Suppose the wife leaves her matrimonial home and lives apart, this would be desertion by her. But if she shows that there was cruelty on the part of the husband and so she had quit the matrimonial home there would be no legal desertion by her. On the contrary, it would be treated as desertion by the husband who had driven her out.
So the question of legal desertion cannot be established merely by showing who left the matrimonial home. In the case before the Supreme Court, the wife had left the matrimonial home fearing that she would be taken to task for writing a letter to an alleged lover.
There was proof that the husband was not willing to receive her back and that was the reason why she had to remain apart. So it was held that the husband could not treat the separate living of his wife as desertion on her part.
In Lachman v. Meena, AIR 1964 SC 40, there was such difference in culture and outlook between the respective families of husband’s and his wife’s that the wife left her husband’s home and lived with her father. She was not very much welcome in the husband’s home.
Still it was held by a majority of three to one that there was no reasonable justification for the wife to stay away from her husband and there was desertion on her part. The husband’s prayer for judicial separation on account of wife’s desertion for two years was granted by Bombay High Court (AIR 1960 Bom. 418) and this was confirmed by the Supreme Court.
Subbarao J. dissented as he found on the facts that the husband prevented bonafide attempts by the wife to return to the matrimonial home. He based his conclusion on the husband’s neglect to take her back and to his failure to show all times willingness to receive her back. The majority of the judges however construed this negative behavior of the husband’s family as merely normal reaction in the face of a wife who had abandoned her duty.
In Dhrubajaati v. Vila, AIR 1979 Ori. 93 the wife left the abode of the husband at the beginning of the second year of the marriage. After four years she visited her husband once during his absence but left before his arrival. The husband sued for divorce on the ground of desertion by the wife.
The District Court considered that the wife’s visit during her husband’s absence put an end to the desertion. The High Court of Orissa reserved the decision pointing out that such a sudden appearance and disappearance cannot show any intention to rejoin and so there was continuing desertion.
When the husband and wife are living separately and their child dies but though informed about it, the husband does not come to perform the religious rites, desertion on the part of the husband may be presumed. It shows “Wilful neglect” and is a good ground for divorce to the wife.
The party who first leaves the house is not necessarily the deserting spouse. It may be a case of expulsion by the husband. In such a case it is the husband that is the deserting party. Asha v. Baldev, AIR 1985 Del. 76.
It is not desertion on the part of the wife when she goes to another town to continue her job there without any intention of bringing co-habitation to an end. Umesh Kumar v. Sashikumari, AIR 1987 Del. 235. No desertion by the wife can be inferred from her going to her parents for delivery. If the husband does not visit the Nursing home after delivery and does not bring back the wife, he cannot contend that he has been deserted. Ramchander v. Adarsh, AIR 1987 Del. 99.
Whether the husband deserts or compels his wife to leave him the desertion is on the part of the husband. In the latter case it is called constructive desertion, Bhagavathi Ammal v. Sethu, AIR 1987 Mad. 224. Desertion may be proved by preponderance of probabilities. It is not necessary to establish it beyond reasonable doubt. Ratneswar Mitra v. Premalatha Devi, AIR 1986 Pat. 308.
Where the wife rejoined the husband on a decree of restitution of conjugal rights, the husband beat her and brought a servant maid and cohabited with her, the wife left the matrimonial home because of ill-treatment, she did not commit desertion Ranganayaki v. Arunagiri, AIR 1993 Mad. 174.