How is desertion proved as a ground for divorce?

Question

My spouse left the matrimonial home three years ago without any reason and has not returned. Can I file for divorce on the ground of desertion? Before I spend money on it, I want to know whether Hindu Marriage Act 1955, Section 13(1)(ib) gives me a remedy here and what proof I would need. Any Section numbers I can quote when I write to them would be useful.

MyVakeel Legal Desk · Accepted Answer

Hindu Marriage Act 1955, Section 13(1)(ib), Hindu Marriage Act 1955, Section 10 and Indian Evidence Act 1872, Section 101 is what decides this question in India. Read it alongside the provisions named, because the relief available to you turns on the facts you can prove on paper.

Section 13(1)(ib) permits divorce where the respondent has deserted the petitioner for a continuous period of not less than two years immediately before the petition is filed.

Desertion in law means both the factum of separation and the intention to permanently end cohabitation, known as animus deserendi, and mere physical separation without this intention is not desertion.

The deserted spouse must show they did not consent to the separation and did not, by their own conduct, give reasonable cause for the other spouse to leave.

Constructive desertion can also be claimed where one spouse's conduct forces the other to leave the matrimonial home, even though the leaving spouse is technically the one who moved out.

The two-year period is calculated up to the date of filing the petition, and any resumption of cohabitation during this period interrupts and resets the calculation.

What this means for you: 1) Maintain evidence of the date of separation and any communication attempts made since then; 2) Send a legal notice calling upon the spouse to resume cohabitation to strengthen the desertion claim; 3) Wait for completion of the two-year statutory period before filing unless another ground also applies; 4) Gather witness testimony from family or neighbours confirming the continuous separation.

Where the facts are disputed, what usually decides a desertion divorce ground matter is the paper trail — dated complaints, acknowledgments and written replies under Hindu Marriage Act 1955, Section 13(1)(ib). You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in family law.