D. G. KARIA, J. ( 1 ) THE appellant and the respondent are wife and husband respectively. Their marriage was solemnised on 4/02/1957 according to Hindu rites and rituals. There are two children one son Vipul and daughter Paulomi - out of the said wedlock. The children have since been married and settled in United Statesof America. ( 2 ) THE husband original petitioner filed Hindu Marriage Petition No. 77 of 1983 for divorce under Section 13 of the Hindu Marriage Act 1955 on the grounds of desertion and cruelty. The learned Extra Assistant Judge Varodara by his judgment and decree dated 3/05/1986 ordered to dissolve the marriage between the parties by a decree of divorce. The wife being aggrieved by the said judgment and decree of divorce preferred Regular Civil Appeal No. 137 of 1986 in the Court of the District Judge at Vadodara. The learned District Judge Vadodara by his judgment and decree dated 15/01/1988 dismissed the appeal confirming the judgment and decree passed by the trial Court. The appellant-wife has therefore preferred the present Second Appeal Section 100 of the Code of Civil Procedure against the impugned judgment and decree of divorce. ( 3 ) THE following substantial question of law have been formulated by this Court:"1 Whether the lower Appellate Court has failed in discharge of his duties by not making every endeavour to bring about the reconciliation between the parties as contemplated in Section 23 of the Hindu Marriage Act" ? 2 In the facts and circumstances of the present case whether the lower Appellate Court has materially erred in law in drawing inference of desertion and cruelty against the wife and in passing a decree of divorce"? ( 4 ) MS. V. P. Shah learned Advocate appearing for the appellant-wife has not made it good as to how the lower Appellate Court failed in discharge of the duties by not making endeavour to bring about the reconciliation between the parties as provided in Section 23 (2) of the Hindu Marriage Act. Before granting any relief under the Act it is the duty of the Court in the first instance in every case where it is possible so to do consistently with the nature and circumstances of the case to make every endeavour to bring about a reconciliation between the parties. Before granting any relief under the Act it is the duty of the Court in the first instance in every case where it is possible so to do consistently with the nature and circumstances of the case to make every endeavour to bring about a reconciliation between the parties. I am told at the Bar that such efforts were made in the trial Court as well as in the appellate Court to bring the reconciliation between the parties. Even in the present Second Appeal when it was called out for hearing previously this Court had also made endeavours to bring about reconciliation between the parties. When this Second Appeal was called out for final hearing on 1/07/1991 a suggestion was made to settle the matter between the panics. The appellant-wife is in U. S. A. for last several years. The petitioner- husband was called by me on or about 5/07/1991 and an endeavour was made to persuade him to bring about the settlement. According to the petitioner-husband settlement was not possible in view of the strained relationship between the parties. There is therefore no merit in the first question that the lower Appellate Court failed to make endeavour to bring about the reconciliation as provided in Section 23 (2) of the Hindu Marriage Act. ( 5 ) THE next question which has been formulated is whether the lower appellate Court materially erred in law in drawing inference of desertion and cruelty against the wife and in passing the decree of divorce. ( 6 ) THERE is no dispute that the wife having left the matrimonial home on 29/05/1980 has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The question then would arise whether the wife deserted the petitioner without reasonable cause and without the consent or against the wish of the petitioner-husband. In order to appreciate the factum of separation and animus deserendi on the part of the appellant-wife and the cruelty if any on her part the learned Advocate Ms. V. P. Shah has taken me through the evidence of the parties and their witnesses. It would be necessary to state the law relating to desertion and cruelly under the Hindu Marriage Act before the evidence on record is dealt with. V. P. Shah has taken me through the evidence of the parties and their witnesses. It would be necessary to state the law relating to desertion and cruelly under the Hindu Marriage Act before the evidence on record is dealt with. ( 7 ) THE expression desertion in the context of matrimonial law represents a legal conception and is difficult to define. The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. However the comprehensive definition of desertion would not be possible. Yet the essential ingredients of desertion are: (I) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end - animas deserendi; (iii) the element of performance which is a prime