JUDGMENT 1. This misc. appeal under Section 19 of the Family Courts Act, 1984 and under Section 28 of the Hindu Marriage Act, 1955 has been filed against the judgment and decree dated 25.10.2004 passed by the learned Judge, Family Court, Jodhpur in Civil Original Divorce Petition No. 212/1996, whereby the petition filed by the appellant-husband under Section 13 of the Hindu Marriage Act for dissolution of the marriage has been dismissed. 2. Briefly stated, the facts of the case are that the appellant (husband) filed a petition on 29.10.1996 under Section 13 of the Hindu Marriage Act, 1955 (hereinafter to be referred in short as 'the Act of 1955') before the learned Judge, Family Court, Jodhpur; against the respondent-Mrs. Sushila (wife), with the averments that their marriage was soleminized in the year 1989 under Hindu rites and rituals and they lived together until end of year 1991. 3. The petition for dissolution of marriage was filed by the appellant-husband-Ladu Ram Mali, inter alia, on the ground that the respondent-wife has left house of the appellant-husband without his consent and also without any reasonable cause. She caused-miscarriage of three children. The respondent-wife took one child-Miss Ansuya with her at her parents' house-Chokha, Jodhpur and one son-Mahendra remained with the appellant-petitioner. The behaviour of the respondent-wife with the appellant-husband and his parents was not proper but harsh and cruel. After two years of the marriage, the respondent had lodged a false F.I.R. on 22.12.1991 at Police Station, Soorsagar, Jodhpur against the appellant and his parents. The Police arrested the appellant and his parents in that criminal case and they remained in custody also. 4. In that case, after investigation Police filed charge-sheet against the appellant-petitioner and his parents under Sections 498-A, 325 and 323 I.P.C. in the concerned Court and after trial of the case, the trial Court acquitted parents of the appellant from all the charges but convicted the appellant and sentenced him to only year's imprisonment. 5. Thereafter, the appellant-petitioner filed a Criminal Appeal in the Sessions Court against the judgment and order of the trial Court. The appeal was partly allowed by the appellate Court, whereby the learned appellate Court set aside his conviction under Section 498-A I.P.C. but convicted him under Sections 323 and 324 I.P.C. However, instead of sending him to jail, the appellant was given the benefit of Probation of Offenders Act. 6. The appeal was partly allowed by the appellate Court, whereby the learned appellate Court set aside his conviction under Section 498-A I.P.C. but convicted him under Sections 323 and 324 I.P.C. However, instead of sending him to jail, the appellant was given the benefit of Probation of Offenders Act. 6. Thereafter, the respondent wife filed a Criminal Revision Petition against the above appellate order before this Court and the same is still pending. The appellant alleged that the above facts were sufficient to prove cruel behaviour of the respondent-wife. Thus, by the conduct of the respondent-wife, serious injury has been caused to reputation of the appellant and members of his family, on false and baseless allegations, which has caused mental agony to him. The respondent-wife has also filed maintenance proceedings against the appellant and it is impossible to live with the respondent-wife due to cruel practice by her. 7. Another ground for dissolution of the marriage was desertion. The appellant alleged that the respondent-wife had left the matrimonial home since 1991 and was living separately for last five years and had not come to meet his son nor come at the time of death of father of the appellant. So, there was voluntary desertion by the respondent-wife. 8. A reply to the petition was filed the respondent-wife wherein she denied the allegations levelled by the appellant-husband about cruelty and willful desertion. She also denied the allegation of causing miscarriage of children. By preliminary objections, it was alleged that the appellant has previously filed a Divorce Petition on the same grounds against the respondent-wife, which was withdraw by the appellant on 26.5.1995 and hence, this second Divorce Petition was not maintainable in view of Order 3 Rule 1 C.P.C. 9. It was also averred in the reply that the appellant has forcibly detained her son Mahendra and not maintaining him properly. She lodged a F.I.R. on true and real facts and after investigation, the Police filed charge-sheet and after trial, the Court convinced the appellant-husband. So, the allegations by her were not baseless or out of malice. She has not deserted the appellant but the appellant has deserted her. 10. The respondent further averred that in the previous Divorce Petition, the appellant-husband sought divorce from the