Case: Jayashree W/O Vilas Bhole Vs. Dr. Vilas Pundlikrao Bhole

M.G. Gaikwad, J.Heard learned counsel, appearing on behalf of respective parties.2. The appellant/wife has preferred this appeal against the judgment dated 13-01-2004 passed by the learned Judge, Family Court, Aurangabad in Petition No.A-470/2002, whereby the learned Judge passed a decree of divorce in favour of the respondent/ husband on the ground of desertion.3. The facts of this case as are necessary for the purpose of decision of this appeal, in brief, are as under.The respondent/husband had filed Petition No.A-470/2002 before the Family Court, Aurangabad for dissolution of his marriage with the appellant and a decree for divorce, on the ground of cruelty and desertion under section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. The case as pleaded by the respondent/husband is that his marriage with the present appellant was solemnized on 21st June, 1989 at Jalgaon as per Hindu rites and customs. After their marriage, the appellant cohabited with him and gave birth to two children. At the time of marriage, the respondent/husband was in Government service in Government Medical College, Aurangabad at Aurangabad. For a period of six months of the marriage, their marital life was smooth and happy. The respondent/husband made allegation that the wife was short-tempered and always had desire to go to her parents house. After some days, the respondent/husband tendered resignation of his service and started private practice. Appellant/wife was insisting that he should take her to her parents house and on that count, used to raise quarrels. Her parents also frequently used to visit his house and at their instigation, the appellant/wife used to raise quarrels. On one occasion, without any reason, she stayed at the house of her parents for a period of one year; however, at the intervention of her paternal uncle and one relative Sunil Wani, she again came back to his house and was cohabiting with him. On 16th April, 2000, she asked her husband/respondent to take her to parents house. He was unable to accompany her as he was busy in the construction of his hospital building. He told her that he will take her to her parents house in the month of June, but she did not listen and raised quarrel. She called her parents from Mumbai on 28-04-2000 and alongwith them, she went to Jalgaon without intimation to him. As nobody was in his house, he called his mother from his native place. On 02-05-2000, the appellant/wife came to his house, stayed for an interval of 2-3 hours and left the house carrying with her all the articles including her clothes and ornaments behind his back. Thereafter, he tried to contact her on telephone, but there was no response from her. He alleged that his wife/appellant has withdrawn from his company without any reasonable cause on 02-05-2000. Thereafter, he had filed a petition bearing No.A-335/2000 for restitution of conjugal rights. In the said petition, the appellant/wife filed written statement and made wild and false allegations against him. Hence, he withdrew the said petition and thereafter, filed present petition for divorce on the ground of cruelty and desertion. According to him, the act of the appellant/wife to make false allegations against him and her behaviour even to assault the children and raise quarrels with him caused mental cruelty to him. It is contended that from 02-05-2000, the appellant/wife is living separate and deserted him. She also took school leaving certificate of her son Varun without intimation to the respondent/husband and admitted her son in a school at Mumbai. In the petition for restitution for conjugal rights, she made false allegations against him and these acts, according to him, show the intention of the appellant/wife to bring cohabitation permanently to an end because of which, he filed the petition claiming a decree for divorce on the ground of desertion and also mental cruelty.The appellant/wife had filed written statement (Exh-9) in the Family Court resisting the petition filed by the respondent/husband. She has admitted her marital relations with the respondent/husband as well as birth of two children. She has denied all the allegations made against her in the petition. She has denied that in the past, she left the house of her husband and stayed at the house of her parents for one year without any cause. According to her, in the month of June, 1992, her father had undergone a by-pass surgery in the hospital at Mumbai. Hence, to look after her father, she had stayed at Mumbai for a period of 3-4 months only. She admitted that she made request to her husband/respondent in the month of April, 2000 to take her to her parents house. The husband expressed his inability because of the work of construction of his hospital building. She made request to her husband/respondent to take her to her parents house in summer vacation and she would return to matrimonial home in the month of June, but the husband on that count assaulted her in presence of children and in a heat of anger, also caused bleeding injuries to himself by a broken sauce bottle. Because of that incident, she called her parents from Mumbai and alongwith them, she had gone to Jalgaon. At Jalgaon, they had decided to arrange a meeting of relatives and a message was given to the respondent/husband, but he refused to attend the said meeting. From Jalgaon, she came to Aurangabad alongwith children. Her mother-in-law was in the house. She picked up quarrel with her and gave threat to leave the house immediately. She tried to contact her husband, but he did not give response. Hence, alongwith the parents, she went to Mumbai. As such, she admits that since 02-05-2000, they are living separate.Appellant/wife denied that she left the house of her husband with an intention to permanently desert him. According to her, after separation, her husband/respondent never made any inquiry about her and her children. On the contrary, he had filed a petition for restitution of conjugal rights. In that petition, she had filed her written statement. Thereafter, the respondent/husband withdrew the said petition. She raised contention that she is an educated lady and interested only in the welfare of the family and children, inspite of cruelty to her from the respondent/husband, she cohabited with the respondent/husband for a period of ten years. As such, her contention was that she had no intention to permanently leave the company of the husband. On these grounds, she denied the allegations of cruelty and desertion. She admitted that she obtained school leaving certificate of her son who was studying in a school at Aurangabad and admitted him in a school at Mumbai, but denied that said act amounts to an intention to leave separate permanently. In her written statement, by way of an alternative relief, she claimed an amount of rupees fifteen lacs by way of permanent alimony and return of stridhan, in case the petition of the respondent/husband for divorce is decreed.4. On the pleadings and contentions raised by the parties, the learned Judge, Family Court framed issues at Exhibit-11 about alleged cruelty and desertion. Respondent/husband examined himself and also examined three more witnesses including one Tukaram Bhaije, a watchman, PW3 Shanti Chaurasiya and his own paternal uncle Digambar Bhole. Appellant/wife examined herself and her father DW2 Govind Kawale. Both the parties deposed in consonance with their pleadings. After considering the said evidence, the learned Judge, Family Court recorded finding that the evidence led by the respondent/husband does not prove the ground of cruelty. However, relying upon the evidence of the husband and the conduct of the appellant/wife to contest the petition for restitution of conjugal rights and obtaining of school leaving certificate of her son and admitting him in a school at Mumbai, a finding came to be recorded that separation for a period of two years prior to institution of a petition and wifes intention to live separate permanently is established and a decree for dissolution of the marriage and divorce came to be passed under section 13(1)(ib) of the Hindu Marriage Act, 1955, allowing the petition of the respondent/husband.5. Feeling aggrieved with the said judgment and decree for dissolution of the marriage and divorce, the appellant/wife preferred present appeal which came to be admitted by this court by order dated 25-10-2004. During the pendency of this appeal, the respondent/husband produced on record the marriage registration certificate to show that he has re-married with one Sangita on 14-02-2004 before service of a notice of this appeal.6. We have heard the submissions advanced on behalf of both the sides. Learned advocate Shri M.D. Joshi, appearing on behalf of the appellant/wife submitted that the fact of separation of the appellant and respondent from each other from 02-05-2000 is admitted by both the sides. Since then, the appellant/wife is staying separate. However, mere separation or separate residence is not sufficient to grant a decree of divorce on the ground of desertion unless it is proved that said residence or separation is with an intention to bring the cohabitation permanently to an end. According to Shri Joshi, because of respondent/husbands cruel treatment, the appellant/wife was forced to leave his house. Hence, her separate residence does not amount to desertion. Shri Joshi also advanced submission that immediately within few months of separation, the respondent/husband had filed a petition for restitution of conjugal rights without making any efforts to take his wife back, but when the appellant/wife filed her written statement in that petition, the respondent/husband withdrew that petition. Thus, the said act of the respondent/husband shows that he had filed that petition only to create an evidence. According to him, without considering the evidence, the learned Judge, Family Court on the ground of mere separation, granted a decree for dissolution of marriage. He has also advanced submission that the subsequent conduct of the respondent/husband to perform second marriage with one Sangita is also relevant and shows his intention that he was not ready and willing to take appellant/wife to cohabit with him. The decree passed by the learned Judge, Family Court, therefore, is not sustainable and needs to be quashed by allowing the present appeal.On behalf of the respondent/husband, learned advocate Shri K.V. Nikam, supports the decree for dissolution of marriage and divorce passed by the learned Judge, Family Court. According to him, the appellant/wifes conduct to leave the house of her husband behind his back and without intimation and her subsequent conduct to obtain school leaving certificate of son and admit him in a school at Mumbai and conduct to make false allegations against the husband in the petition for restitution of conjugal rights without making offer to come back and stay with him shows that she has deserted the respondent/husband with an intention to permanently reside separate from him which amounts to desertion, on the basis of which the husband/respondent can claim a decree for dissolution of marriage. He also advanced a submission that the evidence