desertion
Desertion is a ground for divorce and judicial separation. Under s.13(1)(ib) of the Hindu Marriage Act, 1955 the petitioner must show desertion for a continuous period of at least two years immediately before the petition. The Explanation to s.13(1) includes wilful neglect of the petitioner.
In Bipin Chander Jaisinghbhai Shah the Supreme Court held that the deserting spouse must have two elements: the fact of separation and the intention to bring cohabitation permanently to an end (animus deserendi). On the deserted spouse's side there must be absence of consent and absence of conduct giving reasonable cause to leave. Desertion is a withdrawal from a state of things, not from a place, so spouses under one roof can be in desertion. A spouse driven out by the other's conduct may plead constructive desertion.
Example
Since the wife left only because of the husband's cruelty, there was no desertion by her; if anything, he was guilty of constructive desertion.
In Indian law
- Section 13(1)(ib), Hindu Marriage Act, 1955
- Bipin Chander Jaisinghbhai Shah v. Prabhawati, 1956 INSC 56
See also
Read more in the study notes
- From the IPC to the BNS: background, extent and key reforms (Bharatiya Nyaya Sanhita)
- Restitution of conjugal rights and judicial separation (Family Law I - Hindu Law)
- Divorce under the Hindu Marriage Act (Family Law I - Hindu Law)
- Maintenance, alimony and dowry prohibition (Family Law I - Hindu Law)
- Maintenance under HAMA and traditional rights (Family Law I - Hindu Law)
- The Indian Divorce Act, 1869: dissolution, nullity and judicial separation (Family Law II - Mohammedan Law)