respondent-wife while alleging her to be an unchaste woman, keeping extra-marital relation with 'Behnoyi' (sister's husband). So, the allegations by her were not baseless or out of malice. She has not deserted the appellant but the appellant has deserted her. 10. The respondent further averred that in the previous Divorce Petition, the appellant-husband sought divorce from the respondent-wife while alleging her to be an unchaste woman, keeping extra-marital relation with 'Behnoyi' (sister's husband). It was great assault upon character, honour, reputation, status as well as health of the respondent-wife and as such, she has not deserted the husband but the appellant-husband was himself liable for above situation. This act of the appellant-husband constituted mental cruelty of such nature that the wife can not reasonably be asked to live with the husband thereafter. 11. It was alleged that under such compelling circumstances, she had to lodge the proceedings for seeking maintenance and also filed complaint against severe beating etc by the husband and therefore, no ground of cruelty or desertion for seeking divorce was made out in favour of appellant-husband. 12. Learned Judge, Family Court, on the basis of pleadings of the parties framed the following issues for determination of the divorce petition: (a) Whether the appellant is entitled to decree of divorce under Section 13(1)(ia) of the Act of 1955 on the ground of cruelty by respondent-wife as alleged in-the petition's paras 1 to 5? (b) Whether the respondent-wife has deserted petitioner-husband for 5 years without any valid reason and has not performed matrimonial obligations, so the petitioner is entitled to decree of divorce under Section 13(1)(ib) of the Act of 1955? (c) Whether the petition is not maintainable as per provisions of Order 2.3 Rule 1 C.P.C.? (d) Relief? 13. In support of the petition, the petitioner-husband examined before the Family Court himself as PW-1 and Madan Lal, brother-in-caste as PW-2. In documentary evidence, he got exhibited Ex.-1 order of Sessions Judge, Jodhpur passed in criminal case filed by respondent-wife. As against this, the respondent-wife examined herself as NAW-1, brother of respondent-Magraj as NAW-2 and sister of the respondent-Devi as NAW-3. In documentary evidence, she got exhibited documents Ex.D-1 previous Divorce Petition filed by the petitioner-husband, Ex.D-2 order by which pervious Divorce petition was withdrawn by petitioner-husband and Ex.D-3 order dated 2.2.1992 passed by A.C.J.M. No. 3 in criminal case against the petitioner-husband. 14. In documentary evidence, she got exhibited documents Ex.D-1 previous Divorce Petition filed by the petitioner-husband, Ex.D-2 order by which pervious Divorce petition was withdrawn by petitioner-husband and Ex.D-3 order dated 2.2.1992 passed by A.C.J.M. No. 3 in criminal case against the petitioner-husband. 14. Learned Judge, Family Court, on the basis of evidence adduced by both the parties came to the conclusion that the petitioner-husband by oral as well as by documentary evidence had not been able to prove issue No. 1 the therefore, issue No. 1 was decided against the petitioner-husband. Issue No. 2 was also decided against him as per evidence available on the record. As per the finding on issue No.3. the cause of action was held available to the petitioner-husband because ground of desertion was a continuing one. After hearing arguments from both the sides, the learned Judge, Family Court dismissed the petition moved for dissolution of the marriage vide its judgment and decree dated 25.10.2004. Hence, aggrieved by the impugned judgment and decree dated 25.10.2004, the present appeal has been filed by the husband-Ladu Ram. 15. We have heard learned counsel for the appellant as well as learned counsel appearing on behalf of the respondent-wife and carefully perused the impugned judgment and decree and the material available on the record. 16. It has been contended by the learned counsel for the appellant that the Judge, Family Court has not appreciated the evidence on the record correctly and in right perspective and that the grounds of cruelty and desertion were established by the appellant-husband with evidence on the record and hence, decree of divorce ought to have been granted in favour of the husband- appellant. 17. The learned counsel further submitted that the respondent-wife left the house of the appellant-husband and filed a baseless and false case under Sections 498-A, 325 and 323 I.P.C. and even the appellant was unnecessarily roped in besides his parents, who had to face the trial and obtained bail; and ultimately, they were acquitted from all the charges levelled against them. Thus, great mental cruelty and unnecessary harassment was caused to the appellant-husband and his family members. Father of the appellant expired but the respondent-wife did not come at that time also, that goes to show cruel behaviour of the respondent-wife towards the appellant-husband and his family members. 