JUDGMENT 1. - By this appeal under section 26 of the Hindu Marriage Act (Act No XXV of 1955) (hereinafter referred to as 'the Act'), the wife, who was non-petitioner before the District Judge, Bikaner questions the correctness of the decree passed by the District Judge on November 13, 1980 for dissolution of the marriage by a decree of divorce. The husband-respondent was the petitioner. Hereinafter the non-petitioner-appellant and petitioner-respondent will be referred to as the wife and husband respectively. The husband filed a petition under section 13 of the Act for dissolution of the Marriage by a decree of divorce on August 1, 1979 against the wife. It was averred in the petition that the marriage between the parties was performed ten years prior to the date of the filing of the petition according to Hindu rites and thereafter, the parties lived together as husband and wife. Out of this wedlock, a son Raju by name was born seven years before, who lives with the wife. It was alleged in para 3 of the petition that the wife is doing service as a nurse against his (husband's) wishes and after the birth of the son, has left him without any just or reasonable cause it was also stated that despite several requests, the wife is not ready and willing to live with the husband for the last 6 or 7 years and has been denying the marital obligations. It is stated that on June 8, 1979, the husband went to the wife and told her to live with him but she refused. The husband has, therefore, filed the petition for dissolution of the marriage by a decree of divorce on the ground of desertion. The wife resisted the petition by filing a reply denying the allegations made by the husband. It was pleaded by the wife that as the husband beat her and did not maintain her, she was compelled to join service. The learned District Judge made efforts for re-conciliation between the parties on February 7, 1980. In the Judge's note dated February 7, 1980, it has been stated as under : HINDI MATTER 235549 From this statement, the learned District Judge inferred that both parties distrust each other. The learned District Judge made efforts for re-conciliation between the parties on February 7, 1980. In the Judge's note dated February 7, 1980, it has been stated as under : HINDI MATTER 235549 From this statement, the learned District Judge inferred that both parties distrust each other. Issues were framed on February 7, 1980, which when translated into English read as under:- (1) Whether the non-petitioner has continuously deserted the petitioner and, therefore, on this ground the petitioner is entitled to obtain a decree for dissolution of marriage by divorce ? (2) Whether the petitioner has treated the non-petitioner with cruelty under the circumstances narrated in paras 9, 10 and 11 of the written statement and so under compulsion she had to join service and if so, what is its effect ? (3) To what relief the parties are entitled ? In support of the petition, the husband examined himself ex P.W. 1, P. W. 2 Narain and P. W. 3 Chhotu. In rebuttal, the wife has examined herself as D. W. 1. The learned District Judge decided issue No. 1 in favour of the husband and issue No. 2 against the wife. In view of the findings arrived at by him in respect of issue No 1, the learned District Judge granted the decree for dissolution of marriage by a decree of divorce on the ground of desertion on November 13, 1980. 2. Feeling dissatisfied, the wife has come up in appeal to this Court as aforesaid. 3. I have heard Mr. C. D. Mundra, learned counsel for the appellant and Mr. R.L. Jangid, learned counsel for the respondent and have also gone through the record. 4. Learned counsel for the appellant has raised two contentions before me:- (1) that the decree for dissolution of the marriage by divorce could not have been passed in favour of the husband, for, the husband has failed to establish any animus deserendi on the part of the wife, and (2) that the learned District Judge did not take into consideration section 23(1) of the Act, which lays down that the decree under the Act, can only be passed if the Court is satisfied amongst others that there has not been any unnecessary or improper delay is instituting the proceeding. 5. Mr. 5. Mr. R.L. Jangid supported the decision recorded by the learned District Judge in respect of issue No. 1 and submitted that in the facts and circumstances of the case, when the desertion has been established, there was no bar under section 23 of the Act, for not granting the relief claimed by the husband. 6. I propose to examine both the contentions raised by the learned counsel for the appellant at seriatim. 