JUDGMENT 1. The appellant-wife has preferred this appeal under section 28 of the Hindu Marriage Act (for short "the Act"), being aggrieved by the judgment and decree dated 4.1.2003 passed by I Additional District Judge, Betul in Civil Original Suit No.1-A/02 allowing the application of the respondent husband filed under section 13(1)(b) of the Act for divorce on the ground of desertion. 2. The facts giving rise to this appeal in short are that the respondent filed an application under section 13 of the Hindu Marriage Act contending that he got married with the appellant on dated 20.6.1987 at village Danora. Out of this wedlock, they are blessed with a son Virendra who is aged 11-12 years, residing with the appellant. The respondent being in police service was posted at Police Station Bordehi where in the lack of proper arrangement for residence; he kept the appellant at his parental home, Betul and was visiting frequently. As per further averment appellant was habitual to go the parental home frequently. However, she was kept at Betul in 1989 in her pregnancy period but soon after the delivery she left the matrimonial home for Gadarwara and since then she is residing there with parental family. During this period respondent made various efforts to bring her back but could not get success, on which he filed an application under section 9 of the Act for restitution of conjugal rights, as Civil Original Suit No. 17-A/89. The same was compromised by bringing the appellant with him but later she again went to her parental home and filed the proceedings under section 125 of the CrPC in which he is paying the maintenance. The appellant left his company without any reasonable and sufficient excuse and residing separately since last 11 years. With these pleadings the prayer for dissolution of the marriage is made. 3. In the written statement of the appellant, by admitting the facts of the aforesaid marriage and the birth of the child, all other averments of the petition are denied. In addition it is stated that from the very beginning of the marriage, she was insisted by the respondent to get the divorce with intention to perform second marriage. On one occasion, kerosene oil was also poured on her. She was subjected to cruelty and harassment in matrimonial home on account of bringing the less dowry. In addition it is stated that from the very beginning of the marriage, she was insisted by the respondent to get the divorce with intention to perform second marriage. On one occasion, kerosene oil was also poured on her. She was subjected to cruelty and harassment in matrimonial home on account of bringing the less dowry. In such circumstances, she was brought to her parental home through search warrant. Respondent used to threaten her saying that he is working in the police department; hence, nobody could do anything against him. She was kept in confinement in matrimonial home and was not permitted to meet the persons visiting the house. In this regard a written report was also given to Police Betul in 1989. The respondent did not take any step to bring her back. The proceedings of section 9 of the Act got dismissed with compromise by the respondent just to avoid the liability to pay the alimony and expenses under section 24 of the Act. After disposing of such proceedings respondent declined to bring her with him. On which, she filed the application under section 125 of the CrPC claiming the maintenance for livelihood. It is also stated that in her life time without getting any lawful decree of divorce, the respondent got remarried with some other woman in 1991 with whom he is residing and also got some issues. With these averments the prayer for dismissal of the petition is made. 4. In the light of the pleadings of the parties as many as four issues were framed and the evidence was recorded. On appreciation of the same the trial Court passed the aforesaid decree of divorce against the appellant. The same is under challenge in this appeal. 5. The appellant's counsel assailed the impugned decree saying that the appellant neither deserted nor left the company of respondent without any sufficient cause or excuse. By referring the evidence he said that the respondent insisted her to get divorce to facilitate him for re-marry with some other lady and as per available evidence in her life he got remarried with other woman of Sausar from whom he also got two children, in such premises it could not be inferred that appellant left the company of the respondent without any excuse and deserted him. In fact the appellant created the circumstance insisting her to reside separately. In fact the appellant created the circumstance insisting her to reside separately. He further said that the proceedings filed by the respondent under section 9 of the Act was culminated with the compromise in which the respondent intended to bring her with him for cohabitation and enjoying the married life, it shows that appellant was always remained ready to reside with the respondent as his wife but respondent was the only person who did not take the appellant with him in terms of compromise. It was also argued that while residing in the family of respondent she remained under the cruel treatment of the family members on account of bringing the less dowry. Due to such reasons she was brought to her parental home through search warrant. Subsequent to it no efforts were made by the respondent to bring her back. In such premises he said that mere on account of residing separately it could not be inferred that she left the company of the respondent without any sufficient cause or excuse. The trial Court without appreciating evidence with proper approach passed the impugned decree under the wrong premises. With these submissions he prayed for setting aside the impugned judgment and decree with dismissal of the respondent petition by allowing the appeal. 