18. Thus, great mental cruelty and unnecessary harassment was caused to the appellant-husband and his family members. Father of the appellant expired but the respondent-wife did not come at that time also, that goes to show cruel behaviour of the respondent-wife towards the appellant-husband and his family members. 18. Learned counsel submitted that while deciding issue No. 1, the learned Family Court has not considered true and correct meaning of the term 'cruelty'. The cruelty can be physical as well as mental. In the present case, there is mental cruelty of the appellant-husband by cruel behaviour of the respondent-wife, by filing baseless arid false criminal case under Section 498-A I.P.C, which caused arrest of the appellant as well as his parents and that gives cause of action against the wife for divorce. So, the learned Family Court has wrongly dismissed his divorce petition. 19. He further submitted that the expression "cruelty" is being used in relation to human conduct or human behaviour. Cruelty is a course of conduct of one, which is adversely affecting the other. So, the learned counsel for the appellant submitted that divorce decree deserved to be granted in favour of the appellant-husband on the ground of cruelty and the learned Court below grossly erred in deciding issue No. 1 against the appellant. 20. Mr. Panwar, learned counsel for the appellant further submitted that the issue No.2, of desertion, was also established by the appellant by evidence but the learned Family Court erred in deciding this issue against the appellant-husband. The respondent-wife has not filed any document either medical record or injury report, which may show that the wife was maltreated or beaten by the appellant-husband while they were living together. In absence of material documents and other evidence on the record, the findings of the learned Court below on issue No. 2 is bad in law. It is proved form the record that the parties are living separately since 1991 and there is voluntary desertion by the respondent-wife. Learned counsel for the appellant further submitted that the respondent-wife lodged a false complaint under Section 498-A I.P.C. and living separately from the appellant-husband from December 1991 without any reasonable cause, amounts to willful desertion but the learned Court below failed to consider the evidence on the record in proper perspective. 21. Learned counsel for the appellant further submitted that the respondent-wife lodged a false complaint under Section 498-A I.P.C. and living separately from the appellant-husband from December 1991 without any reasonable cause, amounts to willful desertion but the learned Court below failed to consider the evidence on the record in proper perspective. 21. The conduct of the respondent-wife has to be taken into consideration because she has filed a Criminal Revision Petition before the High Court, which shows that she has no inclination to live with the appellant-husband under any circumstance and the same amounts to willful desertion. 22. Mr. M.L. Panwar the learned counsel for the appellant lastly submitted that appellant-husband and respondent-wife are living separately for almost last 20 years. During the pendency of this appeal before this Court, since the year 2004, the various Benches of this Court also made efforts for reconciliation between the parties but could not succeed. This Court has also observed that it is not possible for them to reconcile the dispute for living together. The son is living with appellant-husband and daughter is with respondent-wife, and both are major at this time. Even both the parties were failed to settle their dispute either for living together or living separately, as the case may be, so that the dispute came to an end. The learned counsel for the appellant has argued that in the facts and circumstances of this case, the marriage between the parties be dissolved on the ground of irretrievable breakdown. 23. The learned counsel for the appellant-husband, in support of his above submissions, has relied upon the following judgments: 1. Smt. Durga Devi v. Shri Narsingh Dass, 2006(2) RDD 1167 (Raj.) (DB). 2. Smt. Mayadevi v. Jagdish Prasad, 2007(2) CCC 1(SC). 3. Smt. Sadharxa Srivastava v. Arvind Kumar Srivastava, AIR 2006 Allahabad 7. 4. Smt. Santosh Devi v. Prem Chand Saini, AIR 2007 Rajasthan 121. 5. Ajay Ashok Khedkar v. Laleeta Ajay Khedkar, 2011(4) CCC 204 (Bom.). 6. Smt. Suman v. Ashok Chhajer, 2011(4) CCC 207 (Raj.). 7. Methuku Suresh @ Suresh v. Smt. Methuku Anuradha, 2011(3) CCC 45 (A. P.). 24. Smt. Sadharxa Srivastava v. Arvind Kumar Srivastava, AIR 2006 Allahabad 7. 4. Smt. Santosh Devi v. Prem Chand Saini, AIR 2007 Rajasthan 121. 