Desertion As A Ground For Divorce In India

Desertion As A Ground For Divorce In India

LegalKart Editor
LegalKart Editor
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Last Updated: Jul 18, 2024

Introduction

In India, marriage is considered a sacred institution, but sometimes relationships break down irretrievably, leading to the need for legal intervention. One of the grounds for seeking a divorce in India is desertion. Desertion refers to the act where one spouse abandons the other without any reasonable cause and without their consent. This blog aims to delve into the legal aspects and implications of desertion as a ground for divorce in India.

Understanding Desertion as a Ground for Divorce

Desertion, as a ground for divorce, is defined under Section 13(1)(ib) of the Hindu Marriage Act, 1955. According to this provision, if a spouse has deserted the other for a continuous period of not less than two years immediately preceding the presentation of the petition for divorce, the aggrieved party can seek a divorce decree from the court.

Desertion, in legal terms, implies the intentional abandonment of the matrimonial obligations by one spouse towards the other without any reasonable cause. It involves not only physical departure but also the absence of intention to return and the absence of consent from the deserted spouse.

Proving Desertion in Court

To obtain a divorce on the ground of desertion, the petitioner must prove the following elements:

1. Factum of Desertion: The petitioner must establish that the other spouse has deserted him/her without reasonable cause.

2. Desertion for a Continuous Period: The desertion must have persisted for a continuous period of not less than two years immediately preceding the filing of the divorce petition.

3. Lack of Consent: It must be demonstrated that the desertion was without the consent or agreement of the deserted spouse.

4. Intention to Desert: There should be evidence to suggest that the deserting spouse had the intention to abandon the matrimonial obligations permanently.

Evidence in the form of witnesses, correspondence, or other relevant documents may be presented in court to substantiate these elements and strengthen the case for divorce on the ground of desertion.

Legal Implications of Desertion

1. Divorce Decree: If the court is satisfied with the evidence presented, it may grant a divorce decree to the petitioner, thereby dissolving the marriage between the parties.

2. Maintenance: In cases where desertion is proven, the court may also award maintenance or alimony to the deserted spouse, depending on the financial circumstances of the parties involved.

3. Child Custody: The issue of child custody may also arise in cases of desertion. The court will decide the custody arrangement based on the best interests of the child, taking into account factors such as the child's age and welfare.

4. Property Rights: Desertion may have implications on property rights, including the division of marital assets and the right to reside in the matrimonial home. The court may make appropriate orders regarding property distribution to ensure fairness and equity.

5. Right to Remarry: Upon obtaining a divorce decree on the ground of desertion, both parties are free to remarry and move on with their lives.

Challenges and Considerations

1. Burden of Proof: Proving desertion in court can be challenging, as the petitioner bears the burden of proving all the essential elements of desertion.

2. Legal Proceedings: Divorce proceedings can be lengthy and emotionally taxing, requiring the parties to navigate through complex legal procedures and court appearances.

3. Mediation and Counseling: Before resorting to litigation, parties may consider mediation or counseling to explore the possibility of reconciliation and amicable settlement of disputes.

4. Child Welfare: In cases involving children, the welfare of the children should be given paramount importance, and arrangements should be made to ensure their well-being and upbringing.

Conclusion

Desertion as a ground for divorce in India provides an option for individuals trapped in irretrievably broken marriages to seek legal redressal and move on with their lives. However, obtaining a divorce on the ground of desertion requires meeting specific legal criteria and presenting compelling evidence in court. While divorce proceedings can be challenging, they offer a way out of unhappy and untenable marital relationships, allowing individuals to seek happiness and fulfillment elsewhere. It is essential to approach divorce proceedings with sensitivity, understanding, and a focus on achieving a fair and just outcome for all parties involved.

Frequently asked questions

What is desertion in the context of divorce in India?

Desertion, in the context of divorce in India, refers to the intentional abandonment of marital obligations by one spouse towards the other without any reasonable cause and without the consent of the deserted spouse.

How is desertion defined under the Hindu Marriage Act, 1955?

Desertion is defined under Section 13(1)(ib) of the Hindu Marriage Act, 1955. According to this provision, if a spouse has deserted the other for a continuous period of not less than two years immediately preceding the presentation of the petition for divorce, the aggrieved party can seek a divorce decree from the court.

What elements need to be proven to obtain a divorce on the ground of desertion?

