JUDGMENT Tej Shanker, J. 1. This appeal Under Section 28 of the Hindu Marriage Act has been preferred by Smt. Rekhaben Manubhai Vajirani against the order dated 22.9.1994 passed by Smt. Manjusha Namjoshi, Seventh Additional Judge to the Court of District Judge, Gwalior, whereby the petition of the respondent Under Section 13 for dissolution of the marriage has been allowed. 2. Briefly narrated the facts are that admittedly the parties were married on 7.11.1979 at Ahmedabad according to Hindu rites and after the marriage they reside at husband's place. Out of this union a son was also born who later on expired. The petitioner alleged that one month from the marriage the present appellant showed her inclination to go to her parents' house and she was sent. The present appellant as well as members of parental family tried to persuade the petitioner to settle at Gwalior but he did not agree. It annoyed the present appellant as well as members of parental family. When she returned to Ahmedabad her behaviour was changed. She avoided day-to-day work and insulted petitioner's parents and sister. He, therefore, separated from his parents in accordance of the wishes of his wife and started living separately at Bapunagar. The attitude of the wife did not improve even thereafter. After two months of death of the child, wife's mother went to Bapunagar and she went with her mother to Gwalior without intimating him behind his back alongwith her clothes, ornaments at the instigation of her mother. However, after long persuation he succeeded in bringing her to Ahmedabad to have a happy married life but in vain. In 1985 she left him permanently with bag and baggages and went to Gwalior A notice was given which was wrdngly replied. A petition Under Section 125 Cr.P.C. was also moved by the wife and alimony @ Rs. 300/- per month was fixed which he was paying regularly. He filed a suit for restitution of conjugal rights Under Section 9 of the Hindu Marriage Act which was compromised. Under the terms of the parties had agreed to live together and the wife to accompany the petitioner at Railway Station, Gwalior. The petitioner went to Railway Station and waited for her but she did not turn up. Hence he had to go Ahmedabad alone. Under the terms of the parties had agreed to live together and the wife to accompany the petitioner at Railway Station, Gwalior. The petitioner went to Railway Station and waited for her but she did not turn up. Hence he had to go Ahmedabad alone. After the decree for restitution of conjugal rights there had been no cohabitation between the parties and hence he was also entitled to divorce. The case was contested by the respondent who denied all the allegations. The fact of passing of the decree for restitution of conjugal rights has been admitted. She, however, asserted that she herself went to Railway Station but her husband was not there and she had to go back. The learned Trial Court framed as many as 6 issues on the pleadings of the parties and after taking into consideration the entire material on record passed decree for divorce on 22.9.1994. Hence this appeal. 3. The learned Counsel for the appellant contended that the learned Trial Court framed an issue relating to the allegation of desertion and cruelty as such. No issue on the plea of non-cohabitation was formulated. The material on record does not justify the finding of cruelty and desertion as claimed by the petitioner's husband. 4. Learned Counsel for the respondent, on the other hand, contended that it is one of those cases where parties are living separately since pretty time i.e., since 1986. The marriage in reality has become dead marriage. The wife had herself deserted him out of her own accord. There has been no cohabitation after passing of the decree for restitution of conjugal rights. Respondent went to Ahmedabad even after passing of the decree but she did not go to her husband's residence. Thus, all goes to show that it was she who had neglected the respondent. The appellant also treated him with cruelty including mental cruelty. The findings of the learned Trial Court are correct. There is no use of continuing the marriage under these circumstances. He referred to, (1995)2 Supreme Court Cases 7, I (1995) DMC 514 (SC),Romesh Chander v. Smt. Savitri AlR 1984 SC 1562, Smt. Sarojrani v. Sudarshan Kumar Chadha and (1994)1 Supreme Court Cases 337, II (1993) DMC 568 (SC), V. Bhagat v. Mrs. D. Bhagat. 5. The petitioner/husband as said above, came to the Court with the allegation of cruelty and desertion. D. Bhagat. 