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When Spouse Refuses Offer To Cohabit Without Reasonable Cause, It Amounts To ‘Constructive Desertion’: Kerala High Court

The Kerala High Court has held that when the appellant-husband makes an offer to resume the marital relationship, and the respondent-wife resists without any reasonable cause, failing to resume cohabitation, it would amount to “constructive desertion”. While allowing an application for dissolution of marriage, a division bench of Justices A. Muhamed Mustaque and Kauser Edappagath drew from the Supreme Court decision in Savitri Pandey v. Prem Chand Pandey (2002), where it was held that desertion may also be constructive and has to be inferred from the present circumstances. Section 13(1)(b) of the Hindu Marriage Act, 1955 states that desertion must be for a continuous period of not less than two years immediately preceding the presentation of the petition. In the Explanation to the said provision, the word ‘desertion’ is defined as the desertion of the petitioner by the other party to the marriage without reasonable cause and the consent or against the wish of such party. It includes the willful neglect of the petitioner by the other party, and its grammatical variation and cognate expression have to be construed accordingly.

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