Introduction
Starting with the simple words, desertion means abandonment. In terms of marriage, when one party deserts/abandon the other party for a continuous period exceeding two years results in desertion.
“It does not means only to withdrawal from a place, but from a state of things.”[1]
Section 13 (1) (ib) of the Hindu Marriage Act, 1955 deals with desertion as a ground of divorce.
Desertion means when one of the spouses permanently leaves the other spouse without any specific or valid reason also without the consent of the other party. This also includes the ignorance of the spouse for each other. Hence, it is not just only abandon but it is also the situation between the spouses that continues for more than two years.
Essential elements of the desertion are:
- Point of separation
- Intention to desert
- Without any reasonable cause
- Without the party’s consent
- Continues for two years.
To prove desertion, two points are the sine qua non:
- Actual Facts: Factum Deserendi
- Intention to desert: Animus Deserendi.
That means, only being separated cannot amount to desertion, intention is a must over there[2].
In Uma Wanti v. Ram Dayal[3] it was seen that even if the wife who was the deserting spouse was unable to prove just cause for her to be living away, it was the husband who was burdened with the onus to prove that the living apart of the wife was without any cause. In Rajalaxmi Ammal v. Jambulinga Mudaliar[4], desertion was defined as deliberately withdrawing from cohabitation and abandoning of one partner by the other without the consent of that other.
The denotation of a period of two months does not include the aggregate time period but it refers to the continuous desertion for two years, which started when start living apart from each other party. In the case of Nash vs. Nash, the court observed that the petition for desertion will be considered to be immature if it is filed before the time period of two years.
Types of Desertion
Actual :
It focuses on the intention of the desertion rather than any reasonable cause and the situation of the spouses. When the situation continues for two years and results in divorce.
Constructive :
When abandonment does not relate to the place but relates to the situation, this results in constructive desertion. When one party behaves in a manner that it becomes difficult for another party to live under the same roof, the party demands desertion because of the situation[5].
Situations when It may be terminated:
- A restart of marital life
- Resume cohabitation
- Showing a willingness to go to the marital house.
How a ground for divorce: Practical View
It is very clear by the elements of desertion that it can be a ground for divorce. The burden of proof lies on the petitioner, but a divorce will not be granted if respondents put forth the genuine reason for desertion before the court, also when the petitioner found guilty on his own. [divorce lawyer in gurgaon]
In Leela Devi v. Suresh Kumar[6], a divorce petition filed by the husband, in which he withdrew on receiving an assurance from the wife that she would be joining his company but she didn’t live with him even for a single day. There was then again a fresh petition filed by the husband for a divorce. In addition, the wife had left the home and also stated unwillingness to live with the husband. Her conduct of leaving the house showed an implied intention of not to live and expressing unwillingness was an explicit expression of her intention to leave. The husband was therefore granted a divorce on the ground of desertion.
Conclusion:
The present article can be concluded by saying that desertion does not only based on the abandonment from the place but also from the situation between the spouses. There are chances that the party may overcome the desertion and it may also result to divorce as well. It depends from case to case and seriousness & complexity between the spouses (parties) that how the desertion is going to turn up.
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[1] Pulford v. Pulford (1947) 1 All E.R . 32.
[2] Bhupinder Kaur v. Budhi Singh
[3] 1985 (1) HLR 569 (P&H)
[4] AIR 1956 Mad 195
[5] Jyotish Chandra Guha vs. Meera Guha (1970)
[6] AIR 1994 Raj 128
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