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2003 DIGILAW 307 (CAL)

GEETA MULLICK v. BROJO GOPAL MULLICK

2003-06-27

D.K.SETH, JYOTESH BANERJEE

body2003
JOYTOSH BANERJEE, J. ( 1 ) THE present appeal is directed against the judgment dated 29-8-99 by which Additional District Judge, 12th Court, Alipore dissolved the marriage between the parties by allowing the application filed by the petitioner/husband under Section 13 of the Hindu Marriage Act for a decree of divorce on the ground of desertion and cruelty. The learned Judge by the impugned judgment failed to give any indication that he was satisfied about the existence of the grounds on which the husband sought for a decree of divorce, but arrived at a conclusion from the facts and circumstances disclosed in the evidence specially the fact that, the parties were living separately from each other since long and came to an ultimate finding that marital bond between them had broken down irretrievably. ( 2 ) THE petitioner/husband filed the petition stating that marriage between the parties was solemnized on 7-6-79 according to Hindu Rites and Customs in a house situated at Beliaghata, Calcutta-700 010. After the marriage, the respondent/wife started living with the petitioner and his old parents and brothers at 113, Alipore Road, East Nimta, Calcutta-700 049. Two months after the marriage, it is alleged that the respondent/wife in collusion with her parents and other relations started insisting on the petitioner shifting to another residence for living separately with her. It was further alleged that when the petitioner was not willing to leave his old parents and brothers, the respondent started creating all sorts of troubles and thereby disturbed the peace and tranquillity in the petitioner's family. Inspite of all these, the petitioner and his relations treated the respondent/wife with love and affection and the petitioner tried his best to adjust with the circumstances. The respondent/wife started going very often to her parents house at Beliaghata without the consent of the petitioner. She often disclosed that she would not return to the petitioner at all unless he would arrange living separately with her in the Beliaghata locality near her parents house. In the mean time, the respondent had conceived by the petitioner and the petitioner having refused to live separately with the respondent she left for her parents house on 19-5-80 when she was carrying 5 months. Subsequently, the respondent was admitted into the Lady Duffrin Hospital, Calcutta where she gave birth to a male child Kunal alias Titu on 10-11-80. In the mean time, the respondent had conceived by the petitioner and the petitioner having refused to live separately with the respondent she left for her parents house on 19-5-80 when she was carrying 5 months. Subsequently, the respondent was admitted into the Lady Duffrin Hospital, Calcutta where she gave birth to a male child Kunal alias Titu on 10-11-80. Thereafter, the petitioner tried to get her consent for the purpose of taking her to their Nimta House directly from the said hospital but the respondent did not agree. In this background, the petitioner was compelled to rent a house at Hanapara, Kestopur, P. S. Rajarhat, Calcutta-700 059 to live separately with the wife/respondent there and respondent started to live there with their child son. It is further alleged that during their residence in the said rented house, the respondent's father, brothers and sister would very often visit her there, to disturb the peace of the family. In consequence whereof the respondent started going to her parents house almost every alternate day with the child without the consent of the petitioner. She refused to visit the house of the petitioner's parents at Nimta and insisted the petitioner should sever all connection with his old parents. She even did not allow the petitioner to visit his old parents living at Nimta. Inspite of all these, the petitioner tried his best to adjust with the circumstances and tried very hard to make the respondent understand that unless the petitioner would take care of his old parents they would die very soon. Ultimately on 24-4-83, the respondent voluntarily withdrew herself with the child 'kunal' from the society of the petitioner and in this way deserted the petitioner. On that day, the respondent left the house with the gold ornaments, T. V. set, furniture and other articles which her father gifted on the occasion of the marriage and also with their child deserting the petitioner for good. At that time she left a note on a non-judicial stamp paper wherein she stated that she was leaving with the son Kunal and the goods already REFERRED TO above on her own for her parents house. It is alleged that the parents and brothers of the respondent/wife and others were present at that time and in this way, the respondent/wife finally deserted the petitioner. It is alleged that the parents and brothers of the respondent/wife and others were present at that time and in this way, the respondent/wife finally deserted the petitioner. It is also alleged that thereafter the petitioners all efforts to bring her back ended in vain. It is also alleged that the petitioner, who at the relevant point of time used to work as an officer of the United Bank of India was transferred to Hanskhali Branch near Krishnagore in the district of Nadia in the month of October, 1985 where he met with a very serious accident at Krishnagore Railway Station. As a result of such accident he had to be admitted into a Nursing Home in Calcutta. It is specific allegation that the respondent did not return and was so cruel that inspite of the knowledge of such