JUDGMENT : M. Satyanarayana Murthy, J. Aggrieved by the divorce decree and order dated 28.04.2004, passed in H.M.O.P. No.60 of 2002 by the Additional Senior Civil Judge, Guntur (for short, 'the trial Court'), the respondent therein preferred this appeal. 2. For convenience of reference, the ranks given to the parties in H.M.O.P. No.60 of 2002 will be adopted throughout this judgment. 3. The petitioner (husband) filed petition against the respondent (wife) under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (for short, 'the Act') claiming decree of divorce dissolving the marriage between the petitioner and respondent contending that their marriage was performed on 21.06.1995 at T.T.D. Kalayana Mandapam, Tenali, as per Hindu rites and customs and their marriage was performed by one Velaga Satyavathi and her husband Nageswara Rao, claiming to be the natural parents of the respondent, and the marriage was an arranged one. The marriage was consummated and, later, set up family and started living independently. Two months thereafter, identity of the natural parents of the respondent came to the notice of the petitioner and, on enquiry; the respondent informed that her parents converted to Christianity. Thus, the marriage of the petitioner with the respondent was performed without disclosing conversion of her natural parents to Christianity. 4. The petitioner and respondent led happy marital life and blessed with a male child on 27.05.1996 named as Praneeth. After birth of child, the respondent returned to the matrimonial home in the month of January, 1997 and the petitioner observed change in her attitude, more particularly, abusing Hindu Gods, beliefs, sentiments and their customs and in the month of February 1997, the respondent started throwing away the pooja idols and photo frames of Hindu Gods and Godesses. She also removed Hindu women's customary signs like Mangalasutram, bindi, bangles, etc., and later the petitioner came to know that the respondent changed her attitude due to influence of her natural parents, when she lived with them during her pregnancy. Thus, she developed hatredness towards Hinduism and attracted to Christianity. Despite the attempts made by the petitioner to convince her, it became impossible for him to change her attitude. 5. The petitioner further contended that the respondent used to attend the Church, staying there for hours together, without caring household responsibilities and duties as house wife. Thus, she developed hatredness towards Hinduism and attracted to Christianity. Despite the attempts made by the petitioner to convince her, it became impossible for him to change her attitude. 5. The petitioner further contended that the respondent used to attend the Church, staying there for hours together, without caring household responsibilities and duties as house wife. One day in the month of September 1997, at about 09.00 p.m., the respondent left the three years boy alone in the house, locked the house outside, went to the Church without informing anybody; when the boy woke up and started crying due to loneliness and fear, the neighbours woke up and broke open the door, rescued the boy. Later, when the petitioner returned to home, he came to know about the incident and chastised the respondent. As a result, the respondent left the matrimonial company of the petitioner and went to her parents' house. Thereafter, she did not come back. 6. Despite referring the matter to the elders, for settlement, the respondent did not mend her attitude. On the other hand, she proclaimed that she had converted into Christianity by relinquishing Hindu religion, without informing the petitioner. Thus, the petitioner was subjected to cruelty and conversion of faith and religion from Hinduism to Christianity, caused mental agony to him. Therefore, he got issued a notice, dated 25.11.2001, which was returned un-served. Thereafter, the petitioner issued another notice, dated 24.12.2001; but, the respondent did not send any reply acknowledging receipt of the same. Hence, the petitioner filed the petition for divorce. 7. The respondent filed counter admitting the marriage between the petitioner and the respondent, living together, leading happy marital life and begetting the male child, Praneeth, and also admitted that one Velaga Nageswara Rao and his wife performed kanyadanam. She denied her attending to prayers in the Church and the alleged conversion from Hinduism to Christianity, while asserting that she is a Hindu, following Hindu customs and religious formalities and never acceded to the request of her parents for such conversion. 8. The respondent further contended that, from the beginning, she treated the petitioner with utmost affection and always obedient to him and is ready and willing to join the company of the petitioner to lead marital life. 9. 8. The respondent further contended that, from the beginning, she treated the petitioner with utmost affection and always obedient to him and is ready and willing to join the company of the petitioner to lead marital life. 9. The respondent's parents purchased Ac.1.00 cents of wet land in the name of the respondent, paid Rs.1,00,000/- at the time of marriage to the respondent towards pasupu kunkuma; the same was entrusted to the parents of the petitioner. Again, after the marriage, an amount of Rs.14,000/- was paid to the petitioner, which represents the value of the produce from the land belonging to the respondent. The parents of the petitioner insisted the respondent and her parents to sell away Ac.1.00 cents of land and bring money; so that, the petitioner may invest the same in his business, but the parents of the respondent did not agree for the same; thereupon, the petitioner's mother rebuked the respondent and asked her to go away from the matrimonial home. Thus, the respondent was subjected to cruelty by the parents of the petitioner demanding dowry. 10. The respondent denied the specific allegations made against her, more particularly, about subjecting the petitioner to cruelty, either physical or mental, and prayed to dismiss the petition. 11. During the course of enquiry, on behalf of the petitioner, PWs.1 to 3 were examined and no documents were marked. On behalf of the respondent, RWs.1 and 2 were examined and got market Exs.B.1 to B.3. 