JUDGMENT Indrani Datta, J. 1. Appellant-wife has assailed the judgment and decree dated 7-8-2008 passed by the Additional Principal Judge, Family Court, Gwalior in HMA No. 205-A/06, by which petition filed by respondent-husband under Section 13(1) (i-a) and 13(1) (i-b) of Hindu Marriage Act stood allowed on the ground of desertion and the marriage between the parties has been dissolved. 2. The respondent-husband filed a petition for divorce against the appellant-wife. For the sake of convenience wife is referred to as "appellant" and husband is referred to as "respondent". 3. Brief facts for adjudication of present appeal are that the respondent filed a divorce petition alleging that he was married with appellant on 21-2-2000 in Gwalior. After the marriage, the appellant lived with him only for four days and thereafter she returned to her parental home and did not come back and she is living separately from the respondent without any sufficient cause. On 23-6-2005 respondent's sister's marriage took place and appellant attended the wedding ceremony but without meeting respondent and his parents, she returned back to her father's home. At that time she took away ornaments worth Rs. 50,000/- and cash of Rs. 28,000/- with her. Thereafter, appellant lodged a false report against the respondent at Mahila Thana. Compromise has taken place between the parties concerning that report and then appellant started living with respondent. She used to go frequently to her parental house. It is alleged that the appellant treated respondent with cruelty as she never wanted to live with him. She never performed her matrimonial duties and obligations. Her conduct and behaviour towards respondent and his parents was worst and aberrant. Thereafter, she left the matrimonial house forever and is residing separately with her parents without any reasonable and proper cause. Hence, on the ground of cruelty and desertion, respondent is entitled to decree of divorce. 4. Petition was opposed by the appellant on the ground that respondent and his family members used to ill-treat her. Respondent himself wanted to get rid of her. She never behaved cruelly with respondent or his family members. On 23-6-2005 at the time of marriage of respondent's sister, the respondent and his family members maltreated, assaulted and beaten her, hence she lodged a report at Mahila Thana Gwalior where the respondent and his family members begged their pardon and got compounded the matter. She never behaved cruelly with respondent or his family members. On 23-6-2005 at the time of marriage of respondent's sister, the respondent and his family members maltreated, assaulted and beaten her, hence she lodged a report at Mahila Thana Gwalior where the respondent and his family members begged their pardon and got compounded the matter. She is always ready to reside with respondent but due to respondent's and his family members' ill-treatment and cruel behaviour, she is compelled to live separately in her parental house. In the year 2006 at the time of Rakhee festival when father of appellant approached her matrimonial home, she went with him to her parental home with the consent of in-laws and respondent. Thereafter, on 23-8-06 respondent sent a notice to her falsely levelling allegations about taking away ornaments and cash amount. It was further averred that the respondent himself does not want to reside with appellant. She has not deserted him. Hence prayed for dismissal of petition. 5. On the basis of pleadings of the parties, the learned Trial Court framed following issues: (i) Whether, appellant wife has treated respondent with cruelty ? (ii) Whether, appellant had deserted the respondent ? (iii) Whether, the respondent is entitled to get a decree of divorce ? (iv) Relief and cost ? 6. The learned Trial Court has decided the issue No. 1 in favour of appellant that it is not established that she has treated respondent with cruelty. The learned Trial Court granted the decree of divorce in favour of respondent on the ground of desertion. Hence evidence produced by the parties concerning desertion is only to be considered. 7. The learned Counsel for the appellant urged that the impugned judgment and decree passed by the Trial Court below is contrary to record and against the settled principle of law, hence deserves to be set aside. The learned Trial Court has erred in holding that the appellant is not living with respondent without any sufficient cause. It is not proved that the appellant has deserted the respondent for a continuous period of two years immediately preceding filing of petition. The petition has been filed on 12-10-06 and it is apparent from the evidence produced that appellant was living with respondent even after June, 2005. It is not proved that the appellant has deserted the respondent for a continuous period of two years immediately preceding filing of petition. The petition has been filed on 12-10-06 and it is apparent from the evidence produced that appellant was living with respondent even after June, 2005. Hence mandatory requirement of desertion is not fulfilled, therefore, the impugned judgment and decree of divorce on the ground of desertion is illegal and deserves to be set aside. 