7. The relevant portion of section 13(1) is as under:- "13. Divorce (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) ................................. (i-a) . .............................. (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition : or (ii) .................... (iii) ..................... Explanation:- ............... (iv) .............................. (v) ................................. (vi) ................................. (vii) Explanation:- In this sub-section, 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, and includes the wilful neglect of the petitioner try the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly. ............................................" Section 3(d) of the Bombay Hindu Divorce Act (12 of 1947) came up for consideration in Bipin Chandra Shah v. Prabhavati, AIR 1957 Supreme Court 176. It was held therein 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) and 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 cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. It was observed as under : "Desertion is a matter of inference to be drawn from the facts and circumstances of each case. It was observed as under : "Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference ; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of brining cohabitation permanently to a close. The law in England has prescribed it three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentias thus provided by law and decides to come hack to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable." Bipinchandra's case was followed in Lachman v. Meena, AIR 1964 Supreme Court 40. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable." Bipinchandra's case was followed in Lachman v. Meena, AIR 1964 Supreme Court 40. It was held there that heavy burden lies upon a petitioner who seeks relief on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent, and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. It was also held therein that the burden of proof to establish that the deserting spouse has just cause or not to leave the matrimonial home lies on the petitioner. In that case, it was, however, opined that the offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner should be corroborated and that in short the proof required in a matrimonial case is to he equated to that to criminal case. 8. The doctrine of proof beyond reasonable doubt like the criminal case was considered in Dastane v. Dastane, AIR 1975 Supreme Court 1534 wherein the question was regarding proof of the charge of cruelty under section 10(1)(b) of was, in para 25 speaking for the Court ruled as under:- "Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trial or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involved the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the prohabilities are so nicely balanced that a reasonable not a vacillating, mind cannot find where the preponderance lies doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature." 9. From the aforesaid decisions of the Supreme Court, it is clear that the burden is on the husband to prove the desertion and that the wife has no just cause to leave the matrimonial home. It is wrong to import such considerations in trials of a purely civil nature." 9. From the aforesaid decisions of the Supreme Court, it is clear that the burden is on the husband to prove the desertion and that the wife has no just cause to leave the matrimonial home. It is settled that desertion is a matter of inference to be drawn from the facts and circumstances each case and animus deserendi must co-exist though they may commence at the same time. 10. Keeping these guide principles in view let me proceed to examine whether the husband has been able to establish that the wife has deserted him, as envisaged by section 13(1) (i-b) of the Act. It is clear from the pleadings as well as the statement of the husband as P. W. 1, which was recorded on May 28, 1980 that the wife has left him before 7-8 years and joined the service. The wife has also admitted in her statement that she has not remained at her matrimonial home for the last 10 years and goes and comes but does not stay there. In Bipinchandra's case, it was held amongst others that the de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. The factum of separation has been proved by the husband but the question is whether any material has been placed on record by the husband from which an inference of animus deserendi can be drawn. In my opinion, in the evidence that has been led by the husband, the important element of animus deserendi is conspicuously lacking. Question was put to the husband as P. W. 1 that in holidays if the wife comes to Bikaner and discharges her marital obligations, whether he would, still, like to give her divorce. To this, he replied that he does not want to keep the wife, for, he does not trust her and chat that she may, at any time kill him. A question was also put to him that if the wife gets herself transferred to Bikaner, whether he will be ready to keep her. To this, he answered that he is not ready to keep her at all, for, he distrusts her and, therefore, on account of this, he wants to divorce her. A question was also put to him that if the wife gets herself transferred to Bikaner, whether he will be ready to keep her. To this, he answered that he is not ready to keep her at all, for, he distrusts her and, therefore, on account of this, he wants to divorce her. The wife in her reply to the petition in para 12 has stated that she was ready to live with the husband and she is still ready. In her deposition as D. W. 1, she has stated that if her husband gets her transferred to Bikaner, she is ready to live with him at Bikaner and she has no objection in this regard. She has also stated that if the husband accompanies her she can also maintain him. It is correct that