accident and the subsequent operation she did not come to see the petitioner in the Nursing Home or at his Nimta residence. ( 3 ) ON the aforesaid allegations, the petitioner/husband prayed dissolution of marriage with the respondent by a decree of divorce. ( 4 ) THE respondent/wife contested the proceeding on a written statement controverting the allegations raised in the petition and she contended, inter alia, that Judh-isthir Biswas, sister's husband of the petitioner was the negotiator of the marriage and he opposed the unreasonable demand of the petitioner's parents for dowry and as a result he was heckled by his in-laws for which he kept away from the marriage and stopped visiting his in-laws. The mother-in-law of the respondent had blamed the respondent for the unfortunate situation and declared that she would not accept the respondent in the family. She even refused to take meals cooked by the respondent and threatened her son that she would commit suicide if the respondent was not thrown out. Although the respondent and friends of the petitioner pleaded with the parents of the petitioner not to persecute the respondent who had no part to play in the matter, the petitioner refused to take steps to set the matter right and gave protection to the respondent. The respondent further contended there that she wanted a separate residence to save her from the cruelties both mental and physical practised upon her by the petitioner and his parents and other relations. The respondent further contended there that she wanted a separate residence to save her from the cruelties both mental and physical practised upon her by the petitioner and his parents and other relations. It is further alleged that after she conceived there was a tremendous pressure on her to undergo abortion and to go for a consent divorce. The respondent who did not concede to such pressure was subjected to more torture. So when the petitioner on 19-5-80 proposed her to undergo abortion she was scared and to save her own life and the child in her womb, she left the house of the petitioner's parents at Nimta and went to her father's house. ( 5 ) THROUGH the memo of appeal, the wife/appellant has challenged the decree for dissolution of marriage mainly on the ground that the learned Trial Judge misconstrued the law laid down by the Hon'ble Apex Court in coming to a finding that the marriage between the parties had broken down irretrievably and there is no chance of the appellant and the respondent to live together as husband and wife. There is also a cross-objection filed on behalf of the respondent/husband contending, inter alia, that on the basis of the materials on record, the learned Trial Court ought to have held that the present respondent as the petitioner of the proceeding was successful in proving and establishing the ground of desertion by cogent oral and documentary evidence. Such Court ought to have decreed the suit also on the ground of cruelty on the basis of the materials on record holding that the present appellant treated the respondent with cruelty during their brief span of conjugal cohabitation. ( 6 ) IN this background, the question for our decision in the present appeal is whether the learned Court below is justified in granting the decree of divorce only on the ground that the marriage between the parties is broken down without any possibility or chance to repair the same. If not whether in the facts and circumstances of the case, a decree for dissolution of the marriage between the parties should be passed on the ground or grounds as contemplated under Section 13 (1) of the Hindu Marriage Act. ( 7 ) SECTION 13 (1) provides several grounds for obtaining divorce by either party to the marriage whether solemnized before or after the commencement of the Act. ( 7 ) SECTION 13 (1) provides several grounds for obtaining divorce by either party to the marriage whether solemnized before or after the commencement of the Act. Nowhere in such grounds or in Section 13 itself, it has been provided that the marriage between the parties under the Act can also be dissolved in the event of marital bond between the parties has broken down irretrievably without any chance of any reconciliation. No doubt, learned Court below has passed the decree under challenge on the aforesaid ground relying on the decision of this Court in the case of Sukhomoy bag v. Joya Bag, (1996) 1 Cal HN 210. In that case the husband/petitioner brought a matrimonial suit for divorce against the wife, inter alia, on the ground of cruelty, incompatibility, physical incapacity to consummate the marriage and mental imbalance of the wife. The trial Court dismissed the suit. In appeal this Court granted a decree of divorce under Sections 24 and 27 of the Special Marriage Act, 1954 on the ground that the marital bond between the parties has broken down permanently. In our considered opinion, the marriage between the parties cannot be dissolved, by the trial Court or even by the High Court only on the ground of marriage having been irretrievably broken down, in the absence of one or more grounds as contemplated under Section 13 (1) of the Hindu Marriage Act. Of course, if the Court is satisfied about the presence of one or more grounds as contemplated under Section 13, the fact that the marriage between the parties has been permanently broken down will lend additional force for the purpose of granting a divorce. The aforesaid view is in a way reflected in a decision of the Apex Court in the case of Chetan Dass v. Kamla Devi, (2001) 4 SCC 250 : ( AIR 2001 SC 1709 ). In para 21 (of SCC) 1 : (para 20 of AIR) of the said judgment, the Apex Court has observed as follows :-"in this