12. Upon hearing argument of both the counsel, considering oral and documentary evidence, the trial Court granted decree of divorce dissolving the marriage between the petitioner and respondent. 13. Aggrieved by the divorce decree and order, passed by the trial Court in H.M.O.P. No.60 of 2002, the respondent therein preferred the present appeal by raising several contentions. 14. The main contention of the respondent is that the petitioner miserably failed to establish the cruelty attributed against her and, on the other hand, the parents of the petitioner subjected her to cruelty; since then, she was living separately and the observation of the trial Court that she is not interested to join the company of the petitioner is baseless and the findings of the trial Court are not based on any legal evidence, prayed to allow the appeal setting-aside the order and decretal order under challenge, by dismissing the petition. 15. 15. During course of hearing, learned counsel for the respondent would contend that the alleged act of attending the Church for prayers does not amount to cruelty and mere attending to the Church would not create reasonable apprehension that it is a harmful or endangerous for the petitioner to live with the respondent. In the absence of such apprehension, grant of decree of divorce on that ground is unsustainable. 16. The petitioner also sought divorce on the ground of desertion. But, there is a justifiable cause for the separate living of the respondent as she was subjected to harassment or cruelty for her failure to sell Ac.1.00 cents of land, as demanded by the parents of the petitioner, and when the petitioner himself is guilty of wrong, he is not entitled to the decree of divorce, in view of bar under Section 23(1)(a) of the Act and prayed to allow the appeal setting aside the decree and judgment under challenge and dismiss the petition. 17. Whereas, learned counsel for the petitioner contended that leaving child aged about three years alone in the house, bolting the doors from outside during night, attending the Church for offering prayers certainly creates reasonable apprehension in the mind of the petitioner that it is unsafe to live with the respondent. Therefore, the trial Court rightly granted decree of divorce on the ground of cruelty. Apart from cruelty, there is clinching evidence that the respondent was living separately from the petitioner, without any justifiable cause, for the last more than seven years and such separate living indicates the intention of the respondent that she intended to put an end to the matrimonial cohabitation permanently; thereby, the decree of divorce granted under Section 13(1)(ia) and (ib) of the Act cannot be faulted as it is based on legal evidence and prayed for dismissal of the appeal. 18. Considering rival contentions, perusing the material available on record, including oral and documentary evidence and the divorce decree and order under challenge, the points that arise for consideration are: 1. Whether the respondent subjected the petitioner to cruelty, either physical or mental, which create reasonable apprehension in his mind that it is harmful to live with her, if so, is the petitioner entitled to decree of divorce under Section 13(1) (ia) of the Act? 2. Whether the respondent subjected the petitioner to cruelty, either physical or mental, which create reasonable apprehension in his mind that it is harmful to live with her, if so, is the petitioner entitled to decree of divorce under Section 13(1) (ia) of the Act? 2. Whether the respondent living separately for more than two years with an intention to put an end to the matrimonial cohabitation permanently, if so, is the petitioner entitled to decree of divorce under Section 13(1)(ib) of the Act? 19. Point No.1: The only ground urged in the petition for grant of divorce is that the respondent, when returned to the matrimonial home after delivery, started abusing Hindu Gods and Goddess and throwing out the photo frames, idols of Hindu Gods and Goddesses, cursing Hindu faith and that on one day in the month of September, 1997 left her son, who was three years by then, alone in the house, bolted the door from out side and went to the Church, without informing anybody. It is further contended that attending the Church by leaving the boy alone in the house amounts to cruelty. The respondent denied those allegations while contending that she is a pure Hindu woman having belief in Hinduism and never attended the Church as contended by the petitioner. The trial Court, believing the evidence of the petitioner, granted decree of divorce on the ground that the petitioner was subjected to cruelty. 20. When a petition is filed under Section 13(1)(ia) of the Act, claiming decree of divorce on the ground that the petitioner was subjected to cruelty, either physical or mental, the burden is upon him to establish such cruelty by adducing evidence. 21. To substantiate his contentions, the petitioner himself was examined as PW.1 and reiterated what he pleaded in the petition in his examination-in-chief. In the cross-examination, PW.1 admitted that he settled at Guntur, carrying on the business of computer servicing and made certain improvements in his evidence about printing his qualification as B.Tech., in the wedding card, etc., but those contentions are not relevant for deciding the real controversy. In the cross-examination, the petitioner did not disclose the name of the Church, which the respondent was attending, and did not adduce any evidence that the mother of the respondent embraced the Christianity and he never saw them attending the Church. In the cross-examination, the petitioner did not disclose the name of the Church, which the respondent was attending, and did not adduce any evidence that the mother of the respondent embraced the Christianity and he never saw them attending the Church. He further admitted that there is no Church in Bharatpet, where the petitioner set up his family, and that his house consists of four portions; in the up-stair portion, the petitioner and his mother are living. The ground floor was let out to one Christian family. His wife lived with him from 1995 to 1999 and made a clear admission that except the issue of Christianity, there is no other dispute in his marital life during