JUDGMENT P. K. TRIPATHY, J. — The above described Jatindra Kumar Misra original appellant in Civil Appeal No. 39 of 1994 is the husband and Smt. Manorama Satpathy, appellant in Civil Appeal No. 38 of 1994 is the wife. For the sake of convenience they are described as husband and wife respectively. 2. Husband filed Original Suit No. 54 of 1990 in the Court of Subordinate Judge, Cuttack praying for a decree of divorce or in the alternative for judicial separation. That suit being transferred to the Court of Judge, Family Court, Cuttack was registered as Civil Proceeding No. 104 of 1991. The husband plead¬ed that marriage between the parties was solemnised on 7.12.1985 in accordance with the Hindu rites and custom. By the date of marriage, husband was serving as a Lecturer at Chandikhol Col¬lege, whereas the wife was serving as a teacher at Ochapada under Tangi P.S. in the district of Cuttack. They resided together at Chandikhol. A male child was born on 24.4.1987 out of the wed¬lock. According to the allegation made by the husband, attitude of the wife was “sluggish, arduous and apathetic” towards the husband and she intended and insisted that the couple should reside at her father’s house for the sake of her convenience. The husband did not agree to that proposal and therefore, shortly after giving birth to the male child the wife went and stayed in her parent’s house and did not return in spite of best of his efforts and repeated approach to bring her back. Thus, advancing the case under Section 13 (1) (i-a) and (i-b), the husband sought for, as noted above, a decree of divorce or alternatively a decree for judicial separation. 3. In her written statement, the wife pleaded that marriage was performed on 7.12.1985 and the son was borne out of the wedlock on 24.3.1987. After solemnisation of the marriage, she stayed in her matrimonial home at Deula Sahi in Cuttack town for six months and thereafter with the husband at Chandikhol. Notwith¬standing delivery of goods and dowry articles the husband having addicted to bad. habits, taking intoxicating articles and de¬veloping weakness towards the girls students in the College, the husband wanted a further amount of Rs. 20,000/- per annum from her father. Notwith¬standing delivery of goods and dowry articles the husband having addicted to bad. habits, taking intoxicating articles and de¬veloping weakness towards the girls students in the College, the husband wanted a further amount of Rs. 20,000/- per annum from her father. He also made presentations of her ornaments to his female friends and ill-treated and tortured her both physically and mentally and ultimately on 16.10.1991, drove her out. She has denied to the allegation that the husband either wanted or made attempt for her return to the matrimonial home. She has further stated that on 4.12.1991, she lodged a complaint before the D.I.G. of Police, HADD alleging about demand of dowry and torture and a Police case was registered against the husband under Sec¬tion 498-A, I.P.C. read with Section 4 of the Dowry Prohibition Act. She denied to accept a decree of divorce or a decree of judicial separation. 4. On the basis of the aforesaid contentious pleading the following issues were framed by the Judge, Family Court. (i) Whether the respondent wife caused ill-treatment, mental torture and deserted the petitioner since more than two years prior to the institution of this case ? (ii) Whether the suit for divorce is maintainable ? (iii) To what relief, if any, are the parties entitled to ? 5. To substantiate their respective cases, both the parties adduced both oral and documentary evidence. Each of them examined themselves and no other witness from either of the parties. Report of the D.I.G. of Police dated 4.12.1991 was marked as Ext. 1 on behalf of the husband and copy of the correspondences, C.L. application etc., were marked as Exhibits A to E/1 on behalf of the wife. On assessment of such evidence on re¬cord, learned Judge, Family Court, recorded the finding that lodging of the F.I.R. with the D.I.G., HADD and registration of a Criminal case in the name of the husband and his family members has caused greatest mental torture to the husband and when admit¬tedly she stays with he parents for over a period of two years preceding the date of presentation of the divorce application, therefore, it is proved on record that the wife deserted the husband for the statutory period. Accordingly, the trial Court held that the husband is entitled to a decree of divorce. Accordingly, the trial Court held that the husband is entitled to a decree of divorce. Learned Judge, Family Court, further recorded the finding and passed the order that since there is no likelihood of reunion between the two and the male child born out of the wedlock is to be brought up by the wife, therefore, the decree of divorce should be along¬with the alimony in the shape of compensation at Rs. 50,000/- towards the wife for the goods and presentations and a further sum of Rs. 30,000/- for the maintenance of the son. When the wife has filed Civil Appeal No. 38 of 1994, challenging to the afore¬said decree of divorce in addition to claiming a sum of rupees two lakhs for maintenance of the son, the husband filed Civil Appeal No. 39 of 1994, challenging to the decree of Rs. 50,000/- in favour of the wife as unwarranted and illegal. 