case, the averment made in the petition for obtaining a decree for divorce, namely, desertion on the part of the wife without any reasonable case has not been found to be correct. The petition was liable to be dismissed on that ground alone. The petition was liable to be dismissed on that ground alone. The defence of the respondent for having a justified reason to live away from the husband has been found to be correct. Behaviour of the appellant certainly falls in the category of misconduct on his part. In such circumstances, it is too much on his part to claim that he be given the advantage of his own wrong and be granted a decree of divorce on the ground of desertion on the part of his wife who is still prepared to live with him provided he snaps his relationship with the other woman. Similar offer had also been made on behalf of the appellant, which, we have already dealt with in the earlier part of the judgment. He perhaps prefers to snap relationship with the respondent rather than with Sosamma Thomas. A decree of divorce on the ground of marriage having been irretrievably broken cannot be granted in the facts and circumstances of the case is indicated above. " ( 8 ) THAT being so it is evident that the learned Court below improperly decreed the suit on a ground which is not contemplated under Section 13 of the Hindu Marriage Act. Therefore, the further question for our consideration here will be whether in the facts and circumstances of the case, as disclosed in the evidence on record, there should be a decree of divorce, dissolving the marriage between the parties of the suit or not ? ( 9 ) IT has already been seen that the husband/petitioner has prayed for dissolution of marriage on two fold grounds, namely, cruelty and desertion as provided under Sections 13 (1) (ia) and (ib) of the Hindu Marriage Act. Since the learned trial Judge did not come to a favourable decision on those two grounds, inspite of his granting a decree of divorce, the husband/petitioner has filed a cross-objection, in connection with the appeal filed by the respondent/wife and such cross-objection has been heard along with the appeal. Taking the first thing first, the question is whether there is clear allegation touching the question of cruelty and whether such allegation is duly established through the clinching evidence on record. It is submitted on behalf of the husband/respondent the allegation that the wife treated her husband with cruelty is established by the two circumstances which have been unfolded in the evidence on record. It is submitted on behalf of the husband/respondent the allegation that the wife treated her husband with cruelty is established by the two circumstances which have been unfolded in the evidence on record. These are (i) that the wife agreed to live with her husband only on a condition that he would rent a separate house and would not continue to live in his family house, at Nimta with his relations (ii) the unfounded allegation that the husband and his parents demanded dowry. From the aforesaid allegations to which the learned counsel for the husband wants to draw our attention it is clear that the cruelty alleged in the instant suit is a mental cruelty. In the case of V. Bhagat v. D. Bhagat, reported in AIR 1994 SC 710 , the Apex Court has dealt with the question what kind of mental cruelty, is required to be established under Section 13 (1) (ia) in para 17 of such case, the Hon'ble Court made the following relevant observation :-"mental cruelty in Section 13 (1) (ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot be reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . What is cruelty in one case may not amount to cruelty in another case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. . . . . . . . . . . . . . . . . . . . . . . . . What is cruelty in one case may not amount to cruelty in another case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. "if the first allegation as pointed out by the learned counsel is considered in the light of the aforesaid observation of the Apex Court, then it can be said without hesitation that merely because the wife was reluctant to live in the joint family of the husband and wanted to live separately in another house with her husband and child, it cannot be said that such conduct on the part of the wife would cause such mental pain and suffering to the husband as would make it not possible for him to live with the wife. This is more so, in view of the clear evidence on record that the husband rented a house at Kestopur where he lived with his wife and child for a considerable period of time. Next is the unfounded allegation of demanding dowry made by the wife. No doubt, in paragraph 5 of the written statement an allegation has been raised that Judhisthir Biswas brother-in-law of the husband was the negotiator of the marriage between the parties and he opposed the unreasonable demand of the petitioner's parents for dowry. But the evidence of the wife/respondent as D. W. 1 has failed to establish clearly that there is any dowry demand at the time of marriage. In her examination-in-chief the wife has stated very clearly that in course of negotiation for the marriage, due to some unreasonable demands by the parents of her husband Judhisthir Biswas, the negotiator had some bitterness with them. But in the cross-examination at page 67, she has clearly stated that at the time of negotiation of the marriage nothing was demanded by the petitioner or his parents. She had also stated that she will produce documents (letters) as regards the bitter relation which had cropped up due to the demands by her mother-in-law for dowry. But in the cross-examination