JUDGMENT V. P. Mathur, J. 1. This appeal purporting to be under section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and order of Sri R. S. Tripathi, the then Vth Additional District Judge, Aligarh, passed on 19-1-84, in matrimonial petition no. 262 of 1980. 2. The original petition was filed by the present appellant Vinod Chandra Sharma against his legally married wife Smt. Rajesh Pathak, and purported to be under section 13 of the Hindu Marriage Act, 1955. Divorce was prayed for. The ground taken was that on 3-9-77 in the absence of the petitioner the respondent left the marital home alongwith her brother Vinod Pathak and since then she has not returned back inspite of repeated attempts. The case is sought to be covered by Sec. 13 (1) (ib) and it is contended that the wife has deserted the husband for a continuous period of not less then two years immediately preceding the presentation of the petition. It may be mentioned here that according to the Explanation appended to section 13 the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent and against wish of such party and includes wilful neglect of the petitioner by the other party to the marriage. 3. The facts brought on the record by the petitioner were that they were Hindus and were married at Agra on 18-5-75 according to Hindu rites, On 23-5-75 the respondent returned back to her parent's house. Gona ceremony took place on 12-10-75 at Agra where the petitioner was posted and parties lived there and discharged their marital obligations affectionately and faithfully. On 11-7-77 the petitioner was transferred from Agra to Hathras. They came back to Nagla Jais, Tehsil Hathras, district Aligarh where they continued to stay and from there the petitioner used to go to Hathras by cycle every day. The respondent was all along insisting upon the petitioner to seek his re-transfer to Agra, which is also a place of residence of her mother and other relatives. The petitioner, however, could not manage the same. The respondent was all along insisting upon the petitioner to seek his re-transfer to Agra, which is also a place of residence of her mother and other relatives. The petitioner, however, could not manage the same. On 3-9-77 in tie absence of the petitioner, respondent's brother Vinod Pathak came in Nagla Jais and on the pretext that the mother of the respondent was ill he prevailed upon the petitioner's elder brother Panna Lal Parashar to allow the respondent to go with him. She then collected all her clothes and ornaments and also money and left Nagla Jais with an intention never to return. A few days afterwards the petitioner went to the house of the respondent's mother at Agra and tried to prevail upon the respondent to return back but it was all in vain. On the contrary, the respondent left even Agra and joined service at Balaji (Rajasthan). When she returned from there during summer vacation, the petitioner again tried to bring her back but she persistently refused to return. She joined B. Ed. classes and then took up job in a High School at Agra. She is a hot tempered lady and has for no fault of the petitioner deserted him. There is no consent and connivance between the parties. The claim is for a decree of dissolution of marriage by divorce and in the alternative for a decree for judicial separation. 4. Contest was put forth by the respondent. Her contention was that after the Gona she lived with the husband only for 25 days and after this period she was sent to Jais to live with the family of Panna Lal Parashar, elder brother of the petitioner. She lived there continuously upto 3-9-77 and during this period the petitioner remained in service at Agra where he was living in a rented house. He never gave her any amount for maintenance and never visited her while she was living in Nagla Jais. It was after the marriage that at the instance of the petitioner the respondent joined B. Ed. classes in Agra but thereafter since he was not happy with the dowry that he had received, he was constantly pressurising the respondent to bring more dowry from her house and in that connection she was occasionally given beatings. It was after the marriage that at the instance of the petitioner the respondent joined B. Ed. classes in Agra but thereafter since he was not happy with the dowry that he had received, he was constantly pressurising the respondent to bring more dowry from her house and in that connection she was occasionally given beatings. After his transfer to Hathras the petitioner rented a house in Hathras itself but never kept the respondent with him. During her stay at Jais, Panna Lal Parashar was constantly teasing her, as a result of which she fell ill and the petitioner then sent her back to Agra. He did not take any care of her during her illness and since then has not tried to bring her back. On the contrary, she has a number of times approached the petitioner and met him with a request that she should be kept with him but her request had always been turned down. The respondent took up her M. A. and B. Ed. and joined a High School at Namner, Agra, but her service there was terminated. She was always, and is still ready, to perform all the marital obligations and live with the petitioner and, therefore, the petition is not maintainable. The learned Judge of the court below struck three issues in this The first issue was to cover the case whether the respondent had deserted the petitioner with effect from 3-9-77 and if so, what will be its effect. The second issue covered the aspect of the jurisdiction of the court and the third was in respect of the relief to which the petitioner would be entitled. 