JUDGMENT : P.D. RAJAN, J. 1. This appeal is directed against the judgment in O.P.No.89/2010 of the Family Court, Kasargod, which was filed u/s 13(1) (ia) and (ib) of the Hindu Marriage Act. Appellant is the husband and respondent is the wife. The appellant married the respondent on 19.10.1997 as per Hindu customary rites and a female child was born to them. He is a graduate employed in a Service Co-operative Bank. Before the marriage, the respondent informed that she is a graduate in Commerce, but after the marriage, when a suggestion was made to join HDC course, she stated that she did not complete her B.Com course. After this, she began to pick up quarrels with the appellant and his aged parents and their marital relationship became disrupted. 2 Now he is residing in his house with his father following his mother’s death and the respondent wanted to avoid the company of the appellant. She even made complaint to the police and the police warned her not to repeat the habit of complaining for silly matters in the family life. Since 20.5.2008 the respondent started residing separately in a rental house. On 13.4.2009, in a mediation talk, they decided to dissolve the marital tie by filing a joint petition. Accordingly, a joint application was filed, but the respondent repeatedly absent and consequently that was dismissed on 31.12.2009. The cruel treatment by the respondent is very grave, which is something more serious than the ordinary wear and tear of married life. 2. The respondent wife, denied the allegation of cruelty and desertion from her side and contended that after the birth of the child, the appellant started finding fault with the respondent for not having bachelor degree, besides this, he demanded that the respondent should be employed immediately. The appellant harassed her both physically and mentally for not bringing dowry and on different occasions, her father and relatives gave Rs.3 lakhs to him. During 2003-2004, the appellant started construction of a residential house for which also he demanded money from her and took her ornaments. When she was pregnant the second child, due to the mental and physical torture of the appellant, the pregnancy got aborted. On 27.2.2009, the respondent was asked to get out of the house and she decided to leave the matrimonial house. When she was pregnant the second child, due to the mental and physical torture of the appellant, the pregnancy got aborted. On 27.2.2009, the respondent was asked to get out of the house and she decided to leave the matrimonial house. The appellant obstructed to take the child and informed the school authorities not to issue transfer certificate. In that situation, the respondent was forced to sign an agreement for filing joint application. The appellant and his henchmen insisted that the cash and gold ornaments received from the respondent’s parents will have to be given up in order to leave her native place with the child. Since the appellant threatened that she will not be allowed to leave Kanhangad, unless divorce is granted, the respondent had to take a rental house for staying with the child from March 2009. The appellant has not bothered to look after the respondent and her child from March 2009. The respondent is even now ready and willing to join the appellant as a dutiful wife. Even before obtaining divorce, the appellant has put his profile in a matrimonial website for a second marriage. 3. The learned Judge of the Family Court examined petitioner and his witness as PWs 1 and 2 and marked his documents as Exts.A1 to A6. The respondent was examined as RW1 and her documents were marked as Exts.B1 to B5. The court below dismissed the petition filed by the appellant. Hence, this appeal. 4. The learned counsel appearing for the appellant contended that the marital relationship between the parties has been broken irretrievably and refusal to grant relief would only augment miseries of both parties. The trial judge noticed Ext.A1 agreement and terms of agreement entered by both of them. The factum of filing joint petition was in furtherance of Ext.A1 and departure from the conditions mentioned in Ext.A1 would cause irreparable injuries to the parties. The allegation proved in the lower court is sufficient to grant a decree for divorce and all the ingredients sufficient to grant a divorce on the ground of cruelty were proved with cogent and convincing evidence. The observation made by the court below regarding the correctness of Exts.A1 and A2 is manifestly illegal. The husband and wife living separately from 2008 onwards and the factum of separate residence also proved in the court below. The observation made by the court below regarding the correctness of Exts.A1 and A2 is manifestly illegal. The husband and wife living separately from 2008 onwards and the factum of separate residence also proved in the court below. When marital tie is come to an end from the factual matrix of the case, it reveals that they cannot repair the raptured marital tie in future, which is liable to be terminated. The learned counsel relies on the decision of the Apex Court in Samar Ghosh V. Jaya Ghosh, (2007) 4 SCC 511 , in support of his contention. 