JUDGMENT Devinder Gupta, J.—The husband has come up in appeal against the judgment and decree passed on 8th April, 1992 by the District Judge, Kangra Division at Dharamshala dismissing his petition seeking dissolution of marriage by a decree of divorce under section 13 of the Hindu Marriage Act, 1955 (Act No. 25 of 1955) (hereinafter referred to as the Act). 2. On 18th November, 1988, the husband filed the petition seeking dissolution of marriage by decree of divorce on the ground that the respondent had deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition The petition was subsequently got amended and as per the amended petition dated 18th January, 1990f an additional ground was also added to the original ground by claiming the dissolution of marriage on the ground that the respondent had after solemnisation of the marriage treated the petitioner with cruelty. 3. It is alleged that the marriage between the parties was solemnised on 4tb May, 1977 at Nurpur. The respondent-wife deserted the petitioner in 1979 without any reason and did not visit the petitioners house thereafter. Both the parties were serving as teachers. The petitioner tried his best to have the respondent transferred to his School or near to the place of his posting, but the respondent did not agree and refused to get herself transferred. On 8th May, 1979, a petition under section 9 of the Act was filed by the petitioner seeking decree for restitution of conjugal rights, but the respondent was transferred near the place of petitioners posting and on persuation of relations of both the parties, the respondent agreed to live with the petitioner. As such, the petitioner did not appear in the proceedings and got the petition dismissed on 20th October, 1981, Even after the petition had been got dismissed, the respondent failed to resume the petitioners society. As such, it is alleged that the respondent has without any reasonable and sufficient cause, deserted the petitioner. 4. The other ground, which was later on added is that the respondent was in the habit of levelling false allegations against the petitioner of leading immoral and adulterous life. The respondent has been defaming the petitioner publically by propagating in the public and in the relations. 4. The other ground, which was later on added is that the respondent was in the habit of levelling false allegations against the petitioner of leading immoral and adulterous life. The respondent has been defaming the petitioner publically by propagating in the public and in the relations. As a result of the false propaganda concerning the character and reputation of the petitioner, the petitioners image has been lowered. A false criminal complaint under sections 323, 506 and 498-A of the Indian Penal Code was instituted by the respondent against the petitioner in order to malign and harass the petitioner. These acts on the part of the respondent have caused mental cruelty to the petitioner and thus the respondent is guilty of treating the petitioner with cruelty. 5. The wife contested the petition and denied that there is any desertion on her part entitling and enabling the petitioner to seek a decree of divorce. She also denied having treated the petitioner with cruelty. She alleged that the grounds mentioned in the petition are false, frivolous, and wrong As a matter of fact, the petitioner has not come to the Court with clean hands and has suppressed true facts and fabricated a false story. The respondent also narrated the facts, which according to her, would be sufficient to justify her living apart. 6. The respondent alleged that the petitioner is living in adultery with Smt. Shashi, a B. Ed. teacher, who is employed with the petitioner. Such relations of the petitioner with Smt. Shashi are prior to her marriage of which she was not aware. After the marriage, she found the petitioners relations with Smt Shashi, a lady hailing from Moga and working as teacher in Himachal Pradesh. Smt. Shashi has a son named Parmodh Kumar, aged 14 years, but the parentage of Parmodh Kumar is not known to the respondent However, the petitioner has been shown as the father of said Parmodh Kumar in School record. Till date, no one in the area has seen the husband of Smt Shashi. Both of them were living in one house and voters list shows them as husband and wife. Because of the illicit relations, which the petitioner has got with Smt. Shashi, it is not possible to the respondent to live with the petitioner. Till date, no one in the area has seen the husband of Smt Shashi. Both of them were living in one house and voters list shows them as husband and wife. Because of the illicit relations, which the petitioner has got with Smt. Shashi, it is not possible to the respondent to live with the petitioner. The respondent after marriage suffered great mental agony and cruelty and tried Her best to live amicably with the hope that these illicit relations would come to an end When the respondent objected to such relations, she was given beatings by the petitioner The petitioner even gave beatings to the respondent in the open and at Dari Bazar, when he was carrying in his vehicle Smt Shashi, for which assault she had to lodge a complaint. Another complaint i.e. Smt. Savitri v, Klshan Chand, which was pending in the Court of Sub-Divisional Magistrate, Dharamshala was dismissed by the Sub-Divisional Magistrate, in view of the pendency of complaint before the Chief Judicial Magistrate. She denied that any false propaganda was ever made by her or that the complaints lodged by her were false. 