JUDGMENT Lokeshwar Singh Panta, J.—This is husbands appeal under section 28 of the Hindu Marriage Act, 1955 (hereinafter called the Act) against the judgment and decree dated 24-7-1991 passed by the Additional District Judge(I), Kangra at Dharamsala in Hindu Marriage Petition No. 7 of 1990, whereby the petition for divorce was dismissed. 2. The brief facts giving rise to this appeal are as follows:— "Appellant Inder Paul Singh married with respondent Khimla Devi on April 17, 1983 according to Hindu rites and custom. They lived together for four years happily. - No child was born out of the legal wedlock. The appellant contended that soon after the taking place of the marriage, the respondent started visiting the house of her parents without his permission, He many a times used to go to the house of her parents to bring her back. The respondent finally left the house of the appellant in the month of November 1986 without reasonable cause and thereafter has not returned to his house. The appellant tried his best to bring her back but failed. He took few persons to the house of the father of the respondent to bring the respondent back to his house but she flatly refused to accompany him. Then in the month of November 1987 for the last time, the appellant went to the house of the father of the respondent, but she frankly told him that she did not want to live as his wife in his house and should treat the marriage as broken. Thereafter, in the same month, the appellant served a notice upon the respondent, requesting her to join his company in his house, but the notice too fell flat on her Thereafter, the respondent filed an application under section 125 of the Code of Criminal Procedure in the Court of Judicial Magistrate, Nurpur on 13-11-1987. That application was dismissed and the revision was also unsuccessful. The allegations of the appellant are that the respondent has deserted him for more than two years preceding to the presentation of the application. He alleged that the respondent in order to harass, humiliate and undermine his reputation the respondent levelled false allegations against him by alleging that he was leading an immoral life by having extra marital relation with some woman at Nurpur. He alleged that the respondent in order to harass, humiliate and undermine his reputation the respondent levelled false allegations against him by alleging that he was leading an immoral life by having extra marital relation with some woman at Nurpur. These allegations according to the appellant were with the intention of making a good case for the purpose of getting maintenance allowance under section 125, Cr- P. C. The allegations were found false by the Magistrate who decided , the application against the respondent The appellant filed the petition for dissolution of marriage by granting a decree of divorce on the ground of desertion and cruelty." 3. The divorce petition was contested by the respondent vehemently. She has denied the allegation of desertion and cruelty. She contended that she was turned out by the appellant from his house as she could not conceive any child after taking place of the marriage. Her further contention was that the appellant had demanded more dowry and money from the parents of the respondent. When the parents of the respondent could not fulfill the demand of the appellant, then he turned her out by concocting false allegations. She had also stated that she has been forsaken by the appellant as he wants to get rid of her with the sole purpose of contracting second marriage. 4. On the pleadings of the parties, the trial Court framed the following issues on August 18, 1990 :— 1. Whether the petitioner is entitled to seek the divorce on the grounds of cruelty and desertion, as alleged ? OPP 2. Relief. 5. The trial Court after hearing the learned Counsel for the parties and appreciating the evidence has held that the appellant has failed to substantiate his allegations of desertion and cruelty against the respondent and dismissed the petition with cost. 6. Feeling aggrieved, the appellant has assailed the judgment and decree of the trial Court in this appeal. 7. We have heard the learned Counsel for the parties and perused the material record. 8. 6. Feeling aggrieved, the appellant has assailed the judgment and decree of the trial Court in this appeal. 7. We have heard the learned Counsel for the parties and perused the material record. 8. Ms P. P, Grewal learned Counsel for the appellant has contended that the trial Court has erred in not appreciating the evidence of the parties properly According to her the evidence led by the respondent is beyond her pleadings which evidence does not require any consideration by way of judicial scrutiny and the version of the respondent that she was turned out from her matrimonial house by the appellant for the reason that she could not bear any child, is all together new version which does not find mention in the written statement. She has also contended that the finding recorded by the Magistrate on the application under section 125, Cr. P. C. filed by the respondent would go to show that the respondent has left her matrimonial house without any ground or excuse and this finding was confirmed by the Revisional Court. 9. On the other hand, Shri K. D. Sood learned Counsel for the respondent has supported the judgment of the learned trial Court. He urged that the appellant has miserably failed to prove the grounds of desertion and cruelty by not leading satisfactory evidence. 