The grounds of divorce mentioned as under Section 13 of The Hindu Marriage Act establishes numeral grounds on which a person can approach the courts for filing a divorce under which the term "DESERTION" is provided under clause (1b) of the Act that reads as ' has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition' meaning "The [i][1]expression "desertion" means intentional abandonment of one spouse by the other without consent of the other or without a reasonable".

There are mainly four basic elements which areprimarilyto be satisfied to constitute desertion. The first two are to be present in the deserting spouse.

1. The fact of separation (factum deserendi)
2. The intention to desert (animus deserendi)

Desertion is a state which occurs only on the co-existence of both of these elements. If either of these two ingredients is absent, the petition for divorce on desertion fails[3].Theinterestingphenomenon in desertion is that either of the elements can precede theother; however, desertion will result only when both coincide and form a union[4]

When a petition is filed, the first step is proving the fact of separation and the intention separately while the second step is to prove their union. It is fairly easy to prove the physical act of separation either from the conductor from the state of minds. The difficulty arises onproving the animus i.e. the intention for desertion. This intention is required throughout the period of desertion. The petitioner is expected to proveintention through conduct asaperson's mind cannot be read[5]. In this process, there are two ways in which the deserting spouse has an opportunity to misuse the position of law:

There exist cases where the separation was consensual (like when the husband is on a voyage) with no animus to desert. [6]W separated, one of the spouses may develop the intention to bring an end to the cohabitation permanently on the expiry of the consensual period. With the separation and the consequent formation of intention, the act of desertion commences which the deserted spouse is expected to prove. The exact duration of supervening intention is difficult to prove thereby giving an edge to the deserting spouse, and the deserted spouse is in a worse off position as she had consented to something she could notobject(like a husband leaving for business trip).[7]

Moreover, the desertion should be absolute as held by the court that even an intervention of one or two day preceding the filing of desertion, abstain the ground of desertion to be absolute.
The quality of permanence in intention to leave the matrimonial home is one of the essential sub-elements in desertion which differentiate it from wilful separation. If there is just temporary separation without the intention to leave permanently, there is no desertion.

In this law, if a person decides to return just before the expiry of two years and claims to have no intention of permanent separation, the so deserted spouse will have no recourse in law

Apart from these elements in the deserting spouse, there are two other elements which have to be present in the deserted spouse:

1. Absence of consent
2. The absence of conduct which led to the other spouse leaving the matrimony.

The deserted spouse filing the petition is the one who must sufficiently prove and provide evidence for his conduct showing unmistakably that the desertion was against his will. Courts have held that it is not enough for the petitioner to show that he was unwilling that the respondent stays out rather he must have expressly declared his wishes to the deserting spouse or make it clear that the absence was against his wish.

With this burden on the deserted spouse, there arise times when illiterate, and submissive women cannot expressly convey their consent or rather lack it. This creates problems in discharging their burden of proof providing for the deserting spouse to take advantage of. If there is no proof of lack of consent, the consensual separation is not a matrimonial offence using Volenti Nonfit Injuria.

It is additionally importantto note that for a matrimonial relief on the ground of desertion, itis necessary to show the passage ofthe statutory period of twoyears and the same must be continuous. Therefore fulfilment of basic elements of desertion.
Various forms of desertion. Desertion was a ground for judicial separation but now it is also a ground for divorce. Desertion is of two types namely:

1. Actual desertion
2. Constructive desertion

In both types of desertion, the factum and animus must co-exist.

1. Actual Desertion

   In actual desertion, the deserting party leaves the matrimonial home permanently, i.e., with no intention to return to the matrimonial home again. In order to constitute actual desertion, the following facts should be established:
   1. The spouses must have parted or terminated all joint living.
   2. The deserting spouse must have the intention to desert the other spouse.
   3. The deserted spouse must not have agreed to the separation.
   4. The desertion must have been without reasonable cause.
   5. The requisite duration must be fulfilled, i.e., two years. Desertion is a continuing offence.
   