5. The parties entered into evidence. On behalf of the petitioner husband, five witnesses were examined. They were Subhas Chand Jain, Vinod Chandra Shatma, the petitioner himself, Ramesh Chandra of Jais, Raghunath Prasad Sharma, sister's husband of the petitioner, and Panna Lal Parashar, elder brother of the petitioner, residing at Jais. On the side of the respondent, she alone entered the witness box and did not examine any other witness. 6. The admitted facts of the case may be enumerated shortly as follows :- The marriage of the parties took place in May, 1975. Their Gona took place on 12-10-75. At that time the petitioner Vinod Chandra Sharma was living at Agra in a rented house. Undoubtedly the lady was also kept there. 6. The admitted facts of the case may be enumerated shortly as follows :- The marriage of the parties took place in May, 1975. Their Gona took place on 12-10-75. At that time the petitioner Vinod Chandra Sharma was living at Agra in a rented house. Undoubtedly the lady was also kept there. Her version, however, is that she remained in that house with her husband for about 25 days and then she was brought to Jais and made to live with the family of elder brother, namely Sri Panna Lal Parashar, where she was ill treated and neglected. According to the husband, however, he lived at Agra with the respondent all along till the date of his transfer from Agra to Hathras on 11-7-77. After his transfer, it appears, the petitioner left the house at Agra and came to Jais and started living with the family of the elder brother in the ancestral house. Admittedly Jais is a few kilo metres away from Hathras and according to the husband he was daily cycling from Hathras to Jais and was living with the respondent in the ancestral house. The next admitted point is that on 3-9-77 Smt. Rajesh Pathak left Jais in the company of her brother and went to live at her mother's place at Agra. There is difference between the stories in this respect. According to the wife, on account of ill treatment meted out to her, she fell ill and when she persistently complained about it to her husband through various sources, the husband called her brother Vinod Pathak and directed him to take her away and in this manner she was bundled down to Agra with her brother, but according to the husband, the things happened in a different way. She was a lady of hot temper and her brother suddenly came to Jais on 3-9-77 when the petitioner was away on his duty and gave a false pretext about the illness of his mother and, therefore, Panna Lal agreed to send her to Agra and in this manner she left Jais and came to reside at Agra and thereafter never returned back. Another difference between the versions of the parties is that, according to the wife, after getting well she went to meet the husband at Hathras and also approached him through relatives with the request that she should be kept as his wife by him but he refused. Because of the stringent financial condition of the family of her mother she bad to take up jobs at different places and prosecute studies, and during all this period of over two years the husband had completely neglected her and had not cared for her maintenance. The contention of the husband, however, is that after she left Jais on 3-9-77, within a few days he went to Agra and there he found that the pretext about the illness of the mother, on which she had come to Agra, was a false pretext and the mother was well. She, however, did not agree to come back with the husband. Thereafter the husband tried to bring her back a number of times by himself approaching her and also by approaching the respondent through his relatives including the brother Panna Lal and brother-in-law Sri Raghunath Prasad Sharma but she had persistently refused to come back and hence there was actionable desertion. Subhash Chand is a co-worker in the office of the Life Insurance Corporation, with the petitioner. They were both together at Agra prior to the petitioner's transfer to Hathras. He was on visiting terms with the petitioner and he has filed certain photographs, the fact of which is admitted to the respondents also, which go to show that in March, 1976 the petitioner and the respondent were living together at Agra. This is also the testimony of Subhash Chandra Jain. According to him, till the date of transfer to Hathras both the wife and husband were living in a rented house at Agra all along. 7. Vinod Chandra PW 2 also makes the same statement. He clearly denies the fact that only after 25 days of the Gona the wife was sent to Jais to live with Panna Lal and his family. He swears that all along till the date of his transfer to Hathras, the respondent was living with him and it was only when they came to Hathras on transfer that they started living with Panna Lal in the ancestral house at Jais. He swears that all along till the date of his transfer to Hathras, the respondent was living with him and it was only when they came to Hathras on transfer that they started living with Panna Lal in the ancestral house at Jais. He clearly says that he never rented any house at Hathras and that the story put forth by the respondent that he himself was living at Hathras while she was made to live at Jais is false. On the contrary, Hathras is 7-8 miles away from Jais (according to Panna Lal, it is 10 to 13 kilo metres away) and the petitioner was cycling daily to and from Hathras and the wife was living at Hathras with him and not alone. 