JUDGMENT 1. - This appeal is directed against the judgment and decree passed by the learned Family Court No. 1, Jaipur, on 2.8.1999 whereby a petition filed by the appellant-husband (for short the husband') u/s. 13 of the Hindu Marriage Act, 1955 seeking decree, of divorce on the ground of desertion and cruelty was dismissed with costs of Rs. 500/. 2. In brief the facts giving rise to this appeal are that the appellant Shyam Sunder Tank averred in the petition that he was married with respondent Smt. Kanta Tank (for short the wife') on 20.5.1990 according to Hindu rites. The marriage ceremony took place at Jaipur. This was his second marriage as his earlier wife had expired and he had two issues from his earlier wife. The respondent wife was herself a divorcee. Soon after the marriage, the wife started humiliating the appellant husband by calling him a lame fellow as he was having an artificial leg. It is further alleged that in the month of June, 1990, the respondent wife left for Delhi along with her articles stating that she did not like the lame fellow. The appellant husband made all efforts to bring her back but she told him not to come Delhi as she could feel embarrassed and dishonoured in the society on account of he being a lame fellow. However, after persistent efforts the wife came back to Jaipur in the month of August, 1994 along with her daughter to whom she had given birth in Delhi. Then, the respondent wife remained with husband for about a year but all the time she misbehaved with him and frequently went Delhi. Finally, she left the appellant husband on 20.7.1995 and went to Delhi where she filed a petition for maintenance. The appellant husband used to go to Delhi to attend the dates of hearing in the said petition and he made his efforts to bring her back but she always refused and threatened him that she could entangle him in some false case. It is further alleged that as and when the respondent wife remained with him, she misbehaved with his earlier wife's two Issues as she did not like them and always treated them as step mother. During her stay at Jaipur, she always had a quarrel and threatened that she could commit suicide. 3. It is further alleged that as and when the respondent wife remained with him, she misbehaved with his earlier wife's two Issues as she did not like them and always treated them as step mother. During her stay at Jaipur, she always had a quarrel and threatened that she could commit suicide. 3. In the reply filed by the wife, she controverted all the allegations and averred that the husband had killed his earlier wife by putting her on fire and that she had married him being divorcee despite the husband being a handicapped fellow. It was further averred that she was usually beaten by the husband after drinking and the frequency of these incidents increased day by day and when it became unbearable she went to Delhi. It has also been alleged that she gave birth to a girl child in Delhi but the husband did not come to meet in spite being informed. It was further alleged that she went again to the husband but the situation did not improve and she had to return to Delhi along with her child and there she had to file a petition for maintenance u/s. 125 Cr.PC. Hence, she had prayed that petition be dismissed. 4. On the basis of the pleadings of the parties, the learned court below framed following issues: (1) Whether the respondent wife deserted the appellant husband without any reasonable cause and thereby willfully deprived the appellant husband from the benefits of his matrimonial rights? (2) Whether the respondent wife treated the appellant husband with cruelty? (3) Relief. 5. The parties led their evidence. The appellant husband examined himself as PW 1 and also examined Sunder (PW 2), Kunda (PW 3), Banney Singh (PW 4), Harnandi (PW 5) and Lalitkant (PW 6) in support, of his petition whereasihe respondent wife examined herself as DW 1 and also examined Sunil Verma (DW 2) and Yogesh Verma (DW 3) in support of her case. The learned Family Court after hearing final submissions, decided issues No. 1 and 2 against the husband and dismissed the petition as indicated above. 6. We have heard the submissions advanced before us and scanned the material on record. 7. On appraisal of the evidence led by the parties, it is revealed that the appellant husband had already two issues from his earlier wife who had expired. 6. We have heard the submissions advanced before us and scanned the material on record. 