7. Issues had already been framed on 15th November, 1989 that whether the respondent has deserted the petitioner, as alleged and whether the petitioner is entitled to decree of divorce ? After the amendment was sought, no fresh issue was claimed, as is evident from the order recorded by the District Judge on 14th September, 1990. Thus, the parties went to trial on the aforementioned allegations. The petitioner in support of his case, examined himself as AW-1 and produced three other witnesses, namely, Vinod Kumar, AW-2, Trilok Chand, AW-3 and Arun Kumar, AW-4. The respondent appeared as her own witness as RW-5 and examined seven other witnesses, namely, RW-1 Kishan Chand, Patwari Halqua, Hatwas, RW-2 Shri P. Desh, Secretary Gram Panchayat, Hatwas, RW-3 Janam Singh, Election Kanungo, Election Office, Dharamshala, RW-4 Gian Chand, Office Kanungo, Dehra, RW-6, Phuman Ram, RW-7 Duni Chand, Senior Post Master, General Post Office, Shimla and RW-8 Shambhu Dass (respondents father). 8. On the basis of evidence on record, the District Judge came to the conclusion that the petitioner had failed to substantiate the ground of desertion. The respondent was found to be living away from the matrimonial home on the ground of petitioners conduct and behaviour and his intimate relations with Smt. Shashi. 8. On the basis of evidence on record, the District Judge came to the conclusion that the petitioner had failed to substantiate the ground of desertion. The respondent was found to be living away from the matrimonial home on the ground of petitioners conduct and behaviour and his intimate relations with Smt. Shashi. As a result of the findings, the petition was dismissed. It is this judgment, which is under challenge in this appeal. 9. Having heard the learned Counsel for the parties and having gone through the record, we find that no case is made out for in terfeience in the judgment recorded by the District Judge. 10. In order that desertion, as contemplated under section 13 (1) (1) (b) may furnish a good ground for grant of relief of dissolving the marriage by a decree of divorce, it is essential that the following two factors should co-exist: (a) the factum of separation ; and (b) the intention to bring cohabitation permanently to an end, namely, animus desenndi 11. The element of permanence which is a prime condition requires that both the aforementioned essential ingredients should continue during the entire statutory period, namely, that the desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This ground has to be read with the explanation, which is in the following words i "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 by other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly." 12. Desertion is a matter of inference to be drawn from the facts, which may not in another case be capable of leading to same inference, that is to say, the facts have to be viewed as for 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. In was held in Bipinchandra Jai Singh Bhai Shah v. Prabha Vati, AIR 1957 SC 176. In was held in Bipinchandra Jai Singh Bhai Shah v. Prabha Vati, AIR 1957 SC 176. that 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 The essential element of animus deserendi was examined at some length by the Supreme Court in Lachman Utamchand Kirpalani v. Meena alias Mota. AIR 1964 SC 40 and in Smt Rohini Kumari v. Narendra Singh, AIR 1972 SC 459, wherein the aforementioned principles were re-affirmed and it was held 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 law has prescribed a continuous period of two years during which two elements must subsist. During all the period that there has been desertion, the deserted spouse must affirm the marriage and be ready and willing to assume the married life. It is incumbent upon the petitioner to prove that the desertion without a reasonable cause subsisted throughout the statutory period. Before granting relief on the ground of desertion, the Court must be satisfied that the matrimonial offence complained of is established. In Bipin Chandras case (supra), the Court observed that the plaintiff must prove the offence of desertion beyond all reasonable doubts. In Lachman’s case {supra)t the Court held that the onus lies on the petitioner to establish that the desertion was without cause and stressed the importance of avoiding the fallacy which lies in failure to distinguish between the legal burden of proof which rests on the petitioner and a provisional burden raised by the state of evidence, which may shift from one party to another. The legal burden throughout the case is on the petitioner to prove that the opposite party deserted the petitioner without cause. 