6. During pendency of the above Civil Appeals, applications for substitution was filed by the wife in Civil Appeal No. 38 of 1994 praying for substitution of the father of the husband as the legal representative. In Civil Appeal No. 39 of 1994, father of the husband also filed an application to substitute himself, in place of his deceased son. Both the applications for substitu¬tions were allowed. Sri Govind Chandra Mishra, father of the deceased husband, has been substituted as the legal representa¬tive. 7. Both the appeals were heard analogously having been preferred against the common judgment, and this judgment shall abide the result in both the Civil Appeals. 8. In course of hearing, the 1st contention which came up for consideration is as to whether the matrimonial proceeding for divorce or judicial separation is liable to abate because of the death of the husband. It is the contention of the appellant in Civil Appeal No. 39 of 1994 (Sri Govind Chandra Mishra) that when a decree involves payment of money of Rs. 50,000/- to the wife and that part of the decree has been challenged, therefore, the appeal is maintainable by him in as much as if the decree of the trial Court is sustained, then, as the legal representative of the husband, he is liable to make payment of the same from the Estate of his son. 50,000/- to the wife and that part of the decree has been challenged, therefore, the appeal is maintainable by him in as much as if the decree of the trial Court is sustained, then, as the legal representative of the husband, he is liable to make payment of the same from the Estate of his son. In support of his contention relating to maintaining the appeal on behalf of the deceased-husband, he relies on the ratio in the case of Smt. Yallawwa v. Smt. Shantavva A.I.R. 1997 S.C. 35. On the other hand, the wife argues that the relief claimed by the husband being personal to him vis-a-vis the wife, therefore, the decree under appeal no more subsists and the proceeding is to abate in toto as a consequence of which every direction in the decree including the decree for money also abates. Her contention is that the abatement of the appeal has the effect of abating the whole proceeding in as much as appeal is a continuance of the original proceeding. 9. On the merit, it is argued on behalf of the husband that a case of cruelty and desertion has been properly proved, that decree is not liable to be disturbed. In support of that argument he relies on the ratio in the cases of Dr.N. G. Dastane v. Mrs. S.Dastane AIR 1975 S.C. 1534 , V. Bhagat v. Mrs. D. Bhagat, AIR 1994 S.C. 710 , G.V.N. Kameswara Rao v. G. Jabilli, AIR 2002 S.C. 576 , and Vijaykumar Ramachandra Bhate v. Neela Vijaykumar Bhate, AIR 2003 S.C. 2462 . He further argued that when the wife is an earning member being a serving lady and there is no proof of any of the marriage presentations having been retained by her hus¬band, therefore, grant of decree for payment of compensation is unwarranted and in that respect, learned Judge, Family Court has recorded the finding in the absence of any evidence on record in proof of such a plea raised in the written statement of the wife. 10. The wife on the other hand, argued that the factum of ill-treatment and cruelty by her is not made out only from the circumstances of lodging F.I R. against her husband. Since she was driven out by the husband a case of desertion is not made out against her. 10. The wife on the other hand, argued that the factum of ill-treatment and cruelty by her is not made out only from the circumstances of lodging F.I R. against her husband. Since she was driven out by the husband a case of desertion is not made out against her. Accordingly, she argued that the husband had failed to prove a case of desertion and cruelty so as to be entitled to a decree of divorce or judicial separation. She further argued that she is not interested in the compensation awarded to her and her son is entitled to maintenance from the earnings, savings and estate of her husband and therefore the impugned decree be set aside. 