide maintenance for a period of two years or more entitles wife to sue for divorce. 1 so far before Indian Courts, no case has come where “willful neglect” has been taken as aground for divorce or judicial separation, though in Laxman v. Meena2 Subha Rao, J., Obiter, observed that willful neglect was designated to cover constructive desertion, and therefore should fulfill all the ingredients of desertion.3 It is submitted that Parliament has by expressly including “willful neglect” as a separate type of desertion, deliberately made a departure from the existing meaning of desertion. In our typical social background, it happens that the husbands deliberately neglect their wives, by refusing to have marital intercourse with them, by denying maintenance to them, or by declining to give company to them. Thus, a spouse may not totally withdraw from cohabitation, yet his conduct or act may be sufficiently grave and weighty; may cause untold misery and deprivation to the other. These will constitute willful neglect.
The term “willful neglect” has been in English Law in the context of wife’s claim of maintenance. On the ground of willful neglect, the wife may claim maintenance from the husband. It seems that an act or omission done accidently or inadvertently is not willful; it is also not absolutely necessary that to be willful, the act or omission should be deliberate and intentional. Thus, it will amount to willful neglect if a spouse consciously acts in a reprehensible manner in the discharge of his marital obligations. In other words, willful neglect connotes a degree of neglect which is shown by a degree of abstention. But failure to discharge, or omission to discharge, every marital obligation will not amount to willful neglect. But failure to discharge the basic marital obligations will amount to willful neglect.
Failure to provide maintenance may also amount to willful neglect 4. That probably was the main context in which willful neglect was made a variety of desertion. It becomes clear when we look at a similar provision under the Dissolution of Muslim Marriage Act, 1939, where a husband’s failure or neglect to provide maintenance to the wife is a separate ground for divorce. The courts have given a very wide interpretation to this clause since the words used are ‘failure’ and ‘neglect’ and ‘willful neglect’. Thus, it has been held that wife is entitled to a decree of divorce even if the failure or neglect to maintenance arise on account of his poverty, failing heath, loss of work, imprisonment or any other cause, provided wife’s conduct had not been such as to disentitle her from maintenance 1. Similarly, where wife is living separate from her husband for a period of two years on account of husband’s failure to pay her prompt dower and husband has also not provided her maintenance during this period, or a wife who is living separate from her husband on account of his taking a second wife and to whom maintenance has been provided by the husband, is entitled to a decree of divorce.
It has been held that maintenance includes all those things which are necessary for the support of life, such as food, clothes and lodgings. The provisions of maintenance should be in consonance with the status of the husband and sufficient to meet the reasonable wants of life 2. Half-hearted and illusionary attempts to provide maintenance will not do.