5. The learned counsel appearing for the respondent strongly resisted the above argument and contended that the appellant demanded that the respondent should be employed immediately and started to harass and torture her both physically and mentally. He has also collected huge amount nearly Rs.3 lakhs from her parents and misappropriated 30 sovereigns of gold ornaments for his own purpose. When his harassment and torture continued, which was intolerable to the respondent, she was forced to work as an Accountant in various firms. On 27.2.2009 the appellant ousted the respondent from his house and she informed this to her father and she left her matrimonial house and resided along with her father. There was no insult or ill-treat from her side against the appellant. Even now, she is ready and willing to reside with the appellant as a dutiful wife. 6. Before referring to the facts of the case, let us consider the law under Section 13 of the Hindu Marriage Act, 1955. Section 13 reads as follows: “13. Divorce.- (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- xx xx xx xx (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.” 7. Cruelty is not defined in the Act. The parties have to prove that a particular conduct or behaviour in a matrimonial relation becomes cruel. It is clear from the evidence of PW1 that after the marriage, both of them resided together in the matrimonial house. Cruelty is not defined in the Act. The parties have to prove that a particular conduct or behaviour in a matrimonial relation becomes cruel. It is clear from the evidence of PW1 that after the marriage, both of them resided together in the matrimonial house. The husband in his evidence contended that, while he was working as a clerk in a Co-operative Bank, he married the respondent. Before the marriage, she informed that she is a Commerce graduate and intends to go for H.D.C. Course. After one month of the marriage when the appellant demanded the degree certificate, she informed that she was not a graduate. After this, she behaved in a strange manner and started quarrel. Three months after the birth of a child, she joined with PW1 at Hosdurg and again in the year 2002 she went to Ernakulam with the child. When the appellant visited her house during Onam festival, she closed the door and not permitted him to see the child. Her father’s brother assaulted him. On the next day he took the respondent and daughter to his house. While living so, the appellant constructed a new house in the same compound in the year 2006 and stayed there. The respondent insulted him by filing a complaint in the Hosdurg Police Station in the year 2008. 8. Evidence of DW1 shows that after the marriage the appellant ill-treated her both physically and mentally demanding more gold and money but with the help of her father, she arranged money. She admitted that she failed her B.Com Examination, but she was not allowed to continue her studies after the birth of the first child. In the year 2006 PW1 assaulted her and Ext.B4 is the prescription issued by the doctor. When there was a continuous quarrel, she informed the matter to the parents. After this incident his behaviour became very cruel. When they returned to Kochi after daughter’s study, the appellant filed O.S. No.143/2010 before the Munsiff’s Court, Kanhangad against the Principal, Christ C.M.I. School, Kanhangad. Subsequently, she shifted her residence in a rented building. 9. From the aforesaid facts, it is clear that there was petty quarrel between them while they were living together in the matrimonial home. But the only fact to be considered is whether that petty quarrel made by them was an intention to desert each other. Subsequently, she shifted her residence in a rented building. 9. From the aforesaid facts, it is clear that there was petty quarrel between them while they were living together in the matrimonial home. But the only fact to be considered is whether that petty quarrel made by them was an intention to desert each other. During the subsistence of marriage both parties are living together as husband and wife, they must equally share happiness and sorrow through out their life. The behavioural pattern of the couple must be adjusted in each incident during the subsistence of the marital tie. When one of the parties approached the court alleging cruelty, it is his primary responsibility to plead and establish each and every incident at particular place happened or such incidents happened at different places during the subsistence of the marital life. Therefore, we are of the opinion that ‘cruelty’ as a ground for divorce is not found in his evidence. In a normal marital life, there were some incidents happened in their day-today life, while residing together. As a part of good marital tie, such acts