S. K. Kapnr,j. ( 1 ) THIS appeal arise out of a petition filed by Krishan Lal Khanna (hereafter REFERRED TO as the respondent) against his wife Shrimati Raj Khanna hereafter REFERRED TO as the appellant) for judicial separation under section 10 of the Hindu Marriage Act, 1955. The parties were married in Delhi on July 5, 1956. A daughter was horn to them on may 21, 1957. The learned Additional District Judge, Delhi, by the judgment dated April 10, 1963, allowed the petition and granted a decree for judicial separation. He came to the conclusion that it was clearly established on the record that the appellant deserted the respondent without reasonable cause. Aggrieved by the said judgment the appellant has come up in appeal. ( 2 ) ACCORDING to the respondent, the appellant left his house on October 24, 1957, and did not return thereafter. She is stated to have left for her parents home on 24th October, 1957, on the plea that she was going in view of "tika" festival. The appellant first kept on saying that she wanted to stay in her parents house till the marrige of her brother was performed but did not return even after the marriage which took place in April 1958. The respondent further alleged that she continued to stay away from his house even after the marriage of her brother on some pretext or the other. In the petition filed by the respondent it was inter alia stated that- (A) Immediately after marriage he found the appellant arrogant, cold and indifferent towards him; (b) In October 1957, the appellant told the respondent that she wanted to go to her parents house as marriage of her brother had to beperformed. She left on 24th October, 1957, with valuable clothes and jewellery; (c) "the appellant had left the house of the respondent on a false pretext because the marriage of her brother actually took place, in April 1958 though in October 1957, at the time of leaving the house, she had told him that the marriage was fixed for sometime in November 1957; (d) The respondent approached the appellant several times at her parents house but she put him off on one pretext or the other and the respondent then realised that her being in service was the principal cause of her indifferent attitude and separation. He advised her to quit the service and settle in domestic life but she refused to do so; (e) The respondent approached the appellant and her parents several times from November 1957 onwards but she refused to come back. He also wrote several letters to her asking her to return but they proved to be of no avail; and (f) The appellant having abondoned the respondent for good without any reasonable cause and without the consent and against wishes of the respondent and having wilfully neglected the respondent and was guilty of desertion within the meaning of section 10 of the Hindu Marriage Act, 1955. ( 3 ) ON the pleas the respondent claimed a decree for judicial separation. In the written statement filed by the appellant she inter alia stated that- (1) The appellant never had the intention of living separately from the respondent but he and his people made things so hot. for her that she had to seek shelter in her parents house; (2) It was wrong that the appellant had ever been arrogant, cold or indifferent towards the respondent and, as a matter of fact, the respondent never showed any respect, fondness and love that every woman expects of her husband; (3) Even before the marriage the respondent was aware of the fact that the appellant was employed in Model Community Centre at Bawana and this was one of the attractions for the respondent in seeking the hand of the appellant; (4) It is wrong that the appellant left her husband s house under any pretext of with the intention of leaving for good or took any valuable clothes or jewellery. All the jewellery and valuables were kept by the respondent s parents and the appellant was never allowed their use; (5) She used to go to her parents house every year on "tika" festival and she must have gone in the relevant year also but she came back to the respondent s house in the evening; (6) The appellant s life had been made miserable by the respondent and his parents. She was termed as inauspicious for the respondent and his family. Various unfortunate events in the family were attributed to her presence therein but the appellant suffered all those insults and indignities in the fond hope of winning one day the affection of her husband. She was termed as inauspicious for the respondent and his family. Various unfortunate events in the family were attributed to her presence therein but the appellant suffered all those insults and indignities in the fond hope of winning one day the affection of her husband. Things became worse every day and she was asked to leave the respondent s home and go to her parents under the pretext that the respondent had to appear in the Law Examination; (7) Sometimes in April 1957 the appellant learnt that the respondent s sister s marriage was to be celebrated. Though she was not invited she went there on her own but the ugly manner in which she was treated on the occasion and the vulgar way in which the respondent behaved is a tale of woe know n to all these who attended including the