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13. The law in England has prescribed a three year period and the Bombay Hindu Divorce Act, 1947 (Bombay Act XXII of 1947), prescribes a period of four years as a continuous period during which the two elements must subsist.

14. The offence of desertion commences when the factum of separation and the animus deserendi co-exist. It is not however necessary that they should commence at the same time -Where the intention to abandon is formed subsequent to the separation, that intention will not relate back to the date of the prior separation for the purpose of desertion and the period of two years must be calculated only from the time the intention is manifested or proved to have formed. The onus of proof in this regard must be on the deserting spouse to show when exactly the intent was entertained since that is a matter which is specially within the knowledge of the deserting spouse. To constitute desertion by a spouse, his or her absence and cessation of cohabitation by him or her must be without the consent of the other without reasonable cause. If one spouse by words and conduct, compels the other to quit the matrimonial home, the factor will be guilty of desertion though it is the latter who has physically separated from the other and left the matrimonial home. The spouse responsible for creating the situation in which the other spouse is forced to stay away is guilty of constructive desertion. Constructive desertion is the expression used to show that the spouse who forces the other to leave him or her is guilty of desertion, even though the party going away from the matrimonial home is the other party. In deciding the question of desertion, it has been laid down by Courts that the Court has to look at the conduct of both the spouses and it must be remembered that there is no substantial difference between a husband leaving his wife animus deserendi and a husband who, by his conduct with like intention, brings cohabitation to an end by compelling his wife to depart from the matrimonial home. In American Jurisprudence (Vol. 17, 1938 Edn) at pages 201-202, the concept of desertion as applied by the American Courts is described in the following words : -

"To constitute constructive desertion, it is not necessary to show that the defending spouse misconducted himself or herself with the intent of forcing the other to leave the home; nor is it necessary that there should have existed in connection with the acts of cruelty and settled purpose to drive away the other. It is enough if such is the natural consequence of the acts. The complaining spouse must, of course, be justified in leaving the defending spouse in order to constitute such desertion by the latter. It has been held that to justify the separation and to entitle the complaining spouse to a divorce on the ground of desertion, the conduct of the guilty party must have been such as to afford ground for a limited divorce - Some Courts have gone to the extent of holding that in order to constitute constructive desertion, it must have been such as would, in itself, have been a ground for an absolute divorce. In many jurisdictions, however, the rule adopted does not require the misconduct to be such as in itself would have been aground for divorce."