10. What constitute desertion came for consideration before the apex Court in Lachman Uttamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40. Dealing with the concept of desertion, Supreme Court has explained that for the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi) Similarly two elements are essential so far as the deserted spouse is concerned; (1) the absence of consent, and (2) absence of con duct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The factum of desertion is a matter of inference to be drawn from the facts and circumstances of the each case. 11. In the present case, it is, therefore, to be seen whether the respondent intentionally and permanently abandoned the appellant without his consent and without a reasonable cause. In support of his case, the appellant has appeared in the witness box. 11. In the present case, it is, therefore, to be seen whether the respondent intentionally and permanently abandoned the appellant without his consent and without a reasonable cause. In support of his case, the appellant has appeared in the witness box. He has stated that his marriage with the respondent took place in the month of April 1983, Thereafter, the husband and wife cohabited together till December 1986. But their relation became strained in the month of December and thereafter they parted their ways. The respondent is living in the house of her father since December 1986 The fact of separation is not disputed by the respondent but she stated that she has been forced to live in the house of her parents on account of the uncongenial circumstances created by the appellant. Raffo Ram (PW 2) is the grand-father of the appellant and Bhagwan Singh (PW 3) is the father. PW 2 deposed that the respondent is not living in the company of the appellant for the last 3-1/2 years pre ceding to the recording of his statement. To the same effect is the statement of PW 3. Both these witnesses have not deposed that for what reason the respondent is staying with her parents after leaving the house of the appellant. Therefore, the animus deserendi on the part of the respondent have not been proved by these witnesses. Similarly, they have not stated anything in support of the appellant to prove the ground of desertion on the part of the respondent. 12. Shri Gurbachan Singh (PW 4) has also not stated anything which would go to show that the respondent has deserted the appellant The cumulative reading of the allegations made by the appellant against the respondent do not make out a case of desertion in his favour. He has no where stated in the application that cohabitation in between the parties came to an end on account of unbecoming behaviour of respondent as a wife. Even if the allegations are taken on its face value, they lend credence lo the stand of the respondent stated on oath that the appellant is bent upon to get rid of her because she could not bear any child after many years of taking place of marriage with him. PW 3 has not stated on oath that the respondent used to leave the house of her husband without informing him. PW 3 has not stated on oath that the respondent used to leave the house of her husband without informing him. The appellant is a Bank official and used to stay out of the house most of the time. In these circumstances, it was not possible for the respondent to have informed him regarding paying a visit to the house of her parents if she wanted. The appellant has not proved on record by leading satisfactory evidence that the respondent used to leave his house without his permission Similarly, PW 2 grand-father of the appellant has also not stated anything about this conduct of the respondent Therefore, their testimony falsifies the allegations averred by the appellant in his application. The mere physical act of departure of the respondent from the house of the appellant does not necessarily make the respondent deserting party. 13. The other allegation made by the appellant is that the respondent used to compel the appellant to live as a Ghar Jawain in the house of her parents. This allegation is also not deposed by any of the witness of the appellant. It is an admitted fact that the parents of the respondent are having two sons and two daughters. In these circumstances, they are not expected to keep the appellant to be a Ghar Jawain’ in their house. This allegation appears to have been invented by the appellant without any rhyme and reason. It is not expected from the respondent that she wanted the appellant to leave the job and to live in the house of her father in the circumstances mentioned above. The appellant was drawing salary of more than Rs 3,000 at the time of filing of the divorce petition, It has come in the evidence of the respondent and it is admitted fact that when the appellant was studying, he was staving in the house of the respondents father. The father of the respondent has also contributed towards the completion of the education of the appellant up to the graduation level and thereafter also made efforts to get him employed in the tank. In these circumstances, the version of the appellant is absolutely baseless. 14. The further allegation of the appellant is that the respondent did not give favourable response to his efforts when he visited the house of her father in order to bring her back after December 1986. In these circumstances, the version of the appellant is absolutely baseless. 