5. Ajay Ashok Khedkar v. Laleeta Ajay Khedkar, 2011(4) CCC 204 (Bom.). 6. Smt. Suman v. Ashok Chhajer, 2011(4) CCC 207 (Raj.). 7. Methuku Suresh @ Suresh v. Smt. Methuku Anuradha, 2011(3) CCC 45 (A. P.). 24. Lastly at the end of arguments, the learned counsel for the appellant submitted that during the pendency of this appeal, the appellant has moved an application under Section 340 Cr.P.C. to punish or taking an action against the respondent-wife for making a false and incorrect statement, but now in the facts and circumstances of the case, he does not want to press the above application filed under Section 340 Cr.P.C. being I.A. No. 2934 of 2011. 25. Per contra, Mr. J. Geholt, the learned counsel for the respondent-wife vehemently opposed the present appeal and referring the evidence on record oral and documentary, supported the impugned judgment of the learned Family Court and submitted that the appellant has failed to prove the ground of cruelty as well as desertion. Decree of divorce cannot be granted in the facts and circumstances and evidence available on record of the case. The learned counsel for the respondent has denied the allegations of cruelty and desertion, but accepted that the respondent-wife has lodged the F.I.R. on true facts and after investigation police filed the charge-sheet against the appellant as well as his parents. After conclusion of trial, the trial Court convicted the appellant under Sections 498-A, 324, 323 I.P.C., inter alia, for one year imprisonment. Thereafter in appeal, the learned Sessions Court, instead of sending the appellant to jail, gave him benefit of Probation of Offenders Act. Against the judgment of Sessions Court, a Criminal revision petition was filed by the respondent-wife, which is pending before this Court. So, in the facts and circumstances and evidence available on record of the case, the learned Family Court has rightly decided the issue of cruelty and desertion against the appellant-husband. 26. Behaviour of the appellant-husband was utterly dissatisfactory and against pious relationship of husband and wife. Allegation of having illicit and extra marital relation with one Narsingh was levelled in earlier divorce petition Ex.D-1 filed by the appellant against the respondent-wife. 26. Behaviour of the appellant-husband was utterly dissatisfactory and against pious relationship of husband and wife. Allegation of having illicit and extra marital relation with one Narsingh was levelled in earlier divorce petition Ex.D-1 filed by the appellant against the respondent-wife. In the Court statement as PW-1, appellant Ladu Ram has also admitted this fact that he has levelled the allegation against the character of Sushila-respondent in earlier divorce petition. The criminal complaint filed by the respondent-wife was not baseless or out of mala fide. As such the respondent has not deserted the appellant but the appellant himself has deserted the respondent-wife by his above acts and as per the provisions of Section 23(1)(a) of the Hindu Marriage Act, the appellant-husband cannot take advantage of his own wrong. 27. It is also contended that the appellant has given severe beatings and levelled serious allegations against the character of the respondent-wife and it is not possible for the wife to live with the appellant-husband. Therefore, in the above circumstances, the learned Family Court was justified in dismissing the petition moved by the appellant-husband for dissolution of the marriage. Filing of the criminal revision petition against the judgment and order of Sessions Judge itself cannot be an amount to willful desertion in the above facts and circumstances of the case and the judgment cited by the appellant in Methuku Suresh @ Suresh v. Smt. Methuku Anuradhu (supra) is distinguishable from the facts of the present case. 28. Mr. J. Gehlot the learned counsel for the respondent-wife opposed the argument that there is an irretrievable breakdown of marriage between he parties mere lapse of period of about 20 years per se cannot be an amount to the irretrievable breakdown of the marriage which is not a statutory ground available for grant of divorce decree under Section 13 of the Hindu Marriage Act. Further referring to Section 13 of the Hindu Marriage Act, cross-examination of PW-1 husband Ladu Ram, statement of PW-2 Madan Lal and also the evidence of DW-1 Sushila, DW-2 Magraj and Dw-3 Devi and the pleadings of both the parties, the learned counsel for the respondent submitted that physical as well as mental cruelty was committed by the appellant-husband and his parents upon the respondent and not by the respondent-wife to appellant-husband. 29. 