   
   
   To constitute desertion it is necessary that both factum of separation and animus deserendi should continue during the entire statutory period of two years immediately preceding the presentation of the petition. In Shjamlal v. Leelavati,[8] the court held that desertion and cruelty are continuing wrong with each day giving a fresh cause of action.
   
   The offence of desertion commences when the facts of separation and the animus deserendi coexists. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without necessary animus or it may be that the separation and animus deserendi coincide in point of time.
   
   In Durga Prasanna Tripathy v. Arundhanti [9]Tripathy, 6the petition for divorce filed by the husband on the ground that his wife deserted him after 7 months of marriage. Parties were living separately for about 14 years. Attempts were made by the husband and his relatives in getting back wife to matrimonial home with no success. Records showed that the parties disliked each other. There were no chances of reconciliation and then court granted divorce on the ground of desertion. In an another same type of case the parties to the marriage were living separately for last more than decade. Attempts were made for reconciliation between them, but such attempts were of no effect.
   
   There was no chance of both living together to continue their marital life. In order to do justice between the parties the Supreme Court dissolve their marriage under Article 142 read with section 13 (1)(i-b0 of the Hindu Marriage Act. Where a husband serving in the army goes to his house in dehradun during vacation but the wife does not allow him to enter house and misbehaves with him. It was held that the husband was entitled to a divorce decree on the ground of wife's desertion.
    
2. Constructive Desertion:
   In constructive desertion, the deserted party is compelled to leave the matrimonial home with her/his consent and free will. In most of the cases, it is the wife, who is compelled to leave the matrimonial home, for no fault of her own, involuntarily. In desertion, the cohabitation ceases for a permanent period. It is brought to an end completely with no hope of its resumption is future.
   
   There is total repudiation of the matrimonial obligation and an end of marital life. Desertion is not withdrawal from a particular place, but it is withdrawal from a particular state of things, i.e., cohabitation.[10] Thus, the constructive desertion consists of that state of things where one party to marriage has been compelled to leave matrimonial home owing to repulsive behaviour of the other party thus living separately cannot be held to be deserter but the party compelling her/him would be held to be the deserter.

Desertion is never accompanied with an intention to resume and restore cohabitation. It is always done to destroy it and damage the conjugal life irreparably and permanently. Desertion is never abrupt; it is well thought and sometimes will planned and committed with a view to disrupt the matrimonial life for ever. Where the party in desertion expresses his/her desire to return to the matrimonial life again or even offer to reconciliation too, bring desertion to an end provided the offer is reasonably just and acceptable to the aggrieved party.

Marriages, as they define, are made in heaven and solemnized on earth. It is a sacrament for Hindus, a sanctified contract for Muslims and a sacred knot for Christians. Husbands and wives vow for each other, yet there have been innumerable cases of betrayals by the spouses.

In the context of desertion, a mention may be made of a judgment of the Supreme Court, wherein it has been held that when a petition is filed on the ground of desertion, previous cohabitation between the parties must be established, except in cases of mental or physical incapacity. According to the court, cohabitation by the parties is an essential requirement of a valid marriage, and there can be no desertion without previous cohabitation by the parties.

In this case, there was evidence indicating that the wife did not permit the husband to cohabit with her, and there was nothing on record showing that the husband had ever refused to cohabit with her. It was accordingly held that the appellant wife was disentitled to claim divorce on the ground of desertion. Granting her divorce would result in allowing her to take advantage of her own wrong, the court held.

In Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi,[11] the elements of desertion had been laid down as under:

1. The fact that the husband and the wife live apart.
2. An intention to bring an end permanently to their sexual relation.
3. These two elements must be present/in existence during the statutory period shown in the law.[12]

Om Prakash Narang v. Prabha Narang Case[13] The Karnataka High Court held that it is not necessary to prove that one of the parties to marriage is living separately from the other. Merely to prove that one of the parties to marriage is not fulfilling the duties and responsibilities towards the other, is sufficient to establish desertion, provided such neglect in the discharge of matrimonial duties is gross and deliberate.

Reasonable cause of desertion: If a man persists in doing acts which he knows his wife will probably not tolerate or which no ordinary woman would tolerate, without justifiable cause, and she leaves, then it is he who is deemed to have deserted her whatever his desire or intention might have been.

