JUDGMENT Paliwal, J. -- 1. This appeal has been preferred under section 28 of the Hindu Marriage Act, 1955 (for brevity “the Act”) being aggrieved with the judgment and decree dated 12th October, 2010 passed by Additional District Judge, Sabalgarh, District Morena, in H.M.A. No.9/10, whereby the petition under section 13 of the Act preferred by the appellant-husband for divorce has been dismissed. 2. The brief facts of the case are that appellant-husband preferred petition under section 13 of the Act for grant of decree of divorce pleading that marriage between the appellant and the respondent was solemnized according to Hindu customs and rites. After marriage the respondent lived with the appellant for a week and then returned to her parental home. After 15-20 days the appellant brought her to matrimonial home. Thereafter, the respondent started misbehaving with the appellant by calling him illiterate and rustic. It is further pleaded that behaviour of the respondent towards the family members of the appellant was also cruel. It is further pleaded that after marriage respondent came to her matrimonial home just for 3-4 times and after staying there for 10-15 days, she used to return to her parental home and during that period the appellant was not allowed to have sexual intercourse with her. On 30.11.2005 the respondent went to her parents home and despite appellant went to her parents home to take her back, she did not return. It is prayed that the marriage be dissolved and decree of divorce be granted. 3. In reply, respondent-wife denied the allegations levelled against her and submitted that appellant and his family members made dowry demands and used to ill-treat her. It was also pleaded that she is ready and willing to discharge her matrimonial obligations but appellant-husband doesn’t want to keep her as wife. It is prayed that petition be dismissed. 4. The learned trial Court framed as many as 3 issues and after recording the evidence of the parties, dismissed the petition holding that appellant-husband failed to prove the ground of cruelty. Dissatisfied with the dismissal of the petition, appellant-husband has preferred this appeal. 5. It is submitted by learned counsel for the appellant that learned trial Court has not appreciated the evidence and material in its proper perspective and committed a grave error of law in dismissing the petition. Dissatisfied with the dismissal of the petition, appellant-husband has preferred this appeal. 5. It is submitted by learned counsel for the appellant that learned trial Court has not appreciated the evidence and material in its proper perspective and committed a grave error of law in dismissing the petition. It is further submitted that learned trial Court while recording the finding on issue No.1, has held that it is proved that respondent has deserted the appellant from 15.12.2005. Despite this finding, the learned trial Court has not granted decree of divorce. The learned trial Court while considering the evidence of the parties, failed to consider that civil litigation depends upon preponderance of probabilities and not on proving the case beyond reasonable doubt. Placing reliance on K. Sriniwas Rao v. D.A. Deepa [2013 AIR SCW 1396], and G.V.N. Kameshwar Rao v. G. Jabilli [2002 MLR 294], the learned counsel submitted that making unfounded indecent defamatory allegations against appellant and his family members amounts to mental cruelty and appellant has fully proved it. It is prayed that impugned judgment and decree be set aside and petition preferred by the appellant be allowed. 6. The learned counsel for the respondent submitted that learned trial Court has not committed any error in holding that the cruelty alleged by the appellant is not proved. He further submits that desertion is also not proved. Therefore, there is no scope for any interference by this Court. 7. In view of the submissions of learned counsel for the parties, we have perused the record. 8. It is not disputed that marriage of the appellant and the respondent was solemnized with Hindu customs and rites on 23.6.2003. Further, it has also not been disputed that the respondent is residing in her parental house since December, 2005. 9. The appellant has alleged that respondent has committed cruelty towards him and his family members. Cruelty is not defined under Hindu Marriage Act, 1955. The apex Court has explained the concept of cruelty in the matter of Naveen Kohli v. Neelu Kohli [ (2006)4 SCC 558 ], as under : “47. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in section 13(1)(ia) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in section 13(1)(ia) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the inquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be inquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment. 50. In the case of V. Bhagat v. D. Bhagat, reported in (1994)1 SCC 337 , this Court had occasion to examine the concept of ‘mental cruelty’. This Court observed as under : “16. Mental cruelty in section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.” 55. This Court, in the case of Parveen Mehta v. Inderjit Mehta, reported in (2002)5 SCC 706 , defined cruelty as under : “21. Cruelty for the purpose of section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living.The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subject to mental cruelty due to conduct of the other.” 