condition requires that both these essential ingredients should continue during the entire statutory period of two years. ( 8 ) THE Explanation to clause (ib) of Section 13 (1) of the Hindu Marriage Act purports to give the meaning of the expression desertion with all its grammatical variations and cognate expressions. It contemplates that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner and that wilful neglect of one spouse by the other is desertion within the meaning of the expression. It is evident that the meaning given is some what tautological but the Explanation has the merit of making it abundantly clear that the legislature intended to give to the expression a wide import. In Bipin Chandra v. Prabhawati AIR 1957 S. C. 176 the Supreme Court having posed the question - What is desertion? Observed that the legal position had been summarised in paragraphs 453 and 454 of Halsubrys Law of England 3 Edition Vol. 12 as under:"in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that others consent and without reasonable cause. It is a total repudiation of the obligation of marriage. In view of the large variety of circumstances and of modes of life involved the Court has discouraged attempts at defining desertion there being no general principle applicable to all cases". It is a total repudiation of the obligation of marriage. In view of the large variety of circumstances and of modes of life involved the Court has discouraged attempts at defining desertion there being no general principle applicable to all cases". ( 9 ) DESERTION is not the withdrawal from a place but from a state of things for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be terms for short the home. There can be desertion without previous cohabitation by the parties or without the marriage having been consumed". ( 10 ) THE person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband make an allowance to a wife whom he has abandoned is no answer to a charge of desertion. ( 11 ) THE offence of desertion is a course of conduct which exists independently of its duration but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as cross- charge of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete but is inchoate until suit constituted. Desertion is a continuing offence. In the aforesaid case the Supreme Court has laid down that 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 the animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. 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 the animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. 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 material home with intention express or implied of bringing cohabitation permanently to an end. Rayden on Divorce which is a standard work on the subject has produced the case-law on the subject as follows:"desertion is the separation of one spouse from the other with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party". ( 12 ) IT is necessary at this stage to deal with the preliminary objection of Mr. A. J. Patel learned Advocate for respondent-husband on the point of jurisdiction of this Court under Section 100 of the Code of Civil Procedure 1908 read with Section 28 of the Hindu Marriage Act before the evidence is appreciated in view of the aforesaid legal position relating to desertion. Mr. Patel submitted that having regard to the provisions of Section 100 of the Code of Civil Procedure read with Section 28 of the Hindu Marriage Act the appellant is not entitled to be heard on facts inasmuch as the concurrent finding has been recorded by both the Courts below on the issues of desertion and cruelty Mr. Patel relied on the case of Umiyaben v. Ambalal 6 G. L. R. 714. It is held in that ease that the right of Second Appeal against the appellate decree made by the Court in a petition for judicial separation under Section 10 of the Hindu Marriage Act cannot be found in the Civil Procedure Code. Patel relied on the case of Umiyaben v. Ambalal 6 G. L. R. 714. It is held in that ease that the right of Second Appeal against the appellate decree made by the Court in a petition for judicial separation under Section 10 of the Hindu Marriage Act cannot be found in the Civil Procedure Code. The right of second appeal conferred by Section 28 of the Hindu Marriage Act 1955 is limited to the grounds set out in Section 100 of the Code of Civil Procedure and therefore can be exercised only on questions of law and not on questions of fact Mr. Patel then relied upon the case of Deity Pattabhiramaswamy v. S. Hanyamayya and Others AIR 1959 SC 57 which deals with the scope of Section 100 of the Code of Civil Procedure. It is held therein that the provisions of Section 100 of the Code of Civil Procedure 1908 are clear and unambiguous There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact however gross the error may seem to be. The finding of the first appellate court is based upon some documentary evidence would also be a finding of fact. A judge of the High Court has therefore