Judgment [Per: Hon'ble Prafulla C. Pant, J. (Oral)] This appeal, preferred under Section 19 of Family Courts Act, 1984 read with Section 28 of Hindu Marriage Act, 1955, is directed against the judgment and decree dated 16-04-2005, passed by Principal Judge, Family Court, Nainital in Suit No. 21 of 2001, whereby appellant's petition under Section 13 of Hindu Marriage Act, for decree of divorce, is dismissed. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief fact of the case are that Uday Shankar Prasad (appellant) got married to Sangeeta Rani (respondent) on 20th April 1987 in Danapur, Cantt., Bihar. After the marriage, the couple lived together and out of the wedlock two children, namely, Abhinav Prasad and Viplav Prasad born on 06-12-1989 and 04-08-1991 respectively. It appears that at the time of marriage the petitioner / appellant was in job with Punjab National Bank. However, later on he left the job. Meanwhile, in September 1988, Sangeeta Rani (respondent) got a job as Primary Teacher in Central School. She was transferred at several places. At the time the petition for divorce was filed by the petitioner / appellant in Purnia, Bihar, she was posted in Haldwani, District Nainital. The petitioner sought decree of divorce on the ground that his wife (respondent) has treated him with cruelty. It is further alleged that she has deserted him without any sufficient reason. It is alleged in the petition that the respondent did not take care to see to the problems of her husband. She never used to apply vermilion on her head, which gave mental cruelty to the petitioner. It is further alleged that the respondent is having illicit relations with other persons. 4. The respondent contested the petition before the trial court and filed her written statement in which she admitted having married to the petitioner. She further admitted that two sons were born out of the wedlock. However, as to the allegations of cruelty and desertion the contents of the plaint were denied by the respondent. She counter alleged that the petitioner is living in adultery with one Rekha, apart from having relations with other ladies. It is further alleged that it was the petitioner who treated the respondent with cruelty, as he did not bother to see her even during the time of pregnancy. She counter alleged that the petitioner is living in adultery with one Rekha, apart from having relations with other ladies. It is further alleged that it was the petitioner who treated the respondent with cruelty, as he did not bother to see her even during the time of pregnancy. It is further stated in the written statement that Alok Ranjan with whom the petitioner alleges that respondent had illicit relations is in fact nephew (BHANJA) of the petitioner and he is a young boy of 14-15 year and the allegations made in this regard against the respondent are false. It is further stated that the petitioner has wrongly stated that the couple had no physical relationship after 1997 as even thereafter in 1998 the two joined together with children in Darjiling during the leave. It is further alleged that even in 1999 the wife had gone to Purnia to the place of her husband where they lived together for sometime. According to the respondent it is only in the year 2000, the petitioner had stopped coming to her. Lastly, it is alleged by the respondent that the petitioner suffers from mental disease. 5. Originally the petition for divorce was filed before District Judge, Purnia (Bihar) in the year 1999. It appears that the case was transferred to the Principal Judge, Family Court, Nainital, vide order dated 16th October 2000, where after the said court took up the hearing, recorded the evidence of P.W.1 Uday Shankar Prasad and D.W.1 Sangeeta Rani and after hearing them decided the petition, dismissing the same on 16-04-2005. Aggrieved by said order, the petitioner (husband) filed this appeal before this Court. 6. There are two grounds on which divorce has been sought by the petitioner (appellant) :- (i) the respondent has treated the petitioner with cruelty and (ii) she has deserted him without sufficient reason. On both the counts the trial court has given its finding against the petitioner and in favour of the respondent, rather it has been held that it was the petitioner who treated the respondent with cruelty. 7. Admittedly, the parties are married to each other and they have two grown up children. This Court has re-examined the evidence on record and considered the submissions made on behalf of the parties. 7. Admittedly, the parties are married to each other and they have two grown up children. This Court has re-examined the evidence on record and considered the submissions made on behalf of the parties. As far as the desertion is concerned, it is pertinent to mention here that the respondent is doing her job in the central school and had been posted at several places. From the evidence on record, it is clear that before the petition was filed in the year 1999, the respondent had visited the petitioner in Purnia during leave. Earlier, in the year 1998, the two had been together with their children in Darjiling, during holidays. In these circumstances, where the respondent is in Government service and doing her job, she cannot be expected to live all the time with her husband in Purnia and it cannot be said that she has deserted the petitioner for a continuous period of two years preceding the presentation of the petition without any sufficient cause. 8. As far as the cruelty is concerned, there are allegations and counter allegations made by the parties against each other in their pleadings and statements, recorded on oath. Learned counsel for the appellant argued that it is a case of mental cruelty. In this connection he further submitted that not applying vermilion on the head by the wife has hurt the feelings of her husband. It is further submitted that the respondent has not cared to look after her husband and his parents. In this connection, it has been alleged that in 1997, father of the petitioner fell ill and died of the illness in Purnia. Needless to say, in the year 1997, the petitioner was already in service and was not posted in Purnia as such it cannot be said that the respondent has treated the petitioner with cruelty for that reason. As far as not applying vermilion on the head is concerned, certainly this must have hurt the petitioner. But the conduct of the petitioner is relevant to be mentioned here, who has made the allegation on the character of the respondent by saying that she had illicit relations with Alok Ranjan. As far as not applying vermilion on the head is concerned, certainly this must have hurt the petitioner. But the conduct of the petitioner is relevant to be mentioned here, who has made the allegation on the character of the respondent by saying that she had illicit relations with Alok Ranjan. From the evidence, adduced by the parties, it has come on record that Alok Ranjan was none but nephew of the petitioner himself and D.W.1 Sangeeta Rani has alleged that he was aged only 14-15 years, and she had no illicit relations with him. The fact relating to the age of said Alok Ranjan is not denied by the petitioner. Learned counsel for the petitioner has stated that the husband had been throughout cooperative and is still sending Rs. 2,000/- per month as maintenance for his children living with the respondent. In reply to this learned counsel for the respondent pointed out that whatever amount of maintenance was paid by the petitioner (appellant) was in compliance of the court's order, which was awarded as maintenance to the children. As such mere payment of maintenance to the children by the petitioner that too under orders of court, does not show that he is looking after the children or he had any care for them. 9. Having reassessed the entire evidence on record and after going through the submissions made by the learned counsel for the parties, we concur with the view taken by the trial court that it is the petitioner who has treated the respondent with cruelty by making wild allegation on her character. We further agree with the trial court that petitioner has not been deserted by his wife, as she was in service and they used to join each other before the petition was presented in Purnia, during the holidays. It is pertinent to mention here that the petitioner has already left the job in the year 1997 from Punjab National Bank and lives in Purnia. It has been specifically stated by D.W.1 Sangeeta Rani in her statement that petitioner has kept one Rekhaas his concubine. Copy of extract of diary, which is on the lower court record, does indicate that petitioner had illicit relations with some ladies. P.W.1 Uday Shankar Prasad has admitted his handwriting in the said extract of diary, in his cross-examination. However, he has denied that he lives with Rekha. 10. Copy of extract of diary, which is on the lower court record, does indicate that petitioner had illicit relations with some ladies. P.W.1 Uday Shankar Prasad has admitted his handwriting in the said extract of diary, in his cross-examination. However, he has denied that he lives with Rekha. 10. For the reasons as discussed above, we do not find any merit in this appeal, which is liable to be dismissed. The appeal is dismissed. No order as to the costs.