appellant s father; (8) Her husband did not even attend on her when she had to undergo a caesarean operation at the time of birth of the child; (9) The respondent and his parents were further annoyed on account of the birth of a female child when the respondent failed second time in his Law Examination this was also attributed to the inauspicious advent of the child in the family. Subsequent illness of the respondent was also attributed to the birth of the child and the things went to such an extent that a Pandit was called who after making certain readings of the stars declared the baby inauspicious; (10) The respondent s father once pushed away the pram of the baby in which she was sleeping and also turned the appellant out asking her to go away to her parents house. The appellant was again asked to go to her parents house on the pretext that the respondent had to appear in his Departmental Examination; and (11) The appellant had, therefore, again to go to her parents house but soon after got a telephonic massage that the respondent was ill in the Safdarjang Hospital. She went to the respondent and kept nursing him but he and his parents remained cold and indifferent towards her. She went to the respondent and kept nursing him but he and his parents remained cold and indifferent towards her. ( 4 ) BROADLY the defence taken by the appellant was that she was kept away from her husband s house by the husband and his parents on one protext or the other and whenever she was in the respondent s house she and the child were maltreated and even beaten. She stafed that she had no intension of deserting the roof of her husband and had always been will, ing to go and reside with him. The respondent examined himself and produced Savitri Devi (P. W. 2) and Ram Sarup (P. W, 7), two neighbours and Chaman Lal (P. W. 4), his first cousin, to depose that the appellant left his house on Tika Day on 24/10/1957. He also produced evidence to show that he and the witnesses at his instance approached the appellant and her father in an attempt to persuade her to return to the respondent but to no effect. One of the witnesses, on whom strong reliance has been placed, is Mrs. Krishna Sethi (P. W. 1), who is a close relative of the respondent. She stated that she made an approach in this behalf in March, April, 1959. Shrimati Savitri Devi (P. W. 2), a friend of the respondent s mother, stated that she went for making a similar request in September, 1959. Captain Som Nath (P. W. 3) a first cousion of the respondent, deposed that he made an effort for getting the appellant back in November, 1958. while Chaman Lal (P. W. 4), another first cousion of the respondent said that he made efforts in this direction twice. To the same effect is the evidence of Narinder Nath (P. W. 5), the husband of the respondent s sister, and Harkishan Singh (P. W. 6 ). The Iearned Additional District Judge inter alia came to the conclusion that the appellant did leave the house of the respondent with his consent but it was clear from her subsequent conduct that when she left she had no intention whatsoever of returning to the roof of the respondent. The Iearned Additional District Judge inter alia came to the conclusion that the appellant did leave the house of the respondent with his consent but it was clear from her subsequent conduct that when she left she had no intention whatsoever of returning to the roof of the respondent. He further held that at any rate when the letters written by the respondent in May 1958 to the appellant elicited no response, the animus deserendi was termed and, therefore, in any case, over two years period clapsed up to 26th October, 1960, when. the petition was presented. Dealing with the question of existence or non-existence of the reasonable cause for the appellant leaving the house the learned Additional District Judge considered the various events separately. He rightly started on the assumption that the burden of proving that the appellant left without any reasonable excuse was on the respondent. He then REFERRED TO the evidence of Mrs. Krishna Sethi (P. W. 1) who had admitted that when she approached the appellant she enumerated a number of grievances one of which related to the appellant s entering the kitchen or using the same. He also REFERRED TO the evidence of Captain Som Nath (P. W. 3) to the effect that even the father of the respondent had told him that the appellant had certain restrictions in the house. The father of the appellant also appeared as R. W. 4 and supported her regarding the said restrictions. According to the said witness, the respondent had told him when he visited his house that there was a quarrel between his mother and the appellant. The maternal uncle of the respondent was also present. She had at that time complained that one of her troubles was that she was not allowed to enter the kitchen and he settled the matter by telling the appellant that instead of entering the kitchen she could heat the milk for baby on a heater in the verandah. The appellant also appeared as her own witness as R. W. 5 and inter alia stated that if she reached home late and started cooking in the kitchen she would be rebuked and if she turned on the water tap she would be