What is Desertion?
Desertion is a recognised ground for divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955 and corresponding provisions in other personal laws. Desertion means the intentional and permanent abandonment of one spouse by the other without reasonable cause and without the consent of the deserted spouse. The period of desertion must be at least two years continuously before filing the divorce petition.
Essential Elements of Desertion
For desertion to be a valid ground for divorce, four elements must be proved: the fact of separation (living apart); animus deserendi (intention to permanently desert); absence of consent from the deserted spouse; and absence of reasonable cause for the desertion. The desertion must be continuous for at least two years immediately preceding the filing of the petition.
Constructive Desertion
Constructive desertion occurs when one spouse behaves in such a way that the other is forced to leave the matrimonial home. For example, if a husband treats his wife with such cruelty that she has no choice but to leave, the husband is considered to have deserted the wife, even though she physically left. This is called constructive desertion.
Proof Required
Evidence of desertion includes: proof of separate residence, communication showing intention to desert, witness testimony, financial independence, and lack of attempts at reconciliation. The petitioner must show that they did not consent to the separation and that they made efforts to resume cohabitation, but the respondent refused.
Defence to Desertion Allegations
Common defences include: there was reasonable cause for leaving (such as the petitioner's own cruelty), the separation was by mutual consent, the respondent was willing to return but the petitioner refused, or the period of two years has not been continuous. The burden is on the petitioner to prove all elements of desertion.
Tips for Filing or Defending
If you are filing on desertion grounds, maintain documentary evidence of the separation period and attempts at reconciliation. If you are defending against desertion allegations, gather evidence showing reasonable cause or lack of intention to desert permanently. Family counselling and mediation may help resolve the situation without litigation.
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