The element of justification has the same effect as proof of consent to the separation insofar as abandonment is concerned. It causes the desertion not to be desertion, and, in those states which accept the doctrine of constructive desertion, it labels as desertion the conduct which justifies the departure. For example, when a husband by his cruelty forces his wife to leave their home, she is not a deserter, but he is a constructive deserter. The husband is barred from suing for divorce on the ground of her abandonment. In such cases, the wife who locks out the husband, or the husband whose abuse drives the wife from the home, is the deserter rather than the spouse who is absent from the home.
Legend has it that the doctrine originally arose during the housing shortage.
For a time, however, there was disagreement as to whether or not cessation of sexual relations could constitute constructive abandonment. Her refusal was deemed to constitute abandonment. Other New York cases have held that a denial of marital relations may constitute an abandonment, although not where both parties have agreed not to have marital relations. It seems clear to us that under the circumstances it can be said that plaintiff consented to a sexless relationship. This court will not sanction plaintiff's unilateral termination of a marital relationship predicated on a refusal to have sexual relations when he himself, in effect consented to such a relationship for the long period here involved.