The most obvious situation which would constitute desertion is when one spouse leaves without a trace, never comes back and never again makes contact. However, there are other situations which constitute 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. 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.
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. It becomes a complete fault based matrimonial offence only when the deserted spouse files for divorce.
Desertion must be proven by a preponderance of the evidence. There are two main elements to prove to establish abandonment/desertion grounds for divorce:
- the actual breaking off of the matrimonial cohabitation (abandoning the usual marital duties, not just sexual intercourse must be established),
- the intent to desert the marriage.
The breaking off of matrimonial cohabitation means that the couple must actually have separate addresses, and not just maintain separate sleeping arrangements. Ceasing to engage in sexual intercourse, even without just cause, does not constitute desertion. But where there is a significant abandonment of marital duties, which results in practical destruction of home life, a party may be guilty of desertion.
The second element to establish abandonment/desertion is the intent to desert the marriage. The desire to separate is not necessarily synonymous with the intent to desert the marriage. Where the parties separate by “mutual consent,” neither party has established grounds for desertion. If the person deserting cannot legally justify the desertion, then proof of the actual breaking off of the matrimonial relationship with the intent to desert entitles the other spouse to a divorce.
“Constructive desertion” involves actions or conduct resulting in the other spouse’s forced separation. To prove constructive desertion, the spouse leaving the home must prove that the misconduct by the spouse remaining in the home constitutes grounds for divorce. Traditionally, this spouse must show that the remaining spouse conducted himself/herself in such a manner as to provoke the leaving.
It should be noted that excessive alcohol consumption not sufficient, standing alone, to constitute constructive desertion, nor is demanding that a spouse leave is not constructive desertion. Generally speaking, a spouse is not justified in leaving the other just because there has been a gradual breakdown in the marital relationship or because the parties are unable to live together in peace and harmony. The party claiming justification for leaving has the burden of proving it, unless the justification appears from the testimony given by the other party.
Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] it has made it clear that it is not necessary for the deserting spouse to leave the home in order to constitute desertion. If one spouse by his or her words compels the other side to leave the matrimonial home or stay away therefrom, without reasonable cause, the former would be guilty of desertion, though it is the latter who is seemingly separated from the other. The ejection of the other spouse from the home with the intention not to cohabit equally constitutes desertion. This is the principle of ‘Constructive Desertion.’
In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and reasonable cause. It is a total repudiation on the obligations of the marriage. Lachman Utamchand Kripalani v Meena AIR 1964 SC 40
Kulwinder Kaur v Harsi Singh 1997(3) Civ LJ 247 (P&H). Wife not intending to live with husband on any condition.
The wife was living separately in a room provided by the husband under compromising in the proceeding under S. 488, Cr PC (old) and the husband had another wife living with him. Separation does not amount to desertion. Bhagwanti v Sadhu Ram AIR 1961 Punj 181.
In conclusion, it can be said that desertion might be considered a fault-based ground for divorce, but there are ways that the guilty spouse can maneuver around the law and deny justice to the deserted spouse. There are two probable solutions to this problem: either to adopt a new legislation which tackles these opportunities of misuse or move towards the concept of irretrievable breakdown of marriage to provide no necessity for the deserting spouse to abuse the legal provision of desertion