- 21-Dec-2024
- Family Law Guides
In the context of marriage, desertion refers to the voluntary abandonment of one spouse by the other without any reasonable cause, and without the consent of the deserted spouse. This abandonment can either be physical (leaving the marital home) or emotional (withdrawing from the relationship or marital obligations). Desertion is one of the grounds for seeking divorce or judicial separation under Indian family law.
Under Indian law, desertion is defined as the voluntary forsaking or abandonment of one spouse by the other without reasonable cause or justification, with the intention of permanently ending the marital relationship. The key elements of desertion are as follows:
One spouse leaves the other without any valid reason or agreement, usually without providing for the deserted spouse's well-being or consent.
This occurs when one spouse withdraws emotional and psychological support from the other, leading to a lack of communication, affection, and marital cooperation. Mental desertion is often difficult to prove but is considered in the legal definition of desertion.
The desertion must be intentional and with the purpose of permanent separation. Temporary separations due to work or other external factors are not considered desertion.
For desertion to be a valid ground for divorce under Indian law, the spouse must have deserted the other for a continuous period of at least two years (under the Hindu Marriage Act, 1955). However, the period may vary depending on the applicable law.
Section 13(1)(b) of the Hindu Marriage Act defines desertion as a ground for divorce. A spouse can seek divorce if the other spouse has deserted them for a continuous period of at least two years immediately before the presentation of the petition. The deserting spouse must not have been willing to resume marital cohabitation and must not have had a reasonable cause for the separation (e.g., cruelty or mutual consent for separation).
Section 27(1)(d) of the Special Marriage Act also lists desertion as a ground for divorce. The definition is similar to that under the Hindu Marriage Act, and a petition for divorce can be filed after two years of continuous desertion.
Section 10 of the Indian Divorce Act allows for divorce based on desertion, but the period required for desertion to be a valid ground is two years.
Desertion is recognized as a ground for Talaq (divorce) under Muslim personal law, but it is generally framed differently and may involve other aspects of cruelty or neglect.
Desertion can have significant legal consequences for both spouses, particularly in divorce proceedings:
Desertion is a valid ground for divorce under Indian law if proven. If a spouse has been deserted for more than two years, the deserted spouse can file for divorce on the grounds of desertion.
The deserted spouse may be entitled to maintenance or alimony under certain circumstances, especially if the deserting spouse has caused financial or emotional hardship. If the deserting spouse is the husband, the wife may claim maintenance under the Hindu Adoption and Maintenance Act (HAMA) or other personal laws. Similarly, if the wife deserts the husband, the husband may have grounds for maintenance and divorce.
In cases of desertion, the court will also consider the custody of children. If the deserted spouse has been the primary caregiver and the deserting spouse has abandoned the family, the court may grant custody to the deserted spouse.
The deserting spouse can argue that their departure was due to one of the following valid reasons:
If the deserting spouse was subjected to physical or mental cruelty by the other spouse.
If the deserting spouse was forced to leave due to the other spouse's wrongful behavior (e.g., abuse or neglect).
If the spouse left the marital home with the other spouse's consent or mutual agreement for separation.
Sometimes, a spouse may not physically leave the home but may engage in behavior that forces the other spouse to leave, such as inflicting cruelty or causing emotional distress. This is referred to as constructive desertion, and it can also be grounds for divorce.
A husband leaves his wife and children for over three years without providing any financial support or making any attempt to return. The wife, after two years of desertion, can file for divorce on the grounds of desertion under the Hindu Marriage Act.
A wife who suffers from constant emotional abuse and cruelty decides to leave her husband. She may be able to prove that her departure was constructive desertion, and she can seek divorce as well as maintenance.
Desertion is a serious ground for divorce under Indian law, involving the voluntary abandonment of one spouse by the other, either physically or emotionally, without a valid reason or the consent of the deserted spouse. It must be continuous for at least two years and can have significant legal consequences, including the right to seek divorce, alimony, and custody of children. Proving desertion requires clear evidence that the abandonment was intentional and without justification, and it may be contested by the deserting spouse based on reasons such as cruelty or mutual separation.
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