11. In the case of Yallawwa (supra) similar question was considered by Honourable Apex Court on the facts that husband obtained an ex parte decree of divorce against the wife and thereafter filed a suit for permanent injunction restraining the divorced wife from interfering with his possession of the suit property and even he obtained interim injunction in March, 1990. The husband died on 26.5.1990 and thereafter the wife filed application under Order IX Rule 13, C.P.C. to set aside the ex parte divorce decree. Mother of the husband opposed to that appli¬cation. Trial Court rejected that application on the ground of delay. The High Court of Karnataka, in Revision under Section 115, C.P.C. allowed that application and consequentially set aside the ex parte decree and restored the divorce proceeding. Apex Court treated that order of the High Court to be an order under Order XLIII Rule 1 (d) C.P.C. On consideration of the rival contention relating to personal nature of a decree of divorce between the spouses and the effect of an ex parte decree, Honour¬able Apex Court propounded that : “......It must, therefore, be held that after a decree of divorce is obtained by the petitioning husband against his wife she has right to file an appeal and such appeal does not abate on account of the death of the respondent-husband whether such death taken place prior to the filing of appeal or pending the appeal. Similarly if an ex parte decree of divorce is obtained against the wife and thereafter if the husband dies, the aggrieved wife can maintain an application under Order IX, Rule 13, C.P.C. even though the husband might have died prior to the moving of that application or during the pendency of such application. In all such cases other legal heirs of the deceased-husband can be brought on record as opponents or respondents in such proceedings by the aggrieved spouse who wants such decree to be set aside and when the other heirs of the deceased-husband would naturally be interested in getting such decree confirmed either in appeal or under Order IX, Rule 13, C.P.C.....” Their Lordships after maintaining the order for setting aside the ex parte decree and restoration of the suit for divorce, however, recorded an order of abatement because of the death of the husband on the ground that no action survives for the Court to snap a non-existing tie after the death of the husband. 12. In view of the above settled principle, both the appeals have to be considered on merit and cannot be disposed of on technical ground of abatement. 13. As already noted in this judgment, the husband’s application for divorce is on the ground of cruelty and desertion for continuous period of over two years preceding the date of presentation of the application for divorce. The husband deposed in the Court that wife was always arro¬gant and egoistic,she was calling him drunkard, she was assassi¬nating his character and was abusing him, she used to go to her parent’s house situated at a distance of 27 K.Ms. at the time of his return to the house from the College and she was mixing with her male colleagues. He also deposed denying to the allegations of ill-treatment and cruelty but cast aspersion about the cruelty on the ground of lodging of Police case on the F.I.R. of the wife. Learned Judge, Family Court, recorded the aforesaid conduct of the wife in lodging the complaint as an act of cruelty to find support in support of that plea. It appears that the F.I.R. (Ext.1) was lodged in December, 1991 whereas the application under Section 13 of the Act, was filed by the husband on 5.12.1990 i.e., about a year before. Learned Judge, Family Court, recorded the aforesaid conduct of the wife in lodging the complaint as an act of cruelty to find support in support of that plea. It appears that the F.I.R. (Ext.1) was lodged in December, 1991 whereas the application under Section 13 of the Act, was filed by the husband on 5.12.1990 i.e., about a year before. Under such circumstance,the evidence of the husband suffers from lack of pleading and the finding of the trial Court suffers from lack of appreciation of that circum¬stance. The husband could not have advanced the plea of cruelty on the assumption of the institution of a Criminal case one year after filing of the petition for divorce. Thus, the aforesaid circumstance even if proved on record is not sufficient to prove the allegation of cruelty. 