on record adduced on behalf of the respondent/husband also proved mental cruelty to him at the hands of his wife/present appellant. However, that evidence is not properly considered by the learned Judge, Family Court, and therefore, the finding on the issue of cruelty also needs to be recorded in favour of the respondent/husband and a decree on that ground also needs to be passed.7. The learned Judge, Family Court passed a decree of divorce under section 13(1)(ib) of the Hindu Marriage Act i.e. on the ground of desertion. The finding on the issue of cruelty is recorded against the respondent/husband. The respondent challenged the said finding and claims decree on the ground of cruelty also. Hence, firstly it will be proper to consider the evidence led by both the parties before the Family Court on the ground of cruelty and thereafter examine the correctness or otherwise of finding and decree passed on the ground of desertion.It is not disputed that the marriage of this couple was solemnized long back i.e. on 21st June, 1989 and thereafter, the appellant/wife stayed with her husband for a period of about 10-11 years and the couple is having two sons. The respondent/husband made allegations that his wife/appellant stayed with him without any complaint for a period of six months after the marriage, and thereafter, she always used to raise quarrels. On one occasion, she was alleged to have stayed away from him for a period of one year without any cause. The appellant/wife denied those allegations and according to her, in the month of June, 1992 i.e. three years after the marriage, she stayed away from the husband for a period of 3 to 4 months only, because her father had undergone a by-pass surgery. Hence, she stayed with her father to look after him. That incident needs to be ignored because admittedly, after that incident also, the appellant/wife stayed with the respondent/husband for a period of more than seven years i.e. upto 02-05-2000 and during that period, she gave birth to second child also. Thus, that incident which may have occurred seven years back is that way not at all relevant and needs to be ignored as the subsequent cohabitation of the appellant/wife with the respondent/husband for a period of seven years amounts to condonation of that incident whatever may be its nature and whoever may be at fault.The respondent/ husband came with a case that six months after the marriage, all the while, his wife/appellant used to raise quarrels with him on account of trifle grounds. His main allegations are that she was always insisting to visit her parents house and frequently, her parents used to come to his house and at their instigation, she used to raise quarrels with him. The appellant/wife denied all those allegations. However, as stated above, considering the span of ten years, during which the couple cohabited with each other, those allegations appear to be the allegations made for the purpose of this petition. Apart from this fact, in support of the said allegations, there is no other convincing and reliable evidence. As has been rightly pointed out, the pleading on this point is vague. No particular instances have been pleaded to show such abnormal behaviour of the wife which would amount to cruelty. Even the respondent/husband in his evidence could not bring on record any specific incident about such abnormal behaviour of the wife which amounted to cruelty. As regards their relations before the alleged separation on 02-05-2000, the respondent/ husband gave a general statement that the appellant/ wife always used to raise quarrels as she was insisting on frequent visits to her parents and every time, it was not possible for him to send her at her parents house as her parents were staying at Mumbai. This is the only statement made by the husband about their married life prior to separation on 02-05-2000. He has pleaded that in the past, without any reason, she stayed at the house of her parents for one year. At this juncture, it will be proper to quote his statement about their married life before separation, as it is. His statement runs thus:-"There was quarrel between us as I refused to accompany her to parents house. Her parents used to come to our house frequently. So, there was oral wrangle between us. I told her parents not to visit my house frequently, as due to them, there was quarrel between us. Due to her behaviour, I was mentally disturbed and I could not concentrate my practice. Once, she lived at her parents house for 10 to 11 months. I talked her on phone and also with her relatives and called her to join my company. Her paternal uncle convinced her and brought her to my house."This is a general statement made by him about the alleged mental cruelty and behaviour of his wife in the past. However, his further statement makes it clear that after that alleged incident, their relations were smooth. That part of his statement runs as under."Thereafter she lived with me for 2 to 3 years, but there was no severe quarrel between us. Afterwards, her parents started visiting my house and there was oral wrangle between us."Above statement of the husband makes it clear that there were no severe allegations nor any serious incident occured in their married life which amounts to cruelty, as the respondent/husband himself admitted that for three years, there were no quarrels between them. Apart from this fact, when cross-examined, the husband gave certain admissions which rule out the cruel behaviour of the wife. That part of his statement runs thus.00, the child was c"My marriage was performed on 21-6-1989. On 15th May, 1991, Warun was born. It is true that she had to go at her parents house as per customs for first delivery and it was for 2 to 3 months. We admitted the child in Kids Kingdom when he was of 3 years of age. Till 20lever and brilliant as I personally know. It is true that I admitted him in the year 1994 in St. Lawrence High School. It is true that till 2000, he was in the same school. It is true that he was attending the school regularly."The above statement of the husband makes it clear that since the age of 2-3 years, their son Warun was taking education in a school at Aurangabad till 2000 and his career was never affected because of absence from the school. He made allegations that without any reason, his wife/appellant stayed for about one year at her parents house in the past. Appellant/wife came with a specific case that for three to four months, she had stayed at her parents house in 1992 as her father had undergone a by-pass surgery. This contention of the appellant/wife is corroborated by the admission of the husband. Husband has admitted that his father-in-law had undergone a by-pass surgery in 1992. He admitted that elder sister of his wife was staying at Indore with her husband and their brother was a boy of 22-23 years. He admitted that he has pleaded that she lived at the house of her father for one year and that period was during the period when her father had undergone by-pass surgery. Thus, the facts are admitted that because of the by-pass surgery of the father, appellant/wife stayed with the father for few months and it was not because of strained relations between the husband and wife. Thereafter, she again came to cohabit with her husband/respondent and stayed with him for a period of six to seven years and as admitted by the husband, there were no serious quarrels between them till the separation on 02-05-2000 or till the incident which did occur in April, 2000.Appellant/wife and her father DW2 Govind Kawle have asserted that appellant stayed at her parents house for few months when her father had undergone a by-pass surgery. Thus, the evidence on record as admitted by the husband himself does not prove the cruel behaviour of the wife with him. He could not bring on record any specific incident which would show the behaviour of the wife which amounts to cruelty before alleged separation.8. The respondent/husband by examining three witnesses tried to bring on record alleged behaviour of the wife which would amount to cruelty. PW2 Tukaram Bhaije was a watchman engaged at Murlidhar Apartments where this couple used to stay. He has stated that he knew the appellant and the respondent as they were residing in that apartment. According to him, the appellant/wife used to confine her children in the house and used to beat them. She left the house with her parents. He further stated that she was having suitcases with her and when she left, she told him that she would not come again. It is submitted that it was not suggested to this watchman that he is giving false statement. This witness is admittedly a watchman employed for the security of the Apartment. He has not uttered a single word about the relations of this couple. He simply states that the appellant/wife used to confine the children and used to beat them. Such a statement from a watchman in the Apartment without quoting any specific incident or the period during which such alleged incident took place cannot be relied upon. At the most, it may amount to cruelty to the children. He has also not disclosed as to how he got knowledge of the said act of the appellant/wife as he has not stated that because of any reason, he was required to visit the house of the appellant and respondent and noticed said act of the appellant/wife. Such a vague statement of a watchman cannot be believed and it is not any way helpful to the respondent/husband to prove the cruelty at the hands of the appellant/wife to him. An attempt is made on behalf of the respondent/husband that present appellant disclosed to the watchman that she will not come back again and from that statement, an attempt is made to show that she left the house permanently. But it does not appear probable that the appellant would disclose before a watchman that she will not return back again as he is not related to them, nor any circumstance is brought on record to show that they had such intimate relations with that watchman so that the lady will inform him that she will not return back to the husbands house. Thus, the evidence of this watchman has been rightly rejected by the trial court.Another witness examined by the respondent/husband is one Shanti w/o Rambhau Chourasiya (PW3). She claims that even before the litigation, she was knowing this couple as the appellant was classmate of her daughter. According to her, after their marriage, this couple used to visit her house as her daughter is appellants friend. She further stated that the married life of this couple was happy for few days. As regards the behaviour of the appellant, she has stated that due to laziness, she did not cook food in time and did not do domestic work. Several times, she convinced her. She also threatened the child. She wanted to become a model. Her parents used to come to his house. Not only this, she also stated that on one occasion, appellant left the child for seven days and she (PW3) looked after the child. The appellant was making false allegation against the respondent and told her that she (appellant) did not want to live with him. The respondent/husband himself has not stated that his wife was lazy and was not preparing the food in time and on that count, there were quarrels