6. On the other hand by supporting the impugned judgment and decree Shri A.D. Mishra, learned counsel for the respondent said, the same is based on proper appreciation of the evidence and also in conformity with law. The appellants had left the company of the respondent and deserted him long back in the year 1989-90 without any sufficient excuse. Thereafter on making various efforts to bring her back, he could not get success, as the appellant was not willing to come the matrimonial home. He also referred the deposition of respondent as well as the supporting witness Kishanlal Kamadkar in this regard. He further said that in the lack of any admissible evidence the contention of the appellant that respondent got remarried in her lifetime or committed any act of cruelty are not sustainable and prayed for dismissal of this appeal. 7. Having heard the counsel, after perusing the record of the impugned judgment, I am of the considered view that the impugned decree deserves to be set aside because of following reasons. 8. 7. Having heard the counsel, after perusing the record of the impugned judgment, I am of the considered view that the impugned decree deserves to be set aside because of following reasons. 8. The impugned decree has passed only on the ground of desertion stating that appellant without any sufficient excuse by leaving the company of respondent is residing separately since 1990-91. But mere residing the appellant separately is not sufficient to hold the desertion and passing the decree for dissolution of the marriage against the appellant. Something more is required in this regard as directed by the apex Court presided over by the Hon'ble five Judges Bench in the matter of Lachman Utamchand Kirpalani v. Meena alias Mota, reported in AIR 1961 SC 40, in which it was held as under: "18. The question as to what precisely constitutes "desertion" came up for consideration before this Court in an appeal for Bombay where the Court had to consider the provisions of section 3(1) of the Bombay Hindu Divorce Act, 1947 whose language is in pari materia with that of section 10(1) of the Act. In the judgment of this Court in Bipin Chandra v. Prabhavati [ 1956 SCR 838 ; (S) AIR 1957 SC 176 ], there is an elaborate consideration of the several English decisions in which the question of the ingredients of desertion were considered and the following summary of the law in Halsbury's Laws of England (3rd Edn.) Vol. 12 was cited with approval: "In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the order without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases." The position was thus further explained by this Court : "If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. ... Desertion, is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time." Two more matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases, and this is a point to which we have already made a passing reference. It is settled Law that the burden of proving desertion -- the 'factum' as well as the 'animus deserendi' -- is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause. As Dunning, observed {Dunn v. Dunn [(1948)2 All ER 822 at p.823]}: "The burden he (Counsel for the husband) said was on her to prove just cause (for living apart). The argument contains a fallacy which has been put forward from time to time in many branches of the law. The fallacy lies in a failure to distinguish between a legal burden of proof laid down by law and a provisional, burden raised by the state of the evidence. The legal burden throughout this case is on the husband, as petitioner, to prove that his wife deserted him without cause. To discharge that burden he relies on the fact that he asked her to join him and she refused. That is a fact from which the Court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and, indeed, it is usually wise for her to do so, out there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the Court has still, at the end of the case, to ask itself. Is the legal burden discharged? Has the husband proved that she deserted him without cause? Take this case. The wife was very deaf, and for the reason could not explain to the Court her reasons for refusal. The Judge thereupon considered reasons for her refusal which appeared from the facts in evidence, though she had not herself stated that they operated on her mind. Counsel for the husband says that the Judge ought not to have done that. If there were a legal burden on the wife he would be right, but there was none. The legal burden was on the husband to prove desertion without cause, and the Judge was right to ask himself at the end of the case. Has that burden been discharged?" 19. This, in our opinion, is as well the law in this country under the Act. 20. The other matter is this. The legal burden was on the husband to prove desertion without cause, and the Judge was right to ask himself at the end of the case. Has that burden been discharged?" 19. This, in our opinion, is as well the law in this country under the Act. 20. The other matter is this. Once desertion, as defined earlier, is established there is no obligation on the deserted husband (taking the case where he is the deserted spouse) to appeal to the deserting spouse to change her mind, and the circumstance that the deserted husband makes no effort to take steps to effect a reconciliation with the wife does not debar him from obtaining the relief of judicial separation, for once desertion is proved the deserting spouse, so long as she evinces no sincere intention to effect a reconciliation and return to the matrimonial home, is presumed to continue in desertion. Of course, the mater would wear a different complexion and different considerations would arise where before the end of the statutory period of 2 years or even thereafter before the filing of the petition for judicial separation the conduct of