8. The third witness Ramesh Chandra is resident of Jais and is a close neighbour of the family of Panna Lal. He says that he is on visiting terms with the family of Panna Lal and was also going inside the house amongst the ladies, who were not having Parda with him. According to him, in the year 1977 the petitioner came on transfer to Hathras and since then he and the respondent were constantly living in the ancestral house with the family of Panna Lal and during this period Smt. Rajesh Pathak was treated by Panna Lal and his family with love and affection. He also says that the lady with her brother had gone to her mother's place on the pretext of her mother's illness and he as well as Panna Lal came upto Hathras Junction from where buses were available and they arranged for seats for them. PW 4 Raghunath Prasad Sharma is sister's husband of Vinod Chandra Sharma. He says that the marriage of the parties took place in May 1975 and Gona took place in October 1975 and then the parties lived in Agra till the time of the petitioner's transfer to Hathras. According to him, their stay at Agra was cordial. After her going away from Jais to Agra, he went to Agra to ask her to return to the place of her husband but she declined. 9. The last witness PW 5 is Panna Lal, who is elder brother of the petitioner and who says that the petitioner and his wife came to stay with him at Jais in the ancestral house only after the petitioner's transfer to Hathras. 9. The last witness PW 5 is Panna Lal, who is elder brother of the petitioner and who says that the petitioner and his wife came to stay with him at Jais in the ancestral house only after the petitioner's transfer to Hathras. They lived there amicably and on 3-9-77 the lady left for Agra with her brother on the pretext of the illness of her mother and since then she had not returned. A number of times attempts were made by the petitioner, his brother-in-law, and by him and his wife to bring her back but to no avail. 10. In defence the respondent entered the witness-box and reiterated the story put forth by her in the written statement. According to her she lived at Agra with her husband for 25 days and during this period she was beaten and ill treated. No suggestion in this respect was put to the husband when he entered the witness-box. On the contrary, during cross-examination the husband has said that this lady was constantly living with him quite amicably although she was in the habit of going away to her mother's house occasionally without his permission. Wife's contention on the other hand is that on 11-7-77 the husband was transferred to Hathras but much before that she was already living in Jais and the husband started living in a rented house at Hathras in Mohalla Tabela. No question has been put to the husband in this respect. She says that her Jeth and Jethani were misbehaving with her. She was made to work for days together without food and so she fell ill. When the Jeth Panna Lai was in the witness-box no such suggestion was put to him. On the contrary, it was elicited from him that all along the lady was kept with love and affection as is due to the wife of a younger brother. Smt. Rajesh Pathak further says that about her pitiable condition in Jais one Kamla Shanker, who is a friend of her Mausa, had knowledge as he was visiting the petitioner. This Kamla Shanker has not been examined. She even goes to say that it was Kamla Shanker who informed her husband about her pitiable condition on which information the husband arranged to send for her brother to fetch her to Agra. This Kamla Shanker has not been examined. She even goes to say that it was Kamla Shanker who informed her husband about her pitiable condition on which information the husband arranged to send for her brother to fetch her to Agra. The brother Vinod Pathak was present in the court room when the last part of the cross-examination of the lady was going on. He was, however, not examined. He could very well say as to in what circumstance he went to Jais to fetch her sister. She also says that when she became all right after reaching Agra she came with her brother and met her husband but he refused to keep her. Again the brother would have been a very material witness on this point and there is no explanation why he has not been examined although he was present in court. She says that besides her brother, her Mausa and other relatives also pleaded with the petitioner to keep her but their pleadings went in vain, These relatives have not been examined. According to her, at Agra she was treated by Dr. S. K. Singh and his father for a considerably long time and then she became well. The two Doctors have not been examined. From the entire evidence on record, therefore, the only conclusion can be that on 3-9-77 this lady left the matrimonial home at Jais in the company of her brother and thereafter she did not turn up at all. It appears from the overwhelming evidence on record that it was an act of her volition and the husband had no hand in her going away from Jais. A false pretext of the illness of the mother was given and in the absence of the husband she left for her mother's home. Thereafter various attempts made by the husband failed. There