“Desertion is a ground for divorce”

“Desertion is a ground for divorce”

The Madras High Court had an occasion to discuss the five essential factors which must be established under Sec.13(1)(i-b) of the Hindu Marriage Act 1955 to succeed in the petition for divorce on the ground of desertion are as follows:-

(1) The spouses must have parted or terminated all joint life;
(2) The deserting spouse must have an intention to desert the other spouse;
(3) The deserted spouse must not have agreed to the separation;
(4) The desertion must have been without cause;
(5) This state of affairs must be continued for at least two years immediately preceding the presentation of the petition.

(see 1997 (III) CTC 718)

In T.Rangaswami v. T.Aravindammal, AIR 1957 Mad 243, while dealing with the scope of the said section, Ramasamy, J., has held as follows:-

“In certain circumstances the deserting spouse may not be the person who actually leaves the matrimonial home. The actual parting may be due to the deserted spouse making continued joint life impossible and thus compelling the deserted spouse to leave the matrimonial home. In such cases the actual abandoning of the matrimonial home is not the act of the person against whom all allegation of desertion is made, but the act of the person making the allegation. The test by which the offence is judged is not the abandoning of the matrimonial home, but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequence of such actions. If it is a natural consequence of the behavior of one spouse that the other will leave the matrimonial home, the offending spouse must be presumed to have intended that this should happen. Cases in which the parting of the spouses has arisen in these circumstances are sometimes called “constructive” desertions.

The desertion may be terminated in the following ways:

(1) By resumption of cohabitation between the spouses;
(2) By the desertion becoming a separation of the spouses by agreement;
(3) By the deserted spouse refusing a genuine offer made by the deserting spouse to resume cohabitation;
(4) By the deserting spouse becoming insane.”