Report No. 22
9. Clause 2(c)-"desertion".-
A criticism has been made against the definition of "desertion" given in the Bill, that it will be difficult to prove objectively the intention to bring cohabitation permanently to an end. The definition given in section 10(2), Explanation, of the Hindu Marriage Act, 1955, is, it is said, better and might be adopted for uniformity. But that definition does not bring out all the ingredients of desertion, and its precise scope has been the subject of consideration in a Bombay case. The definition in the Bill has been framed in the light of that decision with a view to avoiding further controversies.
This has been fully explained in the previous Report.1 As for the difficulty in proving intention, there are several other questions in which the intention of a person becomes a material element, and the courts have to record a finding thereon on evidence placed before them. It has been observed that "the state of a man's mind is as much a question of fact as his digestion", and that it is a matter of inference from the facts proved. We consider that there is no ground for modifying the definition.
1. 15th Report, Notes to clause 2-"desertion".