made to clean it with ash a number of times. The appellant also appeared as her own witness as R. W. 5 and inter alia stated that if she reached home late and started cooking in the kitchen she would be rebuked and if she turned on the water tap she would be made to clean it with ash a number of times. On the basis of the above evidence the learned Additional District Judge came to the conclusion that it was established on the record that the respondent s mother was of strongly orthodox type and observed such strictness that even when she herself returned from anywhere to the house she would always take a bath first. He also held that some of the appellants ornaments, particularly those given by the respondent s side were not made available to her for her use but were kept by her in-laws. According to the learned Additional District Judge, however, it was not estalished that she was deprived of her entire jewellary. Dealing with an incident of cruelty alleged to have taken place on the occassion of the marriage of the sister of the respondent, the learned Additional District Judge found that some such incident did take place when the respondent tried to assult the appellant. He also found that the respondent did get enraged once in Mussoorie where the parties were staying together and threw out of the hostal room the pastries and the "prasad" which she had offered. He did not, however, accept the incident regarding the pushing of the perambulator in which the baby was sleeping or of the respondent having given a slap to the appellant when they were eating together. In the end, after analysing the evidence, the learned Additional District Judge came to the conclusion that it had not been shown that the respondent was guilty of cruelty "even when judged with reference to new rules of social behaviour and conduct. " ( 5 ) THE learned counsel for the appellant has raised two contentions. He says that the appellant stayed away from her husband from 25th October. 1957, to 26th October, 1960, the. . . . . . , with the consent of the respondent and it is he who did not want her to come to the house because of his mother s ill treatment towards her and consequent unpleasentness in the family. He says that the appellant stayed away from her husband from 25th October. 1957, to 26th October, 1960, the. . . . . . , with the consent of the respondent and it is he who did not want her to come to the house because of his mother s ill treatment towards her and consequent unpleasentness in the family. Secondly, the learned counsel submits that even if he is wrong there I should hold that there were good reasons for her living apart. He has emphesised the following facts in support of his plea :- (1) The respondent and his parents made it impossible for the appellant to stay in the house. She had a full right to the use ofthe house but was not even allowed to enter the kitchen for preparing food for the baby and was maltreated and criticised even on petty little items. (2) The birth of the female child was considered as inauspicious with the result that the respondent and his perents looked down upon her. (3) The appellant was deprived even the use of her jewellary and the same was never returned to her. (4) Observance of strict or thodox untouchability by the appellants mother-in-law made it impossible for her to stay in the house as the appellant was always subjected to criticism. Even the respondent did not give her the necessary protection and come to her rescue but on the other hand, every time made efforts to persuade her to stay out of the house. Even when he wanted to meet her he would always fix up an appointment outside so that the appellant does not enter the house. (5) The treatment of the respondent was always disgraceful to. wards the appellant and she was publicly insulted by the respondent and his parents at the wedding of his sister. (6) Assault by the respondant on the appellent in the pesteur and as well as in his house. (7) Constant efforts were made by the appellant s parents-in-law to keep her away from the house and never was any effort made to bring her back. (6) Assault by the respondant on the appellent in the pesteur and as well as in his house. (7) Constant efforts were made by the appellant s parents-in-law to keep her away from the house and never was any effort made to bring her back. ( 6 ) THE learned counsel has in support of his first plea mainly relied on documentary evidence consisting of letters Exhibits D. 3 dated 2nd June, 1959, D. 4 dated 5th March, 1957, D. 5 dated 16th April, 1957, p. 7 dated 20th April, 1957, D. 9 dated 18th November, 1957, 10 dated 26th November, 1957, D. 11 dated 24th December, 1957, D. I 2 dated 2nd May, 1958, D. 1. dated 26th May, 1958, D. 2 dated 29th July, 1958, and D. 13 dated 11th August, 1958. Letter Exhibit D. 1 is written by the respondent to the appellant in which he made enquiries about her health and the health of the baby. and also advised her to take care of the baby in a particular manner and try to take particular food. In the end it is stated : "the other thing when baby and her mumy are coming back to their home ? Rest is O. K. Hoping to get reply very soon. " Exhibit D. 2 is again a letter sent