14. Referring to the case of Bijay Kumar (supra), G.V.N. Kameswara Rao (supra) and V. Bhagat (supra), learned counsel representing the interest of the husband through his father argued that the conduct and attitude of the wife towards the husband as narrated by him in his evidence is sufficient to prove the ground of cruelty. On different facts in consideration of specific evidence on record, be it admitted or proved, Honourable Apex Court, in the above noted decisions, have found the attitude and conduct of the wife sufficient in such cases to prove the ground of cruelty. Such is not the case so far as the present case is concerned in as much as the husband did not plead about the manner and instances of cruelty, except stating that the wife had been very “sluggish, arduous and of apathetic attitude” to¬wards the husband. The wife has denied to the allegation of ill-treatment and cruelty by her and no corroborating evidence has been given on behalf of the husband in support of such plea. Apart from that, husband has not stated in his evidence that he is not a drunkard but he was so called by the wife and even if he was not keeping any affair with other girls then also the wife abused him in assassinating his character. Apart from that, husband has not stated in his evidence that he is not a drunkard but he was so called by the wife and even if he was not keeping any affair with other girls then also the wife abused him in assassinating his character. Therefore, when the wife has taken the plea of the aforesaid bad qualities of the husband by making specific plea in the written statement and even in his evidence the husband has not denied to the said allegations, therefore, he cannot be capitalised on that plea on the written statement as a ground of cruelty and more so when he has not spe¬cifically pleaded about cruelty on such grounds. The weakness in the plea of the defendant or lack of proof thereof cannot be capitalised by the husband so as to cover up the weakness of his case be it in pleading or evidence. Under such circumstance, the husband has failed to prove the ground of cruelty. 15. So far as the plea of desertion is concerned the evi¬dence on record remained counter balanced with mutual allegations against each other, by the husband and the wife. Desertion amounts to voluntary disassociation of one spouse from the Socie¬ty of other having no reasonable excuse or without any cause. In this case, in his evidence, the husband deposed that his wife was dissatisfied with him and was calling him a drunkard and man of no character. When a child was born out of the wedlock and the wife resided with him and his family for about five years, it cannot be said that she walked away quietly from the association of the husband for no reason whatsoever. In that context, the wife in her evidence explained that it is the bad habits and the desire for easy money from her that the husband ill-treated her and forced her to leave the matrimonial house. That evidence has also remained uncorroborated and equally weak like the evidence of the husband. 16. In view of the aforesaid deficiency in evidence, there could have been an order of remand directing the parties to adduce further evidence for proper adjudication of the dispute. When admittedly, the husband has died and the personal cause no more subsists, therefore, such an exercise is not warranted. 16. In view of the aforesaid deficiency in evidence, there could have been an order of remand directing the parties to adduce further evidence for proper adjudication of the dispute. When admittedly, the husband has died and the personal cause no more subsists, therefore, such an exercise is not warranted. On the other hand the counter-balanced evidence of the spouses if considered on the pre-ponderance of probabili¬ties relating to the plea of desertion, then it appears to this Court that the wife, a serving lady, who resided with the husband for over a period of four years and begot a child to him could not have quietly walked away from his family because of any greedy nature which as alleged was imbeded with her. On the other hand her departure from the house was because of certain develop¬ments because of a growing ill-feeling. In such a case it cannot always be a case of desertion. We, accordingly, record such a finding. Thus, it is seen that the impugned judgment and decree of divorce and alimony which was passed by the Court below was in the absence of any proof of the factum of desertion and cruelty by the husband, and in the absence of a claim of compensation to¬wards loss of articles by the wife and, therefore, the decree is liable to be set aside. Accordingly, the impugned decree is set aside in toto and accordingly both the Civil Appeals are allowed and it is held that the petition for divorce is dismissed along with the decree for alimony of Rs. 50,000/- (fifty thousand) granted towards the wife. Under the peculiar facts and circumstances, as noted above, parties are directed to bear their respective costs of litiga¬tion. Hearing-fee is assessed at contested scale. CH. P. K. MISRA, J. I agree. Civil Appeals allowed.