ORDER Adarsh Kumar Goel, J. - This appeal has been filed by the appellant-wife against the decree of divorce granted in favour of the respondent-husband on the grounds of cruelty and desertion. 2. Marriage between the parties was solemnised on 17.6.1984 at village Bawana (Delhi). Parties lived together at village Nehra. No issue was born out of the wedlock. On 6.5.1989, respondent-husband filed a petition for divorce alleging that the appellant-wife left the matrimonial home on 12.3.1985 with the intention not to return and though the respondent-husband went to bring her back in July, 1985, but the wifes parents were not inclined to send her. Further efforts were also made in vain. This action of the wife amounted cruelty and desertion. 3. Petition was contested by the appellant-wife, inter alia, on the grounds that a similar petition was earlier filed on 12.5.1986 which was dismissed in default on 11.8.1988 and that the wife had stayed with the husband upto 26.3.1987. It was further stated that the wife was always willing to live with the husband but the husband was not willing to keep her and wanted divorce. Respondent appeared as PW-1 and also produced Anand Singh Sarpanch of village Bawana as PW-2 and his father Rohtash Singh as PW-3. The appellant-wife appeared as RW-1 in support of her case. 4. The trial Court made efforts for reconciliation and recorded that the husband was willing to take the wife and the wife was also willing to go with him, but with the conditions that she should be escorted by her husband from the house of her parents and her elder sister should also be escorted by her (elder sister) husband who was the brother of the respondent. The respondent-husband did not accept these conditions. It was stated that Balwan brother of the respondent had obtained an ex parte decree and performed second marriage. 5. Trial Court in para 18 of the judgment held that the ground of cruelty and desertion stood proved. 6. Appeal was admitted and referred to the Lok Adalat, but the Lok Adalat observed that the parties did not appear to be interested in compromising the matter and, therefore, sent the matter back to this court for decision on merits. 7. I have gone through the record and considered the matter. 6. Appeal was admitted and referred to the Lok Adalat, but the Lok Adalat observed that the parties did not appear to be interested in compromising the matter and, therefore, sent the matter back to this court for decision on merits. 7. I have gone through the record and considered the matter. I find that the conclusion arrived at by the trial Court in para 18 of th judgment is neither based on any discussion nor on any material nor is the same otherwise justified. It is well settled that a person alleging cruelty and desertion has to prove it by positive evidence. From the mere statement of the husband, it could be held that cruelty and desertion stood proved. Cruelty is sought to be inferred from the desertion only. The desertion is sought to be inferred from separate living. In law, desertion can be held to be proved only when it is shown that a party to the marriage is not living separately but is also not willing to resume cohabitation. There is no tangible material on record from which the version of the husband can become acceptable. The trial Court has, without any discussion of evidence, simply concluded that withdrawal of the wife from the company of the husband amounted to mental and physical cruelty. As already observed, this conclusion is not justified. I, therefore, set aside the judgment of the trial Court and reverse the finding recorded by it, and hold that the respondent-husband has not been able to prove cruelty and desertion and thus is not entitled to a decree of divorce sought by him. 8. In view of the above, the appeal is allowed and the judgment dated 10.6.1992 of the trial Court is set aside. Consequently, the petition for divorce filed by the respondent-husband is dismissed. No costs. Appeal allowed.