by the respondent to the appellent expressing regret for not having received any letter from her. It is also state that I have been asking you to come back to home along with baby and every Sunday I have been hopeful that you might be reaching. " It is again said: "if you are unable to come along, please inform me so that I shall come and take you. " Exhibit D. 3 is a postcard by the respondent to the appellant in which it is stated : "as you know I shall be coming to you on the Sunday, the 7th June, 1959 and hope you will be ready for coming, over here. " In Exhibit D. 4 the respondent wrote to the appellant about the repair to her watch and collection of the certain books from somewhere. It is also said : "hoping that you must have submitted your leave application, if any change of the date is required, please write so that it may by done accordingly. " In Exhibit D. 4 the respondent wrote to the appellant about the repair to her watch and collection of the certain books from somewhere. It is also said : "hoping that you must have submitted your leave application, if any change of the date is required, please write so that it may by done accordingly. " In Exhibit U. 5, again a letter from the respondent to the appellant, the respondent mentioned about some letter having been received from her and enquired about the cause for not having slept for two nights. He also gave the timetable for his examination which had to start on the 27th April, 1957 and finish on the 10th May, 1957. In the end it is stated: "thus there are only a few days and keeping this in view I did not see Pyassa (a picture) otherwise I would have called you. " It is again stated in the said letter "regarding my coming-As you know that there is a little time, I hops you would not compel me to move much. I hope you would explain the position to your Bhabi and others and thus they would not mind it. Rajan, I was expecting you on 13-4-57 but you did not turn up. " This letter, according to the learned counsel for the appellant, clearly showed that it was at the instance of the respondent that she was living away and she was expected to meet him on 13-4-1957 somewhere also and not in the house. Exhibit D. 7 is again a latter from the respondent to the appellant. This letter does not bear any date but according to the appellant it was dated 20th April, 1957. There is a reference to two letters by the appellant dated 14th April, 1957 and 17th April, 1957. It, therefore, appears that this letter must have been written somewhere near April 1957. This letter is of importance" * * * * requiries about the appellant s health and stated: "when I see you again I wish to find you healthy and cheerful. " He also asked her about the names and address of the persons to whom invitation cards and sweets has to be sent. Letter Exhibit D. 10 dated 26th November, 1957, also mentions about the receipt of an "affectionate" letter from the appellant. " He also asked her about the names and address of the persons to whom invitation cards and sweets has to be sent. Letter Exhibit D. 10 dated 26th November, 1957, also mentions about the receipt of an "affectionate" letter from the appellant. He further stated that he had purchased a scooter and after he had picked up the necessary practice in driving he would be able to bring it on the road and go to her with it. He asked her to let him know when she was likely to reach back in her house in the evening so that he may be able to meet her. He also expressed hope to visit her very soon but could not be certain about the days as he was busy with his work in the office. In the end it is stated: I hope to get relief from office work thus shall be visiting you very soon. Thus you would not mind it for a few days more. " Exhibit D. 11 dated 24th December, 1957, is another important letter. It is stated there in "for 29th December 1957 programme I shall be waiting for you at the Scindia House Bus Stand of Bus No. 21 which comes from Kingsway Camp at 11 AM. ; so you reach at Scindia House bus stand of Bus No. 21 at 11a. M. Though I shall be waiting there from 11 A, M. to 11-30 A. M. but you should try to reach there at 11 A. M. so that we may not be late. " In Exhibit D. 12 again he made enquiries about the child and her activities and advised her to take care of her health. Towards and it is stated: Anything new about baby Rani when she along with her mummy coming of her Daddy. " By letter Exhibit D. 13 he again made enquiries from the appellant about the baby s progress in respect of her teeth and if she was still having temprature. This letter according to the appellant, and in myopinion, rightly shows that there had been some communication or contact between the parties immediately before the writing of the letter for otherwise the respondent would not have normally know that the child was running temprature and not have made enquiries about th3 progress about teeth. This letter according to the appellant, and in myopinion, rightly shows that there had been some communication or contact between the parties immediately before the writing of the letter for otherwise the respondent would not have normally know that the child was running temprature and not have made enquiries