DESERTION, in legal terminology a word applied almost exclusively to violations of the obligation of husband and wife to live together in the state of matrimony. Desertion may be defined as the wilful termination of the mar riage relation by one of the parties without lawful or reasonable cause; or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or wrongful conduct of the other. Where the party absenting himself or herself from marital community with the other has a rea sonable cause for so doing the severance of relations is not a desertion. It has been held that only such misconduct as would constitute a ground for divorce will excuse either a wife or a husband who separates, and lives apart, from the other; but the justification of the act would probably be a matter to be determined on the merits of each case. The refusal of matri monial intercourse, the parties continuing to live in the same house, would not 'of itself con stitute desertion; this would be a breach of a single conjugal obligation only. Desertion im ports a complete cessation of relations, and the abnegation of the duty of companionship and all other obligations of marriage by a refusal to live together. Where the separation is by mutual consent, and the husband makes adequate pro vision for the support and maintenance of the wife, desertion cannot be imputed, of course. Where husband and wife are living separate without reasonable cause, and without mutual consent, and an offer of reconciliation and the renewal of marital relations is made by one party and refused by the other, the party re fusing becomes a deserter. The refusal to return must be voluntary, however. If the refusal is given under restraint or duress from a third party, the remedy is against the restrainer, either by writ of habeas corpus or by a suit for alienation. Probably only the husband could sue out the writ. At common law the remedy for desertion is a suit for the restitution of conjugal rights. A deserted husband or wife may obtain a decree requiring the deserter to return; and the decree remains in force until cohabitation is resumed. Formerly, the de serter could be imprisoned for a refusal to comply with the decree. The ecclesiastical courts in England originally had jurisdiction in such cases, which devolved on the Probate and Divorce Division of the Supreme Court of Ju dicature when the high courts were con solidated. Under the present English Divorce law the deserter cannot be imprisoned for the desertion; but he must pay alimony if cohabitation is not resumed and he may be im p,risoned for non-payment of the alimony. The English proceeding has thus been practically assimilated to the American practice. In the United States the institution of suits for the restitution of conjugal rights has never found judicial favor. The deserted spouse was rele gated to the equity jurisdiction for a proper remedy. This was usually a decree of separa tion, with alimony to the wife if guiltless, or without alimony if she was in fault. Desertion is now a ground for divorce, absolute or limited, in nearly all States of the Union (see DIVORCE). A deserted wife, of course, has
authority in law to contract debts for neces saries and charge her husband with the obliga tion to pay. The failure of a husband, or his gross, wanton and cruel refusal or neglect, to provide a suitable maintenance for his wife, would justify the latter in separating herself from his bed and board; and the fact that the wife has been forced by such neglect to support herself, and has been able to do so, is no de fense in his favor.
In nearly all of the States the desertion and non-support of wives and dependent children by the husbands and fathers is now actionable criminally in a quarter sessions court, a police court, or in the Domestic Relations Court, which is a branch of almost every one of the munic ipal courts recently established in the greater cities. The process is summary, sometimes on relation of the overseer of the poor, sometimes on petition of the deserted wife. The husband being shown to have separated himself from his wife and children, or to have neglected to sup port them, will be required to pay a suitable sum weekly for their maintenance. Failing to do so the delinquent may be sentenced to imprisonment at hard labor. This provision for imprison ment at hard labor makes desertion and non support an extraditable offense. Formerly it was easy for a deserting husband to evade the requirement to pay a stipend to the cast-off wife by simply going into an adjoining State to live. A deserted wife for the same reason, namely, the huband's absenteeism, found it difficult to cite the deserter into the courts of her domicile. The process of the State courts does not run beyond the State's boundaries; but, armed with a requisition of extradition is sued by their governor, the police officers of any State can now take a fugitive wife de serter from any other State to which he has fled or may flee. A propertyless husband in prison, of course, cannot comply with the order to pay maintenance. In some States, therefore, the law permits the delinquent to be committed into the custody of a probation offi cer, who is charged with the duty to see that the order to support the wife is complied with, and the stipend is regularly paid. An alterna tive method to insure payment is to require the institution wherein the delinquent is imprisoned to pay a stated sum per diem to a person desig nated by the court as the proper recipient. The per diem is written off as part of the run ning expense of the penal institution and is charged to the county. In the last analysis, however, it comes out of the labor of the prisoner breaking stones, digging ditches or building roads. The deserter is thus made to earn bread for his abandoned dependents by the sweat of his brow. The legislation on this subject, the more drastic parts of which have gone into effect during the past five or six years, provides the means whereby women in the humbler walks of life can obtain expedi tiously and inexpensively the equivalent of a judicial separation with alimony.