7. On appraisal of the evidence led by the parties, it is revealed that the appellant husband had already two issues from his earlier wife who had expired. The appellant husband was a disabled person and as such he decided to marry respondent wife so that she being a divorcee, she could also take care of his home and children. It Is revealed that the respondent wife was resident of Delhi and she had agreed to marry as she was divorcee and that she could find a home. It is further revealed that from the very beginning, the marriage ran into trouble as the respondent wife left the appellant husband in the month of June, 1990 on account of alleged atrocious behaviour and occasional assaulting after drinking. On the other hand, it is also revealed that the husband was treated with cruelty generally by harassing him by calling a lame fellow and by making allegation that the appellant had killed his earlier wife by putting her on fire. In view of the aforesaid strained relations, the respondent wife left for Delhi finally in the month of August, 1994 and there she gave a birth to a baby child and she also filed a petition under section 125 C.P.C. for maintenance. From the evidence led by the appellant, It is revealed that the husband had to go to Delhi to attend the hearing of the case filed against him and then he tried to persuade the respondent wife to come to Jaipur and stay with him. These efforts of the husband were thwarted by the wife by saying that he being a lame fellow, he could not come to her house at Delhi otherwise she could be dishonoured and feel humiliated amongst her relatives on account of he being a lame fellow. The marriage between the two parties had taken place in the month of May, 1990 and when the appellant husband and the respondent wife appeared in the witness box in May 1999, they were of 48 and 40 years old respectively and as such they were of advanced age and in facts and circumstances of the .case the wife had mentally parted her ways leaving behind hardly any chance of re-approachment. 8. 8. From the evidence on record we find that there has been an element of mental cruelty in the treatment meeted out by the wife to the husband by calling him a lame fellow and by accusing him for killing his previous wife by putting her on fire and also by way of leaving in lurch the husband and his two children from erstwhile marriage who were in need of care and help. Therefore, we find that the learned Family Court has failed to appreciate the evidence on record in proper perspective and the finding on issue pertaining to cruelty is not sustainable and is liable to be set aside. Therefore, the finding of learned Family Court on issue No. 2 is set aside and the issue is decided in favour of the husband-appellant. 9. Likewise, from the evidence on record it is revealed that the marriage had taken place in May 1990 and the respondent wife left for Delhi in June 1990 with her bag and baggage. and she gave birth to a girl child there and she came back in the year 1994 and finally left the husband appellant on 20.7.1995 and lodged a petition under section 125 Cr.P.C. for maintenance. In view of our finding on issue No. 2 regarding cruelty, we find that in the facts and circumstances of the case, it was wife respondent who had decided to. snap the matrimonial ties as she finally left for Delhi on 20.7.1995 and thereby deserted the husband appellant without any reasonable cause and thereby committed desertion for over a period of two years before the filing of the petition. Therefore, we find that the finding of learned Family Court pertaining issue No. 1 is not sustainable and the same is set aside and accordingly issue No. 1 is decided in favour of the appellant-husband. 10. We also find that the marriage in the instant case has been irretrievably broken down in view of our finding that the respondent wife treated the husband with cruelty and also deserted the husband without any reasonable excuse. 10. We also find that the marriage in the instant case has been irretrievably broken down in view of our finding that the respondent wife treated the husband with cruelty and also deserted the husband without any reasonable excuse. In Romesh Chander v. Savitri (Smt.), (1995) 2 SCC 7 , the Apex Court held that where a marriage being dead both emotionally and practically, it would tantamount to cruelty in prolonging the agony and affliction and in such cases of irretrievable breakdown of the marriage, this may be considered while deciding the divorce petition. In view of the above legal position, we find that the learned Judge, Family Court No. 1, Jaipur has failed to decide the matter in right perspective. Accordingly, the finding of issues No. 1 and 2 of the learned Judge, Family Court No. 1, Jaipur is set aside and the marriage of the appellant with respondent is liable to be dissolved. 11. We have also heard both the sides with regard to the question of alimony and we deem it proper to award a sum of Rs. 2,00,000/- (Two Lacs) by way of permanent alimony to the respondent wife. 12. Consequently, we allow this appeal of the appellant husband and set, aside the impugned judgment and decree dated 2.8.1999 passed by the learned Family Court No. 1, Jaipur. The marriage solemnised between the parties on 20.5.1990 Is dissolved. The respondent wife Is awarded a sum of Rs. 2,00,000/- (two lacs) by way of permanent alimony. No order as to,costs.Appeal Allowed. *******