8. Per contra, the learned Counsel for the respondent supported the impugned judgment and decree and submitted that the Trial Court has rightly arrived at a conclusion that appellant has deserted the respondent and living separately without any reasonable cause and she herself left the matrimonial home and residing separately since 9-10 years and it is difficult nay impossible for them to live together as husband and wife in future. The learned Trial Court has rightly came to the conclusion that appellant has deserted the respondent. Hence this appeal has no merit and deserves to be dismissed. Learned Counsel for respondent further submits that divorce is to be granted on the ground of irretrievable break-down of marriage. Learned Counsel drew this Court's attention to a citation in Romesh Chander v. Smt. Savitri 1995 (1) MPWN 140 (SC). It was a case where husband filed a petition for divorce on the ground of cruelty under Section 13(1) (i-a) of Hindu Marriage Act. It was held by the Apex Court that there was no chance of retrieval. So prolonging marital alliance is prolonging agony and affliction, the marriage was dissolved. Learned Counsel further relied upon a citation in Durga Prasanna Tripathy v. Arundhati Tripathy AIR 2005 SC 3297 . In that case considering the irretrievable break-down of marriage with a view to put a quietus to litigation inter se and bitterness between parties, decree of divorce on the ground of desertion has been granted. Bolstering his contention with the above citations, it is submitted that appeal deserves to be dismissed as the marriage is dead between the parties and on that ground divorce must be granted. 9. Heard the rival contentions of both the parties and perused the record. 10. Before appreciating the evidence on record, the concept of desertion is to be clarified. Bolstering his contention with the above citations, it is submitted that appeal deserves to be dismissed as the marriage is dead between the parties and on that ground divorce must be granted. 9. Heard the rival contentions of both the parties and perused the record. 10. Before appreciating the evidence on record, the concept of desertion is to be clarified. The Constitution Bench of the Apex Court in Lachman Utamchand Kirpalani v. Meena @ Mota AIR 1964 SC 40 , has held: In the essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. 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). Similarly, two elements are essential so far as the deserted spouse is concerned : (i) the absence of consent, and 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 be 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. 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. 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. The question whether a deserting spouse has a reasonable cause for not trying to bring the desertion to an end and the corresponding question whether desertion without cause has existed for the necessary period must always be a question of fact. The question for consideration in such cases is "Is the conduct of the deserted spouse such as to excuse the deserting spouse from making any attempt to put an end to the desertion or from attempting any reconciliation ?" "Heavy burden lies upon a petitioner who seeks relief on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent, and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner shall be corroborated. In short the proof require in a matrimonial case is to be equated to that in a criminal case. The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner shall be corroborated. In short the proof require in a matrimonial case is to be equated to that in a criminal case. In Savitri Pandey v. Prem Chandra Pandey 1 (2002) DMC 177 (SC) : AIR 2002 SC 591 , the Court reiterated the principles laid down in Lachman Utamchand Kirpalani (supra), and has further held that desertion cannot be equated with separate living by the parties to the marriage and the constructive desertion can be inferred from the attending circumstances as desertion is a matter of inference to be drawn from the facts and circumstances of each case and the approach of the Court to preserve the marriage and reluctant to dissolve the marriage merely on the asking of one of the parties. The marriage cannot be dissolved merely on the averments made by one of the parties that as the marriage has broken down to useful purpose would be served to keep it alive. 11. In the light of above principles of law, we have to examine evidence on record in order to determine whether the case of desertion has been established. 12. Respondent Parvinder Singh (P.W. 3) deposed that after solemnization of his marriage with appellant on 21-2-2000, the appellant resided with him only for four days. Thereafter she went to her parental house and never returned back. As per his statement appellant came to attend his sister's marriage in the year 2005 but without meeting him and his parents she returned back to her parental home taking away ornaments worth Rs. 50,000/- and amount of Rs. 28,000/- in cash and at that time his parents were not at home and he was on his army duties. Thereafter, appellant lodged a report in Mahila Thana where the matter was settled and from Mahila Thana, appellant went with her father to her parental home and thereafter she has not returned to her matrimonial home. In this way, appellant is living separately without any proper and reasonable cause. 13. Lalita Devi (P.W. 2) and Machal Singh (P.W. 4), mother and father of respondent though they have not stated that appellant lived with respondent only for four days after marriage but they have corroborated the version of respondent concerning appellant's leaving matrimonial home on 4-9-2005. In this way, appellant is living separately without any proper and reasonable cause. 