JUDGMENT 1. - This is an appeal by the wife against the decree of divorce dated 16-1-1979, passed by the District judge, jodhpur, in favour of the husband-respondent, on the ground of desertion. 2. The material averments made by the respondent in his petition for divorce may briefly be stated as under:- The parties to the petition were married on 30th November, 1972. The parties lived as husband and wife upto 8th April, 1973, when the petitioner was serving at Barkana as a teacher. A son was born out of the wedlock on 6th December, 1973. The non-petitioner appellant had left the company of the petitioner on 8th April, 1973, with an understanding that she would return to her matrimonial home by 15th of April, 1973, but she did not return. Efforts were made to bring her back, but she refused to return and live with the petitioner. Registered letters were also sent to her, but with no result. It was also averred in the petition that the petitioner's wife did not come to him even at the time of the death of the father of the petitioner on 14-2-1976, nor she joined the marriage of the petitioner's brother Bhawani Shankar on 19-5-1977. The petitioner's son was also not sent for his defendant. It was alleged that the non-petitioner deprived the petitioner of his all marital rights and under the influence of her family members, refused to live with the petitioner. The non-petitioner, thus, committed cruelty with the petitioner and she even did not attend the petitioner at the time when he was ill. 3. The non-petitioner appellant submitted a reply to the petition wherein it was admitted that the parties were married, as stated by the petitioner, but the petitioner neglected her, as he had illicit relations with his younger sister Shakuntala. She requested to refrain from having any illicit relations with his sister, but all in vain. The non-petitioner was thus compelled to live apart from the petitioner. It was also averred that the non-petitioner even went to Barkana to request to her husband to severe his illicit relations with his sister, but even at Barkana the petitioner continued to have such relations with his sister. It was averred that on account of petitioner's illicit relations with Shakuntala the non-petitioner had to suffer mental cruelty and she was forced to live with her uncle. It was averred that on account of petitioner's illicit relations with Shakuntala the non-petitioner had to suffer mental cruelty and she was forced to live with her uncle. It was also averred that the petitioner used to say that Shakuntala, his sister, is 'Lata' for him & the non-petitioner is 'Kusum'. It was also stated that no information was conveyed to her regarding the death of the petitioner's father. It was further averred that once the petitioner had come to the non-petitioner's house accompanied with some 'gundas' to forcibly abduct' her, but on account of the intervention of the neighbours the petitioner was not successful. At the end it was prayed that a just decree for, dissolution of marriage may be passed. 4. On the pleadings of the parties the issues were framed:- (1) Whether the non-petitioner deserted the petitioner after 15.4.73 without any reasonable cause and since that date the petitioner is in desertion ? (2) Relief. 5. The parties led evidence. The petitioner in his evidence, examined himself as P W 1 and produced Jainarain (PW 2), Bansilal Mali (PW 3), Bhikaram Mali (PW 4), Ganeshram Mali (PW 5), Divakar Vallabh Dave (PW 6) & Mishrilal Shrimali (PW7). The petitioner also produced some letters. 6. The non-petitioner examined herself as NAW 1 and produced Heerachand Oswal (NAW 2) Shiv Shankar (NAW 3), Askaran Surhar (NAW 4); Jagdish Thathera (NAW 5), Ramdan Kansara (NAW 7), Om parkash Shrimali (NAW 8) And Jaishanker (NAW 9). She Also Produced One Letter Ex.A/1 Dated 18-2-1973. 7. The learned District judge, after hearing the arguments, decided issue No. 1 in favour of the petitioner and found that the non-petitioner has deserted the petitioner without any reasonable cause. After careful scrutiny of the entire evidence, oral and documentary. on record it was found that the non-petitioner has utterly failed to substantiate her defence that the petitioner has illicit relations with his sister. The direct evidence in this regard of the non-petitioner Smt. Dev Kanya, was disbelieved, as being unnatural, improbable, on account of her own conduct. 8. Dis-satisfied with the decree of divorce in favour of the petitioner Smt. Dev Kanya, has preferred this appeal. 9. I have heard Shri S.L. Mardia, learned counsel for the appellant, and Shri M.L Kala, learned counsel for the respondent, and have perused the record of the case carefully. 10. 8. Dis-satisfied with the decree of divorce in favour of the petitioner Smt. Dev Kanya, has preferred this appeal. 9. I have heard Shri S.L. Mardia, learned counsel for the appellant, and Shri M.L Kala, learned counsel for the respondent, and have perused the record of the case carefully. 