Judgment :- 1. The only question arising for decision in this appeal by the wife from an order in favour of the respondent, the husband, directing judicial separation is whether the appellant had deserted the respondent for a continuous period of not less than two years immediately preceding the presentation of the petition for judicial separation. The petition was presented on 3-10-1959 and the question therefore is whether the appellant had deserted the respondent continuously from 3-10-1957. The court below has found that there has been such desertion. Counsel on behalf of the appellant contends that this conclusion is erroneous; that there has been no advertence to the provision in S.18 of the Hindu Adoptions and Maintenance Act, 1956, which enables the wife to live separately from her husband without forfeiting her claim to maintenance if the husband has any other wife living, and that further all the pleadings and evidence in the case have not been adverted or considered. 2. The marriage between the parties to this appeal took place in 1116 and they lived as husband and wife till 1124. As to the exact time from which they ceased to live together, there are conflicting versions given by the parties who were the only persons examined by the court below. According to the husband, the wife left in Kumbham 1124 and according to the wife, she was taken by her husband in Chingom 1124 to her father's house. Whatever that be, it is clear that from 1124 they have not lived together. The husband married again in Vrischigom 1126. There had been since then several litigations between the parties. The husband's father seems to have commenced this by filing a suit on a promissory note executed by the wife's father, it is said, as security for the payment of the dowry promised. Thereafter, the wife sued for maintenance and this has been decreed. During the pendency of this suit, the husband moved an application for custody of their only child. This was rejected and then the petition, for judicial separation followed. 3. We think that S.10 of the Hindu Marriage Act, 1955 under which the application has been filed for judicial separation must be read along with S.18 of the Hindu Adoptions and Maintenance Act, 1956. We shall read the relevant parts of these sections. This was rejected and then the petition, for judicial separation followed. 3. We think that S.10 of the Hindu Marriage Act, 1955 under which the application has been filed for judicial separation must be read along with S.18 of the Hindu Adoptions and Maintenance Act, 1956. We shall read the relevant parts of these sections. S.10 (1) (a) of the Hindu Marriage Act, 1955 is in these terms: "10. Judicial separation - (i) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party (a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;..." There is an explanation to S.10(1) which is material, reading as under: "Explanation. In this section, the expression'desertion', with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage." And the relevant part of S.18 of the Hindu Adoptions and Maintenance Act, 1956 reads as follows: "18. (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance, (a) ... ~~~ ~~~ ~~~ (b) ~~~ ~~~ ~~~ ~~~ (c) ~~~ ~~~ ~~~ ~~~ (d) if he has any other wife living; 4. Counsel on behalf of the appellant has contended that in so far as the Hindu Adoptions and Maintenance Act, 1956, has permitted a wife to live separately from her husband and at the same time claim, maintenance from him, it cannot be said from the mere fact that she lives away from her husband that she is so living without any reasonable cause. If the wife is staying away from the husband due to reasonable cause by virtue of the explanation to S.10 (1) of the Hindu Marriage Act there can be no desertion. If the wife is staying away from the husband due to reasonable cause by virtue of the explanation to S.10 (1) of the Hindu Marriage Act there can be no desertion. And, it is urged, that it has now been recognised that staying away from a husband who has another wife living is justified by enacting S.18 of the Hindu Adoptions and Maintenance Act, 1956. This argument appeals to us and this position has been accepted by the Andhra Pradesh High Court in the judgment of that court in Sirigiri Pullaiah v. Sirigiri Rushingamma reported in AIR. 1963 Andhra Pradesh 323. 5. Counsel on behalf of the respondent has strenuously urged that both the elements involved in desertion, separation and a permanent intention to repudiate marital obligations, have been established in this case. Admittedly the wife has been living away from the husband from 1124. She had the clear intention to repudiate the marital obligation when she left in 1124 for at that time there was no statute enabling her to live separate. This initial intention it is said must be presumed to continue unless there is any material to show that there has been change of heart. The argument is that unless there is some move on the part of the wife who had deserted her husband or some conduct on her part which would justify the inference that she was willing to cohabit with the husband and discharge marital obligations, we must presume that she had no intention of resuming husband and wife relationship. 6. It is well-accepted that in all cases, it is the petitioner who moves for judicial separation that should establish that there has been desertion for the requisite period. This means prima facie proof at least by the petitioner in regard to both separation and a permanent intention on the part of the deserting spouse to repudiate marital obligations. Though the first of these elements has been established in this case, we are not satisfied that there is proof regarding the second, for, after the Hindu Adoptions and Maintenance Act; 1956 came into force, it cannot be said from the mere fact of the wife living away from the husband that she has any intention of permanently repudiating her marital obligations. We do not think it would be correct to presume - assuming that the wife had any such intention at the beginning - that the same intention continued after the statute came into force. 7. There is a categorical statement made by the appellant in Para.5 of the objections to the petition for judicial separation that the only reason that she did not go back and live with the husband is because of the existence of the second wife. Pw.1, the petitioner has not stated a word in his chief examination about this assertion of the wife. No doubt a question has been put to the appellant in cross-examination as to whether she had not stated on 12-8-1959, when she was examined in the case instituted by the husband for the custody of the child, that she is not willing to live with her husband. She answered that she had; but qualified the answer by stating that she said so because there was no offer to maintain her in a separate house. The court below has made much of the fact that the appellant had not replied the question specifically put to her in cross-examination whether she was willing to live with the respondent as husband and wife. It appears that she took time and did not answer the question that was put to her in cross-examination. But in the re-examination on the same day she has categorically stated that if she is given a separate residence and maintenance she is willing to live with her husband. This statement in her re-examination has not even been adverted to by the court below. We are aware that we should not lightly interfere with the finding entered by the trial court which had naturally the benefit of examining the parties. But a material part of the deposition has been completely ignored by the court below and the pleadings have not been adverted to. So we are unable to accept the finding of the court below. 8. On the pleadings and the evidence and considering the provisions in S.12 of the Hindu Adoptions and Maintenance Act we find it difficult to come to the conclusion that the appellant had deserted the respondent. 9. In the light of the above, we set aside the order of the court below, allow this appeal and dismiss the application for judicial separation. 9. In the light of the above, we set aside the order of the court below, allow this appeal and dismiss the application for judicial separation. We direct the parties to bear their costs throughout. Allowed.