between them. He has also not stated that on any occasion, she left her child and went away for seven days. He also does not depose that his wife had intention to be a model. Admission of PW3 in the cross-examination shows that the lady is giving such an evidence as tutored to her. Her admission is as under."It is true that on the say of the petitioner (present respondent), I am deposing before the court."This admission of the witness Shanti (PW3) coupled with the above referred facts are sufficient to reject her testimony. She is giving the evidence about the conduct of the appellant/wife and making allegations which are not even made by the respondent/husband.The last witness examined by the respondent/ husband is his uncle PW4 Digambar Bhole. He has stated that once appellant met him in a bus. He called her at his house and when he came to know about their differences, he tried to convince her, but she was not ready and told that she would not cohabit with him (respondent). In the cross-examination of this witness, he has stated that on inquiry with the respondent, he came to know that his wife frequently used to say to allow her to go to her parents house and he told to the respondent as to why he did not take her for outing alongwith children and he told that some-times he took her for outing and every time, it was not possible for him to do so. The respondent/ husband himself has not stated any such advice being given by this witness to him or his wife making any complaints with this witness. Hence, the possibility cannot be denied that he being paternal uncle of the respondent/husband, he came forward to support his case but without quoting any specific incident. His general statement that he tried to convince the appellant/wife and she refused to cohabit with her husband, therefore, cannot be accepted as truth. As such, his evidence does not help the respondent/husband to prove cruel behaviour of the appellant/wife with her husband/respondent.The evidence of the respondent/husband and that of the witnesses examined by him, referred to above does not prove behaviour of the appellant/wife or the acts of the wife as amounting to cruelty towards her husband.9. An attempt is made on behalf of the respondent/husband to show that appellant/wife made false allegations against him in the written statement filed in the petition for restitution of conjugal rights and those allegations amount to cruelty. In support of this submission, reliance is sought to be placed on three judgments of this court.In its decision in the case of Mrs. Manisha Sandeep Gade v. Sandeep Vinayak Gade, reported in AIR 2005 BOMBAY 180, a Division Bench of this court has held that the wife made counter allegations in written statement against the husband. She failed to prove the said allegations. Hence it can be inferred that said allegations constitute cruelty. In the same judgment, it is observed by the Division Bench that as a normal rule, whether cruelty as a matrimonial wrong has been established is a question of fact and in each case it will have to be determined by taking into account the circumstances of the case and there cannot be any general rule. In that case, the wife had made allegations against the husband and husband gave evidence that those allegations are false. There was no effective cross-examination. In that case, wife made allegations that her husband had illicit relations with "L", but in support, there was no material. Considering such serious allegations, the Division Bench held that the said allegations constitute cruelty. But at the same time, the court has observed that as a rule, cruelty is a question of fact and it needs to be determined by taking into account the particular individuals conduct and there cannot be a general rule.In the case of Shri Ashok Toraskar vs. Smt. Alka Ashok Toraskar, reported in 2007 (1) ALL MR 224, it has been held by this court that cruelty is a course or conduct of one which is adversely affecting the other. Cruelty may be mental or physical. It has been observed that it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact of injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.The Apex Court in the case of Praveen Mehta v. Inderjit Mehta, reported in AIR 2002 Supreme Court 2582 held that mental cruelty is state of mind and feeling and is a matter of inference. Inference has to be drawn on facts and circumstances taken cumulatively. In the case before the Apex Court, mental cruelty was alleged because of non-cooperation of the wife about sex from 1st day of the marriage and refusing medical treatment. Her conduct to leave matrimonial house within few months of marriage is held as depriving husband of normal cohabitation. There were allegations of false plea of conception and miscarriage. On these facts, the Apex Court held that the inference of mental cruelty arises from attitude and conduct of the wife.The ratio laid down in the above referred cases is clear that the false allegations made by the wife against the husband may amount to mental cruelty. However, it is not a general rule that from the allegations made, directly inference of cruelty needs to be drawn, but from the facts of each case, the court is to determine as to whether the allegations made amount to cruelty or not. In the present case, the respondent/husband had filed a petition for restitution of conjugal rights. In that petition, the appellant/wife had filed written statement. It is submitted that she made false allegations in that written statement because of which the respondent/husband has withdrawn that petition and those allegations were alleged to be the mental cruelty to the respondent/husband.10. As referred to above, the evidence led by the respondent/husband in this case does not prove any cruel behaviour of the appellant/wife towards her husband when she was cohabiting with him. The copies of petition for restitution of conjugal rights filed by the respondent/husband and the written statement filed by the appellant/wife in that proceeding are produced in this case at Exhibits-21 and 22. The respondent/husband in paragraph No.4 of his said petition has pleaded that the appellant/wife led happy married life for six months. Thereafter, she started to show her real behaviour. She was short-tempered and being pampered by her parents, she is also lazy. She always wanted to visit her parental house and she used to compel him to fulfil her demands. In paragraph No.7, the respondent/husband alleged that due to unnatural behaviour of the appellant, that of visiting her parents every now and then, and staying there for a long time, the marital life of the respondent/husband was very much disturbed. His further pleading is about the incident which had occurred in the month of April, 2000. The appellant/wife in her written statement (Exh-22) denied those allegations and she has pleaded that those allegations are utterly false and are made to create an evidence. She made allegations that the husband had told her that he has married with her only to obtain dowry. She made further allegations that he was always insisting and beating her on the ground that she should fetch money from the parents.She also alleged that in the month of April, she was beaten and driven by the husband, so she was staying at the parental house. In that case, there was no opportunity to both of them to prove the allegations made by them against each other, as the respondent/husband had withdrawn the said petition. Hence, it cannot be held that the allegations made by each one of them against each other are false or true. Neither the appellant/wife nor the respondent/husband made any serious allegations against the character of each one of them. The respondent/husband alleged that her behaviour was unnatural and in reply, the appellant/wife replied that his such behaviour was for demand of money, etc., but without there being any material to prove those allegations, directly inference cannot be drawn that those allegations were false. Admittedly, this couple cohabited with each other for a period of ten years after the marriage and is blessed with two sons. They have not made any serious allegations against each other. Even in the present petition, the respondent/husband could not bring on record any conduct of the appellant/wife which would amount to cruelty. Hence, solely on the ground that she made allegations in her written statement in another proceeding that he was demanding money and when particularly that petition was not decided on merit, directly inference cannot be drawn that she made false allegations. As such, the respondent/husband failed to establish any conduct of the appellant/wife towards him which would amount to cruelty. The finding recorded by the learned Judge of the Family Court that the respondent/husband failed to establish the cruelty by the appellant/wife towards the husband is perfect and does not call for any interference.11. The next point for our consideration is as to whether the decree for dissolution of marriage granted by the learned Judge, Family Court is justified. The learned Judge, Family Court passed decree for dissolution of marriage and divorce accepting the contention of the respondent/husband that the appellant/wife deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. The appellant/wife challenged the said finding and the decree on the ground that mere separate residence by itself does not constitute desertion to grant a decree for divorce. According to her, she was compelled to leave the company of the respondent/husband and she had no desire or intention to permanently leave the company of the husband. Learned advocate Shri Joshi, appearing on behalf of the appellant/wife advanced submission that the evidence adduced by the husband only proves the factum of separation. However, there is no evidence to prove intention to desert permanently. On the other hand, while supporting the finding and decree, learned advocate Shri Nikam, appearing on behalf of respondent/husband advanced submission that the evidence on record established the intention of the appellant/wife to desert permanently. In view of these rival contentions, the evidence on record needs scrutiny to find out as to whether desertion as required is established in the present case.On behalf of the respondent/husband, reliance is sought to be placed on the decision of the Apex Court in the case of Praveen Mehta v. Inderjit Mehta, reported in AIR 2002 Supreme Court 2582 in support of his contention that the appellant/wife left matrimonial home and inspite of several attempts by the relatives, no conciliation between them was possible. Hence, it can be reasonably inferred that the marriage between the parties has broken down irretrievably without any fault on the part of husband. Therefore, the decree of divorce granted needs no interference. In the said case, the Apex Court held that the wife left the house after few months of the marriage and inspite of attempts by the relations, the conciliation was not possible and no fault was found on the part of the husband. Hence, the Apex Court held that it can be reasonably inferred that the marriage between the parties has broken down and it was because of no fault on the