the deserted spouse was such as to make the deserting spouse desist from making any attempt at reconciliation. If he or she so acts as to make it plain to the deserting spouse that any offer on the part of the latter to resume cohabitation would be rejected, then the deserting spouse could obviously not be blamed for not bringing the desertion to an end. Or again, if before the end of the period of two years or the filing of the petition his or her conduct is such as to provide a just cause for the deserting spouse for not resuming cohabitation, the petition cannot succeed, for the petitioner would have to establish that the desertion was without just cause during the entire period referred to in section 10(1)(a) of the Act before he can succeed." The aforesaid case was decided while dealing with the matter of section 9 of the Act by considering the provision relating to judicial separation enumerated under section 10(1) (b) of the Act. The language of such section is pari materia with that of section 13(1)(b) of the Act. The language of such section is pari materia with that of section 13(1)(b) of the Act. Therefore, in order to decide the question of desertion the case at hand could be examined safely keeping in view the principle laid in the above mentioned case. 9. In view of the aforesaid this Court has to find the answer of two questions. If the answers of both the questions are in affirmative then the impugned decree deserves to be upheld and if otherwise then this Court has to set aside the impugned decree by dismissing the petition of the respondent: i. The factum of separation. ii. Whether respondent has proved the appellant's intention of bringing by cohabitation permanently to an end (animus deserendi)? 10. So far first question is concerned, undisputedly parties are residing separately since last many years, therefore, this question does not require any more consideration hence, the same is answered affirmative and it is held that they are residing separately. So far other question is concerned, Court has to consider the evidence to find out the appellant's intention residing separately; whether she has animus deserendi against the respondent or residing separately with sufficient cause because of the act of the respondent. 11. The respondent petitioner Laxminarayan (PW 1) by admitting the factum of marriage deposed that he filed the proceeding for restitution of conjugal rights in the District Court, the same was disposed off with compromise. According to which the appellant with her child had to come the matrimonial home with him. But soon after compromise she went to her parental home saying that she will go tomorrow with the son. Thereafter she did not turn up. Thereafter on making efforts to bring her back for 34 occasions, he could not get success. Besides this he also wrote some letters to her, inspite it she did not come back and initiated the proceeding for maintenance at Gadarwara where she is residing since last 10-12 years. In order to prove the factum of alleged compromise, the compromise application or any order of such Court neither produced nor proved on record. Although he stated that he went to bring the appellant but could not state the name of any person with whom he visited his in-law's house for this purpose. In order to prove the factum of alleged compromise, the compromise application or any order of such Court neither produced nor proved on record. Although he stated that he went to bring the appellant but could not state the name of any person with whom he visited his in-law's house for this purpose. According to his own case he wrote some letters to the appellant in this regard but no such evidence is adduced by him. On perusing his cross-examination I have not found any reliable circumstance showing that appellant left his company without any sufficient excuse. In para 4 of his deposition he stated that before filing the present proceeding he gave a notice to the appellant but its copy is neither produced nor proved on record. In para 10. he said that his father with Kishan the son of his maternal uncle and Lallan Choudhary went to bring the appellant but could not disclose at what point of time they went. Out of them only Kishanlal Kamadkar was examined while the other named persons neither examined nor any explanation in this regard was put forth on the record. In deposition said Kishanlal (PW2) stated that he went with Laxminarayan to bring the appellant from her parental home where she refused to come but he did not disclose on which date or occasion he went there. In this regard his testimony does not appear to be reliable because it is not supported by the testimony of respondent Laxminarayan, as he did not speak that he went along with this witness to bring the appellant. Besides it this witness did not state any material thing giving circumstance to draw any inference against the appellant to hold that she deserted the respondent. 12. On the other hand the appellant Nasika (DW1) in her deposition categorically stated that after marriage she resided at the native place of respondent with his parents; as he was not interested to keep her at the place of his service. She also stated regarding cruel treatment of the respondent and his family members given to her in the matrimonial home on account of bringing the less dowry. She also stated about threatening of the respondent to get remarried in her lifetime. She also stated regarding cruel treatment of the respondent and his family members given to her in the matrimonial home on account of bringing the less dowry. She also stated about threatening of the respondent to get remarried in her lifetime. She further stated that on receiving the information regarding cruel treatment with her in the matrimonial home her brother brought her to parental home through search warrant only after one year of her marriage, and