she has admitted in her cross- examination that she has not remained at the matrimonial home for 10 years and often comes and goes and does not stay there. The reason given by her in the statement is that she went to Bikaner for 1 or 2 days and, therefore, did not stay at the matrimonial home and returned back. From this evidence on record, it cannot be said that there was determination by the wife to and marital relations and to put an end to cohabitation permanently. No one can desert who does not actually and wilfully bring an end cohabitation. Mere absence does not necessarily cause a breach to cohabitation. The wife as D.W. 1 has stated that whenever she asked the husband to arrange for her lodging etc., he did not give a single paisa to her and used to tell her that she can go to her mother or 'nanihal'. As the husband did not support her, her mother and brother told her to undergo training and to stand on her own legs. Thereafter, she got herself trained as a nurse and joined the service. Even after jointing service, she never refused to live with him (husband). It has also come in her statement that at the places where she was posted, the husband did not come to take her. Thereafter, she got herself trained as a nurse and joined the service. Even after jointing service, she never refused to live with him (husband). It has also come in her statement that at the places where she was posted, the husband did not come to take her. In these circumstances, I am disposed to think that it was not possible for the wife to live with the husband and if in that state of things, the wife has left the matrimonial home, it cannot be said that the wife intended to determine the marital relations or to put an end to cohabitation permanently. It may here be recalled that in view of the Explanation to section 13(1) (i-b), the burden is on the husband to show that the wife is without reasonable cause and without consent or against his wishes has deserted him. The husband has failed to discharge this burden. On the other hand, as I have mentioned above, as the husband did not maintain her, she was forced to undergo the training of the nurse and therefore, joined the service. In these circumstances, it cannot be said that the wife had animus deserendi' at the time when she left her husband's home. As one of the two essentials for establishing desertion, namely, animus deserendi has not been established by the husband on whom the burden lay, the learned District Judge, was not right in deciding issue No.1 in favour of the husband. The matrimonial offence of desertion has, not been proved against the wife so as to entitle the husband to the dissolution of the marriage by a decree of divorce under section 13(1) (i-b) of the Act. The first contention of the learned counsel for the appellant is, therefore, accepted and the finding of the learned District Judge on this point is reversed. 11. Now, I proceed to examine the second contention. 12. Section 23 of the Act imposes general bars to matrimonial reliefs Sub-section (I) of section 23 lays down that if the Court is satisfied about the existence of the condition/a mentioned in clauses (a) to (e), the Court shall grant the relief but not otherwise. According to clause (d) of Sub-section (1) of section 23, if there has not been unnecessary or improper delay in instituting the proceeding, the Court may grant the relief. According to clause (d) of Sub-section (1) of section 23, if there has not been unnecessary or improper delay in instituting the proceeding, the Court may grant the relief. In this case, the petition for dissolution of the marriage by a decree of divorce was filed on August 1, 1979. A perusal of para 3 of the petition shows that the wife has not been ready and willing to live with the husband for the last 6 or 7 years. Para 4 of the petition shows that the wife has been refusing to live with the husband for the last 6 or 7 years. It is clear in view of paras 3 and 4 that the wife has not been willing and ready to live with the husband for the last 6 or 7 years. Having regard to the facts and circumstances of the case, there appears to be improper delay in filing the application. The test of improper or unnecessary delay is whether in a particular case delay has been in the nature of wrong. The learned District Judge while granting decree of dissolution of marriage did not consider the provisions of section 23 (1) of the Act. On account of this improper delay in instituting the petition under section 13(l) (i-b) of the Act, the general bar of section 23(1) (d) is attracted and the husband has disentitled himself to the relief of dissolution of the marriage by the decree of divorce. The second contention raised by the learned counsel for the appellant, thus, deserves to be accepted. 13. For the reasons mentioned above, the husband is not entitled to the decree of dissolution of marriage by a decree of divorce. 14. The result is that the appeal is allowed and the judgment and decree dated November 13, 1980 of the District Judge, Bikaner are set aside and the petition for dissolution of marriage by a decree of divorce filed by the husband is dismissed. In the circumstances of the case, the parties are left to bear their own costs of this appeal.Appeal allowed. *******