Desertion As A Ground For Divorce

Marriage is widely regarded as a sacred institution that plays a crucial role in maintaining the fabric of society. Traditionally, the sanctity of marriage was thought to be so sacrosanct that it could only be dissolved in cases where one of the spouses had committed a serious offense that undermined the very foundation of this institution.

In Halsbury's Laws of India, desertion is defined as a situation where one spouse completely repudiates their obligations to the marriage. The term "desert" implies an act of abandonment, giving up, or forsaking without any valid reason or intention of returning. In cases where one partner abandons the marriage without cause, they are considered to be at fault. Desertion can be described as a deliberate and willful withdrawal from marital responsibilities. It represents a fundamental denial of the essential aspect of marriage, which is the shared life together. Desertion constitutes a complete breach of the obligations that come with a marriage partnership.

Overview of Desertion As A Ground For Divorce

Requirements for Desertion

Desertion is recognized as one of the grounds for divorce under the Hindu Marriage Act of 1955, which governs marriage and divorce among Hindus, Buddhists, Jains, and Sikhs in India. According to Section 13(1)(ib) of the Act, a marriage can be dissolved by a court of law if one spouse has deserted the other for a continuous period of not less than two years immediately preceding the presentation of the divorce petition.

To establish desertion as a ground for divorce under the Hindu Marriage Act, the following essential requirements must be met:

1. The desertion must be voluntary: The spouse alleging desertion must prove that the other spouse left the marital home voluntarily, without any justifiable reason or excuse. The deserting spouse must have intended to abandon the marriage and sever all ties with the other spouse.
2. The desertion must be without reasonable cause: Desertion must be without a reasonable cause or justification. The leaving spouse must have no valid or justifiable reason for leaving the marital home and severing ties with the other spouse.
3. The desertion must be continuous: To prove desertion, the spouse alleging it must show that the other spouse left the marital home for a continuous period of not less than two years immediately preceding the filing of the divorce petition. The period of desertion must be continuous and unbroken, and the deserting spouse must not have shown any intention of returning during this period.
4. The desertion must be deliberate and willful: The spouse alleging desertion must show that the deserting spouse deliberately and willfully left the marital home and cut off all ties with the other spouse. The desertion must be a deliberate and intentional act, not a temporary absence or a momentary lapse.
5. The desertion must be unjustified: The spouse alleging desertion must prove that the deserting spouse had no valid reason or justification for leaving the marital home and severing ties with the other spouse. The desertion must be unjustified and not a result of any provocation or misconduct on the part of the other spouse.

Termination of Desertion 

Under the Hindu Marriage Act, desertion can be terminated in two ways - by mutual consent or by resumption of cohabitation.

Firstly, desertion can be terminated by mutual consent of both spouses. If the deserting spouse expresses a desire to return to the matrimonial home and the other spouse agrees to accept them back, then desertion is considered to be terminated. The spouses can then resume cohabitation and continue with their married life.

Secondly, desertion can also be terminated by the resumption of cohabitation. If the deserting spouse returns to the matrimonial home and begins to live with the other spouse, desertion is considered to be terminated. The resumption of cohabitation must be voluntary and not forced, and the spouses must live together as husband and wife.

It is important to note that once desertion is terminated, it cannot be revived. If the deserting spouse once again deserts the other spouse, the period of desertion will not be considered to have resumed from the point at which it was terminated.

Burden Of Proof

The burden of proof under desertion as a ground for divorce under the Hindu Marriage Act lies on the spouse who is alleging desertion. The spouse who is alleging desertion must provide sufficient evidence to establish that the deserting spouse had the intention to abandon the other spouse and the matrimonial home without any reasonable cause or justification.

Conclusion

Desertion is a serious ground for divorce under the Hindu Marriage Act. It is the act of one spouse abandoning the other without reasonable cause or justification, and it must be proven by the spouse alleging desertion. The desertion must be continuous and uninterrupted for a period of at least two years preceding the filing of the divorce petition. Desertion is a complex issue that can have serious emotional, financial, and social consequences for both parties. Ultimately, if the court is satisfied that the marriage has irretrievably broken down due to desertion, it may pass a divorce decree dissolving the marriage and releasing both parties from their marital obligations.

FAQs

Q1: How long does the period of desertion need to be for it to be considered a ground for divorce?

The period of desertion must be continuous and uninterrupted for a period of at least two years preceding the filing of the divorce petition.

Q2: Can desertion be a mutual decision between both spouses?

No, desertion cannot be a mutual decision between both spouses. It must be unilateral, and one spouse must abandon the other without any reasonable cause or justification.

Q3: What are the consequences of desertion as a ground for divorce?

If the court is satisfied that the marriage has irretrievably broken down due to desertion, it may pass a divorce decree dissolving the marriage and releasing both parties from their marital obligations.

Q4: Can a spouse who has been deserted claim maintenance from the other spouse?

Yes, a spouse who has been deserted can claim maintenance from the other spouse if they’re unable to maintain themselves or is unable to support themselves due to any physical or mental disability. The amount of maintenance will depend on various factors such as the income, assets, and expenses of the parties involved.

About The Author:

Adv. Aman Verma is the Founder of Legal Corridor. He has been practicing and handling cases independently with a result-oriented approach, both professionally and ethically, and has now acquired 5 years of professional experience in providing legal consultancy and advisory services.He has been providing services in various fields of law, including, but not limited to Civil, Criminal, Arbitration, Intellectual Property Rights, Trademark, matters relating to Property Law, Copyright, inter-alia, Suits, Writs, Appeals, Revisions, Complaints relating to Debt Recovery, Dishonor of Cheques, Rent Control Act, Cheque Bounce Matters, Matrimonial disputes and drafting and vetting of various agreements, documents, will, MoU, and so on.