thereafter no one came to bring her from the family of the respondent, therefore she could not go the matrimonial home. So far the proceedings for restitution of conjugal right is concerned, she said that on the date of compromise she did not bring her child to Court and as per settlement she had to come with child on next day in Court from where they had to go with respondent. According to such condition she along with her son came to the Court on next day but respondent did not come to bring them, in such situation they went back to her parental home and since then they are residing there, during this period no one has come to bring her from her matrimonial home. She also stated that she did not receive any notice from the respondent. She further deposed that according to her information respondent got remarried with a woman of Sausar from whom he got one daughter and one son, in such situation she does not want to go the respondent's house and also does not want divorce from him. In her cross-examination I have not found any material thing destroying the version stated by her in chief. Her testimony is further supported by her brother Manoharrao Deshmukh (DW2) who categorically deposed regarding cruel treatment of the appellant in matrimonial home by describing certain incidents, he said that in such situation the appellant was brought to their home. He also stated that the appellant was threatened by the respondent to give divorce and as per his information respondent got remarried with some lady of Sausar from whom he also got two children. In his cross-examination the version stated in chief was remained intact on the material facts. 13. He also stated that the appellant was threatened by the respondent to give divorce and as per his information respondent got remarried with some lady of Sausar from whom he also got two children. In his cross-examination the version stated in chief was remained intact on the material facts. 13. The depositions of the appellant and her witnesses stating that in the lifetime of the appellant respondent got remarried with other woman from whom he also got two children have not been rebutted in their cross-examination. Although such evidence of the appellant is not supported by an independent source. But the same has not been considered by the trial Court with proper approach. In any case it being un-rebutted evidence the trial Court was bound to appreciate the same with its spirit. Therefore, it is held that trial Court has committed error in appreciating the evidence in this regard. 14. In view of the aforesaid discussion it has been revealed that the respondent got remarried or was residing with some other woman in the lifetime of the appellant. Such cause could be termed as sufficient cause for the appellant to abandon the company of the respondent and residing separately. Apart from this, as discussed above, there is sufficient evidence to draw the inference that in the last many years the respondent did not take any step to bring the appellant from her parental house. He did not show his sincerity in this regard. Therefore, it could not be inferred that the appellant has left the company of the respondent and deserted him without any sufficient execuse and same could not be a foundation for passing the decree of divorce. 15. Accordingly, it has been established that because of the aforesaid conduct of the respondent-husband the appellant is residing with her parents while earlier in the proceedings of restitution of conjugal rights on compromise she expressed her readiness and willingness to go and reside with the respondent but the respondent is the person who never remained sincere in that respect to perform his part sincerely. In such circumstances, it could not be inferred that appellant has left the company of respondent and deserted him without any sufficient excuse. In such circumstances, it could not be inferred that appellant has left the company of respondent and deserted him without any sufficient excuse. Earlier this question is also answered by this Court in the matter of Harish Kumar Ledwani v. Smt. Anita Ledwani, reported in AIR 2003 M.P. 197 , in which it was held as under: "31. ... Moreover, as noticed above the facts and circumstances of the present case as can be deciphered from the evidence led in the case go to show that it was the conduct of the appellant-husband which was responsible for the respondent-wife to live separately. In fact, as was noticed earlier that though the respondent-wife accepted the offer of the appellant-husband to start cohabitating and living with him, but the husband was not sincere about it and did not honestly try for the resumption of marital ties." 16. In view of the aforesaid discussion, it is held that due to sufficient reason and excuse the appellant is residing separately. Therefore, it cannot be inferred that she is residing in such situation with intention to bring the cohabitation permanently to an end or had any "animus deserendi" against the respondent. On the contrary it has been proved that respondent is the only person who created the atmosphere in the family insisting the appellant to reside separately under compulsion. Thus, it cannot be inferred that she deserted the appellant without any excuse. Therefore the second question is answered negative and against the respondent. 17. Under the aforesaid premises the judgment and decree of the trial Court being perverse is not sustainable and deserves to be set aside. 18. Therefore, this appeal is allowed and by setting aside the impugned judgment and decree the petition filed by the respondent under section 13 of the Act is hereby dismissed. The respondent shall bear his own cost and shall also pay the cost of litigation to the appellant throughout. The cost of this appeal is quantified Rs.5,000/-. Decree be drawn up accordingly. 19. Appeal is allowed.