JUDGMENT K.L. Manjunath, J : The unsuccessful husband who has failed to get a decree of divorce has filed this appeal challenging the legality and correctness of the judgment passed by the Judge. Family Court, Mysore, dated 12.8.2008 in M.C. No. 63/2005. 2. We have heard the Counsel for both the parties. 3. The facts of the case are as hereunder: The appellant filed a petition for grant of divorce on the ground of desertion and cruelty. According to the petition averments, the marriage was solemnised between the parties on 7.3.1999 at Chennimalai, Tamilnadu. Thereafter, they resided together as husband and wife at Mysore for a short period. The appellant/husband is currying on the business at Mysore. According to him, the respondent/wife has deserted without any cause and the respondent has treated the appellant/husband with cruelty as she has failed to provide love and affection and has failed to discharge her marital obligation. On these grounds, he filed the petition. The respondent/wife contested the case. According to her, the appellant took the wife to her parents' house on 11.12.1999 after attending the marriage of her relative at Karur and failed to take back the respondent and when all attempt was made by her to join the matrimonial home, the appellant refused to take her back. Therefore, the respondent is made to leave in parents' house for no fault of her. In order to prove their respective contentions, in all, five witnesses were examined on behalf of the appellant/husband. Among them, P.W. 1 is the appellant and four other witnesses were examined as P.Ws.2 to 5. He relied upon Exs.P1 to P3(b). The respondent got herself examined as R.W. 1. The Trial Court formulated the following points for its consideration: 1. Whether the petitioner proves that the respondent used to cause unbearable cruelty to him? 2. Whether the petitioner proves that the respondent has deserted his company for more than the statutory period without, any reasonable cause or excuse? 3. To what relief the parties are entitled? After appreciating the evidence, point Nos. 1 & 2 are held against the appellant. Accordingly, the petition is dismissed. Challenging the legality and correctness of the same, the present appeal is filed. 4. 3. To what relief the parties are entitled? After appreciating the evidence, point Nos. 1 & 2 are held against the appellant. Accordingly, the petition is dismissed. Challenging the legality and correctness of the same, the present appeal is filed. 4. Though several grounds are urged by the appellant in the appeal memo, at the time of arguments, the learned Counsel for the appellant submits that in view of the marriage between the parties, is irretrievably broken, the appellant is entitled for grant of divorce. To support his case, he has relied upon the judgment of the Hon'ble Supreme Court in Naveen Kohli Vs. Neelu Kohli (AIR. 2006 SC 1675) According to him, since 1999, the parties are living separately. Therefore, the appellant is entitled for grant of a decree of divorce. During the course of arguments, it is brought to our notice that the respondent/wife had filed a petition in H.M.0.P.50/ 05 before the Court of Erode under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights which petition came to be allowed directing the appellant herein to take back the respondent to the matrimonial home. Against the order passed, the appellant filed an appeal in C.M.A.46/ 07 before the District Judge, Erode, which appeal came to be allowed and the order of restitution of conjugal rights has been dismissed. Against which, the respondent has filed a second appeal in C.M.S.A.32/2008 before the High Court of Madras and the same is pending. Therefore, he requests the Court to allow the appeal. 5. Per Contra, the learned Counsel for the respondent contends that when the respondent has not treated the appellant with cruelty and when the respondent has not deserted her husband, question of granting a decree of divorce on the ground of desertion and cruelty does not arise at all. According to him, the judgment relied upon by the learned Counsel for the appellant cannot be made applicable to the facts of this case since this Court has no power to exercise the power vested to the Supreme Court under Article 142 of the Constitution of India. He further contends that the said judgment cannot be made applicable to the facts and circumstances of this case since the appellant is responsible for the breakdown of the marriage as the respondent was always willing to live with the appellant. He further contends that the said judgment cannot be made applicable to the facts and circumstances of this case since the appellant is responsible for the breakdown of the marriage as the respondent was always willing to live with the appellant. He further contends that when the appellant has deserted the respondent and leaving the respondent at her parents' house after attending the marriage at Karur and when an attempt is made by the respondent to join the matrimonial home and when the appellant was not ready to take her back, question of making allegation of desertion against the wife does not arise at all. When the desertion is not proved, question of considering the ground of cruelty does not arise at all. Since the marriage between the parties was solemnised on 7.3.1999 at Tamilnadu and they lived only for a short period and within few months thereafter the respondent has been residing at her parents' house, on the ground of desertion, when there was no allegation of cruelty during the short stay of the respondent with the appellant, question of granting a decree of divorce on the ground of cruelty does not arise at all. In the circumstances, he requests the Court to dismiss the appeal. 