10. In view of above, we shall now proceed to examine whether the appellant has proved that respondent-wife has committed cruelty with him. To prove it, appellant has examined himself, Ram Prakash (PW2), Girraj Sharma (PW3) and Raghuveer Prasad Sharma (PW4). 11. Appellant Bijendra has deposed that after marriage his wife started saying him illiterate and rustic. Her behaviour towards him and his family members was cruel. Ramprakash (PW2), who is the father of Bijendra, says that after marriage when respondent-Rekha came to his house second time, her behaviour towards him and his family members was cruel. She used to say him and his family members illiterate and also used to give abuses. Girraj Sharma (PW3) claiming himself to be the neighbour of appellant-Bijendra, stated that behaviour of respondent-Rekha towards her husband and her family members was cruel. She used to give abuses loudly. Raghuveer Prasad Sharma (PW4) deposed that Ram Prakash complained him regarding the misbehaviour of Rekha and called him. Thereafter, he reached at Sabalgarh and tried to persuade Rekha. 12. Smt. Rekha (DW1) has stated that she never stated that Bijendra and his family members are illiterate and rustic. She further stated that she never misbehaved with her husband and his family members. 13. Raghuveer Prasad (PW4) has admitted in para 8 of his cross-examination that quarrel between Bijendra and Rekha did not take place in his presence. He further admits that no talk took place between Bijendra and Rekha in his presence. This witness is unable to state the date and month on which he was called at Sabalgarh. This witness has admitted that Bijendra is son of his niece. Ram Prakash has nowhere stated that he called Raghuveer Prasad, therefore, the testimony of Raghuveer Prasad does not appear to be trustworthy. 14. Girraj Sharma (PW3) has stated in para 5 that one party used to give abuses and another party used to keep mum. This witness has admitted that Bijendra is son of his niece. Ram Prakash has nowhere stated that he called Raghuveer Prasad, therefore, the testimony of Raghuveer Prasad does not appear to be trustworthy. 14. Girraj Sharma (PW3) has stated in para 5 that one party used to give abuses and another party used to keep mum. This witness has not stated that respondent-Rekha used to abuse her husband and his family members. In para 7 he expressed ignorance regarding when quarrel between Bijendra and Rekha took place. He also expressed his inability to say on what account quarrel took place between Bijendra and Rekha. Thus, Girraj Sharma himself falsifies his statement made in his chief examination, therefore, his testimony also does not inspire confidence of the Court. 15. Ram Prakash (PW4) has stated in para 11 of his cross-examination that respondent and her brother had beaten his son. A complaint was filed against Rekha, her brother and father. He also lodged the report, but he is not aware about the fate of the report or complaint. Thus, this witness has exaggerated his statement and no report or complaint has been brought on record, therefore, testimony of this witness cannot be believed. 16. Bijendra (PW1) has admitted in para 13 that he is residing separately from his family 10-15 days after his marriage. He has categorically stated that after separation, he was not having any relation with his parents, brother and uncles. If this statement is accepted to be true, then the statement of this witness that after marriage respondent-Rekha stated misbehaving with his family members becomes false. In para 16 Bijendra has stated that when respondent left his house second time, no quarrel took place between them. According to him, quarrel took place when Rekha left his house for the first time on the ground that Rekha used to say him illiterate and rustic. In para 16, Bijendra admitted that he has not lodged any report to the police. According to him, he told his relatives, but he is unable to tell when and to whom he made the complaint regarding misbehaviour of his wife Rekha. Had really Rekha used to misbehave with Bijendra and his family members, there was no reason not to make any complaint to any of the relatives. In para 17 Bijendra says that he is prepared to keep Rekha with him. Had really Rekha used to misbehave with Bijendra and his family members, there was no reason not to make any complaint to any of the relatives. In para 17 Bijendra says that he is prepared to keep Rekha with him. Had really Rekha misbehaved with this witness and his family members, Bijendra never would have been agreed to keep her with him. 17. Smt. Rekha has denied in her cross-examination that her behaviour towards her husband and in-laws was cruel. She further denied that despite her in-laws wishes not to go to her parental house, she used to leave her matrimonial home without informing them. In para 5 she further denies that she used to say her husband illiterate and rustic. She further denied that she used to quarrel with her in-laws. In para 19 she further denied that she was not happy with her marriage with Bijendra. In para 21 she denied that when she came to her matrimonial home, she insisted to live separately. Nothing has been come out in the cross-examination of Smt. Rekha which could render her testimony doubtful. 