The essential conditions for success in a suit for divorce grounded upon desertion is that the deserted spouse should have been willing to fulfil his or her part of the marital duties. The statement of the law in para 457of Halsbury’s Laws of England (3rd Edn. Vol. 12) may be usefully quoted:
“The burden is on the petitioner to show that desertion without cause subsisted throughout the statutory period. The deserting spouse must be shown to have persisted in the intention to desert through out the whole of the three year period. It has been said that a petitioner should be able honestly to say that he or she was all along willing to fulfill the duties of the marriage, and that the desertion was against his or her will, and continued throughout the statutory period without his or her consent; but in practice it is accepted that once desertion has been started by the fault of the deserting spouse, it is no longer necessary for the deserted spouse to show that during the three years preceding the petition he or she actually wanted the other spouse to come back, for the intention to desert is presumed to continue. That presumption may, however, be rebutted”. 18. Applying those observations to the facts of the present case, can the plaintiff honestly say that he was all along willing to fulfill the duties of the marriage and that the defendant’s desertion, if any, continued throughout the statutory period without his consent. The letter, Ex. A, is an emphatic no. In the first place, even the plaintiff in that letter did not allege any desertion and, secondly, he was not prepared to receive her back to the matrimonial home. Realising his difficulty when cross-examined as to the contents of that letter, he wished the court to believe that at the time the letter was written in his presence he was “in a confused state of mind” and did not remember exactly whether he noticed the sentence that he did not desire to keep his wife any longer. Pressed further in cross-examination, he was very emphatic in his answer and stated:-
“It is not true that by the date of this letter I had made up my mind not to take her back. It was my hope that the letter might induct her parents to find out what had happened, and they would persuade her to come back. I am still in a confused state of mind that despite my repeated attempts my wife puts me off”
