Desertion by wife

Hari,

There are two elements which are essential so far as the deserted spouse in concerned: (1) the absence of the consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention. If one party leaves the matrimonial home with the consent of the other party, he or she is not guilty of desertion. For instance, if husband leaves his wife to her parent’s house, it is not desertion as husband’s consent is present. Again, a pregnant wife who goes to her father’s place for delivery without the consent of the husband cannot be treated in desertion.[7] Desertion is a matter of inference to be drawn from the facts and circumstances of each case.[8] The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that both should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time.. However it is not necessary that the intention must precede the factum. For instance, a husband goes abroad for studies, initially he is contact with wife but slowly he ceases that contact. He develops attachment with another woman and decides not to return. From this time onwards both factum and animus co-exist and he becomes a deserter. A mere separation without necessary animus does not constitute desertion.[9] Both factum of physical separation and animus deserendi must be proved.[10] It is also necessary that there must be a determination to an end to marital relation and cohabitation. There is nothing like mutual desertion under the Act. One party has to be guilty.

Thank you Adv. B. Srikiran Ji,

Is the desertion by spouse termed as an offence as mentioned in point #8 ?

Pl. clarify.

Desertion is not a criminal offence per se but it is considered as one of the essential grounds for a spouse to seek divorce. The spouse cannot be subjected to criminal prosecution for desertion. Here in Point#8, the offence should be taken as an Act (Act of spouse) only. 

Bere yaarnaara nodko.  If she agrees for MCD, get it by paying lumpsum cash as permanent alimony.  If she doesnt, no use roaming to court.  Find someone else and go for live in.  Peace of mind more important than staying married.  Think.  Time and tide wait for none.  All the best.