In Rohini Kumari v.Narendra Singh,[14] the Supreme Court has made it clear that there is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him.

In Om Prakash v. Madhu[15] the wife had to stay away from the husband as he refused to allow her to come because he wanted to complete his studies. It was held that there was no desertion on the part of the wife. The husband's contention that the fact that they have been living separately for[16] years constituted the factum and the wife's refusal to receive notices sent to her for returning constituted animus, were rejected.

Burden and problem of proof
The Court has ruled that the petitioner has the burden of establishing desertion and all of its aspects because, typically, the weight of proof falls with the party who affirms a fact, not the person who disputes it. Since it is "so much easier to show a positive than a negative," this principle makes sense. However, the courts frequently deal with the issue of contradicting evidence, making it challenging to determine which of the two spouses' competing versions of the facts is true. This is particularly true given that these situations typically take place within the private confines of a home and that the lack of eyewitness testimony makes it difficult to establish the truth. 1

What to prove?
Courts in India require are the 4 things which are to be established by the spouse who is seeking divorce on this ground.

• Animus deserendi - This means the intention to desert. If a husband or wife decides to leave the marital cohabitation as they do not want to continue with marital obligations or be considered a husband/wife under the eyes of society, they have developed animus deserendi. Once this intention is formed, it fulfills one criterion for proving desertion.
  
  This intention can be from both sides or may be a constructive animus deserendi. In constructive animus deserendi, when one spouse asks the other spouse to leave the house or leave them, it constitutes constructive animus deserendi. The other form is when a spouse leaves the other spouse of their own will, which is willful desertion.
  
  In both situations, the affected spouse—i.e., the spouse who was made to leave in the case of constructive animus deserendi or the spouse who was left alone—can pursue divorce proceedings if other requirements are satisfied.
   
• Separation - Animus deserendi is followed by actual separation, which can be either physical or mental. Normally, it is physical, where actual action takes place. Merely forming an intention or telling a spouse, "I will leave you," is not sufficient unless it is followed by some action.
  
  Similarly, merely an action without the intention is also not sufficient. Both the intention to leave and the actual act of leaving are mandatory in proving desertion. Sometimes, there is first physical separation followed by intention, and sometimes it is vice versa. Both should take place continuously for a period of 2 years.
   
• No reasonable just cause to leave - There should not be any reasonable cause available to the spouse who is leaving the matrimonial ties. Generally, cruelty is alleged by the defending spouse to defeat the proceedings of desertion.
  
  In such cases, the burden is on the defending spouse to prove cruelty through witness examination, medical examinations, etc. However, if the defending spouse fails to prove any just cause, this ingredient stands proved.
   
• Without the consent - If the deserting spouse does not consents such desertion this final ingredient also stands proved, but how to prove this ingredient? now let us suppose a spouse leaves then there must be continuous efforts from the other side to b ring back the spouse, it should not be the case where the other spouse sits mutely while the other spouse has deserted. efforts should be made to render reconciliation. here contact with parents, mother father or other relatives are essential. reconciliation at its own level at first and then involvement of relative is essential, this would satisfy the court that deserted spouse never consented for such a desertion.
  
  Proving all the aforementioned ingredients are essential to prove desertion i n court, if any one element is missing divorce cannot be granted. Gene really cases fall short in 3rd and 4th ingredient. merely living separately even willfully does not guarantee divorce to deserting partner.

What should a deserted wife and children do to claim their husband's/father's property?
If the legally valid rights over the husband's/father's properties are being denied, the deserted wife or the children, as the case may be, can approach the court of competent jurisdiction by way of a suit for partition and possession. Such a suit must be filed within the statutorily prescribed limitation period of 12 years from the date of denial of claimed right in the property.

Custody and Visitation Rights: Desertion may also affect custody and visitation rights concerning any children from the marriage. The court will consider the best interests of the child while deciding issues of custody and visitation, taking into account factors such as the ability of the parent to provide care and support, the child's preference, and the circumstances surrounding the desertion.

