M. G. MUKHERJI, J. ( 1 ) -THE present appeal has been filed by the husband/appellant impugning a decree, of divorce passed against him on the ground of cruelty at the behest of the wife respondent No. 1. The case, inter alia, as sought to be made by the wife respondent No. 1 was to the effect that a girl aged about 17 known as Moni, who was impleaded as respondent No. 2, used in stay in the self same flat where the couple used to live. The husband used to drink occasionally and since she always refused to join him, the husband abused her in filthy language and also beat her mercilessly. The husband also perpetrated different acts of torture on her by giving her cigarette burns. One Saturday in September 1977 when the wife returned home at about 9 p. m. on account of her sudden indisposition, she found her husband dead drunk and the respondent No. 2 Moni was standing in the corner of the room almost in a naked state which prima facie suggested that there had been a sexual union in between the husband and Moni. Ultimately the wife was forcibly dragged to the bed and was about to be throttled by her husband but ultimately she was successful in saving herself by running out of the room. She averted that there was some illicit relationship in between her husband and the said respondent No. 2 Moni. On October 2, 1977 the wife was assaulted and driven out from the matrimonial home and since then, she had been living in the house of her father at Bangaon. ( 2 ) THE husband contested the proceeding by denying almost all the allegations of ill treatment, cruelty or torture as sought to be made out by the wife and denied also his illicit relationship with the girl named Moni. It was specifically averred that since the wife used to work in the Calcutta Telephones and the husband was an employee of Reserve Bank, the household was looked after by the maidservant Moni. The service rendered by Moni being unsatisfactory she was ultimately discharged from service. It was the wife herself who left the matrimonial home on a holiday noon on the pretext of going to her ailing father at Bangaon and thereafter never submitted herself to the marital obligations. The service rendered by Moni being unsatisfactory she was ultimately discharged from service. It was the wife herself who left the matrimonial home on a holiday noon on the pretext of going to her ailing father at Bangaon and thereafter never submitted herself to the marital obligations. ( 3 ) THE learned Judge disbelieved the story of the appellant's illicit relationship with Moni and also did not lay any credence on the evidence regarding physical assault and torture perpetrated by the husband on the wife. The learned Judge held that there was not much evidence on the point of actual physical cruelty committed by the husband upon the wife but she suffered extreme mental cruelty when she found that she was more or less a non-entity in the family and a girl who was an outsider was exercising "dominating influence there" and her husband "became very much attached to such a girl". The Trial Judge erroneously held that the wife had every reason to suspect some illicit relationship between her husband and Moni and if actually a young girl is induced from outside and is kept in the family as maidservant, the position becomes really intolerable for the wife. The learned Trial Judge on his own finding that no acts of adultery was actually proved in between the appellant and the said Moni, curiously landed himself in the realm of surmise when for the mere presence of Moni in the said flat he thought it amounted to a mental cruelty to the wife and on that ground passed a decree for divorce against the husband. ( 4 ) WE have gone through the entire evidence on record and we cannot persuade ourselves to agree with the ultimate findings as made by the learned Trial Judge. But then an application under section 23a of the Hindu Marriage Act has been filed by the husband appellant before us seeking the amendment of the pleading by way of amendment to the written statement thereby seeking relief by way of divorce on the ground of wife's desertion. We have given the matter our anxious thought. But then an application under section 23a of the Hindu Marriage Act has been filed by the husband appellant before us seeking the amendment of the pleading by way of amendment to the written statement thereby seeking relief by way of divorce on the ground of wife's desertion. We have given the matter our anxious thought. The respondent No. 1 was present before us in person and she candidly admitted that she was not going to oppose this amendment to the original pleadings as made by the husband appellant by way of a counter claim to seek relief against her by way of divorce on the ground of desertion. In the application filed before us on July 10, 1990 which is not opposed by the wife respondent No. 1, it has been categorically stated that the respondent left the matrimonial home in April 1978 and deserted the appellant without any good cause with the intention to bring cohabitation permanently to an end. On a scrutiny of the entire evidence on record, we also find that the wife respondent No. 1 left the matrimonial home because of mere suspicion of conjugal infidelity of the husband appellant and she had "animus deserendi" in her not to return back to the matrimonial home any more. The respondent No. 1 who is present before us in person also candidly submitted before us that she does not wish to go back to her husband any more and when she left the matrimonial home she had the desire to leave it permanently for good without any intention to resume co-habitation with the husband. In view of such candid admission and in view of the counter claim not having been opposed, we on a scrutiny of the entire evidence on record do find that a case of desertion against the wife respondent No. 1 stands proved in accordance with law which entitles the husband appellant to get a decree for divorce on the said ground. ( 5 ) IN Sandhya Bhattacharyya v. Gopinath Bhattacharyya, 86 Calwn 665, there was no bald proposition of law enunciated that an appeal court would be trouble to grant a decree on the basis of a counter claim made by way of an application under section 23a of the Hindu Marriage Act, 1956. ( 5 ) IN Sandhya Bhattacharyya v. Gopinath Bhattacharyya, 86 Calwn 665, there was no bald proposition of law enunciated that an appeal court would be trouble to grant a decree on the basis of a counter claim made by way of an application under section 23a of the Hindu Marriage Act, 1956. In the facts and circumstances of the said case, the couple was married according to the Hindu rites in August, 1975 and stayed at the village house of the husband till September 26, 1976. The husband used to stay at bachelors' staff quarter at his place of work and came to spend one or two days every week at their village home. On September 26, 1976, the husband parted company with the wife at Howrah Station and since then, he did not take her back from her father's place despite repeated requests. She filed a petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1956 and the Trial Court having dismissed her suit, preferred an appeal before the High Court. It was held in the facts and circumstances of the said case, that where the husband, after the wife had left for her father's place about 9 months earlier made no effort to bring her back and did not provide any maintenance for her, without any reasonable excuse, can be said to have withdrawn from the society of his wife. The husband did not make a counter claim and asked for a decree of divorce on the ground of desertion at the trial court but he filed an application under section 23a of the Act in the Appeal Court and the Appeal Court found that the husband himself having withdrawn from the wife's company without reasonable excuse, the application under section 23a making a counter claim cannot succeed. The Appeal Court however, reversing the decision of the trial court granted a decree for restitution of conjugal rights against the husband, and passed also an order of permanent alimony. The Appeal Court however, reversing the decision of the trial court granted a decree for restitution of conjugal rights against the husband, and passed also an order of permanent alimony. When the husband made the counter claim under section 23a of the Hindu Marriage Act, 1956 and prayed for a decree of divorce on the ground of desertion, the appeal court rightly rejected the said counter claim since the husband has not proved from the evidence on record that the appellant-wife had deserted him, but on the other hand, it was proved that without reasonable excuse the husband had withdrawn from the wife's company and as such, she was entitled to a decree for restitution of conjugal rights. What was rejected by the appeal court was the husband's petition for leave to make a counter claim against the wife. ( 6 ) WE, accordingly, set aside the findings as made by the trial court against the husband-appellant regarding mental cruelty to the wife, respondent No. 1, but then, we grant a decree of divorce in favour of the husband against the wife on the ground of desertion. Let the marriage stand dissolved by a decree of divorce under section 13 (1) (ib) of the Hindu Marriage Act, 1956. Since the respondent No. 1, wife is a working girl, and never pressed any claim for permanent alimony, there will, be no order regarding Permanent alimony. There will also be no order regarding disposal of any property under section 27 of the Hindu Marriage Act. The appeal is thus disposed of. There will be no order as to costs. J. N. Hore, J. , I agree. Appeal disposed of.