part of the husband. Hence, the decree for dissolution of marriage needs no interference.Reliance was also sought to be placed on the decision of the judgment of Division Bench of this court in the case of Shyamsunder Amarlal Hotchandani v. Smt. Arti alias Sunita Shyamsunder Hotchandani, reported in AIR 2004 BOMBAY 311. In the said case, the wife was found to have deserted the petitioner/husband. The evidence established that she refused to come back inspite of various attempts made by him to bring her back. Said evidence of petitioner has not been rebutted. Because of these facts, finding came to be recorded that ingredients of Section 13(1)(ib) are satisfied and the marriage between the couple stands dissolved.On behalf of appellant/wife, in support of her contention that unless intention to desert permanently is established, a decree for dissolution of marriage cannot be passed, reliance was placed on the decision of the Apex Court in the case of Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, reported in 2002 (1) Supreme Court Cases 308 . While considering the scope of section 13(1)(ib) of the Hindu Marriage Act, the Apex Court held that to claim a decree under section 13(1)(ib), it is necessary to prove two ingredients i.e. (i) separation in fact and (ii) animus deserendi - the intention to bring cohabitation permanently to an end by deserting spouse, and on behalf of deserted spouse the absence of consent and absence of conduct motivating the desertion. It has been held that burden is on the petitioner for divorce to prove these ingredients and that they were present throughout the statutory period. After considering the provisions of Section 13(1)(ib) and its Explanation, the Apex Court observed as under:"The essential ingredients of this offence in order that it may furnish a ground for relief are :-1) the factum of separation;2) the intention to bring cohabitation permanently to an end - animus deserendi;3) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period."After considering the scope of Explanation to Section 13(1)(ib), the Apex Court held :-"It is clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period."In view of the above decision of the Apex Court, it is essential for the petitioner to prove the factum of separation for a statutory period and the intention of deserting spouse to bring cohabitation permanently to an end. At the same time, burden is on the deserted spouse to prove absence of his consent and absence of his conduct giving reasonable cause to the spouse leaving the matrimonial home throughout the statutory period. Thus, the ratio makes it clear that the burden is on both the sides. One who claims a decree for dissolution of marriage on the ground of desertion, it needs to be established that there was separation for a statutory period and it was with an intention to refuse cohabitation permanently and on the other side, burden is to prove absence of consent for his separation and absence of his conduct to give reasonable cause to the deserted spouse.With this settled legal position, the evidence in the present case needs to be examined to find out as to whether desertion as required is proved and the decree of divorce is justified.12. The respondent/husband in the present case in whose favour decree is passed, has claimed that without his consent, his wife/appellant left his house on 02-05-2000 and inspite of his attempts, refused cohabitation. To show her intention to permanently desert him, reliance is placed on two circumstances i.e. (i) the wife/appellant made false allegation in her written statement filed in a petition for restitution of conjugal rights, and (ii) that she took school leaving certificate of her son from the school of husbands residence and admitted her son in a school at Mumbai. While recording finding in favour of the respondent/husband, the learned Judge, Family Court held that these two circumstances proved animus deserendi i.e. wifes intention to permanently bring to an end the cohabitation. In paragraph No.43 of the judgment, the learned Judge, Family Court observed as under."I have already held that she is living separate from him since last more than two years."It is admitted by both parties that the wife left the company of the husband on 02-05-2000 and since then, she is living separate. The petition for dissolution of marriage on the ground of desertion is filed by the husband on 07-12-2002 i.e. after the statutory period of two years. Hence, the factum of separation or separate residence for a statutory period of two years preceding the date of filing a petition is admitted fact. The husband who is a spouse deserted, to prove the second ingredient i.e. intention of the wife to permanently bring cohabitation to an end, tried to place reliance on three instances i.e.(i) She left the house without his consent;(ii) In the petition for restitution of conjugal rights filed by him, in her written statement she made false allegations against him without showing readiness to join his company, and(iii) Obtaining school leaving certificates of the children and admitting them in a school at Mumbai without his consent.In paragraph No.39 of the judgment, the learned Judge, Family Court has observed as under."It is an admitted fact that the respondent/wife in July came to Aurangabad and took the school leaving certificate of Varun directly from the school. In June, he has deposited all the fees of Varun. He also asked her to come to Aurangabad for the sake of child also, but she did not come. In the cross-examination, she was not in a position to say whether she paid fees when she took T.C. of minor child Varun."However, no positive finding is recorded by the learned Judge, Family Court as to whether this act of obtaining school leaving certificate shows intention to bring permanently cohabitation to an end. However, in paragraph No.43 of the judgment, it is observed that in a petition for restitution of conjugal rights, wife appeared and resisted the claim and the petition came to be withdrawn. In such circumstances, it can be held that she has deserted him with an intention to bring cohabitation permanently to an end.In paragraph No.44 of the judgment, the learned Judge has observed that the wife was not compelled to leave the house, but she on her own accord left the matrimonial home. In paragraph No.45 of the judgment, it is observed that the wife failed to prove before the court that the husband beat her and dragged her out of the house, but she has admitted that she left his house behind his back. In paragraph No.46 of the judgment, it is observed that her act to take school leaving certificate of her son and contest the petition for restitution of conjugal rights shows her intention to bring cohabitation permanently to an end. This finding being challenged, evidence needs to be scrutinized by us.13. As discussed above, before April, 2000, there was no serious dispute between this couple. Each one of them is blaming other for the incident which did take place in April, 2000. Both of them admit that incident. According to the respondent/husband, in the month of April, 2000, she was insisting that he should take her to Mumbai i.e. to her parents house and he refused for the same. Hence, she gave a message to her parents and they arrived on 28-04-2000 and behind his back, left the house, again returned on 02-05-2000 and behind his back, left his house. The appellant/wife came with a case that in the welfare of the children, she asked her husband to take them to Mumbai in summer vacation, but he refused for the same and assaulted her, hence, she called her parents. They had gone to the native place of the husband i.e. at Jalgaon. The relatives made an attempt to call the respondent/husband, but on his refusal, they came back to Aurangabad and then left for Mumbai. Thus, the facts are admitted by both of them that some quarrel arose between them before 28-04-2000 and on the intimation given by the wife, her parents came to his house. They had gone to Jalgaon, again returned to the house at Aurangabad on 02-05-2000 and on 02-05-2000, wife left his house and staying at Mumbai at her parents house. Whether there was any reasonable cause for her to leave his house has to be seen from the record. The respondent/husband in paragraph No.5 has stated that on 14th or 15th April, 2000, there was quarrel between them as she wanted to go to her parents house. At that time, construction of his hospital building was going on, hence, he told her that they would go in June, but she did not listen. Hence, she called her parents. They arrived on 28th April and behind his back, they left the house and returned after 2-3 days and in his absence took away all the clothes and ornaments and since then, she is residing at the house of her parents. He claims that thereafter he called her to join his company, but she did not join. Except this vague word, nothing is there to show that he made any such attempts to take her back. No relative is examined to show that at the instance of husband, they made any efforts to advise her. The husband also has not disclosed as to what efforts have been made by him to take her back. In the cross-examination, he has stated that he came to know that the appellant/wife came with her parents and took all articles with her. Not only this, but he has admitted in clear terms that there was quarrel between them and it was the reason for the wife to go to her parents house. He denied the suggestion that on 28-04-2000, he assaulted her and drove her out of the house. His witness watchman Tukaram Bhaije has brought on record only fact that on the request of the appellant/wife, he brought rickshaw and by rickshaw, appellant/wife left the house having suitcases with her. He made attempts to show that she left his house permanently stating that she told her that she would not come back again. That part of evidence is already considered and is found not reliable. Other two witnesses examined do not prove any particular fact which will help to draw an inference of intention of appellant/wife to abandon the company of the husband permanently. Thus, from the evidence led by the husband who claimed decree for dissolution of marriage, only fact established is that in the month of April, 2000, there were quarrels between this couple, on the ground that the wife was insisting that he should take her to her parents house in the month of April, 2000 and the husband was not ready for the same. The appellant/wife stayed with him for ten years. Hence, solely on the ground that she left his house on 02-05-2000 for her parents house alongwith her children, inference cannot be drawn that she left the house with an intention to bring the cohabitation permanently to an end.At this stage, the evidence of the appellant/wife needs to be considered to find out as to whether there was any reasonable cause for her to leave the house and whether her intention was to live separate permanently from the husband. The appellant/wife has stated that in April, 2000, she made request to the husband to allow her to go to her parents as the examination of the children was over as she did not go to parents house for three years. He told her that they will go in June/July