Section 9 of the Hindu Marriage Act: Restitution of Conjugal Rights
The restitution of conjugal rights is a type of relief provided to spouses in distress in the institution of marriage by law. Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) provides for the restitution of conjugal rights. This section of the Act says: "When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly".

The burden of demonstrating a reasonable excuse lies with the person who withdrew from the society of the spouse. Any type of abuse is hard to prove because the abuser frequently leaves no marks, scars occasionally heal, and bruises diminish with time. However, it becomes nearly impossible to show when the same brutality takes an emotional or mental turn. How can a wife or husband demonstrate that their partner is starving them, abusing them mentally, or humiliating them? These are difficult to show, and frequently their only effective option is to end their marriage.

Constitutionality
The constitutionality of the provision for the restitution of conjugal rights has frequently been contested. It is crucial to examine how the concept of privacy has changed legally in this setting and how it has affected important rulings like T. Sareetha and Saroj Rani regarding the restitution of conjugal rights. In Sareetha v. Venkata Subbaiah,[17] the Andhra Pradesh High Court ruled that Section 9 of the Constitution, which provides for the relief of restitution of conjugal rights (RCR), is unconstitutional because it violates both Articles 14 and 21 of the Constitution (the right to privacy and the right to liberty)(Right to equality).

The husband filed a petition for RCR, and his famous movie star wife filed an opposition to the suit (Sareetha). According to the argument made on behalf of the wife, a woman has a "right of free choice as to whether, where, and how her body is to be used for procreation of children, as well as the choice of when and by whom the various parts of her body are to be sensed" under the terms of the right to privacy. She has the right to privacy, which includes freedom of choice. She argued that Article 21 guarantees this as a part of her "liberty."

The State is infringing on this fundamental right protected by Article 21 by recognizing the remedy of restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Additionally, by making this remedy open to both married men and married women, the remedy violates Article 14 by treating persons who are essentially unequal as equals.

Furthermore, the Supreme Court of India in Gobind Singh v. State of MP[18] defined privacy as something that "preserves the intimate intimacies of the home, the family, marriage, motherhood, procreation, and child-rearing." According to this definition of the "right to privacy," the house is a private space into which the law shouldn't intrude. The Andhra Pradesh High Court gave a more individualistic and progressive interpretation of privacy in T. Sareetha. It was held that a person's right to privacy belongs to them and is independent of their marital status. Therefore, there is a grave infringement of the woman's right to privacy and bodily autonomy when this decision about whether to engage in marital intercourse is transferred from the wife to the state.

In contrast, the courts in Harvinder Kaur and Saroj Rani decided to return to the constrained interpretation of the right to privacy advocated by the Supreme Court in Gobind Singh.

When & Where To File The Petition:

The district court's jurisdiction is asserted whenever a husband or wife is excluded from the other's company without good reason. For Restitution of Conjugal Rights, the Principal Judge of the Family Court would be invoked under Section 19 of the Hindu Marriage Act. Every petition filed under the HMA must be filed in the Family Court of the original civil jurisdiction where:

• The marriage was solemnized;
• The respondent resides;
• The parties to the marriage last lived together; and
• If the wife is the petitioner, where she has been residing on the date of filing the petition.

Procedure And Steps For Restitution Of Conjugal Rights:

1. File the Petition;
2. File the Reply;
3. Present the Petitioner's Evidence;
4. Present the Respondent's Evidence;
5. Present the Arguments;
6. Present the Judgment & Decree.

Does restitution of conjugal rights violates the right to privacy?
An important advancement in the field of restitution of conjugal rights is the case of Ojaswa Pathak v. Union of India[19]. In this case, the petitioners raised an important question of the implication of this provision on the rights to sexual and reproductive autonomy and health and the right to equality granted by the Constitution. The petitioners challenged provisions of Section 9 of the Hindu Marriage Act, Section 22 of the Special Marriage Act, 1954, and Order 21, Rules 32 and 33 of the Code of Civil Procedure, 1908, and sought a socio-legal interpretation of the provisions to adjudge upon their constitutionality.