at page 67, she has clearly stated that at the time of negotiation of the marriage nothing was demanded by the petitioner or his parents. She had also stated that she will produce documents (letters) as regards the bitter relation which had cropped up due to the demands by her mother-in-law for dowry. In this way, it is found that the evidence of the wife regarding demand for dowry is inconsistent while in her examination-in-chief, she has clearly stated that during the negotiation stage there was some unreasonable demands by the parents of her husband due to which the relationship between the son-in-law and parents-in-law, namely, Judhisthir Biswas and the parents of the petitioner became bitter. But in the cross-examination she has stated that at the time of negotiation there was no demand by the petitioner or his parents. But she can produce letters to show that her mother-in-law made demands for dowry and she has got letters to prove it. The letters have not been produced and proved in this case. Moreover, there is no consistent evidence from the side of the wife to establish that there was a demand for dowry. Now the question is whether due to unfounded allegation of demand of dowry it can be said that there was a mental cruelty. It is to be noted here that the husband/petitioner has made an allegation that the wife is involved in an adulterous relationship with a person who also works in the office where the wife is employed. The petitioner/husband has not made any attempt to lead any evidence to establish such a grave allegation. So it can be said that both parties are equally guilty regarding making unfounded allegations and since the allegation raised against the wife touches her character, it is no doubt a very serious allegation but even after levelling such allegation, the husband did not think it necessary to lead any evidence. In the facts and circumstances of the case, it cannot be said that merely because of an allegation of dowry demand which is not sufficiently proved, a case of cruelty has been established against the wife. That being so, it can be said that the petitioner/husband is not entitled to get a decree for dissolution of marriage on the ground of cruelty. That being so, it can be said that the petitioner/husband is not entitled to get a decree for dissolution of marriage on the ground of cruelty. ( 10 ) NEXT comes the question of desertion, it transpires from the petition that allegation levelled against the respondent/wife regarding desertion is that after the birth of a male child on 10-10-1980 at the Lady Dafrin Hospital, Calcutta, she was not agreeable to come back to her in-laws place at Nimta and she insisted for a separate residence in the Beliaghata locality. The petitioner tried his best to rent a house in the Beliaghata locality, but finding no such accommodation in the said area, he had to rent a house at Krishnapur, P. S. Rajarhat, where the wife/respondent started to live with the petitioner. Further specific allegation, on this point is contained in paragraph 14 at page 17 of the P. B. The petitioner/husband alleged there that ultimately on 24-4-83, the respondent voluntarily withdrew herself with the child 'kunal' from the society of the petitioner and deserted the petitioner on that very day. On that occasion, the respondent left the residence at Krishnapur, P. S. Rajarhat with her gold ornaments, T. V. set, furniture and other articles which her father had gifted on the occasion of the marriage. It is further alleged that while leaving the petitioner finally with her child, the respondent/wife left a note on non-judicial stamp paper wherein she, inter alia, stated that she was leaving with the son Kunal and the goods already REFERRED TO above on her own for her parents house. It is specifically alleged in the petition that at the point of time, the parents, brothers of the respondent and also others were present. In this way it is the specific case of the husband/petitioner that the wife/respondent deserted him for good on 24-4-83 and on that occasion she left the residence where she used to live with her husband and child, not only with the child Kunal, but also she took away all the marriage gifts including the ornaments given as marriage gifts by her parents. The petitioner/husband on being examined as P. W. 1 has stated in his evidence that after his wife started living with him in the rented accommodation at Kestopur there was friction between the husband and the wife over the issue like frequent visits of the parents and brothers and sister of the respondent/wife in that rented house and frequent visit by the wife to her parents house at Beliaghata and also over the issue of petitioner's visit to his parents at their Nimta house and over the issue of providing the monetary assistance to his parents. According to the petitioner, the relationship became much strained over the issue of providing monetary assistance to his parents and this culminated the final withdrawal of the wife/respondent from the society of the husband. The specific evidence of the petitioner on this point is that on 24-4-83, the respondent/wife the house with her baby. Prior to such departure she had signed a non-judicial stamp paper wherein a list of all the articles which she had taken away had been incorporated. Such document was signed by both parties in presence of many persons. It is the further evidence that on such document, the parties to the suit, the father of the respondent, brother of the respondent, landlord of the house, respectable persons of the locality and neighbours put their signatures. The petitioner in his deposition clearly indicated at page 42 of the P. B. that