is absolutely no proof in support of her contention that the husband manoeuvred to send her back to Agra, by calling her brother and that she made attempts to return to her husband herself and through relatives and failed. It is not established on record at all that she did not live with her husband at Agra till his transfer to Hathras and lived there only for 25 days after Gona. It is not established on record at all that she did not live with her husband at Agra till his transfer to Hathras and lived there only for 25 days after Gona. There is no evidence in support of this contention and on the contrary the witnesses and the documents go to show that she lived with her husband all along at Agra and even visited her parents-in-law in Nasik in the husband's company and also went to madhogarh where her Nanad lives. There she was on the occasion of Holi on 13-3-76. 11. The learned Additional District Judge has not correctly assessed the evidence that was brought on the record. The best evidence possible in support of her contention has not been adduced by Smt. Rajesh Pathak. Of course, it cannot be denied or disputed that since the petition for divorce was moved by the husband, who claims desertion at the hands of his wife, the burden of proof rests upon him wholly and squarely but he discharged that burden by adducing evidence of witnesses, Raghunath Prasad Sharma, Subhash Chandra Jain, Ramesh Chandra, Panna Lal and himself. 12. In my opinion, therefore, the findings arrived at by the learned Additional District Judge are wrong and not borne out from the evidence on record and cannot, therefore, be up-held. I find that the petitioner has satisfactorily made out a case to be covered by Section 13 (1) (ib) of the Hindu Marriage Act. He has proved that he has been deserted for a continuous period of not less than two years immediately preceding the presentation of the petition by the respondent. He is, therefore, entitled to dissolution of the marriage by a decree of divorce. 13. It has been argued by the learned counsel for the respondent that the sum and substance of the matrimonial offence of desertion is based upon an intention to desert (Animus deserandi) and unless it is proved that there was intention never to return to the marital home, the matrimonial offence of desertion cannot be deemed to have been made out. In the present case, it is again argued that the wife has made a positive statement on oath that she is willing to return back to her husband and live with him and perform her marital obligations. In the present case, it is again argued that the wife has made a positive statement on oath that she is willing to return back to her husband and live with him and perform her marital obligations. This is also her plea even before this Court and in this light of the factual position, she cannot be credited with animus deserendi and the petition for dissolution of marriage by way of divorce on the ground of desertion cannot be allowed. This argument, however, does not take into consideration some established facts. IT is proved on record beyond doubt that the wife in this case left the marital home at Jais without husband's consent, behind his back and on a false pretext of her mother's illness. Then she took up service in Rajasthan and also in Agra away from the place where the husband was living with her in Jais without his consent. There is also evidence to prove that when the husband and other relations persistently tried to bring her back, she expressed her unwillingness to return to the marital home. The claim of a husband in such cases can only be defeated if he is found to be guilty of constructive desertion himself which can be proved by his own conduct in compelling the wife to take a course which she has adopted. But where the, wife is living apart from her husband of her own choice, her conduct will surely be attracted by the principle that desertion means abandonment and implies an active withdrawal from a cohabitation that existed. I have already found from the evidence on record that the husband in this case is not guilty of any constructive desertion. He did not give any occasion to the wife to take the course which she had adopted to leave Jais and go to Agra and then to Rajasthan etc. without his consent. Of course, she has expressed her willingness to live with her husband both in the court below as well as before this Court, but now parties have entered into litigation of this type and it is not foressable that there can be amicable living as husband and wife. Her willingness now to live with the husband is nothing more than an improper attempt to tide over the situation of an impending divorce. Her willingness now to live with the husband is nothing more than an improper attempt to tide over the situation of an impending divorce. This show of willingness, therefore, cannot be taken with any seriousness and will not merit any consideration. 14. The appeal is, therefore, allowed with costs throughout and the judgment, and order of the court below dated 19-1-1984 is set aside and the, petition under Sec. 13 of the Hindu Marriage Act is allowed, with the result that the marriage of the petitioner with the respondent shall stand dissolved by this decree of divorce on the ground of continuous desertion of the petitioner by the respondent for a period of not less than two years immediately preceding the presentation of the petition. Appeal allowed.