29. Therefore, he supported the impugned judgment and submitted that divorce decree cannot be granted in the circumstance of the present case and the ratio of decisions cited by the learned counsel appearing on behalf of the appellant does not apply to the facts of the present case. In support of his submissions, he has relied upon the following decisions: Kailash Dev v. Smt. Shanti, 2012(1) DNJ (Raj.) 379 Vishnu Dutt Sharma v. Manju Sharma, 2009 DNJ SC 221 30. in the present appeal, the point which required consideration is as to whether the learned Judge, Family Court committed any illegality in dismissing the petition moved by the husband-appellant for dissolution of the marriage? 31. Having Learned counsel for the parties, this Court is of the opinion that the present appeal filed by the appellant-husband is without any merit and the same deserves to dismissed for the following reasons. 32. The first issue was as to whether the appellant-husband has successfully proved cruelty on the part of respondent-wife, which can furnish a ground for divorce? The learned Judge, Family Court on the basis of evidence adduced by both the parties came to the conclusion that the husband, by oral as well as documentary evidence, was not able to prove issue No. 1, therefore, the issue No. 1 was decided against the appellant-husband. 33. We have carefully perused paras 1 to 5 of the petition filed by the appellant-husband, the impugned judgment of learned Family Court, evidence adduced by both the parties and the judgments produced during the course of arguments. We need not burden our order by narrating facts and evidence in detail as the same have been narrated in detail by the learned Family Court. Learned counsel for the appellant-husband, during the course of arguments, pressed only one fact that the respondent-wife filed a baseless and false criminal complaint against the appellant-husband as was as his parents, the police arrested him and his parents and they also remained in custody. Thereafter, the trial Court acquitted parents of the appellant-husband from all the charges and in appeal, the Session Court acquitted the appellant-husband from charge under Section 498-A I.P.C. and, thus, this act of respondent-wife amounts to mental cruelty against appellant-husband. 34. It is undisputed that the respondent-wife lodged a criminal complaint, wherein after investigation the Police filed charge-sheet against the appellant-husband and his parents also. 34. It is undisputed that the respondent-wife lodged a criminal complaint, wherein after investigation the Police filed charge-sheet against the appellant-husband and his parents also. During pendency of the trial, Ganesh Ram father of the appellant expired and proceedings were dropped against deceased-accused Ganesh Ram. After trial, the Court came to the conclusion that the prosecution has failed to prove case beyond reasonable doubt under Section 498-A I.P.C. against accused person Ganesh Ram, Mrs. Shanti and Pema Ram but by the same judgment, convicted the appellant-husband under Sections 498-A, 323, 324 I.P.C. and imposed sentence, inter alia, of one year's imprisonment. 35. Thereafter, the appellant filed a Criminal Appeal in Court of Sessions and the Sessions Court partly allowed his appeal and set aside conviction under Section 498-A I.P.C. but maintained conviction under Sections 323, 324 I.P.C. and instead of sending to jail, the appellant-husband was given benefit under Probation of Offenders Act. Against that order of the Sessions Court, respondent-wife has filed a Criminal Revision Petition before the High Court, which is pending. 36. Now, the question for consideration before us is as to whether the above facts constitute cruelty to the appellant-husband by the respondent-wife? We have perused the judgments cited by the learned counsel for the appellant-husband. It is well settled by decisions of Hon'ble Supreme Court that levelling baseless and out of mala fide allegations against husband, imputing criminal activity on his part, affects adversely the reputation of the husband arid amounts to mental cruelty. 37. Cruelty has not been defined but it is now well settled that the conduct should be grave and weighty, so as to make cohabitation virtually intolerable; it must be more serious than original wear and tear of marriage. The cumulative conduct, taking into consideration the circumstances and the background of the parties, has to be examined to reach a conclusion whether the act amounts to cruelty. There can not be any dispute with regard to legal position that cruelty may either by mental or physical and includes both acts and omissions. The question of cruelty should be answered in the light of norms of the marital ties of the particular society to which the parties belong, their social values, status of the parties, physical and mental conditions, the interaction between them in their daily life and various relevant factors. 