Constructive desertion is where one spouse causes another to leave the matrimonial home or where due to the conduct or behavior of respondent, that the petitioner has to leave the matrimonial home with a good cause, the respondent may be in law the deserter and is said to be in constructive desertion. Similarly, to determine whether the offender is in constructive desertion the elements of desertion has to be proven.
If one spouse had a reasonable cause or excuse for leaving the other there would be no justifiable separation and consequently he would not be in desertion. Generally the commission of a matrimonial offence by one spouse, which would the innocent spouse to petition for divorce or judicial separation, would be a good excuse for his breaking off cohabitation, for if he or she did not do so he or she would also run the risk of condoning the offence and thus putting all relief out of the question.
This was subject to 2 questions. First, if the innocent party had put it out of his power to complain of the offence by having induced, connived in or condoned it, then he was no longer entitled to break off cohabitation because of it. Secondly, the committing of the…show more content… One of the issues in this case is whether the petitioner may rely on constructive desertion as proof of irretrievable breakdown. The court held that a constructive desertion does not constitute in an irretrievable breakdown of a marriage. Since the petitioner failed to prove that the marriage had irretrievably broken down and the respondent had bona fide recognised the marriage as subsisting because she felt and believe that their marriage could be saved and be normalized, in such circumstances, the court further held that it was wise not to dissolve the