JUDGMENT 1. - This is a respondent's appeal under section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) against the judgment and decree of the learned District Judge, Ajmer, whereby the application of the husband appellant moved by him under section 13(1)(h) of the Act for dissolution of marriage with the respondent and for a decree of divorce has been dismissed. 2. The parties were married in accordance with the Hindu rites and customs at Ajmer on January 29, 1967. It is no longer in dispute that the respondent Kshemlata is living separately from the appellant at the house of her parents since September 27, 1967, i.e., after about 8 months of the alleged marriage. An application under section 10 of the Act, as it stood prior to the amendment by the Marriage Laws (Amendment) Act, 1976 was filed by the appellant against the respondent in the court of District Judge, Ajmer on the ground that the respondent has deserted him for a continuous period of not less than 2 years immediately preceding the presentation of the petition. When the application for judicial separation was pending, the Act was amended, as aforesaid, and the application was converted into an application under section 13(i) (b) of the Act for dissolution of the marriage of the appellant with the respondent by a decree of divorce on the ground of desertion. The application was contested by the respondent, who came out with a case that she did not leave the house of the appellant of her own will, out she was treated by the appellant and the members of his family with cruelty. She suffered mental and physical cruelty which caused a reasonable apprehension in her mind that it would be harmful and injurious to live with the appellant. It was also pleaded that she filed a suit for maintenance against the appellant in the Court of learned Civil Judge, Ajmer, which was pending. 3. On the pleadings of the parties, the learned District Judge framed the following issues:- (1) Whether the opposite party left the house of the petitioner on 27-9-1967 and has deserted the petitioner without any reasonable and just cause ? (2) To what relief the parties are entitled ? 3. On the pleadings of the parties, the learned District Judge framed the following issues:- (1) Whether the opposite party left the house of the petitioner on 27-9-1967 and has deserted the petitioner without any reasonable and just cause ? (2) To what relief the parties are entitled ? Efforts were made by the trial Court for reconciliation between the parties and though the respondent was willing to return to the appellant, but the appellant refused to keep her as his wife, and as such the efforts for reconciliation failed. After recording the evidence of the parties, the learned trial Court held that the appellant has failed to prove desertion under section 13(i) (b), and further that he has not explained that there has not been any unnecessary and improper delay in instituting the proceedings dismissed the application. 4. Two questions arise in this appeal:- (1) as to whether the respondent has deserted the appellant, as alleged by him, and the finding of the trial Court to the contrary calls for interference ; and (2) as to whether there has not been any unnecessary or improper delay on behalf of the appellant in instituting the proceeding for divorce ? 5. Prior to the amendment of the Act by the Amendment Act of 1976, desertion had not been defined under the Act, but their Lordships of the Supreme Court in Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 Supreme Court 176, dealing with the provisions of the Bombay Hindu Divorce Act held that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned, (1) the absence of consent, and (2) absence of conduct giving reasonable clause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. It was further held by their Lordships that it is not necessary that the separation and animus deserendi must co-exist and de facto separation may have commenced without the necessary animus or it may be fiat the separation and animus deserendi coincide in point of time. But, before an offence of desertion can be made out, it must be continued for a prescribed period of two years. But, before an offence of desertion can be made out, it must be continued for a prescribed period of two years. The ruling was followed by their Lordships in a latter authority Lachman Utamchand Kirplani v. Meena alias Mota, AIR 1964 Supreme Court 40. It appears that to give statutory recognition to the aforesaid definition of desertion, as laid down by their Lordships of the Supreme Court by the aforesaid amendment of 1976 in the Act, Explanation (2) was added to section 13(l) of the Act. It was provided that the expression "desertion" 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. It includes the wilful neglect of the petitioner by the other party to the marriage. The onus to prove as to whether the respondent has deserted the petitioner within the meaning of section 13(1) (b) is on the petitioner. The case of the petitioner is that it was on 27-9-67 that the respondent left his house without his consent. But, though the appellant Nirmal Kumar has stated so in his statement, his father P.W. 2 Panchulal contradicts him and states that the respondent went away from the house of the appellant after seeking permission and after having promised to return. As already stated earlier, so far as the factum of separation is concerned, it is proved that the respondent is living separately from the appellant since 27-9-67. The question is, as to whether at that time or at any time thereafter she had the intention to permanently abandon the matrimonial home If the other party to the marriage leaves the house for some cause, then it cannot be said that he or she, as the case may he, has deserted the petitioner without reasonable cause and without the consent or against the wish of the petitioner. The case