Desertion

Desertion as a ground for divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955 requires that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the divorce petition. The two years of continuous desertion must be established as a ground by the petitioner at the time of filing — not from any future date.

The essential elements of matrimonial desertion as established by the Supreme Court: (1) The factum of separation — the deserting spouse is physically separated from the matrimonial home; (2) Animus deserendi (intention to desert) — the deserting spouse intends to permanently abandon the petitioner and repudiate all matrimonial obligations; (3) Without reasonable cause — the desertion must be without any lawful or reasonable justification; (4) Without the consent of the other spouse — if the petitioner consented to the separation, there is no desertion; and (5) Continuous period of 2 years — the desertion must be unbroken for at least 2 years immediately before the petition. If the parties reconcile and then separate again, the 2-year period restarts.

Constructive desertion is a particularly important concept. Where a husband harasses his wife or treats her so badly that she is forced to leave the matrimonial home, the husband is held to be in constructive desertion even though he is physically residing in the matrimonial home. The wife who leaves under such circumstances is not the deserting party — the husband who drove her away is the constructive deserter. This prevents a spouse from using their own wrongful conduct to create the legal condition of 'desertion' by the other spouse.

Resumption of cohabitation during the 2-year period breaks the continuity of desertion. If the parties lived together even briefly during the 2-year period, the clock resets — the 2 years must run continuously from the last resumption. This means an attempt at reconciliation that fails, followed by separation again, requires a fresh 2-year period before a desertion-based divorce petition can be filed.

For advocates, establishing desertion requires: (1) evidence of the respondent's departure — leaving the matrimonial home; (2) evidence of animus deserendi — refusal to return, ignored correspondence, changed address; (3) evidence of the petitioner's genuine desire to resume cohabitation — letters requesting return; and (4) meeting the 2-year threshold from the date of filing back — the petition must be filed at least 2 years after the desertion began.