his wife permanently deserted him on 24-4-83 against his will and consent, and such act of desertion was never condoned by the petitioner. It is significant to note that it is nobody's case that after 24-4-83 the parties agreed to and in fact started living together. In the cross-examination, the petitioner has clearly stated that the respondent/wife had left the house on 24-4-83 and after she had left the house, the petitioner gave up vacant possession of his tenanted portion in favour of the landlord about 6 years after 24-4-83 that is to say on and from 1st of May, 1983. The witness has denied the specific suggestion given from the side of the wife/respondent that it was he who decided to give up the possession of the tenancy and for this purpose had asked his wife to go away to her father's house on 24-4-83. The witness has denied the specific suggestion given from the side of the wife/respondent that it was he who decided to give up the possession of the tenancy and for this purpose had asked his wife to go away to her father's house on 24-4-83. The husband admitted after he had given up the possession of the tenancy on 1-5-83 he shifted to his paternal house at Nimta. P. W. 2 Runu Dutta is the landlord of the house wherein the parties stayed for sometime at Kestopur. According to him he has got a house at A. G. 23, Rabindrappally, Kestopur. The petitioner came there to live with his wife and child and according to the evidence of this witness they lived in that house peacefully for about 7/8 months. When the parties to the suit started living in that house, the witness, the landlord used to stay on the first floor of the said house. After 7/8 months, trouble between the parties started and their relationship became strained. On several occasions, the witness heard them quarrelling at the top of their voice. It is also his evidence that he advised the petitioner to get the matter amicably settled between them but the husband/wife could not settle the matter and as such the trouble and disturbance went on. Thereafter, the witness requested some other neighbours for their intervention of the purpose of settlement of dispute. It is his further evidence that he even asked the respondent as to the cause for such dispute and she stated that she was not willing to stay with her husband and she was ready to leave the house provided all the articles which were given to her at the time of her marriage had been returned back. The petitioner agreed to return all the articles to her. Thereafter on 24-4-83 in presence of father and brothers of the respondent and in presence of some other respectable persons of the locality the document was executed as regards return of the articles and the witness was one of the signatories of the said document. The document has been proved by P. W. 1 and has been marked Ext. 1. According to this witness, the respondent went away with her father to his house with all articles on the next day and the petitioner started to live alone in that house. The document has been proved by P. W. 1 and has been marked Ext. 1. According to this witness, the respondent went away with her father to his house with all articles on the next day and the petitioner started to live alone in that house. In this way, the petitioner lived there in the ground floor for a period of 15/20 days and when the respondent did not return within that time the petitioner vacated the tenancy. It transpires from the cross-examination of this witness that the fact of respondent wife's leaving the house with all the marriage gifts and after putting her signature on Ext. 1 is not disputed for once. No doubt there is some discrepancy between the case made out in the petition as well as in the evidence of P. W. 1 and the evidence of P. W. 2 regarding the specific date, when the wife/respondent actually left her husband with her child and marriage gifts. When the specific case is that on 24-4-83, the wife left her husband after signing the document Ext. 1. The witness P. W. 2 has deposed that the wife left the house with her father on the next day of signing the document Ext. 1. Similarly when the specific evidence of P. W. 1 is that he vacated the tenancy on first of May, 1983 that is to say a few days after his wife had left him, the P. W. 2 as landlord has stated that the petitioner left the house staying there for about 20 days after his wife had left him. So far as the second fact is concerned, it should be noted that the discrepancy relates to an unimportant fact here. So the question here will be whether discrepancy regarding the actual date of desertion by the wife seen in the evidence of P. W. 2 will be fatal for the petitioner's case or not ? In our considered opinion it cannot be fatal for the following reasons :- (I) The landlord who is totally disinterested person came to depose before the trial Court in April 1998 that is to say 15 years after the incident of desertion. Therefore, it may not be possible for him to give the clear picture of the actual date of desertion by the wife. Therefore, it may not be possible for him to give the clear picture of the actual date of desertion by the wife. Secondly, in Paragraph 14 of the plaint, the petitioner has alleged about the specific date when the respondent-wife left their Kestopur house with the child son and all her belongings. In the written statement through Paragraph 17, the respondent/wife alleged that the petitioner surrendered the tenancy of Kestopur house and decided to leave on 24-4-83 and the respondent/wife was asked to make a decision either to go to Nimta house or to go anywhere she liked. In that background, the respondent was forced to sign the document