10. Shri Mardia vehemently urged that the petition is silent as to the reason why the non-petitioner is living at her uncle's house. What led her to live apart from her husband, is conspicuously absent and has not been averred by the petitioner in his petition. There can possibly be no reason for a newly married wife to live separate from her husband. The fact was, as stated by the non-petitioner in her reply, that the petitioner was having illicit relations with his sister Shakuntala, which the non-petitioner could not tolerate, which compelled her to live apart from her husband. Shri Mardia urged that the learned District judge seriously erred in disbelieving the non-petitioner's evidence. If the non petitioner's evidence is read along with the letter Ex A/1, it is fully substantiated and proved that the non-petitioner had a just cause to live separately from the petitioner. Shri Mardia pointed out that the learned District Judge was in error when he observed that the conduct of the non-petitioner in not raising hue and cry and not narrating the petitioner's conduct of illicit relations with his sister to her near relation, is unnatural and whatever she has deposed is unbelievable, being improbable. The ocular testimony of Smt. Dev Kanya along with the circumstantial evidence of the other witnesses is sufficient to hold that the petitioner had illicit relations with his sister. It was urged that the petitioner did not refute the charge of illicit relations, in the letter Ex.A/l, rather, from the tenor of the letter an inference should be drawn that the petitioner admits of having such relations with his sister, but such a conduct on the part of the petitioner should be forgotten Shri Mardia referred to the relevant lines of letter Ex.A/l along with the statement of the petitioner. 11. 11. Shri Kala, learned counsel for the respondent, on the other hand, supported the judgment of the learned District judge and urged that the evidence of both the parties have been properly scanned and scrutinised by the learned District Judge and the learned District Judge has found that the allegations made by the non-petitioner, have not at all been substantiated by the evidence adduced by her. On the contrary her own statement is 'not worthy of credence, and suffers from inherent improbabilities. From her statement it would be evident that she has falsely deposed about having observed indulging of the petitioner in sexual intercourse with his sister on the various dates, namely 21st December, 1972, to 24th December, 1972, in her own unbolted room during the day time between 2.00 p.m. to 4.00 p.m. He also urged that from the letter Ex A/1 no such inference can be drawn that the petitioner admits his illicit intimacy with his sister. Shri Kala urged that the factual separation accompanied with necessary animus desrendi is amply proved from the petitioner's evidence. Further the non-petitioner too has admitted that she does not want to return to the petitioner to resume, her matrimonial home. 12. Before dealing with the respective contentions advanced before me it may be stated that in a petition for divorce on the ground of desertion, the burden is on the petitioner to establish the two essential conditions (1) the factum of separation, and (2) intention to bring cohabitation permanently to an end on the part of the deserting spouse. As regards the deserted spouse the two essential elements are that (1) there should be absence of consent on his part, and (2) there should be absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention i e. the animus deserendi. If on account of any conduct on the part of the deserted spouse, the deserting spouse is living separately, then animus deserendi can not be attributed to the deserting spouse, for in that event the fault lies with the deserted spouse and on account of his or her fault, the deserting spouse has been compelled to live separately and the deserted spouse will be guilty of desertion, though the deserting spouse has physically separated from the other and has been made to leave the matrimonial home. The burden of proof of the factum of separation and animus deserendi is on the petitioner. Reference in this connection may be made to Bipinchandra Jaisinghbhai Shah v. Prabhavati ( AIR 1957 SC 176 ) and Lachman Utem Chand Kirpalini v. Meena alias Mota ( AIR 1964 SC 40 ) . It may be observed that when both the parties have led evidence the question of burden of proof loses much of its significance and on the evidence adduced by the patties the finding has to he arrived at. It may further be observed that the matrimonial cases are essentially of a civil nature and the word "satisfied" in section 23 of the Hindu Marriage Act, cannot be taken to mean satisfaction beyond reasonable doubt. It must mean satisfied on a preponderance of probabilities, Section 23 of the Hindu Marriage Act does not alter the standard of proof in civil case. 13. It is to be seen as to whether the petitioner has been able to prove desertion on the part of the non-petitioner by the evidence adduced by him and whether the non-petitioner has at all been successful to rebut the petitioner's evidence. I have been carried through the parties' evidence and also the discussion and the findings on issue No. 1 recorded by the learned District Judge. The petitioner has led ample and satisfactory evidence from which it can he and has been rightly found, that the non-petitioner has deserted the petitioner in as much as she is not only living separately from him, but she has no intention to resume her matrimonial home. The petitioner made sincere and earnest efforts to bring the non petitioner to his home, but all his efforts failed and the non.-petitioner was not prepared to return to the petitioner. Rather she refused to cone to the petitioner and live with him. The only question which arises for consideration is whether there is any cause for the non-petitioner to live separately from her husband. The evidence in this regard, has been thoroughly scrutinised by the learned District Judge and I concur with the reasons and she findings arrived at in this regard. According to the averments in the petition, the non petitioner left the house of the Petitioner after making a mis-representation to the petitioner. The evidence in this regard, has been thoroughly scrutinised by the learned District Judge and I concur with the reasons and she findings arrived at in this regard. According to the averments in the petition, the non petitioner left the house of the Petitioner after making a mis-representation to the petitioner. It was represented to the petitioner that she would return back after seeing her ailing mother