6. Having heard the Counsel for the parties, we have to consider the following two points in this appeal: 1) Whether the respondent has deserted the appellant for no fault of the appellant? 2) Whether the appellant has proved that the respondent has treated the appellant with cruelty? 7. Insofar as the first point is concerned, admittedly, marriage between the parties was solemnised on 7.3.1999 and they lived happily for only few months. Thereafter, the appellant has taken the respondent to Karur in order to attend the marriage of her relative and it is the case of both the parties that after attending the marriage at Karur, the respondent has been staying in her parents' house, But the dispute is whether the respondent is made to stay at her parents' house on account of the appellant or the respondent on her own has been residing deserting the appellant. The respondent has stated on oath that she was asked to stay in her parents' house promising that she would be taken back, when the appellant did not take her back, she made an attempt to join the appellant. The respondent has stated on oath that she was asked to stay in her parents' house promising that she would be taken back, when the appellant did not take her back, she made an attempt to join the appellant. Accordingly, she returned to Mysore with her parents but the appellant did not allow her to enter into his house and she was made to return to her parents' house for no fault of her. In addition to that, it is her specific case that she has filed a second appeal in C.M.A.32/200S which appeal is now pending before the High Court of Madras. Be that as it may. But the evidence let in by the parties does not disclose that the respondent on her own has deserted the appellant. Except the self-serving testimony of the respondent and her parents, no other evidence is available on record. When the respondent is willing to join the appellant and when an attempt is made by her to restore the family relationship, this Court based on bald allegations and when there being no cogent evidence can hold that the respondent has deserted the appellant for more than twelve years for no cause of the appellant. In the circumstance, we are of the opinion that point No.1 has to be held against the appellant and in favour of the respondent. 8. When we are holding point No. 1 in favour of the respondent, the next question would be whether the respondent has treated the appellant with cruelty. When the respondent has not stayed with the appellant since 1999, question of treating the appellant with cruelty does not arise at all and there is no evidence to show that she has treated the appellant with cruelty. It has to be observed by this Court that when the respondent is residing separately since 1999 what made the appellant to file a petition in the year 2005 nearly six years after the alleged desertion and cruelty. There is no explanation offered by the appellant in this regard. In the circumstances, we are of the opinion that the appellant has failed to prove the ground of cruelty against the respondent. Having held the second point against the appellant, what remains is whether this Court can grant a decree of divorce on the ground of marriage irretrievably broken. There is no explanation offered by the appellant in this regard. In the circumstances, we are of the opinion that the appellant has failed to prove the ground of cruelty against the respondent. Having held the second point against the appellant, what remains is whether this Court can grant a decree of divorce on the ground of marriage irretrievably broken. So far as this point is concerned, admittedly, there is no ground available to a spouse under Section 13 of the Hindu Marriage Act, 1955 to seek divorce on the ground that the marriage is irretrievably broken but there is a move to incorporate the same as one of the grounds. But when there is no amendment to the said section, this Court has no power to grant the same. Even otherwise, if the marriage is irretrievably broken on the ground of conduct of the appellant, we are of the view that such a ground cannot be exercised at the instance of the appellant. We can understand that if the respondent is requesting for a decree of divorce on the ground that the marriage is irretrievably broken on the ground of conduct of the appellant, this Court could have considered it. But the appellant, being a wrongdoer, cannot make it as a ground to dissolve the marriage for no fault of the respondent. In the circumstances, we do not see any merit in the appeal. Accordingly, the appeal is dismissed.