of the respondent throughout has been that she was maltreated and was also beaten by the appellant and was turned out of the house. Therefore, if her case is correct, which has been held to be so by the learned trial Court, then no case of desertion can be made out against her. The conduct of the respondent throughout the proceedings has been such that she has offered herself to return to the petitioner, but the petitioner has refused to take her. Therefore, if her case is correct, which has been held to be so by the learned trial Court, then no case of desertion can be made out against her. The conduct of the respondent throughout the proceedings has been such that she has offered herself to return to the petitioner, but the petitioner has refused to take her. The parties belong to Jain community, and generally in that community a wife does not leave the house of her husband, unless there is some reason for the same. In the instant case, there is material on record that in the year 1972, and even prior two years to the filing of an application under section 10 of the Act, a suit for maintenance in form a pauper is has been filed by the respondent in the court of learned Civil Judge, Ajmer and in that suit it was averred that the appellant has neglected the respondent to maintain and has also beaten her and as such treated with cruelty. That suit was decided by the trial Court on August 5, 1976, and the appeal is said to be pending. It can, therefore, be said that after the wife had filed a suit for maintenance claiming a sum of Rs. 5,400 for maintenance for the period 1-10-69 to 30-9-72, the appellant filed an application firstly under section 10 of the Act and thereafter after the amendment of 1976 converted the petition as one for divorce under section 13(1)(b) of the Act. It has also been stated earlier that the case of the appellant that the respondent left his house on 27-9-67 without his permission is not correct in view of the statement of his father. In this appeal, an application under Order 41, Rule 27, Civil Procedure Code was filed for taking the notices exchanged between the parties on record. The learned trial Court has observed that in the absence of notices nothing can be said. That application was not opposed by Mr. Rustogi with regard to the notices, i.e., the notice of the appellant and its reply by the respondent, and as such that application is allowed and those documents be also taken into consideration. The learned trial Court has observed that in the absence of notices nothing can be said. That application was not opposed by Mr. Rustogi with regard to the notices, i.e., the notice of the appellant and its reply by the respondent, and as such that application is allowed and those documents be also taken into consideration. A look at the reply of the respondent to the notice of the appellant will show that even in the month of January, 1969 it is alleged that she had not left the house of the appellant of her own free will, but she was beaten and turned out of the house. It can, therefore, not be said that the case of the respondent that she was beaten by the appellant is an after thought, and though in the reply to the petition under section 13(1)(b) of the Act, the particulars of the alleged cruelty have not been mentioned, but when the respondent appeared in the witness box as N.A.W. 1 she clearly stated that she was beaten by the appellant and was compelled to sign the divorce deed, and was turned out of the house. Surprisingly, not a single question was put to her in her cross-examination about her beating. Therefore, it can be said that the appellant has failed to prove that the respondent left his house without reasonable cause, rather it appears that his conduct in maltreating the respondent was responsible for leaving his house. Even in his cross-examination, Nirmal Kumar refused to keep the respondent with him. It was stated by him that in the present circumstances he was not willing to keep her and the circumstances were not ignored. Though, if the petitioner proves the separation as well as the intention of the other party to the marriage to permanently abandon his house, it is not necessary for the petitioner to prove as to whether after a prescribed period of two years to make an offence of desertion, any efforts were made by him to bring the other party to the marriage back to the home. But, in the instant case, there is no material on record that before the expiry of prescribed period of two years, as aforesaid, any sincere efforts were made by the appellant to see that the respondent returns to his house to discharge her matrimonial obligations towards him. But, in the instant case, there is no material on record that before the expiry of prescribed period of two years, as aforesaid, any sincere efforts were made by the appellant to see that the respondent returns to his house to discharge her matrimonial obligations towards him. After having gone through the material on record, it cannot be said that the petitioner has succeeded in providing the offence of desertion against the respondent, and as such the petition for divorce has rightly been dismissed by the trial Court. 6. The question of refusing a decree of divorce on the ground of desertion under section 23(1)(d) of the Act will only arise in case a ground for allowing the relief could have succeeded. In the instant case, as per the case of the parties, separation took place on September 27, 1967, and the prescribed period of two years, which made a ground for divorce. expired in the end of September, 1969. A petition for judicial separation, as stated earlier was only filed after the suit for maintenance was filed. That petition was filed after April 12, 1974, and the petitioner has not explained this unreasonable delay in presentation of the petition. 7. There is no force in this appeal and it is hereby dismissed.Appeal dismissed. *******