as construction was going on. She told him that school will re-open in June/July and thereafter he tried to attack her and threw articles and lastly, he beat her severely. She then gave a message to her parents on phone and on parents arrival, they had gone to Jalgaon at the house of the parents of her husband. She further stated that his parents told that they will settle the matter. Accordingly, the father of respondent/husband called the respondent/husband, but he did not come to Jalgaon. She claims that she stayed at the house of her husbands parents for two days, but her husband/respondent did not turn up. Hence, they returned to Aurangabad. The respondent/husband admitted that the quarrel took place between them as she insisted to go to her parents house in April itself. so, she had called her parents. He has admitted that his father was running a business at Jalgaon upto the end of 2000. Thus, the wifes version appears probable that after arrival of her parents, they had gone to see the parents of her husband at Jalgaon and to intimate the incident. The paternal uncle of the husband in the Examination-in-Chief itself admitted that the appellant/wife made complaint with him that her husband/respondent was not allowing her to go to her parents house nor he took her for outing and he made inquiry with his nephew as to why he did not take her for outing. Thus, it, to some extent, supports the story narrated by the wife that the respondent/husband was not allowing her to visit her parents house and because of vacation of the schools, she had made request to her husband to take her to her parents house and the husband was not ready for the same, stating that he will take her to her parents house in June or July. Her refusal to go to her parents house in June/July obvious because as the schools were to re-open in June/July, it would not have been possible for her to go and stay at her parents house as her son was a school-going boy and on that count, there was a quarrel between them and she was required to give a message to her parents and parents arrived and made inquiry with her husband. She has stated that on inquiry, he told that he has every right to beat his wife. hence, her parents took her to Jalgaon where the father of the husband resides. A message was given to the respondent/husband, but he refused to come to Jalgaon. The appellant/wife alongwith her parents was, therefore, required to return back to Aurangabad. According to the appellant/wife, when they returned back to Aurangabad, the mother of the respondent/husband was at the house. Respondent/husband was not present. The mother of the respondent/husband told appellant/wife to go to Mumbai and abused her. Appellant has stated that she contacted her husband on phone, but he did not turn up and lastly, she alongwith her father went to Mumbai. It is thus clear that because of the quarrel raised by the respondent/husband, she had gone to her parents house and that cannot be said to be with an intention to bring to an end the cohabitation permanently.14. Let us now consider the subsequent events after the appellant/wife left the house of her husband/respondent. She left the house of her husband on 02-05-2000. The husband/respondent gave vague statement that he contacted her on phone and asked her to join his company, but she did not join his company. Hence, he had filed a petition for restitution of conjugal rights. That petition for restitution of conjugal rights came to be filed in the month of August, 2000 i.e. immediately within three months of their quarrel. He has admitted that though his son and wife were staying at Mumbai, he never sent any amount towards maintenance of the children. She had filed Maintenance Petition and maintenance came to be granted in her favour. Within 3-4 months, without making any attempts to call the wife to join his company, the husband filed a petition for restitution of conjugal rights. In the said petition, he made allegations that since six months of the marriage, her behaviour was not proper. She was lazy. She always had a desire to visit to her parents house. Her parents used to instigate her. He narrated the incident of 02-05-2000. There also, he made vague allegation that he tried to contact the appellant/wife on telephone, but could not succeed as her parents refused to call her on phone. He stated that he sent letters, but he is not claiming that personally, he had gone to fetch her or attempts of conciliation were made by him, and directly he filed the petition for restitution of conjugal rights. The appellant/wife appeared in that petition and filed written statement. According to her, respondent/husband always used to beat her on account of demand of money. She also claims that she had also filed a maintenance proceeding. Hence, he had filed a petition for restitution of conjugal rights. As stated above, no serious allegations were made by the appellant/wife in that petition. He has withdrawn the said petition by filing a purshis (Exh-23) stating that the wife had filed written statement and it appeared that she had no desire to join his company and he was not willing to force her to join his company, hence, he was withdrawing the said petition. On mere filing of a petition for restitution of conjugal rights, bonafides on his part cannot be presumed when particularly the wife has already filed petition for maintenance and she never refused to join his company. In the written statement, appellant/wife did not allege that she was not ready to stay with him, but apprehended the danger to her life because of his earlier conduct. Hence, filing of written statement with some allegations by itself cannot be accepted to be a circumstance to prove the wifes intention to bring the cohabitation permanently to an end.15. The circumstance of wifes obtaining school leaving certificate of her son and admitting him in a school at Mumbai is alleged to be a circumstance to prove the wifes intention to bring to an end the cohabitation permanently. The appellant/wife has admitted that without consent of her husband, she had obtained school leaving certificate of her son from the school at Aurangabad and admitted the son in a school at Mumbai. She was staying with her parents. Husband has not made any attempts to fetch her. Her son was minor. Hence, her act to admit her son in a school at Mumbai where she was staying cannot be said to be a ground to prove the desertion. As held by the Apex Court, the burden is on the husband to prove the absence of reasonable cause for the wife to leave his company during the statutory period. Here in the present case, after appellant/wife left the house of her husband, there were no attempts from the husbands side to call her to join his company. On the contrary, he had filed a petition for restitution of conjugal rights after the wife had filed a petition for maintenance. When the wife filed her written statement in the petition for restitution of conjugal rights, without there being any attempts of conciliation, the respondent/husband withdrew the said petition, without there being refusal to join his company, it cannot be said that filing of written statement with some allegations by her proved her intention to bring the cohabitation to an end permanently. As such, there is no evidence to prove her intention to bring the cohabitation permanently to an end. Mere separate residence for a statutory period of two years does not amount to desertion for granting a decree for divorce. In the present petition, the appellant/wife has specifically stated that after receipt of a notice of the petition for restitution of conjugal rights, she made attempts to meet him in the hospital and made efforts to reconcile, but he refused for it and lastly, he withdrew that petition. It was asked to her in the cross-examination as to whether she had filed an application before the Marriage Councillor stating that she wanted to join the company of the husband or file a petition for restitution of conjugal rights. She admitted that she had not filed any such petition. However, the facts discussed above show that the respondent/husband had filed a petition for restitution of conjugal rights and immediately he had withdrawn the same. It was suggested to her that she had no desire to join the company of her husband and she denied the said suggestion. Hence, in the present case, though there were some differences between this couple, their relations were not strained to that extent before the incident which did occur in April, 2000. Because of quarrel arose in April, 2000, she left his house in May, 2000 and living separate. Nothing is there to prove her intention to bring the cohabitation to an end permanently. The respondent/ husband had filed petition for restitution of conjugal rights, but he claims that on account of false allegations made by the wife against him, he presumed that she had no desire to join his company, hence, he has withdrawn that petition. There were no circumstances for drawing such a presumption that she had no desire to cohabit with him.In the present case, therefore, in proof of animus deserendi, there is no evidence. However, the learned Judge of the Family Court on account of wifes act to leave the house of her husband behind his back and her act to obtain school leaving certificate of her son and admitting him in a school at Mumbai, held these acts to be the circumstances sufficient to prove her intention to bring the cohabitation to an end permanently. However, as discussed to above, those circumstances are not sufficient in proof of her intention to bring to an end the cohabitation permanently which would amount to desertion. Hence, the finding recorded on the issue of desertion needs to be set aside, as it is not justified.16. On behalf of the respondent/husband, an attempt is made to show that the marriage is irretrievably broken down as the respondent/husband has re-married after the decree for dissolution of marriage was passed. hence, the decree for dissolution of marriage should not be set aside. In support of this submission, reliance was placed on the decision of the Apex Court in the case of A. Jayachandra v. Aneel Kaur, reported in 2005 (2) Supreme Court Cases 22, wherein the Apex Court held that irretrievably breaking down of a marriage though not on statutory ground for seeking divorce, to shorten the litigation and save the parties from further agony, marriage can be dissolved. Admittedly, in the present case, the respondent/husband after passing of decree for dissolution of marriage, re-married with one Sangita on 14-10-2004. The decree for dissolution of marriage came to be passed on 29-01-2004 and the appellant/wife preferred present appeal on 04-10-2004. On 04-10-2004 itself, a notice in this appeal came to be issued with ad-interim relief on 04-10-2004. Before service of that injunction order and notice, on 14-10-2004, the respondent/husband re-married and now, he claims that because of the said fact, his marriage with the appellant has irretrievably broken down, hence, the decree for dissolution of marriage passed by the Family Court should not be disturbed.On behalf of the appellant/wife, submission is made that the act of the respondent/husband to