Can I get divorce on grounds of desertion in India?

Yes, desertion is a valid ground for divorce under Indian law, specifically under Section 13(1)(b) of the Hindu Marriage Act, 1955. Desertion refers to the act of one spouse abandoning the other without a reasonable cause and without consent, which makes it impossible for the couple to continue their marital relationship. The spouse who has been deserted may seek a divorce if they can prove that desertion has occurred for a specified period of time as required by law.

What is Desertion?

Desertion is defined as the voluntary abandonment of one spouse by the other without the consent of the deserted spouse and without a valid reason. It is not just about physical separation but also involves the intention to permanently abandon the spouse and the marital relationship.

In legal terms, desertion has two key components:

• Actual Separation: There must be a physical separation between the spouses. One spouse must leave the marital home and live apart from the other.
• Intention to Desert: The spouse who leaves must do so with the intention of permanently ending the relationship or without the intention to return.

Grounds for Desertion Under the Hindu Marriage Act

Under Section 13(1)(b) of the Hindu Marriage Act, 1955, desertion is a recognized ground for divorce. The section allows for divorce when:

• One spouse has deserted the other for a continuous period of at least 2 years immediately preceding the petition for divorce.
• The desertion must be without reasonable cause, and the spouse who deserts must not have been forced to leave due to the behavior or actions of the other spouse.
• The deserting spouse must have the intention to permanently leave the marriage without any reasonable hope or effort to reconcile.

Elements of Desertion Under Indian Law

To establish desertion as a ground for divorce, certain elements must be proven in court:

• Separation: There must be actual physical separation. The deserting spouse must leave the matrimonial home and live in a different place. Temporary separations, such as during marital disputes or while the couple is staying in different cities for work or family reasons, do not qualify as desertion.
• Intent to Abandon: The spouse leaving the matrimonial home must do so with the intention of permanently abandoning the other spouse and the marriage. The court considers the conduct of the deserting spouse. If they express intentions of returning or attempting to reconcile, it may not be considered desertion.
• Continuous Period of Desertion: Desertion is typically considered valid when it has lasted for a continuous period of at least two years immediately preceding the filing of the divorce petition. The law mandates that desertion must be prolonged for this minimum period to show that the marriage has broken down beyond repair.
• No Reasonable Cause: The desertion must be without reasonable cause. If the deserted spouse forced the other spouse to leave by committing acts like cruelty, adultery, or other forms of misconduct, then the desertion may not be valid for divorce. The deserting spouse must leave without justification.

Desertion and Mental Cruelty

In many cases, desertion is accompanied by mental cruelty. A spouse may desert the other due to emotional neglect, verbal abuse, or psychological harm, which can cause mental distress to the deserted spouse. If mental cruelty is proven, it can strengthen the claim of desertion and make it easier for the deserted spouse to seek divorce.

For example:

• If a husband abandons his wife for more than two years without any valid reason and without any effort to reconcile, the wife can file for divorce under Section 13(1)(b) for desertion.
• If the wife was abandoned due to mental cruelty or constant abuse by the husband, this may be an additional factor that the court considers while granting the divorce.

How to Prove Desertion in Court?

Proving desertion can be difficult, as it involves establishing the intent and reasons for abandonment. Here are some ways to establish desertion:

• Evidence of Separation: The petitioner (the deserted spouse) must provide evidence that they have lived apart from their spouse for a continuous period of two years or more. This could include:
  • Documentary proof of the spouse living elsewhere (rental agreements, utility bills, etc.).
  • Witness testimony from friends, family, or neighbors who can testify to the fact that the spouse has been living separately.
• Lack of Reconciliation Efforts: If the deserting spouse has made no attempt to reconcile or return to the marital home, it can be seen as evidence of the intent to permanently abandon the marriage. The court may consider:
  • Communication: Letters, messages, or phone calls showing the deserting spouse’s unwillingness to return or resolve the issue.
  • Attempts at Reconciliation: Evidence that the deserted spouse tried to reconcile or bring the other spouse back but was unsuccessful.
• No Justifiable Cause for Separation: The deserted spouse must show that the separation was without reasonable cause. If the deserted spouse is guilty of misconduct, such as cruelty or adultery, then the desertion may be excused or justified. Evidence to support this could include:
  • Testimony of the deserting spouse explaining the reasons for leaving.
  • Witnesses who can speak to the behavior that led to the separation.

Court's Consideration for Divorce Based on Desertion

In a contested divorce, where one spouse contests the desertion claim, the court will carefully consider the following:

• Duration of Separation: The court will look at whether the separation has lasted for the legally required period of at least two years.
• Efforts to Reconcile: The court will evaluate whether the deserting spouse made any efforts to return or resolve the marital issues.
• Reason for Desertion: The court will investigate whether there were reasonable grounds for the desertion, such as cruelty, abuse, or infidelity by the other spouse.

If desertion is established, the court may grant a divorce based on the ground of desertion.

Example of Desertion as a Ground for Divorce

Example 1: Abandonment Without Effort to Reconcile

Ananya files for divorce after her husband, Ravi, abandons her and their children. Ravi leaves their home, moves to another city, and does not attempt to return or make contact with Ananya. Ananya tries to reconcile, but Ravi refuses to engage in any discussions about their marriage. After two years of separation, Ananya files for divorce under Section 13(1)(b), citing desertion. She provides witness testimonies from neighbors and evidence of efforts to contact Ravi, which the court accepts as proof of desertion.

Court Process:

• The court grants the divorce based on desertion, as Ravi had no justifiable cause for leaving and had shown no interest in returning or reconciling.

Example 2: Desertion Due to Cruelty

Radhika files for divorce citing desertion after her husband, Shyam, leaves their home. Radhika claims Shyam left due to her verbal abuse and mental cruelty. Shyam had previously shown signs of mental distress due to Radhika’s behavior. The court evaluates evidence of psychological abuse and concludes that Shyam’s desertion was justified and may have been caused by Radhika’s misconduct.

Court Process:

• The court rules in favor of Radhika, granting her divorce due to the desertion resulting from her own actions, reinforcing that mental cruelty can justify desertion.

Conclusion

Yes, desertion is a valid ground for divorce in India under Section 13(1)(b) of the Hindu Marriage Act, 1955, provided that the spouse seeking divorce can prove that the other spouse abandoned them for a continuous period of at least two years and with no reasonable cause. The deserted spouse must also show that the separation was permanent and that no efforts for reconciliation were made by the deserting spouse. Proving desertion requires clear evidence of separation, intent, and the lack of justification for the abandonment.