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The first requirement flows from the provisions of Section 13(1)(ib) of the H. M. Act, 1955, and the second requirement flows from the Explanation appended at the end of Section 13(1) of the Hindu Marriage Act, 1955. Further, it has been settled by a catena of decisions, starting with the decision of the Hon'ble Supreme Court in Bipinchandra Jaisinghbhai Shah v. Prabhavathi1 and Lachman Utamchand Kirpalani vs. Meena2 that 'Desertion', for the purposes of seeking divorce under the provisions of the H M Act means the intentional permanent forsaking and abandonment of AIR 1957 SC 176 2 AIR 1964 SC 40 one spouse by the other without the other's consent and without reasonable cause, and that Desertion need not be by a single act, but could be because of a continuous course of conduct established in the facts and circumstances of each case. The Desertion can also be brought about by the deserter spouse's words and conduct that would compel the other spouse to leave the matrimonial home, and such Desertion would be Constructive Desertion

20. The wife's case is that she was being harassed by the husband and his family members for dowry, and on 4.7.2008, the husband, at the instance of his family members, assaulted her and got her admitted to a neighbourhood nursing home. There she was administered electric shock, and a report was secured from the doctors to establish that she suffered from epilepsy and she was not in a sound state of mind. While she was in this nursing home, a police constable informed her that a complaint was registered against her by her husband and therefore, she had to get herself discharged from the nursing home. She and her family members being convinced that there would be a threat to her life if she were to cohabit with the husband, and also because she was subjected to cruelty for dowry, she initiated criminal proceedings. As such, she was compelled to walk out of the matrimony. The husband has deserted her for over 2 years as on 11.3.2010 (the date of filing of the petition). Thus, the wife is essentially alleging Constructive Desertion.

21. It is based on these allegations as well, the criminal proceeding in CC No. 16237/2008 is pending adjudication. But for the purposes of this case, it would suffice to note that, as observed by the family Court, the wife, who relies upon the aforesaid circumstances to justify her case for grant of divorce on the ground of Desertion, has not summoned the records from the nursing home or produced records that would vindicate her stand. She has also not examined any witness in support of this case, except her father. It was incumbent upon the wife to produce cogent and credible evidence in this regard because this facet is integral to her case for separation (and therefore, for Constructive Desertion) inasmuch as, if these circumstances are established, it would justify her case that she was driven out of the matrimonial home and her life would not be safe if she were to join her husband. On the other hand, the husband's testimony is that the wife walked out of the matrimonial home in the month of September, 2007 and she started residing with her uncle, and because she was residing with her uncle at BSK 3rd Stage, Bengaluru, she got the Bank Account and the Gas Connection, initially availed at the matrimonial address, transferred to that address. The husband's testimony that the wife walked out in September 2007 and not in July 2008 is corroborated by Exhibits R-6 and R-8.