re-marry without ascertaining as to whether any appeal is preferred against the decree by itself shows his intention not to allow the appellant/wife to join his company. Hence, the second marriage of the husband cannot be accepted to be a ground to confirm the decree for dissolution of marriage. In the case of Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and another, reported in AIR 1967 Supreme Court 581, the Apex Court considering the scope of Section 15 read with Section 28 of the Hindu Marriage Act, 1955, held that on dissolution of a marriage, a spouse can lawfully marry only when there is no right of appeal against decree dissolving marriage or if there is right of appeal, time for filing appeal has expired or appeal presented has been dismissed. Admittedly, in the present case, decree for dissolution of marriage was passed and there was right of appeal against the said decree. Second marriage is performed after expiry of period of limitation for appeal, but nothing is there to show that the husband made any inquiry as to whether appeal is preferred by the appellant/wife against the decree for dissolution of marriage and same came to be dismissed. In the case of Prakash Chand Sharma v. Vimlesh (Smt.), reported in 1995 Supp (4) Supreme Court Cases 642, the wife had preferred second appeal against the decree of divorce. The second appeal was delayed by few days. Re-marriage of the husband was during pendency thereof. The Apex Court held that the decision to re-marry of the husband during pendency thereof is opposed to Section 15 of the Hindu Marriage Act. Hence, the husbands plea for grant of divorce on the ground of irretrievably breaking of the first marriage is untenable as he could not be given benefit of his own wrong.

Decision:
1[ds]8. The respondent/husband by examining three witnesses tried to bring on record alleged behaviour of the wife which would amount to cruelty. PW2 Tukaram Bhaije was a watchman engaged at Murlidhar Apartments where this couple used to stay. He has stated that he knew the appellant and the respondent as they were residing in that apartment. According to him, the appellant/wife used to confine her children in the house and used to beat them. She left the house with her parents. He further stated that she was having suitcases with her and when she left, she told him that she would not come again. It is submitted that it was not suggested to this watchman that he is giving false statement. This witness is admittedly a watchman employed for the security of the Apartment. He has not uttered a single word about the relations of this couple. He simply states that the appellant/wife used to confine the children and used to beat them. Such a statement from a watchman in the Apartment without quoting any specific incident or the period during which such alleged incident took place cannot be relied upon. At the most, it may amount to cruelty to the children. He has also not disclosed as to how he got knowledge of the said act of the appellant/wife as he has not stated that because of any reason, he was required to visit the house of the appellant and respondent and noticed said act of the appellant/wife. Such a vague statement of a watchman cannot be believed and it is not any way helpful to the respondent/husband to prove the cruelty at the hands of the appellant/wife to him. An attempt is made on behalf of the respondent/husband that present appellant disclosed to the watchman that she will not come back again and from that statement, an attempt is made to show that she left the house permanently. But it does not appear probable that the appellant would disclose before a watchman that she will not return back again as he is not related to them, nor any circumstance is brought on record to show that they had such intimate relations with that watchman so that the lady will inform him that she will not return back to the husbands house. Thus, the evidence of this watchman has been rightly rejected by the trial court.Another witness examined by the respondent/husband is one Shanti w/o Rambhau Chourasiya (PW3). She claims that even before the litigation, she was knowing this couple as the appellant was classmate of her daughter. According to her, after their marriage, this couple used to visit her house as her daughter is appellants friend. She further stated that the married life of this couple was happy for few days. As regards the behaviour of the appellant, she has stated that due to laziness, she did not cook food in time and did not do domestic work. Several times, she convinced her. She also threatened the child. She wanted to become a model. Her parents used to come to his house. Not only this, she also stated that on one occasion, appellant left the child for seven days and she (PW3) looked after the child. The appellant was making false allegation against the respondent and told her that she (appellant) did not want to live with him. The respondent/husband himself has not stated that his wife was lazy and was not preparing the food in time and on that count, there were quarrels between them. He has also not stated that on any occasion, she left her child and went away for seven days. He also does not depose that his wife had intention to be a model. Admission of PW3 in theshows that the lady is giving such an evidence as tutored to her.The last witness examined by the respondent/ husband is his uncle PW4 Digambar Bhole. He has stated that once appellant met him in a bus. He called her at his house and when he came to know about their differences, he tried to convince her, but she was not ready and told that she would not cohabit with him (respondent). In theof this witness, he has stated that on inquiry with the respondent, he came to know that his wife frequently used to say to allow her to go to her parents house and he told to the respondent as to why he did not take her for outing alongwith children and he told thathe took her for outing and every time, it was not possible for him to do so. The respondent/ husband himself has not stated any such advice being given by this witness to him or his wife making any complaints with this witness. Hence, the possibility cannot be denied that he being paternal uncle of the respondent/husband, he came forward to support his case but without quoting any specific incident. His general statement that he tried to convince the appellant/wife and she refused to cohabit with her husband, therefore, cannot be accepted as truth. As such, his evidence does not help the respondent/husband to prove cruel behaviour of the appellant/wife with her husband/respondent.The evidence of the respondent/husband and that of the witnesses examined by him, referred to above does not prove behaviour of the appellant/wife or the acts of the wife as amounting to cruelty towards her husband.9. An attempt is made on behalf of the respondent/husband to show that appellant/wife made false allegations against him in the written statement filed in the petition for restitution of conjugal rights and those allegations amount to cruelty. In support of this submission, reliance is sought to be placed on three judgments of thisratio laid down in the above referred cases is clear that the false allegations made by the wife against the husband may amount to mental cruelty. However, it is not a general rule that from the allegations made, directly inference of cruelty needs to be drawn, but from the facts of each case, the court is to determine as to whether the allegations made amount to cruelty or not. In the present case, the respondent/husband had filed a petition for restitution of conjugal rights. In that petition, the appellant/wife had filed written statement. It is submitted that she made false allegations in that written statement because of which the respondent/husband has withdrawn that petition and those allegations were alleged to be the mental cruelty to the respondent/husband.10. As referred to above, the evidence led by the respondent/husband in this case does not prove any cruel behaviour of the appellant/wife towards her husband when she was cohabiting with him. The copies of petition for restitution of conjugal rights filed by the respondent/husband and the written statement filed by the appellant/wife in that proceeding are produced in this case atand 22. The respondent/husband in paragraph No.4 of his said petition has pleaded that the appellant/wife led happy married life for six months. Thereafter, she started to show her real behaviour. She wasand being pampered by her parents, she is also lazy. She always wanted to visit her parental house and she used to compel him to fulfil her demands. In paragraph No.7, the respondent/husband alleged that due to unnatural behaviour of the appellant, that of visiting her parents every now and then, and staying there for a long time, the marital life of the respondent/husband was very much disturbed. His further pleading is about the incident which had occurred in the month of April, 2000. The appellant/wife in her written statementdenied those allegations and she has pleaded that those allegations are utterly false and are made to create an evidence. She made allegations that the husband had told her that he has married with her only to obtain dowry. She made further allegations that he was always insisting and beating her on the ground that she should fetch money from the parents.She also alleged that in the month of April, she was beaten and driven by the husband, so she was staying at the parental house. In that case, there was no opportunity to both of them to prove the allegations made by them against each other, as the respondent/husband had withdrawn the said petition. Hence, it cannot be held that the allegations made by each one of them against each other are false or true. Neither the appellant/wife nor the respondent/husband made any serious allegations against the character of each one of them. The respondent/husband alleged that her behaviour was unnatural and in reply, the appellant/wife replied that his such behaviour was for demand of money, etc., but without there being any material to prove those allegations, directly inference cannot be drawn that those allegations were false. Admittedly, this couple cohabited with each other for a period of ten years after the marriage and is blessed with two sons. They have not made any serious allegations against each other. Even in the present petition, the respondent/husband could not bring on record any conduct of the appellant/wife which would amount to cruelty. Hence, solely on the ground that she made allegations in her written statement in another proceeding that he was demanding money and when particularly that petition was not decided on merit, directly inference cannot be drawn that she made false allegations. As such, the respondent/husband failed to establish any conduct of the appellant/wife towards him which would amount to cruelty. The finding recorded by the learned Judge of the Family Court that the respondent/husband failed to establish the cruelty by the appellant/wife towards the husband is perfect and does not call for anylearned Judge, Family Court passed decree for dissolution of marriage and divorce accepting the