about th3 progress about teeth. A great emphasis has been laid by the learned counsel for the appellant on letter Exhibit D. 3 dated 2nd June, 1959, which according to him shows that, in any case, till then the respondent was merely trying to fix some date for bringing her back to his house and her absence was with the consent of the respondent. He submits that the expressions in various other letters as to when she and the child would be coming to him were merely expressions of hope about improvement in the home at mosphere and his being able to get them back or mere face saving proclamations refulting from his helplessness. It is significant that none of the letters written by the wife have been produced by the respondent in spite of notice by the appellant to produce the same. It must, therefore, beheld that if they had been produced they would have supported the * * * * appellant. It is also significent and has been rightly emphasised by the learned counsel for the appellant that: if the atmosphere in the house of the respondent had been no impadiment to him in getting her to the house at least sometimes he would not have written to her fixing appointments outside his own house at places like the bus stop or that he would go and see her in her house. This, according to appellant, clearly establishes that the atmosphere that obtained in the respondent s house was such as made it difficult for the respondent to invite the appellant to his house even for meeting him. I may say here that I am in agreement with the findings of the learned Additional District Judge regarding their restrictions that were being imposed on the appellant from time to time with regard to her conduct in the house and use of the kitchon etc, and that some of her jewellary at least had been ratained by her parents-in-law. I may say here that I am in agreement with the findings of the learned Additional District Judge regarding their restrictions that were being imposed on the appellant from time to time with regard to her conduct in the house and use of the kitchon etc, and that some of her jewellary at least had been ratained by her parents-in-law. I am also in agreement with him when he says that some incident, as is alleged to have happened on the occasion of the marriage of the sister of the respondent, did take place when the respondent tried to assault the appellant. The alleged incident in Mussoorie hotel has also been found by the learned Additional District Judge in appellant s favour and I am in agreement with that finding. Gurditta Mal (R. W. 21) was produced by the appellant who produced the letter Exhibit R. W, 2/1 dated 17-2-1958 which is a latter written by the witness to the appellant s father. In that it is stated that he was very anxious that there should be peace in the family and that he would call on him on the 23rd so that there my be an exchange of views to find some way out for the difficulties of the appellant. Lakshmi Chand (R. W. 1) deposed regarding the child being termed as inauspicious by the Pandit Ved Parkash (R. W. 3) supported the appellant, rogarding the orthodox naturs of her mother-in-law and Sakhira Ram (R. W. 4), the father of the appellant, supported her regarding the May 1957 incident at the marriage of the respondent s sister. ( 7 ) THE learned counsel for the respondent, on the other hand, submitted that the parties had been living together except for intermittent breaks and the respondent never realised when writting all those letters that the appellant did not have the intention to come back. It is only in Decmber 1957 when he expected her to meet him at the Scindia House Bus stop and she did not turn up that he realised about her intention of not coming back to his house. According to the learned counsel the respondent not having been able to meet the appellant at the bus stop went to her house but she evaded meeting him by saying that she had got to go to office. According to the learned counsel the respondent not having been able to meet the appellant at the bus stop went to her house but she evaded meeting him by saying that she had got to go to office. He also stated that her casein evidence is different from that in her written statement. He laid emphasis on the statement of the appellant that from 29-12-1957 she remained with her husband for about 15 days. This according to the learned counsel for the respondent is falsified by letter Exhibit P. 1 dated 8-1-1958 which is a letter written by the respondent to his father-in-law. In the said letter it is stated that the respondent was enclosing a letter for the appellant which may be given to her. This according to the learned counsel for respondent shows conclusively that her above statement was wrong and she was at that time residing With her father. The learned counsel for the responden has also emphasised that the letter shows the anxiety on the part of the respondent to have her back in his house. A part of the letter may be quoted which is as under :- "the matter for which I requested for meeting is, that Raj should leave the service and it is in her interest, in my interest and in the interest of all of us that she should leave the service at once, I wish she should settle in domestic life immediately and this thing is in the interest of all of us. I hope you would agree with me on this point. If you feel the need to ask the reason for this sudden expression, it would be better that we should sit together so that it may be explained thoroughly. Besides this there are certain other matters which need your notice immediately and therefore I want to bring these to your notice. " ( 8 ) RELIANCE has been placed by the learned counsel for the appellant on the following decisions :- 1. Shrimati Kako v. Ajit Singh. 