DESERTION AS A GROUND FOR DIVORCE

What is Desertion ?

Desertion is deliberate withdrawal from cohabitation and abandonment of one party from the other without the consent of the second party.

The Desertion can also be explained as “Desertion” of petitioner by the other party to the marriage without any reasonable cause, without consent or against the wishes of such party and includes willful neglect of petitioner by the other party to the marriage and its grammatical variation and cogent expression.  

It is also withdrawal not from the place but state of things in short desertion is a total repudiation of marital obligation.

As per the The Hindu Marriage Act 1955

Section 13 (1)(ib) Provides for Divorce for Desertion by Petitioner for a Continuous period of Not less than Two years Immediately Preceding the Presentation of the Petition.

The Special Marriage Act 1954

Section 27(I) Provides for Divorce for Desertion and it explains that desertion should be without reasonable cause and without the consent or against the wish of such party and includes willful neglect and its grammatical variations and cognate expressions shall be constructed accordingly.

The Divorce Act 1869 ( For Christians Only)

Section 10 (ix) provides for divorce for Desertion by Petitioner for at least Two Years immediately Preceding the presentation of the petition.

The Parsi Marriage and divorce Act 1936

Section 32 (g) That the defendant has deserted the plaintiff for at least Two Years.

The Muslim Dissolution of Muslim Marriage Act 1939

Desertion is not ground for Divorce but wife can sue a divorce when husband has failed to perform, without reasonable Cause, his marital Obligation for a period of Three Years.

Desertion includes following elements to make desertion.

  1. Factum of Separation
  2. Intention to Desert or Animus deserendi
  3. Without the consent of Petitioner
  4. Without any reasonable cause
  5. Statutory period of Two years

What Does Includes ?

Desertion includes Three Things are as follows.

  1.  Actual Desertion
  2.  Constructive Desertion
  3.  Willful Neglect
  1. Actual Desertion

Actual Desertion means when the spouse in the literal sense “runs away” from his or her matrimonial obligation. It will also be said that when factum of separation and animosity to desert falls on the same spouse then it is said that the actual desertion.

  • Constructive Desertion

Constructive desertion means when one spouse won’t physically leave the home, but has made life so intolerable through his or her actions for the innocent spouse that he or she made deserted the marriage already. The spouse also has to stop carrying out the mutual responsibilities of the marital relationship. Conduct that endangers a spouse’s life, safety, health, and even self-respect.

  • Willful Neglect

Willful neglect is the failure of either spouse to provide for the common necessaries of life for the other party, when that spouse has the ability to do so and the party alleging neglect does not have the ability, or when a spouse fails to provide by reason of idleness, profligacy, dissipation.

Case :

In Bipin Chandra vs. Prabhavati 1957 AIR 176, the Supreme Court explained the meaning of word “Desertion”. The Court said that only physical act of leaving the home is not to be seen rather it has to been who intends to bring the cohabitation to an end and whose conduct in reality causes termination.

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