Desertion - Definition - Law Dictionary Home Dictionary Definition desertion

Definition :

Desertion, (1) the criminal offence of abandoning the naval or military service without license. See ss. 12 et seq. of the (English) Army Act, 1881, replacing similar s.s of the (English) annual Mutiny Acts, and Reg. v. Cuming, (1887) 19 QBD 13.

Also (2) an abandonment of a wife, a matrimonial offence, for which the remedy is under (English) Judicature Act, 1925, s. 185, by which a sentence of judicial separation may be obtained either by the husband or wife on the ground of desertion, without cause, for two years and upwards; and see (English) Matrimonial Causes Act, 1857 (20 & 21 Vict. c. 85), s. 21, as to orders for the protection of the property of wives deserted by their husbands; and the (English) Summary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vict. c. 39), repealing and re-enacting the (English) Married Women (Maintenance in Case of Desertion) Act, 1886, under which a deserted wife may obtain an order from justices of the peace that the husband pay her such weekly sum, not exceeding 2l., as the justices consider to be in accordance with his means and hers.

Desertion for this purpose is regarded as a continuing act, Piper v. Piper, 1901, P. 198. As to whether the obtaining of an order under the Act of 1895 will prevent the two years' 'desertion without cause' from running and so prevent the wife from obtaining a judicial separation under the Act of 1857, see Failes v. Failes, 1906, P. 326. Desertion for two years will revive condoned adultery, Houghton v. Houghton, 1903, P. 150.

Adultery by a husband after some years' separation by mutual consent is not evidence of desertion, and a wife without cause refusing marital intercourse cannot allege 'desertion' by the husband 'without reasonable excuse' if in consequence he refuses to live with her, Synge v. Synge, 1901, P. 317.

In Scotland, malicious desertion by one spouse of the other for four years is a ground of divorce. It must be shown that there was wilful non-adherence; that it has been persisted a for four years; that it was without reasonable cause: and that the deserted spouse was throughout the four years desirous of co-habitation, and ready to renew it.

Rayden on Divorce which is a standard work on the subject at p. 128 (6th Edn.) has summarised the case-law on the subject in these terms:'

Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.

The legal position has been admirably summarized in paras 453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.), Vol. 12, in the following words:'

'In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.
The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence, Bipinchandra Jaisinghbhai Shah v. Prabhavati AIR 1957 SC 176: (1956) SCR 838: (1957) SCJ 144.'

Desertion for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children, Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591 (595): (2002) 2 SCC 73. [Hindu Marriage Act, 1955, s. 13(1)(1b)]

For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention, Adhyatma Bhaltar Alwar v. Adhyatma Bhaltar Sri Devi, (2002) 1 SCC 308: AIR 2002 SC 88 (91). [Hindu Marriage Act, 1955, s. 13(1)(ib)]

Desertion, implies an abandonment against the wish of the person charging it. [(English) Divorce Act, 1869, s. 3(a)]

Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party. The legal position has been admirably summarised in paras. 453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.) Vol. 12, in the following words:'

'In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principal applicable to all cases.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated, Bipin Chandra Jai Singh Bai Shah v. Prabhavati, AIR 1957 SC 176: (1956) SCR 838.'

(ii) every absence without leave is not treated as desertion but absence without leave may be deemed to be desertion if the procedure prescribed by s. 106 is followed. Since every desertion necessarily implies absence without leave the distinction between desertion and absence without leave must necessarily depend on the animus. If there is animus decidendi the absence is straightway desertion. In Black's Law Dictionary the meaning of the expression 'desertion' in Military law is stated as follows: Any member of the armed forces who - (1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or (3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion Code of Military Justice, 10 U.S.C.A. 885. Virendra Kumar v. Chief of Army Staff, (1986) 2 SCC 217: AIR 1986 SC 1060.