divorce on the ground of desertion

693 votes

Desertion is. a valid ground for obtaining divorce against your spouse. For obtaining divorce on the basis of desertion, you will have to prove with adequate evidence, the period of desertion and where your spouse is living.

Advocate Nitin Chopra LawRato

624 votes

Dear, If your hasband has deserrtion to you, you can apply for divorce. But for that need to understand about your current locations, about your earlier background that is there in legal case with your name or you have done the same before at your husband.

Advocate Vikas Singh LawRato

906 votes

Dear sir, If u are living seperately for one year without making any relation with your wife then u can file a case of divorce ,but it will take more time if your wife does not want to give u divoce.but if your ife also take divorce,then under section 13 it will facilitate yiu ti take divorce mor easily.

Advocate Ashok Kumar Sinha LawRato

633 votes

"Desertion is not the withdrawal from a place, but from a state of things.” Halsbury’s Laws of India defines desertion as a ‘total repudiation of the obligation of marriage’. The word desert literally means ‘to abandon or give up or forsake without any sufficient reason or intention to return’. In a marriage, if one spouse leaves the matrimonial alliance without any sufficient cause he is said to be at ‘fault’. Marriage is considered a sacrament and preserved as a social institution. In olden times, it was believed that this special contract could be put to an end only when one of the spouses was guilty of an act which undermined the importance of this institution. This was the foundation of the fault based theory of marriage. In a bid to preserve this holy union, the society reprimands the guilty spouse and provides no remedy of divorce for him, thereby restricting the right to file for divorce to the spouse with the clean hands. The ambiguity and complexities of the law have been interpreted by the judiciary which attempts to render justice to the innocent party. In spite of this attempt, there is a scope for abuse and misuse of the law by the guilt spouse. Concept and elements of desertion Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with desertion as a ground for divorce and the explanation of the same reads: “The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly”. There are mainly four basic elements which are primarily to be satisfied to constitute desertion. The first two are to be present in the deserting spouse. The fact of separation (factum deserdendi) The intention to desert ( animus deserdendi) Desertion is a state which occurs only on the co-existence of both of these elements. If either of these two ingredients is absent, the petition for divorce on desertion fails.[6]The interesting phenomenon in desertion is that either of the elements can precede the other; however, desertion will result only when both coincide and form a union. When a petition is filed, the first step is proving the fact of separation and the intention separately while the second step is to prove their union. It is fairly easy to prove the physical act of separation either from the conductor from the state of minds. The difficulty arises on proving the animus i.e. the intention for desertion. This intention is required throughout the period of desertion. The petitioner is expected to prove intention through conduct as a person’s mind cannot be read. In this process, there are two ways in which the deserting spouse has an opportunity to misuse the position of law: There exist cases where the separation was consensual (like when the husband is on a voyage) with no animus to desert. While separated, one of the spouses may develop the intention to bring an end to the cohabitation permanently on the expiry of the consensual period. With the separation and the consequent formation of intention, the act of desertion commences which the deserted spouse is expected to prove. The exact duration of supervening intention is difficult to prove thereby giving an edge to the deserting spouse, and the deserted spouse is in a worse off position as she had consented to something she could not object(like a husband leaving for a business trip). The quality of permanence in intention to leave the matrimonial home is one of the essential sub-elements in desertion which differentiate it from willful separation. If there is just temporary separation without the intention to leave permanently, there is no desertion. In this law, if a person decides to return just before the expiry of two years and claims to have no intention of permanent separation, the so deserted spouse will have no recourse in law Apart from these elements in the deserting spouse, there are two other elements which have to be present in the deserted spouse: Absence of consent The absence of conduct which led to the other spouse leaving the matrimony.[12] The deserted spouse filing the petition is the one who must sufficiently prove and provide evidence for his conduct showing unmistakably that the desertion was against his will.[13]Courts have held that it is not enough for the petitioner to show that he was unwilling that the respondent stays out rather he must have expressly declared his wishes to the deserting spouse or make it clear that the absence was against his wish.[14]With this burden on the deserted spouse, there arise times when illiterate, and submissive women cannot expressly convey their consent or rather lack it. This creates problems in discharging their burden of proof providing for the deserting spouse to take advantage of. If there is no proof of lack of consent, the consensual separation is not a matrimonial offence using volenti non fit injuria.[15] It is additionally important to note that for a matrimonial relief on the ground of desertion, it is necessary to show the passage of the statutory period of two years and the same must be continuous.[16] Therefore, it can be illustrated that a deserting spouse has an opportunity to take advantage of the law right from the fulfillment of basic elements of desertion. Desertion as a continuing offence The petition for divorce on the grounds of desertion can be filed only after a period of two years from the commencement of the co-existence of animus and the factum. Desertion is known as continuing offence as the element of permanence necessarily requires that the factum and animus must continue during the entire statutory period preceding the presentation.[17]If the spouse returns before the expiry of two years and then leaves again, the waiting period of two years commences all over again from the time he left again. If such period is interrupted, the broken periods may not be added together so as to establish a summed period of two years. The legislature provided this buffer period as a sort of cooling off period so that couples can rethink and reconsider their decision before ending the holy matrimony.[18] Desertion is known as an inchoate offence as it continues from the day it commences to the day it is terminated by the conduct of the deserting spouse or by the presentation of the petition.[19] It becomes a complete fault based matrimonial offence only when the deserted spouse files for divorce. Keeping the intent of the legislature in mind, providing a period of two years is also problematic in a few ways. There may be instances where the deserting spouse may return within two years on reconsideration of his decision, but the law provides for recommencement of the additional period of two years on his departure again providing him with an opportunity to abuse the leeway provided for reconciliation. The legislature overlooks the consequence on the deserted spouse who is left without any support or maintenance. The trauma of being deserted for a period just less than two years might lead to the attitude of non-acceptance of the renewal of the marriage by the deserted spouse. The legislature might have good intentions in protecting the marriages, but it seems to be working out the assumption that the deserted spouse would always want the cohabitation to resume as soon as the deserting spouse returns. This presumption by the legislature provides the deserting spouse a chance to abuse the law.

Advocate Ankit Gupta LawRato