no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. ( 13 ) IN AIR 1962 SC 1314 the proper test for determination whether a question of law raised in the case is substantial or not has been laid down. It is held therein that the proper lest for determining whether a question of law raised in the ease is substantial would be whether is of general public importance or whether it is directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by he Federal Court or is not free from difficulty or calls for discussion or alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absure the question would not be a substantial question of law Relying upon AIR 1963 SC 1633 Mr. Patel admitted that the adequacy of sufficiency of evidence to support a finding of fact should not be a ground of second appeal Mr. Patel thus submitted that it would not be open for this Court to reappreciate the evidence and to come to different conclusion now It was not open for the appellant to raise the issues concerning or connecting the findings of fact ( 14 ) ON the other hand Ms V P Shah submitted that when the first appellate Court discarded the evidence as inadmissible and the High Court is satisfied that evidence was admissible that may introduce an error or defects in procedure the High Court may interfere in its jurisdiction under Section 100 (1) (c) of the Code of Civil Procedure In this connection Ms Shah relied upon the case of Hiralal and Another v. Gajjan and Other AIR 1990 SC 723 . In a case where the court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters the High Court would be justified in reappreciating the evidence and coming to its own independent decision Ms Shah also relied upon the case of Dilbagrai Punjabi v. Sharad Chandra AIR 1989 SC 1958 and submitted that the Court is under the duly to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and error which arises is of a magnitude that it gives birth to a substantial question of law the High Court is fully authorised to set aside the finding However the question would be whether such in the situation in the present case. ( 15 ) RELYING upon the aforesaid judgment Ms Shah has read the entire evidence on record and submitted that the findings as to desertion and cruelty are not borne out from the evidence. I have perused that evidence of the petitioner husband at Exh. 28 and his witness Bhogilalbhai Shankarbhai Patel at Exh. 39 Nagaraj D. Pallai at Exh. ( 15 ) RELYING upon the aforesaid judgment Ms Shah has read the entire evidence on record and submitted that the findings as to desertion and cruelty are not borne out from the evidence. I have perused that evidence of the petitioner husband at Exh. 28 and his witness Bhogilalbhai Shankarbhai Patel at Exh. 39 Nagaraj D. Pallai at Exh. 42 and the evidence of Opponent-wife at Exh. 45 and her witness at Exh. 49 carefully. I am afraid the submission of Ms. Shah that the conclusion arrived at by both the Courts below are perverse or not warranted by evidence is not true. The incidents narrated by the petitioner-husband about shifting to Baroda after ton days stay at village Foradiya and refusal by wife to wash the clothes of her husband at Baroda and also her refusal to serve a glass of water are not of any significance. If the said incidents are true they are of remote past and having regard to the evidence on record it should be concluded that the petitioner-husband has condoned them. Therefore the evidence relating to the said incidents adduced by both the parties is to be discarded. If the evidence with respect to those past incidents is adduced to show the quarrelsome nature or hot- temperament of the wife even then it is not relevant for the reason that the parties have lived happily at Baroda and Ahmedabad after they left Palanpur. The real dispute appears to have started after the wife left for America. It is also not in dispute that the wife had gone to America at first instance with the permission of her husband and with a view to obtain green- cards for their children so that the children could be well settled in life with progress and prosperity. Both the parties have placed much reliance on the incident that took place in 1979 when the wife returned to India and the letter Exh. 34 that she wrote prior to her return to India. In the letter Exh. 34 dated 7/08/1979 the wife communicated to the petitioner- husband that on her arrival in India it was not necessary for him to come to Bombay She further stated in the said letter that after reaching Bombay she will inform him at Baroda. Thereafter the wife having reached Baroda from Bombay she directly went to her parental house. 