S. C. MOHAPATRA, J. ( 1 ) WIFE has challenged the decree for judicial separation under S. 10 (1) (a) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') in this appeal under S. 28 thereof. ( 2 ) CASE of the plaintiff respondent, the husband is that the marriage was consummated on 15-7-1967 and the parties continued to stay together in their home at Jeypore. However, the appellant was always refusing co-habitation with him on the ground of her ill-health. Plaintiff got her treated by Dr. (Miss) Santamma (not examined, since dead) who detected that the defendant had conception by then. The fact was intimated to the parents of the appellant and the medical care continued. On 2-12-1967, she gave birth to a full grown child inside the latrine who expired immediately. On being accosted, she made out a story that a lizard fell on her inside the latrine, as a result of which, she discharged a lump. She claimed that the conception was through the plaintiff. The information was sent to her father, who came to Jeypore on 5-12-1967 with his father-in-law and took the appellant to Nowrangpur without the knowledge and consent of the plaintiff and his father. After coming back when the plaintiff knew about it, he wrote two letters without any reply. He also went several times to call her, but the parents of the appellant did not send her back on the plea of unwillingness of the appellant to join her husband. On this short ground the application was filed for judicial separation on 22-2 1972 though the same has been verified by the plaintiff on 6-9-1971. ( 3 ) CASE of the wife-defendant is that her stepmother-in-law had a suckling child for which with permission of the plaintiff and his father, she left their marital home at Jeypore for better treatment at Nowrangpur where she was admitted to Germal Mission Hospital and was treated for a week there. The allegation of illegitimate conception was denied. She asserted that the plaintiff visited her at Nowrangpur on one occasion when he was requested by her father and grandfather to take her back but the plaintiff avoided, telling that he would find an auspicious day to take her back. The allegation of illegitimate conception was denied. She asserted that the plaintiff visited her at Nowrangpur on one occasion when he was requested by her father and grandfather to take her back but the plaintiff avoided, telling that he would find an auspicious day to take her back. Thereafter, the approaches of the father of the defendant personally and through others became ineffective on the plea that the plaintiff was no longer willing to take her back. She alleged that the plaintiff was guilty of desertion by his conduct in not taking her back and was negotiating for his marriage elsewhere. ( 4 ) ON 15-12-1972, the trial court made an endeavour for reconciliation between the parties. But on 1-2-1973 ultimately it was reported to him that there was no chance of reconciliation. In this Court also, I made an endeavour for reconciliation when parties appeared on 2-12-1986. Appellant expressed that she would have no objection to live with her husband in case he accepts her. The respondent, however, refused to live together with the appellant, in view of the long gap of separation between them. Being satisfied that there was no chance of reconciliation, I heard the appeal on merits. ( 5 ) THIS is an appeal of 1975 which is being heard twelve years after. The dispute between the parties was since 1971 about sixteen years before. Unless matrimonial litigations are separately dealt with expeditiously, two lives will be ruined where they wait for a decision of the Court. This case is an illustration of the same. ( 6 ) ON the pleadings, the following questions arose for consideration :- (A) Whether the conception of the appellant was legitimate and it was a case of abortion ? (B) Whether the appellant had animus deserendi ? ( 7 ) PLAINTIFF husband examined himself as P. W. 1 to prove the case. Defendant has examined five witnesses and exhibited four documents in support of her case and for disproving the assertion of the plaintiff. ( 8 ) TRIAL court on assessment of evidence did not accept the case of the plaintiff that the parties had no sexual intercourse. The case of the defendant that there was abortion was accepted. It found that defendant left the house of plaintiff with his consent. ( 8 ) TRIAL court on assessment of evidence did not accept the case of the plaintiff that the parties had no sexual intercourse. The case of the defendant that there was abortion was accepted. It found that defendant left the house of plaintiff with his consent. But on the finding that defendant had no intention to join back the plaintiff for which there was no justification, trial court passed the order for judicial separation. ( 9 ) IN order to appreciate the contentions of the learned counsel for both the parties, S. 10 (1) (a) of the Act is to be kept in mind. It reads as follows :-"10. Judicial Separation :- (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party - (a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (b) to (f) xxx xxx xxx explanation :- In this Section, the expression "desertion", with its grammatical variations and cognate expressions, 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 by the other party to the marriage. " ( 10 ) THIS provision was subject matter for consideration in AIR 1964 SC 40 (Lachman Utamchand Kirpalani v. Meena) where it has been observed :". . . . . 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 diserendi. The offence of desertion commences when the f act of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus diserendi. The offence of desertion commences when the f act 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. "this principle is well settled and has been followed by the Supreme Court in AIR 1972 SC 459 (Smt. Rohini Kumari v. Narendra Singh) and in this Court in (1971) 1 Cut WR 737 (Chakradhar Mohanty v. Kumudini Dei) and in (1978) 46 Cut LT 359 (Dhrubajyoti Chatterjee v. Dila Mukherjee ). ( 11 ) IT is, therefore, to be considered on the facts and circumstances of the present case whether the animus deserendi was of the appellant and the time of commencement thereof. The intention is not required to be revealed either to the other party or to anybody else. The mental process of the party leading to his or her conduct is to be closely scrutinised. Conduct of the party and his intention are to be harmonised. Where they are irreconcilable, the dominance of each factor is to be found out to draw the inference of animus deserendi. ( 12 ) IN this case, plaintiff stated that from the nuptual day, the defendant was withdrawing on the ground of illness. The doctor who was treating her stated to the plaintiff that she had conception. When according to the plaintiff, he had a feeling that there was no sexual intercourse, the only legitimate conclusion would be that he had strong mental obsession against the defendant from the date of his marriage. Any other reference would be to put to the plaintiff in the position of a superman or an idiot. Neither inference being possible to be drawn in the present case, the normal human conduct is to be attributed to the plaintiff. No explanation is given by the plaintiff why he condoned the lapses of the defendant. The only inference in the absence of explanation would be that he was seeking opportunity to get rid of her. No sooner the opportunity came on account of abortion, defendant's father came and took her for better treatment at Nowrangpur. No explanation is given by the plaintiff why he condoned the lapses of the defendant. The only inference in the absence of explanation would be that he was seeking opportunity to get rid of her. No sooner the opportunity came on account of abortion, defendant's father came and took her for better treatment at Nowrangpur. He claims to have visited the defendant in the hospital. Thus, the permission by the appellant to leave Jeypore has been rightly inferred and this was to cancel his intention to desert the defendant. As has rightly been stated by the trial court, he could have examined his stepmother, to prove that he had the intention to receive her back and made all attempts for the same. Stepmother could have also thrown some light. In this case, he has examined himself only. The witnesses of the defendant have stated how the father of the defendant was anxious for which he was attempting to send the defendant to the plaintiff. There is no reason to disbelieve the witnesses. The absence of approach by the father of the defendant or the witnesses directly to the plaintiff will not prove the animus deserendi of the defendant. Merely because the husband has a right to have the company of his wife, it is unsafe to draw adverse inference on account of the defendant herself not coming back to Jeypore. ( 13 ) IN view of the discussion above, the conclusions are as follows :- (A) Trial Court's finding that there was abortion of the pregnancy is confirmed which was legitimate through the plaintiff. (B) Appellant had no animus deserendi to remain separated. There being no animus deserendi, the application for judicial separation has no merit. ( 14 ) IN the result, the appeal is allowed with costs. Appeal allowed. .