contention of the respondent/husband that the appellant/wife deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. The appellant/wife challenged the said finding and the decree on the ground that mere separate residence by itself does not constitute desertion to grant a decree for divorce. According to her, she was compelled to leave the company of the respondent/husband and she had no desire or intention to permanently leave the company of the husband. Learned advocate Shri Joshi, appearing on behalf of the appellant/wife advanced submission that the evidence adduced by the husband only proves the factum of separation. However, there is no evidence to prove intention to desert permanently. On the other hand, while supporting the finding and decree, learned advocate Shri Nikam, appearing on behalf of respondent/husband advanced submission that the evidence on record established the intention of the appellant/wife to desert permanently. In view of these rival contentions, the evidence on record needs scrutiny to find out as to whether desertion as required is established in the present case.On behalf of the respondent/husband, reliance is sought to be placed on the decision of the Apex Court in the case of Praveen Mehta v. Inderjit Mehta, reported in AIR 2002 Supreme Court 2582 in support of his contention that the appellant/wife left matrimonial home and inspite of several attempts by the relatives, no conciliation between them was possible. Hence, it can be reasonably inferred that the marriage between the parties has broken down irretrievably without any fault on the part of husband. Therefore, the decree of divorce granted needs no interference. In the said case, the Apex Court held that the wife left the house after few months of the marriage and inspite of attempts by the relations, the conciliation was not possible and no fault was found on the part of the husband. Hence, the Apex Court held that it can be reasonably inferred that the marriage between the parties has broken down and it was because of no fault on the part of the husband. Hence, the decree for dissolution of marriage needs no interference.Reliance was also sought to be placed on the decision of the judgment of Division Bench of this court in the case of Shyamsunder Amarlal Hotchandani v. Smt. Arti alias Sunita Shyamsunder Hotchandani, reported in AIR 2004 BOMBAY 311. In the said case, the wife was found to have deserted the petitioner/husband. The evidence established that she refused to come back inspite of various attempts made by him to bring her back. Said evidence of petitioner has not been rebutted. Because of these facts, finding came to be recorded that ingredients of Section 13(1)(ib) are satisfied and the marriage between the couple stands dissolved.On behalf of appellant/wife, in support of her contention that unless intention to desert permanently is established, a decree for dissolution of marriage cannot be passed, reliance was placed on the decision of the Apex Court in the case of Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, reported in 2002 (1) Supreme Court Cases 308  . While considering the scope of section 13(1)(ib) of the Hindu Marriage Act, the Apex Court held that to claim a decree under section 13(1)(ib), it is necessary to prove two ingredients i.e. (i) separation in fact and (ii) animus deserendithe intention to bring cohabitation permanently to an end by deserting spouse, and on behalf of deserted spouse the absence of consent and absence of conduct motivating the desertion. It has been held that burden is on the petitioner for divorce to prove these ingredients and that they were present throughout the statutoryview of the above decision of the Apex Court, it is essential for the petitioner to prove the factum of separation for a statutory period and the intention of deserting spouse to bring cohabitation permanently to an end. At the same time, burden is on the deserted spouse to prove absence of his consent and absence of his conduct giving reasonable cause to the spouse leaving the matrimonial home throughout the statutory period. Thus, the ratio makes it clear that the burden is on both the sides. One who claims a decree for dissolution of marriage on the ground of desertion, it needs to be established that there was separation for a statutory period and it was with an intention to refuse cohabitation permanently and on the other side, burden is to prove absence of consent for his separation and absence of his conduct to give reasonable cause to the deserted spouse.With this settled legal position, the evidence in the present case needs to be examined to find out as to whether desertion as required is proved and the decree of divorce is justified.12. The respondent/husband in the present case in whose favour decree is passed, has claimed that without his consent, his wife/appellant left his house onand inspite of his attempts, refused cohabitation. To show her intention to permanently desert him, reliance is placed on two circumstances i.e. (i) the wife/appellant made false allegation in her written statement filed in a petition for restitution of conjugal rights, and (ii) that she took school leaving certificate of her son from the school of husbands residence and admitted her son in a school at Mumbai. While recording finding in favour of the respondent/husband, the learned Judge, Family Court held that these two circumstances proved animus deserendi i.e. wifes intention to permanently bring to an end the cohabitation.13. As discussed above, before April, 2000, there was no serious dispute between this couple. Each one of them is blaming other for the incident which did take place in April, 2000. Both of them admit that incident. According to the respondent/husband, in the month of April, 2000, she was insisting that he should take her to Mumbai i.e. to her parents house and he refused for the same. Hence, she gave a message to her parents and they arrived onand behind his back, left the house, again returned onand behind his back, left his house. The appellant/wife came with a case that in the welfare of the children, she asked her husband to take them to Mumbai in summer vacation, but he refused for the same and assaulted her, hence, she called her parents. They had gone to the native place of the husband i.e. at Jalgaon. The relatives made an attempt to call the respondent/husband, but on his refusal, they came back to Aurangabad and then left for Mumbai. Thus, the facts are admitted by both of them that some quarrel arose between them beforeand on the intimation given by the wife, her parents came to his house. They had gone to Jalgaon, again returned to the house at Aurangabad on00, wife left his house and staying at Mumbai at her parents house. Whether there was any reasonable cause for her to leave his house has to be seen from the record. The respondent/husband in paragraph No.5 has stated that on 14th or 15th April, 2000, there was quarrel between them as she wanted to go to her parents house. At that time, construction of his hospital building was going on, hence, he told her that they would go in June, but she did not listen. Hence, she called her parents. They arrived on 28th April and behind his back, they left the house and returned afterdays and in his absence took away all the clothes and ornaments and since then, she is residing at the house of her parents. He claims that thereafter he called her to join his company, but she did not join. Except this vague word, nothing is there to show that he made any such attempts to take her back. No relative is examined to show that at the instance of husband, they made any efforts to advise her. The husband also has not disclosed as to what efforts have been made by him to take her back. In thehe has stated that he came to know that the appellant/wife came with her parents and took all articles with her. Not only this, but he has admitted in clear terms that there was quarrel between them and it was the reason for the wife to go to her parents house. He denied the suggestion that onhe assaulted her and drove her out of the house. His witness watchman Tukaram Bhaije has brought on record only fact that on the request of the appellant/wife, he brought rickshaw and by rickshaw, appellant/wife left the house having suitcases with her. He made attempts to show that she left his house permanently stating that she told her that she would not come back again. That part of evidence is already considered and is found not reliable. Other two witnesses examined do not prove any particular fact which will help to draw an inference of intention of appellant/wife to abandon the company of the husband permanently. Thus, from the evidence led by the husband who claimed decree for dissolution of marriage, only fact established is that in the month of April, 2000, there were quarrels between this couple, on the ground that the wife was insisting that he should take her to her parents house in the month of April, 2000 and the husband was not ready for the same. The appellant/wife stayed with him for ten years. Hence, solely on the ground that she left his house onfor her parents house alongwith her children, inference cannot be drawn that she left the house with an intention to bring the cohabitation permanently to an end.At this stage, the evidence of the appellant/wife needs to be considered to find out as to whether there was any reasonable cause for her to leave the house and whether her intention was to live separate permanently from the husband. The appellant/wife has stated that in April, 2000, she made request to the husband to allow her to go to her parents as the examination of the children was over as she did not go to parents house for three years. He told her that they will go in June/July as construction was going on. She told him that school willin June/July and thereafter he tried to attack her and threw articles and lastly, he beat her severely. She then gave a message to her parents on phone and on parents arrival, they had gone to Jalgaon at the house of the parents of her husband. She further stated that his parents told that they will settle the matter. Accordingly, the father of respondent/husband called the respondent/husband, but he did not come to Jalgaon. She claims that she stayed at the house of her husbands parents for two days, but her husband/respondent did not turn up. Hence, they returned to Aurangabad. The respondent/husband admitted that the quarrel took place between them as she insisted to go to her parents house in April itself. so, she had called her parents. He has admitted that his father was running a business at Jalgaon upto the end of 2000. Thus, the wifes version appears probable that after arrival of her parents, they had gone to see the parents of her husband at Jalgaon and to intimate the incident. The paternal uncle of the husband in theitself admitted that the appellant/wife made complaint with him that her husband/respondent was not allowing her to go to her parents house nor he took her for outing and he made inquiry with his nephew as to why he did not take her for outing. Thus, it, to some extent, supports the story narrated by the wife that the respondent/husband was not allowing her to visit