38. The question of cruelty should be answered in the light of norms of the marital ties of the particular society to which the parties belong, their social values, status of the parties, physical and mental conditions, the interaction between them in their daily life and various relevant factors. 38. The Shorter Oxford Dictionary defines 'cruelty' as- "the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness". 39. The term mental cruelty has been defined in Blacks Law Dictionary as under: "Mental Cruelty"-As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse. 40. In Dr. N.G. Dastane v. S. Dastane, AIR 1975 SC 1534 , Hon'ble Apex Court has observed as under: "...whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent." 41. In Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 , Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582 , Vinita Saxena v. Panha Pandit, AIR 2006 SC 1662 and Smt. Maya Devi v. Jagdish Prasad (supra); Hon'ble Apex Court has observed that cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the inquiry will begin as to nature of cruel treatment; second, the impact of such treatment in the mind of other spouse. Ultimately, it is a matter of inference to be drawn by taking into account nature of the conduct and its effect on the complaining spouse and also from the facts and circumstance of the case. 42. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. 42. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system." Apart from this, the concept of mental cruelty can not remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc., etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice-versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be evaluate it on its peculiar facts and circumstance while taking aforementioned factors in consideration. 43. In the light of above principles for mental cruelty, in the instant case the appellant-husband has pointed out that the respondent-wife filed a baseless and out of malafide criminal case against him as well as his parents and it constitutes mental cruelty. In our considered opinion, in the facts and circumstance of the case, the complaint filed by the respondent-wife cannot be said to be false and out of malafide because trial Court ha convicted the appellant-husband under Sections 498-A, 323, 323 I.P.C. It is true that the Sessions Court in appeal acquitted the appellant-husband from offence under Section 498-A I.P.C. but maintained conviction under Sections 323, 324 I.P.C. and instead of sending to jail, gave him benefit under Probation of Offenders Act. So, it is clear by Ex.1 and Ex.D-3 that the trial Court gave benefit of doubt to parents of the appellant-husband for offence under Section 498-A I.P.C. only. In the above situation, we can not draw an inference that the criminal complaint filed by the respondent-wife was false and out of malafide. In our considered opinion, there is great difference between false or out of malafide complaint and a case not proved beyond reasonable doubt. 44. In the above situation, we can not draw an inference that the criminal complaint filed by the respondent-wife was false and out of malafide. In our considered opinion, there is great difference between false or out of malafide complaint and a case not proved beyond reasonable doubt. 44. So, in the present case, after having perused the evidence of PW-1 Ladu Lal, PW-2 Madan Lal and the material on the record, we find no reason to consider interference in the findings on issue of cruelty. 45. So far as second issue of desertion is concerned, it is apparent from the evidence that the parties are living separately from the year 1991 but in our considered opinion, it is not proved that the respondent-wife is residing separately from her matrimonial home without just and proper cause. 46. It is submitted fact that in the year 1994, the appellant-husband filed a Divorce Petition against the respondent-wife before the Family Court, Jodhpur (Ex.D-1) and in that petition, the appellant-husband has levelled allegations that she is unchaste women and keeping extra-marital relation with one person named Nar Singh. It is also admitted fact that the earlier Divorce Petition has been withdrawn from the Court by the appellant-husband on 26.5.1995 (Ex. D-2). Thereafter, present petition has been filed and in this petition, part of the statement of witness PW-1 Ladu Ram (husband) .has been brought to our notice, which is quoted here for ready reference: " ;g lgh gS fd eSaus iwoZ esa fd;s x;s eqndesa esa lq'khyk ds pfj= ij xyr ykaNu yxk;s FksA " 47. Another important fact, which we have already discussed above, is that the appellant-husband has given severe beating and caused injury on the body of respondent-wife and this fact was proved in the criminal case by producing injury report and by evidence of Dr. N.S. Kothari and the appellant has been convicted for the offence of voluntarily causing hurt, by using dangerous weapon. 