5. The petitioner/husband as said above, came to the Court with the allegation of cruelty and desertion. He also alleged that there has been no cohabitation after passing of the decree of restitution of conjugal rights. Firstly, it has to be seen as to whether there has been any cruelty on the part of the wife. It is admitted that the wife has been living at her parental house since 1986 and inspite of the fact that there has been a decree for restitution of conjugal rights the parties did not live together. There are contradictory versions on this point. The husband claimed that he went to the Railway Station and waited for the wife and, on the other hand, the wife alleged that she went to Railway Station and waited for her husband but when he did not turn up, she went back. In this case, it may be mentioned that wife had gone to Ahmedabad but she did not go to her husband's house. It by itself goes to show that the fact that she did not want to live with her husband. I may mention here that an attempt was made by the learned Trial Court as is evident from para 7 of the judgment for reconciliation. The learned Court has mentioned that the wife was initially ready to enter into a compromise but later on she changed and said that she could not enter into a compromise though husband was ready to compromise on two conditions. The wife was not agreeable at all. This fact was also apparent from the order-sheet dated 13.1.1994. An effort was also made in this Court for reconciliation but in this Court also the matter could not be compromised. Here the appellant said that she was ready to live with respondent though he had re-married a second wife. The respondent was, however, not ready to keep her and stated that there has been separation for the last 11 years and the appellant had been treating him with cruelty. It, therefore, makes the position clear that the parties have been fluctuating. Sometimes the wife is not agreeable and if the husband is agreeable to live with wife whereas sometimes it is vice versa. The fact remains that both the parties are living separately for the last so many years i.e., since 1986. It, therefore, makes the position clear that the parties have been fluctuating. Sometimes the wife is not agreeable and if the husband is agreeable to live with wife whereas sometimes it is vice versa. The fact remains that both the parties are living separately for the last so many years i.e., since 1986. The learned Trial Court who had the benefit of watching the demanour of witnesses had after carefully considering the entire evidence on record held that the wife treated the husband with cruelty. She left the house with the intention to disassociate herself from the company of the husband. As said earlier, the mere fact that the parties have been living separately for such a long time is suggestive of the fact that they are not agreeable to live together. The word 'cruelty' has been considered by the Apex Court in (1994) 1 Supreme Court Cases 337 (supra) and it has been held that cruelty must be of such nature that parties cannot be reasonably expected to live together. It has to be determined in the facts and circumstances of the case. The fact that the marriage has broken down has also to be kept in mind while determining whether marriage should be allowed to dissolve. In a latest pronouncement reported in (1995) 2 Supreme Court Cases 7, the Apex Court observed that when marriage is dead, emotionally and practically and there is no chance of its being retrieved, continuance of it would be cruelty. In that case the Apex Court took into consideration the fact that during 25 years of marriage two rounds of litigation for divorce took place and the second round of litigation culminating in the present appeal based on cruelty. In the case in hand, as said earlier, the learned Trial Court after scrutinising the entire evidence held that the wife was guilty of cruelty and nothing has been pointed out by the learned Counsel for the appellant as to why the assessment of evidence by the learned Trial Court be interfered with. The circumstances mentioned above clearly go to show that the present marriage is dead, emotionally and practically, because that parties inspite of the fact that they entered into a compromise and the decree for restitution of conjugal rights did not go to live together and there is a counter allegation with respect to the fact as to who defaulted in going. It can be infered from the conduct of the wife that it was she who defaulted because she has been living all through at her parents' house and inspite of the fact that she did go to Ahmedabad, she did not go to her husband. I may also mention here that the wife claimed that she went to husband's house but she was not allowed to enter husband's house. This fact cannot be ignored while taking into consideration the facts and circumstances of the case. After carefully considering the entire material and the facts and circumstances of the case I find myself in full agreement with the findings arrived at by the learned Trial Court that it is the wife who is guilty of cruelty and desertion. There is no cohabitation after passing of the decree for restitution of conjugal rights as the parties never lived together. Thus, taking into consideration all these facts I conclude that there is no scope for interference in the findings arrived at by the learned Trial Court. 6. The appeal has thus no merit and it is accordingly dismissed. However, under the circumstances of the case the parties are left to bear their own costs.