34 dated 7/08/1979 the wife communicated to the petitioner- husband that on her arrival in India it was not necessary for him to come to Bombay She further stated in the said letter that after reaching Bombay she will inform him at Baroda. Thereafter the wife having reached Baroda from Bombay she directly went to her parental house. The learned Judge has therefore concluded that it was clear that the wise wanted to avoid the husband and she ultimately wanted to avoid going to the house of the husband. It is the case of the opponent-wife that since one of her relatives Shri Ashokbhai was to receive her at Bombay Airport on her arrival in India she communicated to her husband that it was not necessary for him to come to Bombay as he was not feeling well and was undergoing treatment. It is the further case of the wife that since nobody had come to receive her at Baroda Station on her arrival from Bombay and since she had heavy luggages and the house of her father was nearer she had directly gone there. The learned Judge has observed that the wise knew that the petitioner-husband was no keeping well and therefore if she had sincere love and affection for him she would have straightway gone to her matrimonial home after reaching Baroda. This is what happened in year 1979. Therefore in any view of the matter this incident cannot be said to have any connection or nexus with the issue of separation and cruelly. ( 16 ) THE real cause of action as to desertion has arisen only on May 1980 when the wife left the petitioner-husband and never returned to him thereafter. The petitioner-husband deposed that after quarrel in the previous night the petitioner-wife told him that she did no desire to continue in the matrimonial home and was going to her parents house for ever. I was against the will of the petitioner-husband. The petitioner-husband thereafter tried to persuade her having gone to her parents house on 1/06/1980 However he was insulted there. As against that it is the case of the opponent wife that the petitioner-husband having physically and mentally caused harassment had driven her out from the house. However it is a fact that since 29/05/1980 the wife has not returned to her matrimonial home. As against that it is the case of the opponent wife that the petitioner-husband having physically and mentally caused harassment had driven her out from the house. However it is a fact that since 29/05/1980 the wife has not returned to her matrimonial home. In 1980 she had gone away to U. S. A. without consent and permission of her husband. It appears that she has settled in U. S. A. Having regard to aforesaid legal position relating to the desertion the question that would arise would be whether the wife has left the matrimonial home permanently and with the intention to bring cohabitation permanently to an end. In other words there is animus deserendi on the part of the wife. Having regard to the evidence on record and the concurrent findings recorded by both the Courts below I am of the opinion that the opponent-wire has deserted the petitioner husband on 29/05/1980 This is also clear from the evidence of Nagraj Pillai. Exh. 42 ( 17 ) THE principle of constructive desertion is well-established There is proof of factum of separation inasmuch as it is not the ease of the wife that she had gone to her matrimonial home after 29/05/1980 On the contrary it is clear from the evidence on record that in she had proceeded to America and had returned only to contest the present Hindu Marriage Petition. Thereafter also she has gone to America and has since been staying there. Thus factum of separation which is one of the essential ingredient of desertion is proved. As is observed by the Supreme Court in the case of Bipin Chandra v. Prabhawati (supra) desertion is a matter of inference to be drawn from the facts and circumstances of each ease. Such stay in U. S. A. by the opponent-wife and that too without the consent or permission of the husband supports the ease of the petitioner husband that the wife has deserted him with the intention to bring cohabitation permanently to an end. In view of the facts and circumstances of the case it is to be concluded that the opponent-wife has deserted the petitioner-husband without reasonable cause and without the consent and against the wish of the petition-husband. In view of the facts and circumstances of the case it is to be concluded that the opponent-wife has deserted the petitioner-husband without reasonable cause and without the consent and against the wish of the petition-husband. So far as the petitioner husband is concerned it is proved on his part: (i) the absence of consent and (ii) the absence of conduct giving reasonable cause to the wife for leaving matrimonial home. ( 18 ) THE next point is of cruelty. It is the case of the petitioner-husband as aforesaid that at the time of settlement of the marriage of son Vipul he was not consulted and even at the time of betrothal he was not invited. Similarly this was repeated in the case of daughter Paulomi. This has caused menial cruelty to him. There is nothing in the evidence of the wife to dislodge this evidence of the petitioner-husband. Ms. V. P. Shah learned Advocate for the appellant-wire submitted the the marriage of son Vipul look place in December 1983 and the marriage or daughter was solemnised in the year 1984 and at that time the petitioner-husband having filed the petition for divorce