48. Therefore, in the above facts and circumstance, it is proved that the respondent-wife if not responsible for living separately without any just and proper cause and she has not deserted the appellant-husband for a continuous period of not less than two years immediately preceding the presentation of the petition. So, the learned Family Court was justified in deciding issue No. 2 in favour of respondent-wife and against the appellant-husband. 49. So, the learned Family Court was justified in deciding issue No. 2 in favour of respondent-wife and against the appellant-husband. 49. The learned counsel for the appellant relied upon the judgment in the case of Methuku Suresh @ Suresh v. Smt. Methuku Anuradha (supra) and vehemently contended that filing of Revision Petition against judgment of the Sessions Court amounts to willful desertion. 50. We have gone through the above judgment. In our considered opinion, the facts of the present case are quite different from the facts of the said case. It has been established in the present case that on the complaint filed by the respondent-wife the learned trial Court has convicted the appellant-husband under Sections 498-A, 324, 323 I.P.C. and the appellate Court acquitted him for offence under Section 498-A I.P.C. but convicted under Sections 323, 324 I.P.C. and granted probation and, against that judgment and order of the appellate Court, criminal revision petition has been filed by the respondent-wife. In such circumstances, in our opinion, merely filing of Revision Petition before the High Court itself can not amount to willful desertion by the respondent-wife and hence, the ration of above decision does not apply to the facts of the present case. 51. There can not be any strait-jacket formula or fixed parameters for determining desertion in matrimonial matters. Nonetheless, in the facts and circumstance of the present case, we find no reason to consider interference in the findings of the Court below on the issue of desertion. 52. So far as irretrievable breakdown of marriage is concerned, in our considered opinion, in absence of any statutory recognition as ground of divorce under Section 13 of the Hindu Marriage Act, it cannot be a ground for grant of decree of divorce, even though the parties have been, admittedly, living separately for last about 20 years. 53. In the case of Vishnu Dutt Sharma v. Manju Sharma (supra), Hon'ble supreme Court observed 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 breakdown 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 would be amending the Act, which is a function of the legislature. 12. This Court cannot add such a ground to Section 13 of the Act as 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 be 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. Hence, we do not find force in the submission of the learned counsel for the appellant. Had both parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13B of the Act, but in this case the respondent is not willing to agree to a divorce." 54. The principle was reiterated in Neelam Kumar v. Dayarani, (2010) 13 SCC 298 in the following manner: "14. We are not impressed by this submission at all. There is nothing to indicate that the respondent has contributed in anyway to the alleged breakdown of the marriage. If a partly to a marriage by his own conduct brings the relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of the marriage. That would simply mean giving someone the benefits of his/her own misdeeds. 15. Moreover, in a later decision of this Court in Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379 . It has been held that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under Section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court." 55. Therefore, on above ground of irretrievable breakdown of marriage, decree of divorce cannot be granted. 56. Therefore, on above ground of irretrievable breakdown of marriage, decree of divorce cannot be granted. 56. Learned counsel for both the parties have not raised any other point before us. Therefore, unless set grounds of divorce under Section 13 of the Hindu Marriage Act could be established on the basis of evidence on the record, decree of divorce cannot be granted. The appellant-husband having failed to establish the grounds of cruelty as well as desertion, this Court is of the opinion that the findings and the judgment of the learned Family Court do not require any interference by this Court in the present appeal of the appellant-husband. 57. Consequently, this appeal of the appellant-husband is found to be devoid of any merit and the same is hereby dismissed. 58. The application I.A. No. 2934/2011, filed by the appellant-husband under Section 340 Cr.P.C. stands dismissed as not passed. No order as to costs.Appeal dismissed. *******