2. Shri Gurcharan Singh v. Shrimati Waryam Kaur, 3. Venkatapathi v, Puttamma. 4. Meena v. Lachman. 5. T. Rangaswami v. T. Aravidammai. 6. Leela Devi v, Manoharlal. ( 9 ) IN. " ( 8 ) RELIANCE has been placed by the learned counsel for the appellant on the following decisions :- 1. Shrimati Kako v. Ajit Singh. 2. Shri Gurcharan Singh v. Shrimati Waryam Kaur, 3. Venkatapathi v, Puttamma. 4. Meena v. Lachman. 5. T. Rangaswami v. T. Aravidammai. 6. Leela Devi v, Manoharlal. ( 9 ) IN. Gurcharan Singh case," which was a case under section9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights, Dua, J. held:- "whather or not isolated acts of violence amount to cruelty normally depends on the facts ond circumstances of each case and the modern tendency of the society is at least to treat with diapproval acts of violence or assuit towards women. Now rules of social behaviour and conduct must therefore, be recognised by the courts in determining what would amount to cruelty in the present set up, and I would be disinclined to dismiss lightly the so-called isolated acts of violence and assault as not amounting to cruelty, if the victims of such assaults resent and take exception to them. " ( 10 ) IN Kako s case it was held that desertion is in essence the intentional permanent forsaking and abandonment of one spouse by the other without reasonable cause. It is a total repudiation of the obligations of marriage. Desertion is not the withdrawl from a place, but from a state of things, for what the law seeks to enforce is the recognition and the discharge of the common obligations of the married state. "desertion" means abandonment, and implies an active withdrawal from a cohabitation that exists. The gist of the matrimonial offence of desertion consists in the intention of the deserting spouse (animouss deserendi) never to return to the matrimonial home and such desertion must be without the consent on the part of the person deserted. In Meena s case it was held that when there was documentry evidence and also a mass of conflicting oral testimony, it was always desirable and indeed safe to. et the documents speak for themselves and that if the husband made serious allegations of unchastity against his wife and the allegations were unfounded, and if the wife in consequence of of such allegations refused to co-habit with the husband and went away from him she would be justified in doing so. et the documents speak for themselves and that if the husband made serious allegations of unchastity against his wife and the allegations were unfounded, and if the wife in consequence of of such allegations refused to co-habit with the husband and went away from him she would be justified in doing so. In T. Rang swimi s case, Ramaswami, J. held that the essential factors which must be established to succeed in a petition for divorce on the ground of desertion are;- " (A) the spouses must have parted or terminated all joint life (b) The deserting spouse must have an intention to desert the other spouse ; (e) The deserted spouse must not have agreed to the separation; (d) the desertion must have been without cause; and (e) this state of affairs must have continued for at least three years immediately preceding the presentation of the petition. In certain circumstances the deserting spouse may not be the person who actually leaves the matrimonial home. The actual parting may be due to the deserting spouse making continued joint life impossible and thus compelling the deserted spouse to leave the matrimonial. home. In such cases the actual abandoning of the matrimonial home is not the act of the person against when the allegation of desertion is made, but the act of the person making the allegation. The test by which the offence is judged is not the abandoning of the matrimonial home, but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequence of such actions. If it is a natural consequence of the behaviour of one spouse that the other will leave the matrimonial home, the offending spouse must be presumed to have intended that this should happen. Cases in which the parting of the spouses has risen in this circumstances are sometimes called constructive desertions. " ( 11 ) EXPLANATION to section 10 makes it clear that in order to constitute desertion it must be without the reasonable cause and without the consent or against the wish of the party deserted. Under section 10 (1) (a) desertion must be for a continuous period of two years immediately preceding the presentation of the petition. " ( 11 ) EXPLANATION to section 10 makes it clear that in order to constitute desertion it must be without the reasonable cause and without the consent or against the