cannot be called acts of cruelty within the meaning of Section 13(1) (ia) of the Act. 10. The concept of ‘mental cruelty’ has been discussed by the Apex Court in Samar Ghosh V. Jaya Ghosh, (2007) 4 SCC 511 , which was relied on by the appellant. In paragraph 101 the Apex Court enumerated some instances of human behaviour, which read as follows:- “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 11. In another decision in Gurbux Singh V. Harminder Kaur, (2010) 14 SCC 301 , the Apex Court held that: “Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in different set of circumstances. Therefore, it is essetial for the appellant, who claim relief, to prove that a particular/part of conduct or behaviour resulted in cruelty to him. No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that a particular conduct ill, under all circumstances, amount to cruelty, vis-a-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty.” 12. Several incidents which were highlighted by the appellant and the respondent while they were examined in the trial court would show that the act or conduct of one party caused to the other party inconveniences in their day today life. Due to these incidents there might have been silly expression of hatred towards each other, which would not be amounted as a cruelty. On analyzing the evidence, it is clear that appellant failed to prove the alleged physical or mental cruelty. 13. Due to these incidents there might have been silly expression of hatred towards each other, which would not be amounted as a cruelty. On analyzing the evidence, it is clear that appellant failed to prove the alleged physical or mental cruelty. 13. The next ground highlighted by the appellant in the Family Court was “desertion”. Desertion means the abandonment of one spouse by the other without any consent of the other. Therefore, in actual desertion abandonment of matrimonial home is necessary. Besides, actual separation an “intention to desert” is essential. On 25-2-2008 the respondent left the matrimonial house and through a mediation talk, the appellant and the respondent executed Ext.A1 agreement. Both of them agreed to file a joint petition under section 13(b) of the Hindu Marriage Act. Ext.A2 is copy of the joint petition. The appellant contended that the respondent gave Rs.1,00,000/- to the appellant, which was returned on 5-3-2004 by availing a housing loan from the Catholic Syrian Bank, Hosdurg Branch. Ext.A3 is the statement. The appellant denied that he demanded for dowry and misappropriated the gold ornaments. During cross-examination of PW1, Exts.B1 and B1(a) to B1(f) were marked. Ext.B2 was the salary certificate of the appellant. PW2 supported the evidence of PW1, but he has no detailed knowledge about it. 14. The specific case of wife is that when there was ill-treatment from the side of the appellant, she left her matrimonial home from Hosdurg and resided in a rented building. Even in cross-examination of RW1, she categorically denied that she has no intention for a permanent separation. Still she loves her husband. This evidence shows that she never intended to abandon the appellant permanently. 15. In this context, we may refer to a decision of the Apex court discussing the principle of ‘desertion’. In Bipinchandra Jaisinghbai Shah V. Prabhavati, AIR 1957 SC 176 , in which the Supreme Court observed as follows: “For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similiarly 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. Similiarly 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. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances to 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 deserendico- 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; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.” 16. It is worth to note the following decisions of this Court in Narayanan v. Sreedevi, 1989 (1) KLT 509 , and Baby v. Gopinath, 1989(1) KLT 650 . In Narayanan’s case (Supra) this Court considered the meaning of ‘desertion’ and held as follows:- “6. The true content and import of desertion in clause l(b) of S.13 of the Hindu Marriage Act imparts a definite idea of complete and endless abandonment of one spouse by the other. This must be without the other’s consent and without justifiable cause. Two essential conditions attached to the notion of desertion are: (1) The factus of separation and (2) The intention to bring marital life permanently to an end animus deserendi. Desertion is always a matter of inference to be drawn from the facts and circumstances of each case. There may be often cases where a spouse is forced under certain peculiar circumstances by the conduct of the other spouse, to live separately or to stay away. In such a case there is no legal desertion to constitute a ground for divorce. There may be often cases where a spouse is forced under certain peculiar circumstances by the conduct of the other spouse, to live separately or to stay away. In such a case there is no legal desertion to constitute a ground for divorce. The simple reason is that the said situation has been brought about by the act of the spouse who had misconducted himself or herself. 