To obtain a divorce on the ground of desertion, the petitioner must prove the factum of desertion, desertion for a continuous period of at least two years, lack of consent from the deserted spouse, and the intention of the deserting spouse to abandon matrimonial obligations permanently.

What evidence can be presented in court to prove desertion?

Evidence in the form of witnesses, correspondence, or other relevant documents may be presented in court to substantiate the elements required to prove desertion, such as the factum of desertion, the duration of desertion, lack of consent, and intention to desert.

What are the legal implications of desertion in divorce proceedings?

The legal implications of desertion in divorce proceedings include the granting of a divorce decree, potential award of maintenance or alimony to the deserted spouse, determination of child custody arrangements, division of marital assets, and the right of both parties to remarry.

What challenges may arise in proving desertion in court?

Challenges in proving desertion in court may include the burden of proof lying on the petitioner, the emotional toll of legal proceedings, and the complexities of navigating through the legal system.

Are there alternatives to litigation for resolving marital disputes involving desertion?

Yes, alternatives to litigation such as mediation and counseling may be considered before resorting to legal proceedings. These options provide opportunities for reconciliation and amicable settlement of disputes.

How does the welfare of children factor into divorce proceedings involving desertion?

In cases involving children, the welfare of the children is given paramount importance. The court will decide child custody arrangements based on the best interests of the child, taking into account factors such as the child's age and welfare.

Can desertion impact property rights in divorce proceedings?

Yes, desertion may impact property rights, including the division of marital assets and the right to reside in the matrimonial home. The court may make appropriate orders regarding property distribution to ensure fairness and equity.

What are the implications of obtaining a divorce decree on the ground of desertion?

Obtaining a divorce decree on the ground of desertion grants both parties the freedom to remarry and move on with their lives. It signifies the legal dissolution of the marriage and allows individuals to seek happiness and fulfillment elsewhere.

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Frequently asked questions

What is desertion in the context of divorce in India?

Desertion, in the context of divorce in India, refers to the intentional abandonment of marital obligations by one spouse towards the other without any reasonable cause and without the consent of the deserted spouse.

How is desertion defined under the Hindu Marriage Act, 1955?

Desertion is defined under Section 13(1)(ib) of the Hindu Marriage Act, 1955. According to this provision, if a spouse has deserted the other for a continuous period of not less than two years immediately preceding the presentation of the petition for divorce, the aggrieved party can seek a divorce decree from the court.

What elements need to be proven to obtain a divorce on the ground of desertion?

To obtain a divorce on the ground of desertion, the petitioner must prove the factum of desertion, desertion for a continuous period of at least two years, lack of consent from the deserted spouse, and the intention of the deserting spouse to abandon matrimonial obligations permanently.

What evidence can be presented in court to prove desertion?

Evidence in the form of witnesses, correspondence, or other relevant documents may be presented in court to substantiate the elements required to prove desertion, such as the factum of desertion, the duration of desertion, lack of consent, and intention to desert.

What are the legal implications of desertion in divorce proceedings?

The legal implications of desertion in divorce proceedings include the granting of a divorce decree, potential award of maintenance or alimony to the deserted spouse, determination of child custody arrangements, division of marital assets, and the right of both parties to remarry.

What challenges may arise in proving desertion in court?

Challenges in proving desertion in court may include the burden of proof lying on the petitioner, the emotional toll of legal proceedings, and the complexities of navigating through the legal system.

Are there alternatives to litigation for resolving marital disputes involving desertion?

Yes, alternatives to litigation such as mediation and counseling may be considered before resorting to legal proceedings. These options provide opportunities for reconciliation and amicable settlement of disputes.

How does the welfare of children factor into divorce proceedings involving desertion?

In cases involving children, the welfare of the children is given paramount importance. The court will decide child custody arrangements based on the best interests of the child, taking into account factors such as the child's age and welfare.

Can desertion impact property rights in divorce proceedings?

Yes, desertion may impact property rights, including the division of marital assets and the right to reside in the matrimonial home. The court may make appropriate orders regarding property distribution to ensure fairness and equity.

What are the implications of obtaining a divorce decree on the ground of desertion?

Obtaining a divorce decree on the ground of desertion grants both parties the freedom to remarry and move on with their lives. It signifies the legal dissolution of the marriage and allows individuals to seek happiness and fulfillment elsewhere.

Online Consultations

LegalKart - Lawyers are online
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+144 Online Lawyers
Lawyers are consulting with their respective clients
+21 Online Calls
Talk To Lawyer Or Online Consultation - LegalKart