14. The further allegation of the appellant is that the respondent did not give favourable response to his efforts when he visited the house of her father in order to bring her back after December 1986. This allegation is also remained unsubstantiated on his part- There is nothing in his statement to show when he had gone to the house of respondents father after December 1986 to bring the respondent back to his house. It is also not clear that by whom he was accompanied. No doubt, PWs 2 and 3 have stated that they had gone to the house of the parents of the respondent to bring her back but their statements cannot be believed as they have not disclosed the date, month or year of their visit. Further, their testimony is silent as to who were the other persons of the village who accompanied them. They have stated that certain persons from the village were also taken by them for reconciliation but surprisingly, none of the persons from the village were produced. All these evidence would go to show that the appellant did not make any efforts to patch-up the differences with the respondent and tried to bring her back to his house. The appellant states that he issued a notice to the respondent on August 16, 1987 requesting her to come back to his house or to divorce him. Surprisingly, the copy of the notice has not been placed on record. The appellant has filed the copy of the order (Ex P-l) dated March 30, 1988 passed by the Sub Divisional Judicial Magistrate, Nurpur in petition under section 125, Cr. P. C. filed by the respondent. He has also produced the copy of the order (Ex. P-2) passed on 6-10 1988 by the Additional Sessions Judge (2) Kangra dismissing the revision petition of the respondent. According to the appellant, the respondent also filed an application under section 9 of the Hindu Marriage Act for the restitution of the conjugal rights. It has also come on record that the appellant filed an application for judicial separation. The application of the appellant for judicial separation was dismissed by the trial Court on 28-12-1989 (Ex. R-E). The order of the trial Court was that "parties have compromised the case. It has also come on record that the appellant filed an application for judicial separation. The application of the appellant for judicial separation was dismissed by the trial Court on 28-12-1989 (Ex. R-E). The order of the trial Court was that "parties have compromised the case. In view of the compromise, the counsel for the petitioner wants to withdraw the petition Hence the petition is dismissed as withdrawn". In view of these litigations between the parties, it cannot be held that the appellant has made any genuine effort to patch-up the differences with the respondent with the purpose of bringing her back to his house. The respondent has categorically stated in her statement that the parents of the appellant and the appellant had once paid a visit to the house of her parents for the purpose of impressing upon her to agree for divorce This shows that the appellant is only interested in getting the divorce from he respondent on one pretext or the other without proving his case of desertion. The learned Counsel for the appellant has laid much stress on the order passed by the Sub-Divisional Judicial Magistrate, Nurpur on the application of the respondent filed under section 125, Cr. P. C. She con tended that the learned Magistrate while dismissing the application, observed that the respondent was not entitled to maintenance as she had left the company of the appellant without any reasonable excuse The conclusion recorded by the trial Court was also affirmed by the Revisional Court. This contention of the learned Counsel is not acceptable The trial Court is right in holding that the proceedings under section 125, Cr. P. C are summary in nature and while leading the evidence for proving the averments made in the application under section 125, Cr. P. C, the circumstances are absolutely different than the circumstances to be proved in the matrimonial cases The appellant has miserably failed to prove that the respondent wants to put an end the cohabitation with the appellant for good in this case. On the other hand, after perusal of the evidence of the respondent, we are of the confirmed view that her statement inspires confidence She has categorically stated that she was turned out from the matrimonial house by the appellant because she failed to conceive any child after the marriage. On the other hand, after perusal of the evidence of the respondent, we are of the confirmed view that her statement inspires confidence She has categorically stated that she was turned out from the matrimonial house by the appellant because she failed to conceive any child after the marriage. Her evidence has been corroborated by her mother Smt. Amratti Devi that the appellant is bent upon to divorce the respondent by hook and crook in order to contract a . second marriage. Dalku Ram (DW 3) has categorically stated that in his presence PW 3, father of the appellant had told him that the appellant was not at all willing to keep the respondent as his wife. Therefore, from the appraisal of the evidence it cannot be held that the respondent has left the house of the appellant without any reasonable cause. The appellant has admitted in his statement on oath that he is not prepared in any circumstance to keep the respondent as his wife at his house In this view of the matter, it cannot be held that the respondent is guilty of desertion in the wake of the circumstances narrated above. 17. The next question arises for consideration is whether the appellant has proved I he ground of cruelty by leading satisfactory evidence. We say no. The word cruelty is not defined in the Hindu Marriage Act. It has been used in section 13 (1) (i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical it is a question pf fact and degree, If it is a mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of section 10 (1) (b) of the Act. The apex Court in Dr. N. G, Dasiane v. Mrs. The apex Court in Dr. N. G, Dasiane v. Mrs. S. Dastane, AIR 1975 SC 1534, have the occasion to deal with a case of the parties on the ground of cruelty. It is held in that decision that harm and 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 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. The Court must determine whether the petitioner proves 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. 