It was argued that although the legal provision allows both men and women equally to seek restitution of conjugal rights. However, although these provisions are gender-neutral it unfairly affects women. This is because of the societal structure which exists in India which has evolved to advantage the men. As a result, it puts the woman in a position that is not only unfair but may also be harmful to her well-being if she is forced to live in her husband's home with his family, against her own will.

As it has been rightly held by the Supreme Court in the case of Shakila Banu v. Gulam Mustafa[20] this concept was formed in ancient times when women were considered as property or mere chattel and slavery or quasi-slavery was not considered illegal. Hence it is a feudal English law that has no place in a constitutional setup that guarantees personal liberties and equality of status to both men and women and allows the state to make special provisions for safeguarding these rights and protecting them. As a result, these provisions providing for restitution of conjugal rights are violative of Articles 14, and 15(1) of the Constitution.

Does restitution of conjugal rights violates right to privacy?
Whether the right to privacy includes a person's autonomy over their own body has been a matter of judicial interpretation in several cases over the years. Courts have had divided opinions over the matter. One of the earliest instances where this question was discussed by a court was in the case of Gobind v. State of Madhya Pradesh[21] in the year 1975 when the Supreme Court held that although the right to privacy can be extended to personal intimacies of home and marriage, it is a private space of the individual and law should not interfere with the same.However, a rather progressive opinion was laid down by the Andhra Pradesh High Court in the case of T. Sareetha v. T. Venkatasubbaiah[22] where the Court considered Section 9 a serious breach of the right to privacy of spouses.

This judgment was a step towards making amends to this feudal provision which infringed upon fundamental rights of individuals in the guise of preserving matrimonial bonds. The Delhi High Court in the case of Harvinder Kaur v. Harmander Singh Chaudhary[23] adopted a different approach. In this case, the Court concurred with the judgment given by the Supreme Court in the case of Gobind v. State of Madhya Pradesh[24] . Section 9 was upheld by the Court as a provision to preserve the sanctity of marriage.

It distinguished sexual relations from the concept of consortium or cohabitation concerning marriages. And Section 9 merely imposes cohabitation upon spouses and does not compel sexual relations in a marriage. Thus, this judgment narrowed down the scope of the right to privacy by holding that courts have no authority to enforce this fundamental right in the private space of individuals.

Need for Reform
While this provision is gender-neutral, we have to take note that women in India still face discrimination in society, and this provision takes advantage of that. For instance, women are frequently emotionally and mentally mistreated and tortured for dowry, and dowry killings are still common in society. A decree of the restitution of conjugal rights is a noose around the necks of these exhausted and broken spouses as they depart their husband's home. How can our courts, which promise to protect the three pillars that are justice, equality, and conscience, decide a ruling for a woman who is already on the verge of breakdown to return to the place of her abuse?

This position needs to be re-evaluated in light of the recent progressive rulings rendered by the Supreme Court. In Navtej Singh Johar v. Union of India[25], the Supreme Court held that Article 21 of the Indian Constitution must be recognized in order to protect each person's absolute autonomy over intimate decisions pertaining to their personal lives. Similarly, the supreme court ruled in K.S. Puttaswamy v. Union of India[26] that an individual's "right to privacy" should be construed through an individualized lens, encompassing the right to total autonomy over their body. The court stated that in order to exercise any other fundamental right listed in Part III of the Constitution, the right to privacy must first be satisfied.

Additionally, the court in Navtej Singh Johar underlined that "choice and dignity" are connected and that it is very challenging to imagine dignity in its sanctified completeness if the right to freedom of choice is restricted. We need to shift to more progressive marriage views among the judiciary and society in India.

Additionally, the court in Navtej Singh Johar underlined that "choice and dignity" are connected and that it is very challenging to imagine dignity in its sanctified completeness if the right to freedom of choice is restricted. We need to shift to more progressive marriage views among the judiciary and society in India. RCR as a provision must be declared void in the shadow of Puttaswamy and Joseph Shine's judgements which talked about right to privacy as a fundamental right under Article 21.