and 'nani', but thereafter she did not return and on being requested, she refused to come back. It is true that the alleged reason, was stated by the non-petitioner has not been averred in the petition, but such an averment was not necessary. What animated the non-petitioner to leave the society of the petitioner, if not communicated to the petitioner, the same could not have been pleaded by the petitioner in the petition. It may be mentioned that the two essential conditions constituting desertion, have been pleaded in the petition, the factum of separation and the animus deserendi on the part of the deserting spouse. Both have been categorically pleaded. Thus, on the basis of the nature of the pleadings in the petition, in my opinion, nothing would turn. 14. The whole question is whether on evidence it can be found that the petitioner had illicit relations with his sister, whereby the non-petitioner is compelled to leave the society of the petitioner and live separately from him. In this regard the main evidence is of Smt. Dev Kanya. A bare perusal of her statement speaks volumes against its credibility. It appears that a deliberate effort has been made by the non-petitioner to introduce falsehood. The learned District judge has rightly characterised her statement to be highly unnatural and improbable. According to the non-petitioner she actually observed with her own eyes the petitioner indulging in sexual intercourse with his sister in a completely naked position not only once, but continuously for four days in the day time in an unbolted room, as if the room was deliberately kept unbolted so that the non-petitioner could have an opportunity to peep in to it, more particularly at a time when the non petitioner was very much in the house engaged in cleaning wheat at a distance of 4 paces from the room. According to her she saw such an act on the part of the petitioner not only on 21st December, 1972, but also on 22nd, 23rd, and 24th of December, 1972, between 2.00, p.m., to 4.00 p m., and the petitioner used to have intercourse with the non-petitioner on these very days in the night. According to her she did not disclose this fact to any one, though subsequently she has stated that she did bring it to the notice of her mother-in law. If the fact would have been brought to the notice of the mother-in-law, it would be highly unnatural and it is not understandable that her mother-in-law would have ignored it and would not have scolded the petitioner and Shakuntala. The learned District judge has also found the falsity of this version after examining the statements of the witnesses inter se. The learned District Judge has found contradictory versions having been Riven with regard to the fact being disclosed by Smt. Dev Kanya and Shiv Shanker (NAW 3) to Om Prakash (NAW.8). I need not repeat the inconsistencies appearing in their statements. It may also be mentioned that no letter of the petitioner has been replied. It was urged that the non-petitioner being a young Hindu wife, did not think it proper to make the matter public or to state in black and white in reply to the petitioner's letters, though the non-petitioner is a literate girl. It has been very much emphasised that there was no reason for the non-petitioner to have estrangement with her husband soon after the marriage and the reason disclosed by the non-petitioner appears to be true. In this connection it may be pointed out that no finding can be arrived at on the basis of such a reasoning. It would all be imaginary, speculative & conjectural in nature. It may be pointed out that a serious charge is levelled against the petitioner that he is in league with his own sister. Such a charge has to be established satisfactorily by clear and cogent evidence. The learned District Judge was alive to principles regarding the proof of the charge of adultery. These principles have been noticed by this Court in its Full Bench decision in B.D. Charles v. Smt infora Benjimin (1979 RLW 248) . I need not refer to the principles enunciated in the case law in this regard. The learned District Judge was alive to principles regarding the proof of the charge of adultery. These principles have been noticed by this Court in its Full Bench decision in B.D. Charles v. Smt infora Benjimin (1979 RLW 248) . I need not refer to the principles enunciated in the case law in this regard. Reviewing the evidence, I am clearly of the opinion that the non petitioner has utterly failed to substantiate her allegation that the petitioner is having illicit intimacy with his own sister Shakuntala. Having disbelieved the ocular testimony of Smt. Dev Kanya, the learned District judge further found that the circumstantial evidence also does not establish that the petitioner was having illicit relations with his sister. Three witnesses, namely, Shiv Shankar (NAW,3), Heerachand (NAW.2) and Devilal Mali (NAW.7), have been examined in this regard, but from their statements no such conclusion is possible that the petitioner was having adulterous relations with his sister. The evidence of these witnesses has been considered by the learned District judge and has-been rightly disbelieved. 