For the act of desertion, there must be Factum or physical separation and Animus Deserendi, which is the intention to end cohabitation permanently. Both essential elements must persist throughout the entire statutory period. Clear evidence is required to prove the intention of the spouse accused of desertion to break the matrimonial relationship. If the intention to desert is not proven, the plea of desertion, as in Kunti Gupta's case, cannot be sustained.

In Sunil Kumar Gupta v. Kunti Gupta, the wife physically left the home due to the husband's ill-treatment, but she was willing to return if conditions were safe and peaceful for her. The court held that, although there was physical desertion, there was no Animus since the wife affirmed the relationship and was prepared to return under reasonable conditions.

To constitute desertion, there must be an absence and cessation of cohabitation by one spouse without the other's consent and without reasonable cause. In several cases, the Supreme Court has held that desertion consists of four elements: two on the part of the deserting spouse—(1) factum of desertion and (2) Animus Deserendi (the intention to permanently end cohabitation); and two on the part of the deserted spouse—(3) absence of consent or wish for separation, and (4) absence of expulsive misconduct.

Divorce on the ground of desertion can be granted when it is clear from the acts and conduct of the spouse that the desertion is intended to forsake the relationship; in other words, animus deserendi must exist on the part of the deserting spouse. Mere separation is not enough if the intention to cohabit remains. Thus, when it was not proven to the court's satisfaction that the wife in the case was living separately with the intention to forsake the relationship, the court refused to grant a divorce. In matrimonial cases, the policy of law leans in favor of the continuance of marriage.

Similarly, in Pushpa Devi v. Dharam Pal, the Punjab and Haryana High Court held that merely living separately does not automatically imply desertion. The wife was living separately due to circumstances, and the husband made no efforts to resume cohabitation. He could not prove Animus Deserendi on her part, and thus the trial court's decree of divorce was set aside.

In Rajesh v. Rukmani, a decree for divorce on the ground of the wife's desertion was refused, although she had been living apart from her husband for thirty years. It was established that the husband had driven her out of the house, and she was still willing to return to him.

In another case, a wife left her husband to pursue her studies, hoping to improve her career. The atmosphere at her in-laws' house was not conducive to her studies in medicine. After completing her studies and securing a job as a doctor, she was prepared to give up the job to live with her husband and fulfill her marital duties, but the husband refused to take her back. It was held that the wife was not guilty of desertion.

End Notes:

• Bipin Chander Jaisingh Bhai Shah v. Prabhawati, AIR 1957 SC 176 1956 SCR 838
• Lachman Itam Chand Kirpalani v. Meena alias Muta, AIR 1964 SC 40: 1964 (4) SCR 331
• Rohini Kumari Narendra Singh, 1972 (1) SCC 1
• Chetan Dass v. Kamla Devi, (2001) 1 DMC 714 (SC)
• Adhyatma Bhattan Alwar v. Adhyatma Bhattan Sri Devi, (2002) 1 SCC 308: AIR 2002 SC 88: (2002) DMC 94 (SC)
• Narayanan v. Sreedevi, (1989) 1 KLT 509 (Ker) (No evidence that the wife wanted to stop cohabitation permanently)
• B.P. Shukla v. C.B. Shukla, (2003) 1 Guj LR 865 (Guj)
• Kesh Bhagwandas Ganatra v. Priti Mukesh Ganatra, (2003) 3 MhLJ 408 (Bom-DB) (No intentional abandonment by wife-no desertion)
• Sushila Kurnawat v. Rajesh Kurnawat, 2005 (1) HLR 469 (MP)
• 1(2) HLR 394 (P&H)
• Surender Singh v. Smt. Suresh, 1991 MLR 275