18. These principles were again reiterated and re-emphasised by the apex Court in Shobna Rani v Madhukar Reddi, (1988) SCC 105. 19. The appellant has tried to make out a case against the respondent on the ground that she has imputed allegations regarding extra marital relations of the appellant with some woman at Nurpur. The appellant has not adduced any evidence on this score nor other witnesses produced by him have stated about the allegations levelled by the respondent. How ever, the appellant has produced Gurbachan Singh (PW 4) to prove the ground of cruelty The witness has stated that the parents of the respondent used to enquire from him about the character of the appellant. They were trying to ascertain as to whether the appellant has got any relation with some girl. The statement of this witness has not establish ed that it was the respondent who imputed the allegation of illicit relation of the appellant with some girl. He has only stated that the parents of the respondent used to enquire about the love affairs of the appellant with some girl. The appellant himself has also not deposed about the specific allegation of leading immoral life by him levelled by the respondent. He has only given a sweeping statement that the respondent imputed the allegation of adultery against him. This type of slender evidence does not establish that the allegation levelled by the respondent against the appellant amounts to cruelty. No doubt, in para 6 of the application (Ex. P-3) filed by the respondent under section 125, Cr. He has only given a sweeping statement that the respondent imputed the allegation of adultery against him. This type of slender evidence does not establish that the allegation levelled by the respondent against the appellant amounts to cruelty. No doubt, in para 6 of the application (Ex. P-3) filed by the respondent under section 125, Cr. P, C. she has stated that the appellant had illicit relation with other woman and threatened to marry some other girl. This allegation appears to have been levelled by her for the purpose of getting the monthly maintenance allowance when she became destitute after the appellant refused to maintain and admit her in his company at his house. The trial Court has not stated anything about this allegation in his order. It appears that this allegation has been pleaded by the appellant in his divorce petition on the basis of the averments made by the respondent in her application under section 125, Cr. P. C. whereas in reality no allegation of such nature has been imputed by her against the appellant before this application was filed by her. There is no an iota of evidence on record which would go to show that the allegations had telling affect on mental or physical state of the appellant. 20. Admittedly, the appellant had filed a petition under section 10 of the Hindu Marriage Act for decree of judicial separation on 16-12-1989, which was decided by the trial-Court on 28-12-1989.. A perusal of the order (Ex R-E) reveals that the parties had compromised and the petition for judicial separation was withdrawn by the appellant. Therefore, it is clear that the parties had patched-up the lapses occurred between them till 28-12 1989. The appellant had withdrawn the petition when there was no grievance entertained by him against the respondent and vice versa There is no iota of evidence on record to show that after 28 12-1989 the respondent has deserted the appellant or behaved in such a manner which amounts to cruelty. On the appraisal of the evidence, we are of the confirmed view that the appellant himself has created such circumstance and atmosphere which has compelled the respondent to take shelter in the house of her parents The respondent has placed on record a letter (Ex. On the appraisal of the evidence, we are of the confirmed view that the appellant himself has created such circumstance and atmosphere which has compelled the respondent to take shelter in the house of her parents The respondent has placed on record a letter (Ex. R-B) written by the appellant to the mother of the respondent- In this letter, the appellant has asked for money from the mother of the respondent. In another letter (Ex R-A) written by the appellant, he has admitted that he was taking money from the parents of the respondent for a period of five years when he was studying in undergraduate classes This letter is dated 12-2-1982, meaning thereby that it was written before taking place of the marriage between the parties when the appellant was employed in the bank. Ex. R-C is a letter written on 3-3-1981 before taking place of the marriage. Further, Ex R-D is another letter written on 9-4-1980 In all these letters, the appellant has acknowledged with gratitude the help rendered for completing his education. All these allegations would go to show that the parents of the respondent had high regard to the appellant and they have been helping him in studies by giving him money and obliged him for getting the job in the bank. In these circumstances, there is no occasion for the respondent to harm the reputation or to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent. This ground of cruelty is also not established by the appellant by leading cogent and convincing evidence. 21. In the result, for the foregoing reasons, the appeal is dismissed. However in the facts and circumstances of the parties are left to bear their own costs. Appeal dismissed. -