Ext. 1. Otherwise she was not allowed to take any of the articles or ornaments on her person. From the aforesaid plea taken in the written statement, it is clear that the respondent/wife left her husband and also left the Kestopur house on 24-4-83 with her belongings. Of course she has alleged that she had to do it under compulsion. Therefore, the plea of compulsion is required to be proved by the wife/respondent. On this point she has stated on oath that on 24-4-83 the petitioner husband asked her to go with him at Nimta and on her unwillingness to go with him, he asked her parents and other neighbours to come immediately at their residence at Kestopur and in their presence the husband/petitioner forced her to put her signature on a stamp paper and then he had practically deserted her and had gone to his father's at Nimta. Further evidence is that she along with her son went back to her father's house at Beliaghata on that very date. But the allegation of compulsion made by the wife-respondent is not supported by any other witness examined in connection with the suit. Smt. Titu Das, D. W. 2 who happened to be the niece of the landlord. On being examined by the respondent as a witness has stated that at the relevant point of time she as a spinster used to stay with his father Sudhin Kumar Dutta in a house which was situated at the adjacent back side of the house of her uncle Runu Dutta. This witness does not state anything about the circumstances under which the respondent had to leave the house at Kestopur. This witness does not state anything about the circumstances under which the respondent had to leave the house at Kestopur. On the other hand, the most competent witness on this point, the landlord of the house. P. W. 2 has not stated anything to show that actually the wife-respondent was compelled to leave the house at Kestopur. Moreover, such allegation seems to us weak at the test of probability. It is not denied that the document in question Ext. 1 was executed by the wife/respondent not only in presence of the landlord P. W. 2 and other neighbours and persons of the locality, but also in presence of her father and brothers. In that background, it is not probable that the husband would compel her to put a signature on the document. Moreover, it is not denied that on that occasion, the wife did not leave the house empty handed, but with all her belongings including gold ornaments and taking the child son of the parties with her. In that background, it cannot be said that the wife had to leave the house at Kestopur on being compelled by the husband, against her will. ( 11 ) IT is well settled that 'desertion' for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without other's consent and without reasonable cause. Desertion is not the withdrawal from a place but from the state of things. Desertion therefore means withdrawing from the matrimonial obligations that is to say not permitting or allowing and facilitating the cohabitation between the parties. It is not a single act complete in itself. It is a continuous course of conduct to be determined under the facts and circumstances of each case. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, (i) the factum of separation, and (ii) the intention to bring cohabitation permanently to an end (anumus deserendi ). Similarly two elements are essential so far as the deserted spouse is concerned (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to from the necessary intention aforesaid (Savitri Pandey v. Prem Chandra Pandey, reported in (2002) 2 SCC 73 : ( AIR 2002 SC 591 ). Similarly two elements are essential so far as the deserted spouse is concerned (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to from the necessary intention aforesaid (Savitri Pandey v. Prem Chandra Pandey, reported in (2002) 2 SCC 73 : ( AIR 2002 SC 591 ). ( 12 ) FROM the evidence on record we have already found that the wife left the house where she used to stay with her husband on 24-4-83. There is no evidence to show that after 24-4-83 when the wife left the matrimonial home with all her belongings, the parties ever resumed cohabitation. No doubt in her evidence, the wife has stated that she is willing to live with her husband even now (at the time of deposition ). But there is nothing to show that after 24-4-83 the wife ever expressed her willingness or approached the husband for the purpose of living together once again. In our considered opinion, in the facts and circumstances of the case we cannot much rely on the statement of the wife at the time of her deposition that she is ever willing to live with her husband. Such statement, it transpires has been made only to resist the allegation of desertion made by the husband. On consideration of the entire facts and circumstances, we are constrained to hold that on 24-4-83, the wife deserted the husband, with the intention to bring cohabitation permanently to an end and the same was done without the consent of the husband, and evidence on record coupled with the relevant circumstances do not indicate that husband was responsible for such withdrawal, on the part of the wife. ( 13 ) IN the result, the matrimonial suit should be decreed as done by the learned trial Court, but obviously this should be decreed on a different ground as indicated above. That being so, the appeal should fail but the cross-objection should be allowed in part in view of the fact that the suit is being decreed on the ground of desertion. The appeal is therefore dismissed but having regard to the circumstances we make no order as to cost. Cross-objection is disposed of as indicated above. ( 14 ) DILIP KUMAR SETH, J. :- I agree. Appeal dismissed.