her parents house and because of vacation of the schools, she had made request to her husband to take her to her parents house and the husband was not ready for the same, stating that he will take her to her parents house in June or July. Her refusal to go to her parents house in June/July obvious because as the schools were toin June/July, it would not have been possible for her to go and stay at her parents house as her son was aboy and on that count, there was a quarrel between them and she was required to give a message to her parents and parents arrived and made inquiry with her husband. She has stated that on inquiry, he told that he has every right to beat his wife. hence, her parents took her to Jalgaon where the father of the husband resides. A message was given to the respondent/husband, but he refused to come to Jalgaon. The appellant/wife alongwith her parents was, therefore, required to return back to Aurangabad. According to the appellant/wife, when they returned back to Aurangabad, the mother of the respondent/husband was at the house. Respondent/husband was not present. The mother of the respondent/husband told appellant/wife to go to Mumbai and abused her. Appellant has stated that she contacted her husband on phone, but he did not turn up and lastly, she alongwith her father went to Mumbai. It is thus clear that because of the quarrel raised by the respondent/husband, she had gone to her parents house and that cannot be said to be with an intention to bring to an end the cohabitation permanently.14. Let us now consider the subsequent events after the appellant/wife left the house of her husband/respondent. She left the house of her husband onThe husband/respondent gave vague statement that he contacted her on phone and asked her to join his company, but she did not join his company. Hence, he had filed a petition for restitution of conjugal rights. That petition for restitution of conjugal rights came to be filed in the month of August, 2000 i.e. immediately within three months of their quarrel. He has admitted that though his son and wife were staying at Mumbai, he never sent any amount towards maintenance of the children. She had filed Maintenance Petition and maintenance came to be granted in her favour. Withinmonths, without making any attempts to call the wife to join his company, the husband filed a petition for restitution of conjugal rights. In the said petition, he made allegations that since six months of the marriage, her behaviour was not proper. She was lazy. She always had a desire to visit to her parents house. Her parents used to instigate her. He narrated the incident ofThere also, he made vague allegation that he tried to contact the appellant/wife on telephone, but could not succeed as her parents refused to call her on phone. He stated that he sent letters, but he is not claiming that personally, he had gone to fetch her or attempts of conciliation were made by him, and directly he filed the petition for restitution of conjugal rights. The appellant/wife appeared in that petition and filed written statement. According to her, respondent/husband always used to beat her on account of demand of money. She also claims that she had also filed a maintenance proceeding. Hence, he had filed a petition for restitution of conjugal rights. As stated above, no serious allegations were made by the appellant/wife in that petition. He has withdrawn the said petition by filing a purshisstating that the wife had filed written statement and it appeared that she had no desire to join his company and he was not willing to force her to join his company, hence, he was withdrawing the said petition. On mere filing of a petition for restitution of conjugal rights, bonafides on his part cannot be presumed when particularly the wife has already filed petition for maintenance and she never refused to join his company. In the written statement, appellant/wife did not allege that she was not ready to stay with him, but apprehended the danger to her life because of his earlier conduct. Hence, filing of written statement with some allegations by itself cannot be accepted to be a circumstance to prove the wifes intention to bring the cohabitation permanently to an end.15. The circumstance of wifes obtaining school leaving certificate of her son and admitting him in a school at Mumbai is alleged to be a circumstance to prove the wifes intention to bring to an end the cohabitation permanently. The appellant/wife has admitted that without consent of her husband, she had obtained school leaving certificate of her son from the school at Aurangabad and admitted the son in a school at Mumbai. She was staying with her parents. Husband has not made any attempts to fetch her. Her son was minor. Hence, her act to admit her son in a school at Mumbai where she was staying cannot be said to be a ground to prove the desertion. As held by the Apex Court, the burden is on the husband to prove the absence of reasonable cause for the wife to leave his company during the statutory period. Here in the present case, after appellant/wife left the house of her husband, there were no attempts from the husbands side to call her to join his company. On the contrary, he had filed a petition for restitution of conjugal rights after the wife had filed a petition for maintenance. When the wife filed her written statement in the petition for restitution of conjugal rights, without there being any attempts of conciliation, the respondent/husband withdrew the said petition, without there being refusal to join his company, it cannot be said that filing of written statement with some allegations by her proved her intention to bring the cohabitation to an end permanently. As such, there is no evidence to prove her intention to bring the cohabitation permanently to an end. Mere separate residence for a statutory period of two years does not amount to desertion for granting a decree for divorce. In the present petition, the appellant/wife has specifically stated that after receipt of a notice of the petition for restitution of conjugal rights, she made attempts to meet him in the hospital and made efforts to reconcile, but he refused for it and lastly, he withdrew that petition. It was asked to her in theas to whether she had filed an application before the Marriage Councillor stating that she wanted to join the company of the husband or file a petition for restitution of conjugal rights. She admitted that she had not filed any such petition. However, the facts discussed above show that the respondent/husband had filed a petition for restitution of conjugal rights and immediately he had withdrawn the same. It was suggested to her that she had no desire to join the company of her husband and she denied the said suggestion. Hence, in the present case, though there were some differences between this couple, their relations were not strained to that extent before the incident which did occur in April, 2000. Because of quarrel arose in April, 2000, she left his house in May, 2000 and living separate. Nothing is there to prove her intention to bring the cohabitation to an end permanently. The respondent/ husband had filed petition for restitution of conjugal rights, but he claims that on account of false allegations made by the wife against him, he presumed that she had no desire to join his company, hence, he has withdrawn that petition. There were no circumstances for drawing such a presumption that she had no desire to cohabit with him.In the present case, therefore, in proof of animus deserendi, there is no evidence. However, the learned Judge of the Family Court on account of wifes act to leave the house of her husband behind his back and her act to obtain school leaving certificate of her son and admitting him in a school at Mumbai, held these acts to be the circumstances sufficient to prove her intention to bring the cohabitation to an end permanently. However, as discussed to above, those circumstances are not sufficient in proof of her intention to bring to an end the cohabitation permanently which would amount to desertion. Hence, the finding recorded on the issue of desertion needs to be set aside, as it is not justified.16. On behalf of the respondent/husband, an attempt is made to show that the marriage is irretrievably broken down as the respondent/husband hasafter the decree for dissolution of marriage was passed. hence, the decree for dissolution of marriage should not be set aside. In support of this submission, reliance was placed on the decision of the Apex Court in the case of A. Jayachandra v. Aneel Kaur, reported in 2005 (2) Supreme Court Cases 22,   wherein the Apex Court held that irretrievably breaking down of a marriage though not on statutory ground for seeking divorce, to shorten the litigation and save the parties from further agony, marriage can be dissolved. Admittedly, in the present case, the respondent/husband after passing of decree for dissolution of marriage,with one Sangita onThe decree for dissolution of marriage came to be passed onand the appellant/wife preferred present appeal on04 itself, a notice in this appeal came to be issued with04. Before service of that injunction order and notice, onied and now, he claims that because of the said fact, his marriage with the appellant has irretrievably broken down, hence, the decree for dissolution of marriage passed by the Family Court should not be disturbed.On behalf of the appellant/wife, submission is made that the act of the respondent/husband towithout ascertaining as to whether any appeal is preferred against the decree by itself shows his intention not to allow the appellant/wife to join his company. Hence, the second marriage of the husband cannot be accepted to be a ground to confirm the decree for dissolution of marriage. In the case of Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and another, reported in AIR 1967 Supreme Court 581, the Apex Court considering the scope of Section 15 read with Section 28 of the Hindu Marriage Act, 1955, held that on dissolution of a marriage, a spouse can lawfully marry only when there is no right of appeal against decree dissolving marriage or if there is right of appeal, time for filing appeal has expired or appeal presented has been dismissed. Admittedly, in the present case, decree for dissolution of marriage was passed and there was right of appeal against the said decree. Second marriage is performed after expiry of period of limitation for appeal, but nothing is there to show that the husband made any inquiry as to whether appeal is preferred by the appellant/wife against the decree for dissolution of marriage and same came to be dismissed. In the case of Prakash Chand Sharma v. Vimlesh (Smt.), reported in 1995 Supp (4) Supreme Court Cases 642, the wife had preferred second appeal against the decree of divorce. The second appeal was delayed by few days.of the husband was during pendency thereof. The Apex Court held that the decision toof the husband during pendency thereof is opposed to Section 15 of the Hindu Marriage Act. Hence, the husbands plea for grant of divorce on the ground of irretrievably breaking of the first marriage is untenable as he could not be given benefit of his own wrong.