Desertion as ground of divorce in Hindi .
Channel: Gareeb-Akbar
Date: 2022-11-10

Desertion as ground of divorce in Hindi .

Desertion as a ground of divorce is given under Section 13(1)(ib) of Hindu Marriage Act, 1955. According to this section the decree of divorce can be granted if one party has deserted the other party for a continuous period of not less than two years immediately preceding the presentation of the petition. According to Explanation ‘desertion’ means the desertion of petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of the party.

Desertion means withdrawing from matrimonial obligations. It is a negation of living together which is essence of any matrimonial relationship. It is total repudiation of marital obligations. Following are the essential requirements of desertion – 

1.     Factum of separation of one spouse from other.

2.     Animus deserendi, i.e., intention to desert permanently.

3.     The deserted spouse must not have agreed to the desertion.

4.     The desertion must be without reasonable cause.

5.     This state of affairs must have continued for at least two years.

To obtain divorce on this ground, it must be shown that the other party has deserted the petitioner for continuous period of not less than two years immediately preceding the presentation of petition without reasonable excuse or against the wish of petitioner. However, before granting the decree of divorce on this ground, the court must be fully satisfied that the respondent had animus deserendi i.e. intention to desert and for that purpose the circumstances and the purpose for which desertion has taken place shall be examined. In case of genuine cause, the animus deserendi would 
  

Section 108 of indian evidence act ,1872

Section 108 states that if a man is not heard of for seven years, the burden of proving that he is alive is shifted to the person who affirms it. Two questions arise, one is as to the position at the end of the period of seven years and the other is about the burden of proof within the period of seven years.

Having regard to the case law in England and in India and problems regarding succession and re-marriage, in regard to both these situations it is recommended to modify section 108 to say, so far as the first situation is concerned that at the end of seven years, a presumption arises that the person is not alive and the burden shifts then to the party who claims he is alive after expiry of seven years to prove it failing which, it will be presumed that the person died at the expiry of seven years.