18. As noticed earlier, the testimony of Ram Prakash (PW2), Girraj Sharma (PW3) and Raghuveer Prasad Sharma (PW4) has not been found reliable. The testimony of BIjendra is also shaky and rebutted by Smt. Rekha, therefore, the testimony of Bijendra also does not inspire confidence of this Court. It seems that the allegation of cruelty has been made just to create a ground for obtaining decree of divorce. 19. In our considered opinion, the learned trial Court has rightly held that the appellant has failed to prove that his wife committed cruelty with him and his family members. 20. The learned counsel for the appellant has submitted that the learned trial Court has categorically recorded its finding in para 6 in favour of the appellant that respondent has deserted the appellant since 15.12.2005. Despite this finding, the learned trial Court refused to grant the decree of divorce and thereby committed a legal error. The learned counsel further submits that this finding has not been challenged by the respondent, therefore, it is binding upon the respondent. Learned counsel for the respondent submits that mere living separately does not amount to desertion. 21. We have considered the submissions of learned counsel for the parties. The learned counsel further submits that this finding has not been challenged by the respondent, therefore, it is binding upon the respondent. Learned counsel for the respondent submits that mere living separately does not amount to desertion. 21. We have considered the submissions of learned counsel for the parties. It is no doubt true that learned trial Court has recorded a finding in para 6 of its judgment that it is proved that respondent has deserted the appellant from 15.12.2005. 22. “Desertion”, for the purpose of seeking divorce under the Act, means the total repudiation of the obligations of marriage. In other words it is a intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. 23. The Constitution Bench of the apex Court in Lachman Utamchand Kirpalani v. Meena @ Mota [ AIR 1964 SC 40 ], has held as under : “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). 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 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 expressionof 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 coexist. 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 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 whether a deserting spouse has a reasonable cause for 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 required in a matrimonial case is to be equated to that in a criminal case.” 23A. The learned counsel for the appellant placing reliance in Guntamukkala Naga Venkata Kanaka Durga v. Guntamukkala Eswar Sudhakar and another [ AIR 2013 AP 58 ], submitted that respondent-wife had left the matrimonial house and in spite of necessary efforts made by husband, she neither returned back nor showed any interest to do so, therefore, the ground of desertion is proved. 24. In the instant case, Bijendra (PW1) has stated that on 15.12.2005 when he went to bring back his wife, she refused to accompany him and told that she cannot live with him and also asked to perform second marriage and free her. Smt. Rekha has stated that she never refused to discharge her marital obligations and refused to accompany her husband. In para 15 she denied that she does not like Bijendra as her husband. In para 22 she again denied the suggestion that she does not accept Bijendra as her husband, therefore, she is living at Mehgaon. 25. Had the appellant really wanted to keep the respondent as his wife, then when according to appellant on 15.12.2005 his wife refused to live with him as his wife, why he has not given any notice and filed the petition for restitution of conjugal rights. 25. Had the appellant really wanted to keep the respondent as his wife, then when according to appellant on 15.12.2005 his wife refused to live with him as his wife, why he has not given any notice and filed the petition for restitution of conjugal rights. Bijendra has categorically admitted in para 17 that when respondent refused to accompany him, he has not given any notice why she is not willing to accompany him. He further admits that he has not filed any other proceeding except this one before the Court to bring back his wife. He has also not approached Mahila Paramarsh Kendra. Had the appellant really wanted to keep his wife, he would have either approached the Court or at least Mahila Paramarsh Kendra, but no such steps has been taken by the appellant. Therefore, his claim that he is willing to keep his wife with him appears to be false. 26. In view of the above statement of Rekha, it cannot be said that she has decided to end her marital obligations. In our considered opinion, the appellant has failed to prove the essential ingredients of desertion i.e. animus deserendi, therefore, the submission of learned counsel for the appellant that in view of the categorical finding of the learned trial Court in para 6, the appellant is entitled for decree of divorce on the ground of desertion, has no substance. 27. In the light of foregoing discussion, we find that learned trial Court has not committed any error. This appeal has no substance and is devoid of any merits. Hence, it is hereby dismissed. The appellant shall bear his cost and also the cost of the respondent. Advocate fee as per schedule. Decree be drawn up accordingly. ............