Judgment Gurusharan Sharma, J. 1. Admittedly, Jaikant Sharma and Aruna Kumari Sharma were married on 6.6.1982 at village Kumarpur, P.S. Bariyarpur, district Munger and on 24.10.1991 a male child was born out of the wedlock. 2. On 19.4.1995 husband filed Title Suit (Matrimonial) No. 13 of 1995, under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for dissolution of their marriage and thereby for a decree of divorce. Husband was in service in the Ministry of Defence, Government of India and was posted at Delhi, whereas wife had also joined Government service in the year 1988 and was working as Nurse at Raferal Hospital in Laxmipur block, within Jamui district. 3. According to husband, in May, 1984, while his wife was with his parents at village Sanha district Begusarai and he was in Delhi, she left with her father with all valuables without his permission, knowledge and consent or of his parents. Thereafter, she refused to come back and live with him. 4. Husband filed a case under Section 9 of the Act for restitution of conjugal rights, which was registered as Matrimonial Case No. 6 of 1984 and was ultimately dismissed on 20.6.1987. Thereafter husband filed Matrimonial Case No. 2 of 1990, under Section 13 of the Act, which was withdrawn on 12.11.1990 on the basis of compromise. Thereafter husband went on visiting the wife from time to time, while she was permanently living with her parents and always tried to persuade her either to live with him at Delhi or with his parents at village Sanha, but she never agreed and always refused. He was misbehaved, tortured and even beaten. His letters were not even replied. 5. According to husband, inspite of sincere efforts the wife did not care to join his company and she was determined not to live with him as wife. She was living with her parents without his consent and wish. It was, therefore, not possible to live with the wife any more. Their last cohabitation was on 15.3.1992 at village Kumarpur, District Munger. 6. The wife filed written statement stating, inter-alia, that she was always willing to reside with her husband. No effort was made by the husband to live together with her Neither her father nor any other family member ever assaulted or insulted or ill- treated him. 7. Their last cohabitation was on 15.3.1992 at village Kumarpur, District Munger. 6. The wife filed written statement stating, inter-alia, that she was always willing to reside with her husband. No effort was made by the husband to live together with her Neither her father nor any other family member ever assaulted or insulted or ill- treated him. 7. In the Matrimonial case, on 13.11.1995 the court below made efforts for reconciliation between the parties, but the wife flatly refused to live with husband. 8. In earlier Matrimonial case no. 2 of 1990 a compromise was arrived at between the parties, but again the wife refused to live with the husband. 9. A.W. 3 in paragraph 2 of his evidence stated that appellant herein was not only insulted but was also assaulted by his father in law. In this regard Exts. 1 & 1/1 are also relevant. Wife did not deny it. It shows cruelty on her part. 10. The wife in her deposition alleged that she went Delhi eight times, where her husband was posted and allowed him to cohabit with her, whenever he desired, but it was beyond her pleadings in written statement. Such false statement was given by her only to save herself from charge of desertion. The husband claimed desertion from August 1982 and not from 1984 as observed by trial court. 11. The husband was posted in service in Delhi, whereas the wife was in service at Lakshmipur and he always pursuaded his wife to come over to Delhi and live together with him and it was not correct for the court of appeal below to observe that wife was living separately out of need and it could not have been termed as wilful desertion. 12. The husband fell ill seriously in October 1992 and was under treatment in Ram Manoher Lohiya Hospital, New Delhi till January, 1993. He sent registered letter dated 10.9.1993 to his wife with a request to join his company with child, but she did not pay any heed thereto. 13. Trial court dismissed the suit holding that cruelty has not been established by the husband and ingredients of desertion was also lacking in the instant case. The husband was, therefore, not entitled to a decree for dissolution of marriage against wife. The husband has, therefore, filed the present appeal. 14. 13. Trial court dismissed the suit holding that cruelty has not been established by the husband and ingredients of desertion was also lacking in the instant case. The husband was, therefore, not entitled to a decree for dissolution of marriage against wife. The husband has, therefore, filed the present appeal. 14. After admission of the present appeal, appeal notice was issued to the wife-respondent, which was received by her father. However, since she failed to appear thereafter, this court by order dated 27.11.1999 issued fresh notice to her, with specific direction to be present in court in person on 23.11.1999 and appellant was also directed to be physically present. Still respondent did not appear. However, again on 13.7.2000, when the appeal was taken up for hearing, this court directed the appellant to serve notice of the appeal on the respondent personally, along with copy of orders passed by this court and file affidavit in support of such service. The appeal was directed to be put up for hearing on 7.8.2000 when an affidavit along with copy of notice dated 1.8.2000 with report thereon was filed by appellant stating therein that respondent refused to accept the notice. On 7.8.2000, appellant was present in person, but neither respondent appeared in person nor appeared through any Advocate. In the aforesaid circumstance, this appeal was heard ex-parte. 15. It is well settled that mental cruelty which may cause even serious injury than physical harm and create in the mind of the injured petitioner such apprehension as is contemplated in Section 13 of the Act. Existence of cruelty depends not on the magnitude, but rather on the consequence of offence of cruelty, actual or apprehended. 16. Wife using abusive language, denying sex to the husband and leaving matrimonial home without husbands consent and not returning for two years till the date of filing of divorce case, in my opinion, in the present case, amounted to cruelty on the part of the wife. The question whether the act complained of was cruel act, was to be determined from the whole fact and the matrimonial relations between the parties. In cases of mental cruelty whole matrimonial relations must be taken into account. In my opinion, the court below failed to consider the allegation of cruelty made by husband in right perspective. 17. The question whether the act complained of was cruel act, was to be determined from the whole fact and the matrimonial relations between the parties. In cases of mental cruelty whole matrimonial relations must be taken into account. In my opinion, the court below failed to consider the allegation of cruelty made by husband in right perspective. 17. Desertion means intentional permanent abandonment of one spouse by other without the others consent and without reasonable cause. In the present case, subsequent to her marriage wife took up employment as nurse in another place and inspite of best efforts by husband she never returned to him in spite of compromise at one stage and thereby agreement for living together. In such situation it can be reasonably inferred that she intended to permanently forsake the husband and deserted him without reasonable cause and without his consent. 18. In my considered opinion, in the facts and circumstances of the present case and on the materials brought on record by the parties, it is not possible for the husband and wife to live together. So, I set aside the impugned judgment and decree Title Suit (Matrimonial) No. 13 of 1995. 19. Since the sole respondent failed to appear in this appeal inspite of several indulgences given by court she is at liberty to make an application under Section 25 of the Act for grant of permanent alimony and maintenance in the court below, which will be decided after hearing the parties and in accordance with law. 20. In the result, the appeal is allowed, but without costs.