7. Desertion as a ground for divorce was added to S.13 by the Marriage Laws (Amendment) Act, 1976. Before the amendment, it was only a ground for judicial separation. Now the ground of desertion for claiming divorce is qualified as desertion for a continuous period of two years immediately preceding the presentation of the petition. The Explanation makes it clear that the expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable cause, and without the consent and against the wish of such party and it includes the wilful neglect of the petitioner by the other party to the marriage. The section read along with the explanation makes it abundantly clear, that in its essence it signifies the intentional permanent forsaking and abandonment of one spouse by the other without the other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage vide (Lachman v. Meena A.I.R. 1964 S. C. 40). The explanation gives emphasis to the quality of permanence as one of the essential elements differentiating desertion from voluntary separation for good reasons. It is very important to note that in deciding what constitutes desertion, one of the first matters for consideration is the intent of the offending party in addition to separation or withdrawal from cohabitation.” In Baby’s case (Supra) this Court also held thus:- “To constitute an act of desertion two elements must be there on the side of the deserting spouse. Firstly, the factum of physical separation is the sine qua non of desertion. There must also be the animus deserandi to bring co-habitation or the matrimonial consortium to an end. Likewise, so far as deserted spouse is concerned, to constitute desertion, it must be affirmatively established that he was not a consenting party to the desertion by the opposite party. Firstly, the factum of physical separation is the sine qua non of desertion. There must also be the animus deserandi to bring co-habitation or the matrimonial consortium to an end. Likewise, so far as deserted spouse is concerned, to constitute desertion, it must be affirmatively established that he was not a consenting party to the desertion by the opposite party. In other words, if it is found that desertion happened on account of the action of the deserted spouse he cannot legitimately adopt the posture of innocence. On the side of the deserted spouse there should not occur any conduct giving reasonable cause to the spouse leaving matrimonial house. In a case where desertion is alleged to obtain decree of divorce it must be established that the deserting spouse purposefully kept away from the other party to the marriage with the avowed intention of not having any matrimonial relationship. In Rohini Kumari v. Narendra Singh (AIR. 1972 S.C. 459) the Supreme Court held that desertion within the meaning of S.10(1) (e) of the Act read with Explanation does not imply only a separate residence and separate living but also a determination to put an end to matrimonial relationship and co-habitation. One of the essential elements which differentiates desertion from wilful separation is the quality of permanence. If in a case a spouse abandons the other spouse in a state of temporary passion or anger without intending to cease co-habitation permanently, it will not amount to desertion. In a case where a spouse had left the opposite party’s company never to return and with the intention to bring cohabitation permanently to an end, the necessary animus deserandi can be inferred. In a case where physical separation with animus deserandi has been established, certainly, the allegation of desertion stands proved.” 17. In the light of the above legal principles, we are of the opinion that there was no deliberate desertion from the side of the respondent. She took a rented house at Kanhangad only on the ground of ill-treatment from the side of the appellant. If the wife is living with animus deserendi and her absence was without sufficient reason to leave the company of the husband, the relief can be granted. The case in hand shows that the respondent is residing in a rented house with sufficient reasons. 18. If the wife is living with animus deserendi and her absence was without sufficient reason to leave the company of the husband, the relief can be granted. The case in hand shows that the respondent is residing in a rented house with sufficient reasons. 18. In the circumstances, we are of the view that the finding of the Family Court that the appellant miserably failed to make out a case of cruelty and desertion as alleged by him is based on the correct analysis of facts. No grounds are highlighted before us to interfere with the above finding. In the result, the judgment and decree passed by the Family Court are confirmed. Accordingly, the appeal is dismissed. No order as to costs.