Abandoned or Deserted by your Husband or Wife? Here is all that you need to know about the desertion clause under Indian Law. Let’s talk about your rights, resources, and future.
What is desertion?
The Hindu Marriage ACT 1955 talks about desertion in Section 13(1) (ib) with the following words. “The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly”.
A common myth about abandonment or desertion in India is that it is limited to proving that you have been living separately from your partner for a period of two years. It takes more than just a prolonged time period of non-cohabitation for the Indian courts to grant you a divorce. Broadly speaking, the Indian Judicial system requires the petitioners (the spouse seeking the divorce) to prove/establish 4 distinct grounds.
1 # Intention to Desert
Referred to “Animus Deserendi” in legal speak — simply put, if either the husband/wife has either spoken of or put into action their plans to stop cohabitating with the spouse with a view to no longer continue the marital obligation, it means that they have displayed the intention to desert the marriage. Furthermore, this also includes your spouse leaving or asking/forcing you to leave your marital home. These actions constitute conditions for wilful desertion. Being able to provide evidence of this communication will fulfill the first criteria of divorce as a result of desertion.
Just having evidence of “Animus Deserendi” — your wife/husband saying that “I will leave you” or “I want you to leave our marital home” isn’t enough. It needs to be followed by the two of you being physically separated for an extended period of time. Simply put, the displayed intention needs to be followed by action to satisfy this criterion. One important aspect to keep in mind is that this condition is satisfied whether action follows intention or intention follows action — however physical separation should be for a minimum period of two continuous years.
3# No Just Cause
The petitioner should be able to demonstrate that there is no reasonable just cause that made it unviable for their husband/wife to continue cohabiting with them. This one is where a lot of the disputes in divorce proceedings usually crop up; spouses usually allege cruelty with the help of medical examinations and/or witnesses. Do keep in mind that the burden of proving the allegations of cruelty rests on the shoulders of the defending spouse, however, if they fail to convince the judge then this clause stands fulfilled.
4# Non-Consensual Separation
The final clause that needs to be proved is that your separation from your husband/wife was done without your consent. An additional component to prove this aspect of non-consented separation is that you must be able to prove that you have made real and continuous efforts to try and bring back your spouse; without success. If you, the petitioner have made zero efforts towards reconciliation either by contacting your husband/wife or being in touch with their family (mainly parents) it will be difficult to prove that the separation was done without your consent.
Petitioners usually have no trouble in establishing criteria 1 & 2, No just cause and, non-consensual separation are harder to prove – as the law stands right now, living separately doesn’t automatically translate into desertion in the eyes of the court. If you or someone you know is in this situation, do not hesitate to get help and get yourself out of danger. getmeadivorce.com is staffed by expert lawyers and counselors who can help you navigate your way to a safer future. Talk to us today, remember you don’t have to suffer — there are options available for you to start a new chapter in life.