13. Lalita Devi (P.W. 2) and Machal Singh (P.W. 4), mother and father of respondent though they have not stated that appellant lived with respondent only for four days after marriage but they have corroborated the version of respondent concerning appellant's leaving matrimonial home on 4-9-2005. They have deposed that appellant has left matrimonial home on 4-9-05 after taking cash amount and ornaments from the box. As per their statement at that time they were not at home and respondent was on his army duty. It is further submitted that the appellant is not ready to reside with them and she has deserted their son and she is not willing to return to matrimonial home. 14. On the other hand, appellant Manju categorically deposed that after the marriage she lived with respondent and in-laws for ten days and then went to her parental house. Thereafter nobody came to take her back to matrimonial home. She has written letters and when nobody came to taker her, she herself went to matrimonial house and lived there for 25 days at that time her in-laws maltreated her then she went with her father to her parental home. In the year 2005 she attended the wedding ceremony of her sister-in-law. At that time also, the in-laws maltreated her with respect to demand of dowry and they had also beaten her. She is very much ready to live with her husband but due to their maltreatment and ill-behaviour, she is compelled to live in her parental house. She is always ready to perform her matrimonial obligations. Her version is supported by Vijendra Singh (D.W. 2), who is father of appellant. 15. From the scrutiny of entire evidence available on record, it appears that the respondent has failed to prove the fact that appellant has deserted him and she is residing without any proper, just and reasonable cause in her parental home. It is not apparent that entire period of two years of desertion prior to filing the petition has been completed as respondent himself and his parents have admitted that appellant has left matrimonial home in the year 2005 and petition has been preferred on 12-10- 06. Undoubtedly, the period of two years from the date of petition of alleged desertion, which is the mandatory requirement, has not been completed. Undoubtedly, the period of two years from the date of petition of alleged desertion, which is the mandatory requirement, has not been completed. Legal burden was upon the respondent who has filed petition for divorce on one of grounds of desertion. He has to establish by convicting evidence beyond any reasonable doubt that appellant abandoned him without reasonable cause and respondent has not proved that there was desertion throughout the statutory period and there was no bona fide attempt on appellant's part to return to matrimonial home. There is nothing on record to gather that respondent himself or through relatives has made any efforts to take appellant back from her parental home to matrimonial home. There is no evidence that respondent has approached appellant in her parental house and she refused to go with him. 16. In this way it is apparent that parties are living separately since 2005, therefore, it is not proved that appellant has deserted the respondent before two years of filing petition for divorce. It is also not proved that appellant has deserted respondent continuously for two preceding years of filing petition. 17. Last question left before us is that whether decree of divorce is to be granted on the ground of irretrievable breakdown of marriage. So far as the contention of learned Counsel for respondent that no fruitful purpose would be served if divorce is refused as there is irretrievable break-down of marriage is concerned, it is not acceptable. So far as both the citations Durga Prasanna (supra), and Romesh Chander (supra), relied upon by learned Counsel for the respondents are concerned, they are distinguishable on facts and are not applicable in present case. In the case of Vishnu Dutt Sharma v. Manju Sharma AIR 2009 SC 2254 : 2009 (3) SCJ 168 , the Apex Court has held as under: 11. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable break-down of the marriage is provided by the Legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the Legislature. 12. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the Legislature. 12. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the Legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. In Anil Kumar Jain v. Maya Jain 2010(1) M.P.H.T. 387 (SC) : ILR (2009) MP 2739, the Apex Court has held as under: 17. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under Section 13 or 13-B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the Civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955. Hence, in the light of above citations, we do not find force in the submission of the learned Counsel for the appellant. Hence, in the light of above citations, we do not find force in the submission of the learned Counsel for the appellant. No decree for divorce can be granted on that ground. 18. Taking into account the entire material on record we are of the considered view the learned Trial Court has erred in holding that appellant has deserted respondent. The finding of learned Court on issue No. (ii) is reversed. 19. The appeal is accordingly allowed and decree of divorce is set aside.