Conclusion
The concept of desertion under Hindu Marriage Act 1995 emphasizes the crucial role of separation duration in affecting the emotional well-being of parties. Prolonged separation may lead to increased emotional distress, influencing the parties' perception of the divorce process.

Efficiency in the legal process is identified as a significant consideration, with a potential correlation between a shorter separation requirement and a more efficient process. This efficiency is seen as positively impacting individuals seeking divorce by reducing emotional strain and legal costs.

The impact of separation duration on children and custody is explored, suggesting that a longer separation may lead to more thoughtful considerations for the well-being of children, affecting the fairness of custody decisions.

Societal attitudes and stigma around divorce are acknowledged as influential factors, especially in cultures where divorce is stigmatized. A longer separation may be seen as preserving the sanctity of marriage.
Economic implications, including alimony and property division, are noted to be potentially influenced by separation duration. A correlation is suggested between a shorter separation requirement and a more streamlined resolution of economic matters.

To support these hypotheses, the text recommends a comparative analysis across jurisdictions with varying separation requirements. Such an analysis could provide valuable insights into the correlation and its impact on divorce proceedings.

The importance of empirical research, involving surveys, interviews, and case analyses, is emphasized to comprehensively examine the correlation and its implications.
On the other hand surrounded in much debate the restitution of individual's conjugal rights it is much evident that when a person is separated emotionally from another then the marriage become totally unworkable, emotionally dead and beyond salvage and it is very difficult to unite them.

Thus, the Section 9 of the Hindu Marriage Act should declared as unconstitutional because in India where the women have generally the status of chattel of their husband and abandoned by their families after marriage then the remedy of Restitution of Conjugal Rights forces women to cohabit with their husband unwillingly or against their wiseh.
In conclusion, the text provides a detailed exploration of the potential correlation between required separation duration for proving desertion as grounds for divorce and various aspects of divorce proceedings. It advocates for further research to gain a nuanced understanding of the dynamics involved in marital dissolution.

End-Notes:

1. Debananda Kabuli v. Kakumoni Kataky, (2022) 5 SCC 459
2. Dr. P. Diwan and P. Diwan, Modern Hindu Law (Codified and Uncodified) (12th edn., Haryana: Allahabad Law Agency, 1998) at 118.
3. Rajini v. Ramswaroop (1995) 2 Civ LJ 74 (All).
4. Rajini v. Ramswaroop (1995) 2 Civ LJ 74 (All).
5. K. C. Sikroni v. Sarla Sikroni (1989) 2 HLR 356 (Raj).
6. Pardy v. Pardy (1939) 3 All ER 779.
7. S. M. Cretney, Principles of Family Law (2nd edn., London: Sweet and Maxwell, 1976) at 105-106.
8. Shyamlal v. Leelavati AIR 2007 Raj 93
9. Durga Prasanna Tripathy v. Arundhati Tripathy, MANU/SC/0500/2005.
10. Pramod Bijalwan v. Satendra Dutt, AIR 2008 NOC 508 6
11. Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308
12. Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73
13. Om Prakash Narang v. Prabha Narang, AIR 1978 Del 240
14. Rohini Kumari v. Narendra Singh, AIR 1972 SC 459
15. Om Prakash v. Madhu Alias Laxmi, AIR 1997 RAJ 214
16. Praveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706
17. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356
18. Gobind Singh v. State of MP, 1975 AIR 1378, 1975 SCR (3) 946
19. Ojaswa Pathak and Anr. vs. Union of India, WP (C) 250/2019
20. Shakila Banu v. Gulam Mustafa, AIR 1971 Bom 166
21. Gobind v. State of Madhya Pradesh, 1982 SC 710 (21)
22. T. Sareetha v. T. Venkatasubbaiah, AIR 1983 AP 356
23. Harvinder Kaur v. Harmander Singh Chaudhary, AIR 1984 Delhi 66
24. Gobind v. State of Madhya Pradesh, 1982 SC 710 (21)
25. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, (2018) 10 SCC 1
26. K.S. Puttaswamy v. Union of India, 2023 SCC OnLine Del 2361