wish of the party deserted. Under section 10 (1) (a) desertion must be for a continuous period of two years immediately preceding the presentation of the petition. Desertion as defined by lexice-graphers is the act of forsaking or abandoning or the act of quitting Without leave and with an intention not to return. There must be an intention on the part of the deserting spouse never to return to the matrimonial home and such desertion must be without the consent on the part of the person deserted. There must also exist an intention to abandon and withdraw from cohabitation. In other words, to constitute desertion there must be cessation of cohabitation without cause therefor and consent thereto but with an intent to abandon which is wilfully persisted in for the space of the statutory period. A mere severance of the relation is not sufficient, since there may be a separation without desertion and desertion without separation. Continued separation of husband and wife which may be consistent under the proofs with no intention to wilfully desert, is not a desertion within the meaning of the statute. In legal contemplation, a husband may be said to be living with his wife, though driven by stress of circumstances and pecuniary difficulties to absent himself from home in an effort to make better provision for his family, and he ceases to live with his wife only when, with an intention never to return, he deserts or abandons her. The separation and intention to abandon need not be identical in their commencement. The separation in the first instance may not constitute a desertion bat if a subsequent intent to abandon is formed, this intent may constitute a legal desertion. The subsequent intention to abandon will not, however relate back to the time of the separation and constitute a desertion from the time of the separation, but only from the time the intention to abandon is formed or manifested. A separation however long continued, with the consent or acquiescence of the parties can never constitute desertion within the meaning of section 10. A separation however long continued, with the consent or acquiescence of the parties can never constitute desertion within the meaning of section 10. In order to constitute desertion it is necessary that the separation be shown to be against the will and without the consent of the complaining spouse. It may even be said that if a spouse, not entirely blameless for the act, makes no effort to prevent desertion by the other and acquiesces in, and appears satisfied with, its continuance, he or she will not be entitled to separation on the ground of desertion. Usually the spouse who withdraws from cohabitation or absents himself from the other spouse is the one chargeable with desertion. However, this is not necessarily true. Either spouse may by reason of misconduct or cruelty drive the other away, in which the case the former, and not the latter, is the deserter. In other words, the conduct of one of the parties may justify separation from him of her by the other and confer the right upon the latter to obtain separation on the ground of wilfull desertion. If a husband by his extreme cruelty to his wife compels her, for her own safety and protection, to seek a home else where than his roof, she cannot be said thereby to have deserted him. To constitute constructive desertion it is not necessary to show that the defending spouse misconducted himself or herself intent or forcing the other to leave the home : nor is it necessary that there should have existed in connection with the acts of cruelty any setteled purpose to drive away the other. It is enough if such is the natural consequence of the acts. The complaining spouse must. of course, be justified in leaving the defending spouse, in order to constitute such desertion by the latter. In considering the question as to how far one spouse is justified in leaving the marital abode on account of the conduct of the other s relatives living in the house the Court have naturally refrained from attempting to formula to a rule of general application; each case is determined largely upon its own particular circumstances. As a general proposition, the. As a general proposition, the. power of determining who shall be the inmates of the home rests primarily in the hasband in correlation to his duty make provision for the wife, but he must exercise this right in a reasonable manner. Circumstances may show that the hasband acted arbitrarily in compelling his wife to live with, or in close proximity to, his relatives. It may he said generally that the duty of the husband to provide a home not only extends to the. furnishing of material comforts in accordance with his means, but requires the furnishing of ahome where in the wife is free from abuse, illtreatment, and unwarranted inter- ference from members of the household. In some cases in foreign countries. it has been held that a wife is entitled to home. which is under her control and is justified in leaving if the husband permits his mother or other of his relatives to dominate the household or insists on her living with relatives with whom her relationsare unpleasant, but it is equally well recognized that the wife has net an absolute