Desertion is the permanent abandonment of one spouse by the other without the deserted spouse's consent and without reasonable cause, coupled with the intention to end cohabitation permanently. Under Indian law, desertion for a continuous period of not less than two years is a ground for divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955.
Legal definition
The Hindu Marriage Act, 1955 provides an explanation of desertion within Section 13(1)(ib):
[The other party] has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
The Explanation to Section 13 further clarifies:
The expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage.
This statutory definition establishes four essential elements: (1) factum of separation — the deserting spouse must have physically separated; (2) animus deserendi — the deserting spouse must intend to permanently end cohabitation; (3) absence of consent — the separation must be against the wish of the deserted spouse; and (4) absence of reasonable cause — the deserting spouse must have no justifiable reason for leaving.
The Special Marriage Act, 1954 provides a similar ground under Section 27(1)(b), also requiring a two-year continuous period.
How courts have interpreted this term
Bipinchandra Jaisinghbhai Shah v. Prabhavati [(1957) 1 SCR 838]
In this foundational judgment, the Supreme Court laid down the essential ingredients of desertion. The Court held that desertion is not the withdrawal from a place but the withdrawal from a state of things — it requires both the factum of separation and the animus deserendi (intention to permanently end the matrimonial relationship). The Court further introduced the concept of "constructive desertion," holding that the spouse who remains in the matrimonial home may be the one guilty of desertion if their conduct effectively drives the other spouse away.
Lachman Utamchand Kirpalani v. Meena [(1964) 4 SCR 331]
The Supreme Court clarified that desertion is a continuous offence. The intention to desert must persist throughout the entire statutory period of two years. If the deserting spouse makes a genuine offer to resume cohabitation during this period, the period of desertion is interrupted and a fresh period must commence.
Debananda Tamuli v. Kakumoni [(2022) PLR Online]
The Supreme Court held that a brief visit to the matrimonial home does not establish an intention to resume cohabitation. The Court drew an inference of animus deserendi from the wife's prolonged absence, observing that the respondent had not pleaded or established any reasonable cause for remaining away from the matrimonial home for over two years.
Types of desertion
Indian courts recognise two forms of desertion:
- Actual desertion: One spouse physically leaves the matrimonial home with the intention of permanently ending cohabitation. The departing spouse bears the burden of proving reasonable cause for leaving.
- Constructive desertion: The spouse who remains in the matrimonial home is guilty of desertion because their conduct — such as persistent cruelty, neglect, or unreasonable behaviour — effectively compels the other spouse to leave. In such cases, the spouse who physically departs is treated as the deserted party, not the deserter.
Why this matters
Desertion is one of the most commonly pleaded grounds for divorce in India, though it is often difficult to prove because of the dual requirement of establishing both physical separation and the mental element of intention to desert. Unlike cruelty, where patterns of conduct may be shown through witnesses and documents, desertion requires proof that the separation was intentional and not merely circumstantial.
The two-year continuous period is a strict requirement. If the deserting spouse returns, even briefly, with a genuine intention to resume cohabitation, the clock resets. Practitioners must carefully establish the timeline of separation and demonstrate that no genuine reconciliation attempts were made by the deserting party during the statutory period.
The concept of constructive desertion is particularly important in Indian practice, where one spouse may engage in behaviour so unreasonable that the other is compelled to leave the matrimonial home. In such cases, it is the spouse whose conduct caused the departure — not the spouse who physically left — who is guilty of desertion. This principle protects victims of domestic cruelty who leave the home to escape intolerable conditions.
Related terms
Broader concepts:
Sibling grounds for divorce:
Related remedies:
Frequently asked questions
How long must a spouse be absent before it qualifies as desertion?
Under Section 13(1)(ib) of the Hindu Marriage Act, the deserting spouse must have been absent for a continuous period of at least two years immediately before the filing of the divorce petition. The two-year period must be unbroken — any genuine resumption of cohabitation interrupts the period.
Can a wife claim desertion if the husband refuses to leave the house but neglects her?
Yes. The statutory definition of desertion expressly includes "wilful neglect" of the petitioner. This means that a spouse who physically remains in the home but completely withdraws from the matrimonial relationship — refusing communication, companionship, or conjugal rights — may be guilty of desertion even without physical separation.
What is the difference between desertion and separation by mutual consent?
Desertion requires the absence of consent by the deserted spouse. If both parties agree to live separately, there is no desertion because the element of abandonment against the other's wishes is missing. However, if mutual consent initially exists but one party later wishes to resume cohabitation and the other refuses, the refusal may convert the separation into desertion from that point.
Can desertion be a ground for judicial separation instead of divorce?
Yes. Section 10 of the Hindu Marriage Act allows a petition for judicial separation on the same grounds as divorce under Section 13. A spouse may seek judicial separation on the ground of desertion without dissolving the marriage entirely.
This entry is part of the Veritect Indian Legal Glossary, a comprehensive reference of Indian legal terminology grounded in statutory text and judicial interpretation.
Last updated: 2026-03-27. Veritect provides this content for informational purposes and does not constitute legal advice.