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

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above show that the respondent/husband had filed a petition for restitution of conjugal rights and immediately he had withdrawn the same.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false allegations made by the wife against him, he presumed that she had no desire to join his company, hence, he has withdrawn that petition.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 = appeal accepted, 0 = rejected): 1

Explanation:
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.