it was of no point to consult the petitioner-husband. This submission is fallacious for the reason that the grievance of the husband is that at the time of settlement of the marriage which look place somewhere in 1981 he was not consulted. The petition has been filed on 4/04/1983 in the father of the children is ignored in this fashions but obvious that he would fact disturbed and perturbed. Even when the children left for U. S. A after marriage the petitioner-husband was not consulted. The legal conception of cruelty and the kind or degree of cruelly necessary to amount to a matrimonial offence has not been defined by any statute. On facts and circumstances of each case the physical or mental cruelty is to be determined. The actions of the persons are so diverse and indefinite the it is almost impossible to accept a general definition which could be exhaustive to arrive at a conclusion that physical or menial cruelty has been caused. On facts and circumstances of each case the physical or mental cruelty is to be determined. The actions of the persons are so diverse and indefinite the it is almost impossible to accept a general definition which could be exhaustive to arrive at a conclusion that physical or menial cruelty has been caused. In dastane v. Dastane AIR 1975 SC 1534 the Supreme Court observed that under Section 10 (1) (b) of the Hindu Marriage Act harm or injury to health reputation the working-career or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. It is not necessary as under the English law that the cruelty must be of such a character as to cause danger to life limb or health as to give rise to a reasonable apprehension of such a danger. Therefore what the courts must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law but whether the petitioner proved that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent. The only rider is the interdict of Section 23 (1) (a) of the Act that the relief prayed for can be decreed only if the Court is satisfied that the petitioner is not in any way taking advantage of his own wrong In the instant case it cannot be said that the petitioner was taking advantage of his own wrong if any It is also in the evidence of the appellant-wife that she had not made any application for Green Card of the husband for his staying to U. S. A. This speaks volumes so far as her attitude towards her husband and her approach in life are concerned. ( 19 ) THE wife in her pleadings alleged that the husband was having amorous relations with one Meghavi Bhatt In her oral evidence the wife has reiterated that said allegation According to the trial court there was therefore an extra ground for cruelty by the wife towards the husband The trial court as well as the appellate Court have found that the allegations made by the wife against her husband are baseless and devoid of any proof However the question would be whether such an allegation though it is without substance would amount to cruelty Ms Shah submitted that it was not the case of the petitioner-husband in his petition that the cruelty was committed on him on account of the incident of Meghavi Bhatt. The cruelty is alleged to have been caused as per the statement made in the written statement Reliance was placed in this connection on the case or Smt. Kamini Gupta v. Mukesh Kumar Gupta AIR 1985 Delhi 221 it is observed in that case that there are no categories of cruel conduct Nor compartments The doctrine of danger to life and limb is no longer in the ascendant Mental cruelty is now well recognised as ground for divorce it is settled that physical violence is not a necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating It is held in that case on the facts of the case that there was sufficient proof of an intention of the wife to disrupt the home and the maintenance of matrimonial relations was no longer possible and as such the decree on the ground of cruelty was passed In 26 (1) G. D. R. 119 it has been laid down that the allegation of unchastity made by the husband against the wife in his written statement would amount to mental cruelly entitling the spouse to decree for divorce However in my opinion the charge of adutery or amorous relations made in the written statement or in retaliation cannot be said to constitute cruelty for the reason that the cruelty must precede the initiation of action. ( 20 ) IN the above promises both the courts below cannot be said to have committed any material error in law in drawing inference or arriving at the conclusion that the appellant- wife had deserted the petitioner-husband and had caused cruelty to him The cruelty can be said to have been caused in the matter or not consulting the husband in the settlement of matrimonial affairs of the children This would naturally cause insult and annoyance to the husband There is therefore no merit in the appeal and it is required to be dismissed . ( 21 ) IN the result this Second Appeal is dismissed with no order as to cases Stay if any granted is ordered to be vacated (RPV) Appeal dismissed .