13. The legal burden throughout the case is on the petitioner to prove that the opposite party deserted the petitioner without cause. 13. In a case where one of the spouse withdraws from cohabitation for what may be described as a good cause or a just cause or an effective cause, such as the other spouse living an adulterous life or may be cruelty, the said spouse cannot be said to be guilty of desertion for the simple reason that in such a case, it is the conduct of the offending spouse, which is the cause of separation and the spouse who leaves the matrimonial home cannot be said to have acted from animus deserendi. Adultery and cruelty would afford complete defence to any petition by the other spouse for annulment of marriage unless there was condonation of such adultery or cruelty. 14. Section 23 of the Act requires that before decreeing any relief in any proceedings under the Act, the Court must be satisfied that the ground for relief exists and that in granting of such relief, there is no bar of any kind mentioned in the section. Satisfaction of the Court can only be on preponderance of probabilities and as held in Bipin Chandras case (supra), in proceedings for divorce, the petitioner must prove the alleged offence beyond all reasonable doubts. A petition has to be dismissed when the Court comes to the conclusion that the party seeking relief is not taking advantage of his or her own wrong or disability. In Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2218, it was held that in order to be a wrong within the meaning of clause (a) of section 23 (1) of the Act, the conduct alleged must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. 15. In light of the aforementioned legal proposition, the evidence adduced deserves examination. There are certain admitted facts on record. It is admitted that Smt. Shashi is also employed as a teacher in the same School in which the husband is employed. She has got one son Parmod Kumar and in School record, his fathers name has been shown as Kishan Chand. For the last couple of years, Smt. Shashi is residing in a house at Hatwas, which is 2 kms. away from Nagrota Bagwan, where she is posted. She has got one son Parmod Kumar and in School record, his fathers name has been shown as Kishan Chand. For the last couple of years, Smt. Shashi is residing in a house at Hatwas, which is 2 kms. away from Nagrota Bagwan, where she is posted. The petitioner has also got land with house at Hatwas. According to the petitioner, the house in which Smt. Shashi is residing is at a distance of 10-12 feet from the cow shed standing on his land. In the voters list, name of the petitioner Kishan Chand son of Bidhu Ram is shown at Sr No 658 in village Hatwas in house No. 619. In the same house and at No. 659 is the name of Smt Shashi, who has been described as the wife of Kishan Chand Both Shashi and the petitioner were posted together at Ranital, where they remained for 3-4 years. 16. Reading of the statement of AW-1 would show that he has given very evasive reply to many pertinent questions, which had also been asserted by the respondent in her reply to tie petition for divorce It is cot disputed that the petition for restitution of conjugal rights was instituted by the petitioner, which was dismissed in default According to the averments made in the petition, the petition was got dismissed at the intervention of the relations of the parties and when respondent started residing near to the place of petitioners posting, but this fact has not been proved by him rather when he appeared in the witness box, he stated that it was at the behest of his relations that he did not press the petition and, as such, did not put appearance on the date of hearing. He has given a very evasive reply that the house standing upon the land owned by him at Hatwas, which he had purchased bore number 619. According to him, he had purchased the land alongwith one house standing thereupon and no other house was constructed by him. The house standing upon the land according to him was only ‘Ghural’ with slate roof and temporary walls. During cross-examination, he admitted that his mother had been residing in the said house. His brother also stayed for a couple of years alongwith his family and he has also been residing in the said house. The house standing upon the land according to him was only ‘Ghural’ with slate roof and temporary walls. During cross-examination, he admitted that his mother had been residing in the said house. His brother also stayed for a couple of years alongwith his family and he has also been residing in the said house. Hatwas is a Gram Panchayat area and Smt Shashi is residing at a distance of 10-12 feet in a pucca house The respondent in her realy had made a categorical allegation that both the petitioner and Smt. Shasbi were residing in the same house and their names were also recorded in the voters list from the same house and the name of the father of Parmod Kumar in the School record is that of the petitioner. No effort was made by the petitioner to specifically refute all these allegations during his statement as PW-1 From whom, Suit. Shashi had purchased the property, he was not in a position to state. Whether it was Shashi who had constructed the house, he had not stated so. He also did not deny the fact that in School record, Parmod Kumar was shown as son of Kishan Chand. Confronted with the entries in the voters list, he stated that the same were got corrected. He was not in a position to state the name of the husband of Smt. Shashi. In School record, he has not got the name of his own wife entered anywhere. Even in the corrected voters list, which he produced as Ex PX, in House No 619 at Sr. No 659, Smt. Shashi is again shown as the wife of Kishan Chand, after deleting the name of Purshotam Ram. It will be worthwhile to mention here that Purshotam Ram is the brother of the petitioner. 