Who carries the burden of proof in a desertion claim?

The petitioner must prove desertion throughout the statutory period (then four years) and establish the other spouse’s animus deserendi.

Why was the petition for judicial separation refused?

Evidence showed the wife did not intend to permanently end cohabitation; her letters and conduct indicated willingness to resume marital life.

Does brief separation due to anger count as desertion?

No. Desertion requires permanence. Temporary passion or quarrels without intent to end cohabitation do not meet the test.

What is animus deserendi in simple words?

It is a firm, lasting decision to stop living as spouses. Courts look for clear proof of this intention.

Bipinchandra Jaisinghbai Shah v. Prabhavati (AIR 1957 SC 176)

Q: What legal test for desertion did the Supreme Court apply?

Two elements: fact of separation and intention to end cohabitation permanently (animus deserendi), without consent or reasonable cause.

Classroom-style explainer on desertion and judicial separation — how the Supreme Court defined the test and who must prove it.

Supreme Court of India 1957 Family Law / HMA Citation: AIR 1957 SC 176 Reading time: 7–9 min

Author: Gulzar Hashmi India Published: Oct 31, 2025 Keywords: desertion, animus deserendi

Quick Summary

The husband sought judicial separation saying the wife deserted him. The Supreme Court explained the exact meaning of desertion: it needs separation plus a clear intention to end cohabitation permanently (animus deserendi), without consent and without reasonable cause.

Here, letters and conduct showed the wife did not intend a permanent break. The burden was on the husband to prove desertion for the full statutory period. He failed. The suit was dismissed with costs.

Issues

Can the plaintiff get judicial separation on the ground of desertion by the wife?

Rules

Definition: Desertion = intentional, permanent abandonment of one spouse by the other, without consent and without reasonable cause; a total refusal of marital duties.
Permanence: Temporary anger or disgust is not desertion if there is no plan to end cohabitation for good.
Two elements: (1) Fact of separation; (2) Intention to end cohabitation permanently (animus deserendi).
Burden & period: Petitioner must prove desertion for the full statutory period (then four years) immediately before filing.

Hindu Marriage Act — Desertion principles

Facts — Timeline

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Timeline visual of key dates in the case

20 Apr 1942: Marriage as per Jain Hindu rites.

Couple lives in Bombay with husband’s family in a two-room flat.

10 Sep 1945: Birth of son, Kirit.

1946: Family friend Mahendra starts living with the family.

8 Jan 1947: Husband leaves for England on business.

Allegations: wife’s intimacy and letters to Mahendra; one letter found by father-in-law.

After husband’s return, confrontation over letter; later wife admits writing it.

Wife leaves for Jalgaon taking belongings; dispute over communications and returns.

Husband claims wife never returned; sends letters/telegrams; seeks custody.

~4 years later: Suit filed alleging desertion without consent or reasonable cause for over four years.

Arguments

Appellant (Husband)

Alleged wife’s desertion and total withdrawal from marriage.
Relied on letter to Mahendra and her departure with belongings.
Claimed lack of response to letters and personal requests to return.

Respondent (Wife)

Denied intention to end cohabitation permanently.
Cited letters and family testimony showing willingness to resume marital life.
Suggested husband did not truly wish to continue the relationship.

Judgment

Meaning of desertion clarified: Separation + permanent intent to end cohabitation; no consent; no reasonable cause.
Burden on petitioner: Must prove desertion for the whole statutory period.
Evidence assessment: Wife’s letters and stays with husband’s family showed no animus deserendi.
Result: Petition for judicial separation dismissed with costs.

Bottom line: Without clear proof of permanent intent to end cohabitation, there is no desertion.

Ratio Decidendi

Desertion requires both the factum of living apart and animus deserendi. The petitioner must establish these for the statutory period. Where the evidence points to continuing willingness to cohabit, the charge of desertion fails.

Why It Matters

Sets the classic Indian test for desertion in matrimonial law.
Protects spouses from unfair labels where evidence shows no permanent break.
Clarifies burden of proof and the role of letters and conduct.

Key Takeaways

Two pillars: separation + permanent intent to end cohabitation.
Temporary anger ≠ desertion.
Petitioner bears the proof for the entire statutory period.
Letters, visits, and efforts to reconcile can defeat a desertion claim.

Mnemonic + 3-Step Hook

Mnemonic: “SPIN: Separation + INTent”

Separation must be real and continuous.
INTent must be permanent (animus deserendi).
Proof sits with the petitioner for the whole period.

IRAC Outline

Issue	Rule	Application	Conclusion
Whether the husband proved desertion for judicial separation.	Desertion = separation + permanent intent; no consent; no reasonable cause; burden on petitioner; statutory period.	Wife’s letters and stays indicated willingness to cohabit; no permanent intent to end cohabitation proved.	Desertion not established; petition dismissed with costs.

Glossary

Desertion: Permanent abandonment of a spouse without consent and without reasonable cause.
Animus Deserendi: Firm intention to end marital cohabitation for good.
Judicial Separation: Court decree allowing spouses to live apart without dissolving the marriage.