right to have a home from of her husbands relatives, such as his mother. The principle may not be applicable with that strictness in India where joint living has developed as an institution and is the very structure of Indian Society. The facts, however, remains that if the wife is persistently insulted without any reasonable cause by the relation of the husband and the husband, instead of giving her the. necessary protection, joins the relations in such activities, the wife may in. certain circumstances be justified, in: saying "i will not live under this. roof. " There may be cases where the wife s mother in law does not tolerate the presence of the wife in the house, treats her cruelly,does not permit her to use the house as her own and insults her in the presence of others. In such circumstances, particularly when the husband does not afford the necessary protection to her but starts treating her cruelly, she would certarmly be Justified m going and living apart. The perusal of the entire evidence and particularly of the appellant and of the various letters mentioned above clearly shows to my mind that the husband was the consenting party to her living apart and possibly due to the attitude of his mother. The perusal of the entire evidence and particularly of the appellant and of the various letters mentioned above clearly shows to my mind that the husband was the consenting party to her living apart and possibly due to the attitude of his mother. he did not like her to even come and pay visits to him in his house. This. course of conduct at least continued till 2nd June, 1959, when he wrote the letter Exhibit D. 3. It cannot, therefore, be said that there was desertion for a statutory period, of two years preceding the date of the petition. The various incidents of cruelty and/or maltreatment found by the learned Additional District Judge, and with which I have concurred, also show that the respondent not only did not give protection to the appellant but maltreated her on more than one occasion. Even a single actof cruelty may in some cases be a reasonable cause for living apart but I have to see all the evidence in its contention. When so soon, it is apparent that the parents of the respondent continuously ill-treated her and the respondent also on more than one occasion malterated her It further appears that he was a willing party to her living apart and instead of inviting her to come and stay with him made all afforts to see that she did not even meet him in his house. The hopes of their. getting together as stated in some of the letters show nothing more than expression of the opinion or a wish that some day the atmosphere will change and he will be able to have her back. No doubt, in some of the letters the respondent did ask the appellant as to when he would expect her back. Such like remarks may have been for face saving, but no serious, efforts seems to have been made by the respondent either to provide her with a home or to call her back. On the other hand, the over all impression. that I get. from the lerrers is that the respondent remained more or less content with her living apart. When asked at the time of the arguments the learned counsel for the repondent expressly stated that he was not prepared to have her back now. On the other hand, the over all impression. that I get. from the lerrers is that the respondent remained more or less content with her living apart. When asked at the time of the arguments the learned counsel for the repondent expressly stated that he was not prepared to have her back now. In the circumstances, I must hold that there was no desertion for the statutory period of two years before the date of the petition and at least upto 2nd June, 1959. She was justified in living apart and had his acquiescence in this behalf. I must say a few words about the evidence of certain witnesses produced by the respondent who are alleged to have made efforts to bring the appellant back. There is nothing to show that those witnesses when making such efforts carried any assurance from the respondent that if she returned she would be provided with a home and not a mere house. If, as I have found, it be true that stress of the atmosphere in the house, the restrictions and maltreatment must have forced her to leave the house and respondent instead of giving her the necessary protection also maltreated her, then mere efforts of asking her to come back will be no efforts. Such efforts had, in the circumstances, to be backed by an assurance, as I have said of being provided with a home. In the absence of such an assurance they cannot be termed as real or proper efforts. In any case efforts made within two years preceding the date of application cannot be of any avail to the respondent because it clearly emerges from the evidence that the respondent was a consenting party to the appellant living apart at least till 2-6-1959 and consequently that she left the house at least in the begining with the respondent s consent. ( 12 ) IN the result, the appeal must succeed and the judgment of the learned Additional District Judge set aside. The application of the respondent will stand dismissed. I, however, leave the parties to bear their own costs.