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In Rayden on Divorce, (1) [1940] 2 All. E.R. 331,

335. 371 7th Edn., the expression "constructive desertion" is defined thus, at p. 155:

"Desertion is not to be tested by merely ascertaining which party left the matrimonial home first. if one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial dtfference between the case of a man who intends to cease cohabitation and leaves his wtfe, and the case of a man who compels his wife by his conduct, with the same intention, to leave him. This is the doctrine of constructive desertion." Adverting to the question of animus in the case of constructive desertion, the learned author proceeded to observe, atp. 156, thus "It is as necessary in cases of constructive desertion to prove both the factum and the animus on the part of the spouse charged with the offence of desertion as it is in cases of simple desertion. The practical dfference between the two cases lies in the circumstances which will constitute such proof for, while the intention to bring the matrimonial consortium to an end exists in both cases, in simple desertion there is an abandonment, whereas in constructive desertion there is expulsive conduct."

         The     ingredients         of desertion as          well     a
constructive      desertion          are   the    same,      namely,

animus and factum. though in one case there is actual abandonment and in the other there is expulsive conduct. Under certain circumstances the deserted spouse may even stay under the same roof or even in the same bed-room. In our society, it is well known that in many a home the husband would be guilty of expulsive conduct towards his wfe by completely neglecting her to the extent of denying her all marital rights, but still the wfe, because of social and economic conditions, may continue to live under the same roof The words "wiflful neglect" in the explanation were certainly designed to cover constructive desertion in the English law. if so, it follows that wiliful conduct must satisfy the ingredients of desertion as indicated above. Hence, the appellant could not take advantage of the inclusive definition unless he established all the ingredients qf constructive desertion, namely, animus, factum and want of just cause.

(48) Another aspect of the question may now he touched upon. The dejlnition of desertion under s. 10 of the Act. the argument proceeds. is much wider than that under the English law or under the Bombay Act considered by this Court.

Emphasis is laid upon the following words in the explanation to s. 10(1) of the Act:

"includes the wilful neglect of the petitioner by the other party to the marriage."

The expression "includes", the argument proceeds. enlarges the scope of the word "desertion", and takes in by definition the conscious neglect on the part of the offending spouse. without the requisite animus deserendi. This arqumenr. if accepted, would impute an intention to the Parliament. which was entering the field for the first time. to bring about a revolutionary change not sanctioned even in a country like England where divorce or separation jr desertion had long been in vogue. We would be attributing to the Parliament an Incongruity. br. in the JIrsI part of the explanation it was unporling all the salutary restrictions oii the right to Judicial separation but in the second part ii would be releasing the doctrine. to a large extent. of the said restrictions. By such a construction the leqislation would be made to defeat its own purpose. On the other hand, the history qf the doctrine of "desertion" discloses some limitations thereon conceived in the interests of society and the Parliament by the inclusive definition couched in wide language could not have intended to remove those limitations. The inclusive definition is only intended to incorporate therein the doctrine of "constructive desertion" known to English law and the language is designedly made wide to cover the peculiar circumstances of our society.

29. From the aforesaid definitions and judgments, it Is clear that 'desertion Is the separation of one spouse from the other without reasonable cause and without the consent or against the wish of such party. The Intention of such desertion should be to bring the cohabitation permanently to an end on the part of deserting spouse. It Is a total repudiation of the obligation of the marriage. It Is a continuing state of affair. However, the physical act of departure by one spouse does not necessarily make that spouse a deserting party because desertion is not the withdrawal from a place but from the state of things. Therefore, the person who actually withdraws from the cohabitation is not necessarily a deserting party. One of the salient features of such desertion is wilful neglect by the deserting party in respect of the other party to the marriage insofar as performing marital obligations are concerned. However, if a spouse separates from the other for a cause \TIicI is a reasonable one, it does not constitute desertion in the eye of law. If a spouse abandon the other spouse in a state of temporary emotional outburst, for example. anger or disgust. without intending to permanently cease to have cohabitation, it will not amount to desertion. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that Is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention. both anterior and subsequent to the actual acts of separation. If, in fact. there has been a separation. the essential question always is whether that act could be attributable to an animus deserendi. The act of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that tley should commence at the same time. The party who intends bringing the cohabitation to an end. and whose conduct in reality causes its termination, commits the act of desertion. The inclusive definition is only intended to incorporate therein the doctrine of constructive desertion known to English law and the language is designedly made wide to cover the peculiar circumstances of our society.