15. Further, I have perused the contents of Ex.A/1 along with the petitioner's statement. In this letter Ex. A/1 dated 18-2-973 it is written that it is beneficial to forget by treating any big matter as a small one. The petitioner admitted that it was with reference to the said charge against him and the charge was stated by him to be a big matter, which may be treated to be a small one and to be forgotten. It may be stated that the letter is to be read as a whole. If it is read as a whole, it cannot be taken that the petitioner admits of haying any illicit intimacy with his sister. He has stated in the letter that all doubts may be cleared after meeting him at the earliest. From the alleged one sentence, it cannot be inferred that there is an admission on the part of the petitioner of the accusation levelled against him. He has stated in the letter that all doubts may be cleared after meeting him at the earliest. From the alleged one sentence, it cannot be inferred that there is an admission on the part of the petitioner of the accusation levelled against him. By reference to this letter it was also pointed out that Smt. Shakuntala was at Barkana & petitioner's statement is false when he states that Shakuntala was not at Barkana, when he was at Barkana From the perusal of the letter it appears that the petitioner wrote to the non-petitioner that neither he himself, nor his sister can come to her to bring her, nor his father can be sent to bring her. From this sentence in the letter it cannot be taken that Shakuntala was living with the petitioner at Barkana. Even it be taken as correct that Smt. Shakuntala was living with the petitioner at Barkana, from it cannot be found conclusively that their living together was such, which may give rise to a necessary conclusion or inference that their relations were illicit. 16. Shri Kala, learned counsel for the respondent, pointed cut that except the bald allegation, no specific dates regarding the alleged sexual intercourse by the petitioner with his sister, have been alleged in the reply to the petitioner and nor the dates have been given in the examination-in-chief by the non-petitioner. It was urged by him that as there has been estrangement between Om Prakash and Shakuntala. Om Prakash is the brother of the non-petitioner, being her uncle's son, so the accusation has been made against the petitioner by way of a counter blast. These aspects have been considered by the learned District Judge and do not require further consideration, though I may observe that what transpired between Om Prakash and Shakuntala and the evidence led in this regard, need not to be gone into in this case. 17. Thus, there is no satisfactory and convincing evidence on record so as to arrive at a finding that there were illicit relations between the petitioner & his sister, which compelled the non-petitioner to live separately from her husband. The learned District Judge has examined in detail the evidence of both the parties in this regard and I concur with the findings arrived at by the learned District Judge. 18. The learned District Judge has examined in detail the evidence of both the parties in this regard and I concur with the findings arrived at by the learned District Judge. 18. Shri Mardia further contended that the issues regarding mental cruelty caused to the petitioner by the non-petitioner and by the petitioner to the non-petitioner, have not been framed, which arise out of the pleadings of the parties. Suffice it to say that the petitioner pleaded mental cruelty on account of the non-petitioner's desertion, so there was no need to frame any issue of any mental cruelty having been caused by the non- petitioner to the petitioner. Similarly, in my opinion there was no need to frame any issue regarding any mental cruelty having been caused by the petitioner to the non - petitioner. Shri Mazia suggested that this issue should have been framed that the petitioner caused mental cruelty to the non-petitioner by having sexual relations with his own sister. It may be stated that there was any reasonable cause for the non-petitioner to live separately, was nothing, but the rebuttal of issue No.l The alleged mental cruelty to the non-petitioner, is a consequence of the petitioner's illicit intimacy and for that the; non-petitioner is required to lead evidence in rebuttal. As such there was no need to frame the proposed issue. In this regard it may further be pointed out that the parties went to trial in the light of issue No 1 & the parties did not press any issue either at the time of framing of issue or thereafter. No such point appears to have been pressed before the learned District Judge. Besides that, even otherwise, it was not necessary to frame the proposed issue, as considered above. 19. Shri Mardia also contended that there is no averment in the petition required under section 20 of the Hindu Marriage Act that there is on collusion between the petitioner and the non-petitioner. It is true that it has not been so specifically pleaded but if the petition is perused as a wholes it would be clear that there is no collusion between the parties to the petition. As such non-averment of non-collusion, does not affect the petition. 20. It is true that it has not been so specifically pleaded but if the petition is perused as a wholes it would be clear that there is no collusion between the parties to the petition. As such non-averment of non-collusion, does not affect the petition. 20. Shri Mardia submitted that the non petitioner too has prayed for a decree of divorce in her favour against the petitioner on the ground stated by her and not on the ground at alleged by the petitioner. In this connection it may be stated that as the non petitioner has not been able to make out a case averred by her, so she is not entitled to a decree in her favour. On the contrary the petitioner has made out the ground of desertion for the grant of the decree of divorce, so the petitioner on that bails is entitled to a decree of divorce against the non-petitioner. Though the petitioner also doubted the character of the non-petitioner as deposed by him, but that was not made the basis by him in his petition, so that statement cannot be looked into, as it is in variance with the pleading. 21. No other point has been pressed before me. 22. In the result, this appeal fails and it is hereby dismissed. In the circumstances of the case, I leave the parties to bear their own costs of this appeal.Appeal dismissed. *******