17. The petitioners version that on the land purchased by him, there was already a house in the shape of Ghural stands belied from the entry appearing in Jamabandi Ex, RW-l/A, wherein the entire land is shown as ‘Kuhli Awal and Baojar Kadim’. However, in the copy of Khasra Girdwari Gair Mumkin Makaa (house) is shown as existing from 1988 onwards. The petitioners version that on the land purchased by him, there was already a house in the shape of Ghural stands belied from the entry appearing in Jamabandi Ex, RW-l/A, wherein the entire land is shown as ‘Kuhli Awal and Baojar Kadim’. However, in the copy of Khasra Girdwari Gair Mumkin Makaa (house) is shown as existing from 1988 onwards. As noticed above, the petitioner stated that there was a small Ghural standing upon the land and no house was constructed by him, which version of the petitioner is also belied by his own witness Vinod Kumar, AW-2, who during cross-examination stated that after the petitioner purchased the property at Hatwas, he visited Hatwas and found that there was no house thereupon and now there was a house standing on the land, when he paid visit 2-3 years ago. His statement was recorded on 13th December, 1990. Arun Kumar, AW-4 during his examination-in-chief stated that he had heard about the illicit connections of the petitioner with Smt. Shashi, but he was not in a position to state that this rumour was correct or not. This witness during the cross-examination admitted that Scot. Shashi, the name of whose husband was Kishan Chand had been residing in the said house at Hatwas. Thus, from the petitioners evidence, it is clear that Smt. Shashi is residing with Kishan Chand in the house. Whether the house belongs to Smt. Shashi or not has not been proved. To the contrary, it is admitted by the petitioner that he had purchased property at Hatwas, upon which there was a house standing. The petitioner has also admitted that he has got his vote from Hatwas. The name of the petitioner is shown at Sr. No. 658. The only inference, which can be drawn in the circumstances is that the person shown as Kishan Chand son of Bidhu is none other than the petitioner and Smt. Shashi is also shown therein as the petitioners wife. The other fact that Smt. Shashis son Paroiod Kumar is shown in the School record to be son of Kishan Chand also leads to the inference that it is none other than the petitioner. 18. The other fact that Smt. Shashis son Paroiod Kumar is shown in the School record to be son of Kishan Chand also leads to the inference that it is none other than the petitioner. 18. The respondent has tried to lead evidence showing about the petitioners relations by getting proved on record the voters list, copy of Khasra Gicdwari, which has been discussed above, She stated that before her marriage, the petitioner and Smt. Shashi, B.Ed. teacher were posted together at Ranital, which fact has not been disputed by the petitioner. Phuman Ram, RW-6, resident of Tikka Balias of Mauja Hatwas has stated that for the last 7-8 years, on the land belonging to Chattru, Nehalla etc. purchased by the petitioner, house has been constructed in which the petitioner is residing with one lady and a boy. Deni Chand, RW-7 is the husband of the respondents younger sister, who also stated that the petitioner had constructed a house in village Hatwas in which the petitioner alongwith Shashi are residing together. Similar is the version given by RW-8, the respondents father. According to him, he also visited Ranital, where he saw the petitioner residing with Shashi. He also visited Hatwas and saw the house in which Shashi aloogwith the petitioner is residing, 19. From the evidence on record, there is no manner of doubt that the findings recorded by the District Judge that it is due to the petitioners conduct which has led the respondent to Jive separately and she is justified in not residing with the petitioner. The petitioners own conduct disentitles him for the relief claimed. We have also no reason to differ with the findings recorded by the District Judge. For the same reason, we are also of the view that the respondent has not treated the petitioner with cruelty. She has banafide made allegations against the petitioner, which have been proved to be correct. The petitioner has failed to justify his relations with Smt. Shashi. 20. In the result, we find no force in the appeal and consequently dismiss the appeal with costs quantified at Rs. 2,000. Appeal dismissed.