- 21-Dec-2024
- Family Law Guides
In divorce cases, abandonment refers to a situation where one spouse deliberately leaves the other without any reasonable cause or consent, effectively ending the marital relationship. In Indian law, abandonment or desertion is a recognized ground for divorce under various personal laws, including the Hindu Marriage Act, 1955 and other applicable laws like the Special Marriage Act, 1954.
Abandonment is distinct from mere physical separation or living apart. For abandonment to be considered a ground for divorce, there are specific legal criteria that must be met.
Under Indian law, abandonment is generally referred to as desertion. Desertion involves one spouse intentionally leaving the other without any intention of returning and without consent. The key elements that must be established for abandonment or desertion to be considered a valid ground for divorce are:
One spouse must leave the other without their consent and without any justifiable reason. It must be shown that the deserting spouse has no intention of coming back to the marital home or resuming the marriage.
The separation must be for a continuous period of at least two years (under the Hindu Marriage Act). This period is crucial to establish the breakdown of the marriage and the abandonment of one party by the other.
Example: If a husband leaves his wife and stays away for more than two years without communicating his intention to return, the wife may file for divorce on the ground of desertion.
The spouse who leaves must demonstrate an intention to permanently end the marriage. This intention can be inferred from their conduct, behavior, and the circumstances surrounding the separation.
Example: A spouse who abandons their partner and begins cohabiting with someone else or consistently refuses to return despite repeated attempts at reconciliation may be seen as having abandoned the marriage.
The spouse who leaves must do so without a valid reason, such as cruelty, abuse, or some form of serious harm. If the spouse leaves due to a reasonable cause (e.g., physical or mental cruelty, threat to life), it is not considered abandonment. In such cases, the aggrieved spouse may file for divorce on grounds like cruelty or mental illness instead.
Desertion is considered willful abandonment if it is done voluntarily, and the deserting spouse refuses to return despite knowledge of the other spouse’s desire to continue the marriage.
Example: A wife who leaves her husband to live with her family and refuses to come back despite repeated efforts by the husband to persuade her, may be considered to have willfully abandoned him.
Section 13(1)(b) of the Hindu Marriage Act specifically allows a spouse to file for divorce on the grounds of desertion. The aggrieved spouse must prove that the other spouse has deserted them for a continuous period of at least two years immediately preceding the filing of the divorce petition.
Section 13(1)(b) reads:
Desertion by the respondent for a continuous period of not less than two years immediately preceding the presentation of the petition.
The Special Marriage Act also provides for divorce on the grounds of desertion under Section 27. Similar to the Hindu Marriage Act, desertion must have occurred for a continuous period of two years.
The same general principles of desertion apply here as well, including the requirement of abandonment without a reasonable cause and with the intention to permanently sever the marital relationship.
Under Muslim law, the concept of abandonment is not the same as desertion, but a spouse may file for divorce (either Talaq or Khula) under circumstances where there is neglect, lack of maintenance, or refusal to perform marital obligations. However, Muslim women can seek Khula (divorce initiated by the wife) on the grounds of neglect or abandonment if the husband does not fulfill his marital responsibilities.
Under Indian Christian Marriage Act (1872), a petition for divorce may be filed on the ground of desertion by one spouse for a period of at least two years, similar to the provisions under the Hindu Marriage Act.
A husband leaves his wife and children, moves to another city, and never returns or communicates with them for over two years. Despite the wife’s attempts to contact him and reconcile, he refuses to return and continues to live independently. In this case, the wife can file for divorce on the grounds of desertion.
A wife continuously refuses to live with her husband and stays with her family, without any justifiable reason like abuse or ill-treatment. After two years, the husband files for divorce on the grounds of desertion. If the court finds that the wife’s conduct is not justified, the husband may be granted a divorce based on abandonment.
Abandonment or desertion is a recognized legal ground for divorce under Indian law. If a spouse proves that they have been deserted for the requisite period (usually two years), they can seek a divorce.
In cases of abandonment, the need for reconciliation or attempts to reunite may be minimized, as the marriage has already broken down due to one party’s deliberate desertion.
The spouse who has been abandoned may also be entitled to alimony, maintenance, and custody of children, depending on the circumstances of the abandonment and the court’s judgment.
In divorce cases, abandonment (or desertion) refers to a situation where one spouse intentionally leaves the other, without just cause or consent, and with no intention of returning. For it to be considered a valid ground for divorce, the abandonment must have occurred for a continuous period of at least two years and must be willful. If the deserted spouse can prove this, they may file for divorce under Indian law, such as under the Hindu Marriage Act or the Special Marriage Act. The abandoned spouse may also be entitled to maintenance and custody, depending on the circumstances.
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