IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
To sum up, the decisions cited above indicate that, some of the aspects of the constituent elements required to establish `malicious desertion’ are:
(i) With regard to the factum [fact] of malicious desertion: in the case of simple malicious desertion, the deserting spouse, should have deliberately and without being compelled to do and also without sufficient cause being given by the deserted spouse, left the matrimonial home or ceased cohabitation, against the wish of the deserted spouse; and, in the case of constructive malicious desertion, the deserting spouse should have deliberately and without being compelled to do and also without sufficient cause being given by the deserted spouse, engaged in conduct or speech which gave the deserted spouse no reasonable alternative other than to leave the matrimonial home or to cease cohabitation.
(ii) With regard to the animus [intention] of malicious desertion: in the case of simple malicious desertion, the deserting spouse, at the time he or she left the matrimonial home or ceased cohabitation, should have had the deliberate intention of finally terminating and repudiating the marriage and not had an intention of resuming the marriage at some future date; and, in the case of constructive malicious desertion, the deserting spouse should have engaged in the impugned conduct with the deliberate intention of finally terminating and repudiating the marriage and without having an intention of resuming the marriage at some future date or such an intention was the natural and probable consequence of the impugned conduct - ie: that he or she should have acted with animus deserendi;
(iii) The deserting spouse should not have reconciled and returned to the matrimonial home or resumed cohabitation or made a bona fide offer to do so, before the deserted spouse instituted the action seeking a divorce on the ground of malicious desertion.
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