Answer By law4u team
Under the Hindu Marriage Act, 1955 (HMA), desertion is specifically recognized as a statutory ground for divorce. To answer your question directly, a spouse must be deserted for a continuous period of at least two years immediately preceding the presentation of the divorce petition. This means the desertion must be ongoing and uninterrupted for twenty four months before you can approach the family court with a petition for dissolution of marriage on this ground. To successfully establish desertion under Indian law, simply living apart or under the same roof with a complete cessation of marital obligations is not automatically enough, though constructive desertion is recognized if one spouse makes it impossible for the other to stay. The party alleging desertion must prove two essential elements on the part of the deserted spouse. First, there must be the factum of separation, which means the physical parting of ways and the actual abandonment of the marital home and matrimonial obligations. Second, there must be the animus deserendi, which translates to the distinct intention to bring cohabitation permanently to an end. Furthermore, this separation and intention to desert must exist without any reasonable cause and without the consent or against the wishes of the spouse who has been left behind. If the deserting spouse left the home due to intolerable cruelty, domestic violence, or justifiable circumstances created by the other partner, it does not legally amount to desertion. The burden of proof lies entirely on the petitioner to establish that the desertion was willful, malicious, and persisted continuously for the statutory period of two years without any bona fide attempt by the other party to reconcile or return. The running of the two year period can be interrupted or brought to an end by certain legal and factual developments. If the deserting spouse makes a genuine, sincere, and bona fide offer to return and resume marital life within the two year period, and the deserted spouse refuses it without sufficient reason, the character of desertion can shift, or the continuity is broken. Similarly, if there is any resumption of cohabitation, or even isolated instances of marital intercourse during the two year period with the intent to reconcile, the statutory period resets because the desertion is no longer continuous. It is also important to note that desertion can sometimes be established as constructive desertion. This occurs when one spouse does not physically walk out of the matrimonial home, but through their conduct, such as extreme physical or mental cruelty, making false allegations, or completely withdrawing from all marital duties and society, forces the other spouse to leave the house out of necessity for safety or self preservation. In cases of constructive desertion, the spouse who was forced to leave is treated in law as the deserted party, and the spouse whose conduct forced the departure is deemed the deserter, provided the two year continuous period is met. Apart from the Hindu Marriage Act, 1955, other personal laws in India also recognize desertion as a ground for divorce, though the exact duration and procedural nuances can vary slightly based on the specific religion of the parties. For instance, under the Parsi Marriage and Divorce Act, 1936, desertion for a period of two years is a valid ground for divorce. Under the Dissolution of Muslim Marriages Act, 1939, a Muslim wife can seek a decree of divorce if the husband has neglected or failed to provide for her maintenance for a period of two years, or if he has been sentenced to imprisonment for seven years or more, and desertion principles apply similarly within traditional Islamic jurisprudence where a husband deserts the wife. Under the Indian Divorce Act, 1869, governing Christians, desertion for two years or more without reasonable cause can form part of the grounds for a dissolution of marriage, often paired with adultery or cruelty. When preparing to file a divorce petition on the ground of desertion, meticulous documentation and evidence are required. You must be able to prove the exact date or approximate time when the spouse left the matrimonial home or when the desertion effectively commenced. Evidence can include communication records such as emails, text messages, call logs, letters showing a refusal to return, police complaints lodged regarding the missing spouse or abandonment, society letters, statements from mutual friends or family members who witnessed the departure, and proof of separate living arrangements if applicable. It is always advisable to consult a qualified advocate practicing in family law before filing the petition to ensure that the pleadings clearly articulate both the factum of separation and the animus deserendi, and to verify that the mandatory two year period has fully elapsed without any interruption. Courts in India examine matrimonial disputes very carefully and will look for corroborative evidence to substantiate the claim of desertion, ensuring that the legal threshold set by the legislature is strictly met before granting a decree of divorce.
