We all know about a movie where the wife or the husband returns back home from work and finds a note where the partner has written about why she’s leaving. This is way too filmy but this happens in real life as well. In real life, we call it Desertion.
There are times when your partner deserts you intentionally without any reason, without informing you. They might not have any intention to return as well. In such cases, you need to seek for legal help.
Obviously you cannot spend your entire life waiting for someone. It is not right & justified as well. Hence, if your partner deserts you without any prior warning or information & has no intention to come back, the Indian Law System has put desertion as a ground for claiming divorce.
Divorce by desertion is one of the ground in which the aggrieved has to prove desertion in court of law. Layman might think that all they need to prove is that they are living separately for 2 years or more but this is not it.
The Indian Courts require 4 things to be established by the person who wishes to seek divorce on desertion ground.
1) Animus Deserendi –
This means the intention to desert. If a husband or wife decides to leave the martial co-habitation as they do not want to continue with martial obligations or may be called husband/wife under the eyes of the society this means they have developed “Animus Deserendi”, once this intention is formed this fulfills one criteria for proving desertion.
Now this intention can be from both sides or may be a “Constructive Animus Deserendi”, In this, when one of the spouse asks the other spouse to leave the house or leave him/her, that is called “Constructive Animus Deserendi”.
Other form is that a spouse can leave the other spouse with his/her own will that is known as Willful Desertion.
In both the situations, the affected spouse i.e the spouse which was made to leave in the case of “Constructive Animus Deserendi” or the spouse which was left alone can pursue the proceedings for divorce if other requirements are satisfied.
2) SEPERATION –
Animus deserendi is followed by the actual separation. The separation has to be physical. Merely just telling your spouse that you are leaving him is not sufficient if it is not followed by some action. If you just leave without sharing the intention, it is also not sufficient. Both intention to leave & actual action of leaving should be there to prove desertion.
3) No reasonable just cause to leave-
There should not be any valid just cause available to the spouse who is leaving the matrimonial ties. Generally if spouse files a desertion case on the other spouse, he/she defends herself by the grounds of cruelty to defend the proceedings. If the defending spouse fails to prove any valid reason, we consider this aspect proved.
4) Without the consent-
If the deserting spouse does not consent such desertion, this point is also proved. The court says, that if one spouse has deserted, the other spouse should make efforts to make him come back. It should not be the case that the aggrieved remains mute while the defendant is gone. Connections with the parents are very important for reconciliation. Firstly, the couple should try to reconcile themselves & if not then they should involve relatives. With this the court will feel satisfied that the spouse never consented for such desertion.
By proving all the above mentioned points, the court will then finally file the case of desertion & grant divorce to the aggrieved for that under IPC Section 13(1).
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