those years. Therefore, the cause for dispute is attending the Church by the respondent without informing anybody. In Bharatpet, there is no Church by the side of the petitioner's house and thereby the question of attending Church for offering prayers by the respondent does not arise and the said allegation is not believable. The main allegation made against the respondent is that on one day, during night in the month of September, 1997, she kept the boy Praneeth inside the house, locked the door from outside and went to the Church. But P.W. 1 stated that the respondent did not go to the Church, she attended the prayer by the side of his house. So, it is clear from the admissions made by P.W.1 that there was no Church in Bharatpet and the respondent did not attend to any Church, but attended to a prayer by the side of the house, and attending to such prayer, even assuming that what the petitioner pleaded is true, does not amount to cruelty. However, keeping the child inside the house, locking the door, may create apprehension in the mind of the petitioner that the respondent may continue the same attitude, if proved. Admittedly, the petitioner was not living at Bharatpet by the time when the alleged act of keeping the child in the house and locking the door out side was done, but he came to know about the incident after his return from his business premises. Therefore, P.W. 1 is not a direct witness to the incident and his evidence is second had or hearsay evidence. Therefore, P.W. 1 is not a direct witness to the incident and his evidence is second had or hearsay evidence. Therefore, basing on such evidence, the alleged fact that the respondent kept her son inside the house, locked the door outside is not believable. 22. The petitioner examined his neighbor to support his evidence, more particularly, to prove the factum of keeping the child inside the house, locking the door outside and attending the prayer by the respondent. P.W.2 is not a direct witness to the incident and he is only a witness to the marriage. However, in Para 3 of his examination-in-chief, testified that a dispute arose between the petitioner and respondent as the mother of the respondent by name Jatti Sumathi converted into Christianity; thereby she refused to perform the marriage rituals as per Hindu rites. Even this fact does not relate to incidents subsequent to marriage. He further testified that he advised the respondent to behave as Hindu woman and that father of the petitioner informed P.W.2 that the respondent is attending the Church, following Christianity, therefore, developed hatredness towards Hindu Gods, etc. Therefore, P.W.2 had no direct knowledge about the incident of attending the Church for offering prayers by the respondent and developing hatredness towards Hindu.Gods, Goddess and Hindu customs. He received such information from the father of the petitioner. In the cross-examination, learned counsel for the respondent could elicit that P.W.2 along with the Chudamani went to the house of the respondent in connection with disputes in the month of January, 2002 and they made an attempt to settle the disputes. Therefore, nothing has been elicited in the cross-examination of P.W.2. However, the evidence of P.W.2 is not helpful to prove the specific acts and omissions attributed against the respondent by the petitioner in the petition. The best witness is the father of the petitioner, who informed about the incident of attending the Church for offering prayers by the respondent, developing hatredness towards Hindu Gods and Goddess and customs, but he was not examined as a witness to substantiate the contentions of the petitioner. 23. The petitioner examined Vasimalla Gnana Raju as P.W.3 to prove breaking open of doors of the house, when child raised cries, while the respondent attending prayer by the side of their house. 23. The petitioner examined Vasimalla Gnana Raju as P.W.3 to prove breaking open of doors of the house, when child raised cries, while the respondent attending prayer by the side of their house. According to the testimony of P.W.3, the respondent attended prayers in the Living Evangelicals Fellowship Church located at Bharathpet from February, 1977 carrying Holy Bible always. He does not know whether the respondent and converted into Christianity from Hinduism. He further testified that the petitioner and respondent used to reside in the up-stair portion of the house belonging to his father. On one day during the month of September, 1997 at about 9.30 p.m., P.W.3 returned home after completion of his work; at that time there was about six or seven persons at the main door of his portion, in which the petitioner and respondent were residing, and the door was looked from outside and a young boy was weeping loudly in side that portion. Immediately, he went to the up-stair portion, the neighbours gathered there broke open the lock of the premises in occupation of the petitioner and respondent and rescued the boy, who was in darkness. Thus, the testimony of P.W.3, at best goes to show that he was the direct witness to the incident of breaking open the door of the premises in occupation of the petitioner and respondent. In the cross-examination, he admitted that during 1997 he was residing in the house of the petitioner's father and the distance between the house of the petitioner and P.W.3 is about 100 yards. He did not try to call the respondent from the tent to rescue the boy when the people gathered there and that he cannot say the names of the persons who gathered at the house occupied by the respondent while breaking open the doors to rescue the child. He also did not call the ground parents of the child before breaking open the door. He made a clear admission that by the time he went there, breaking of lock was over and the door was about to open. It appears from the evidence of P.W.3, that he was not present when the lock was broke open and never heard the cries of the child. On the other hand, the admission is sufficient to conclude that he was not present at the time when the lock was broke open. It appears from the evidence of P.W.3, that he was not present when the lock was broke open and never heard the cries of the child. On the other hand, the admission is sufficient to conclude that he was not present at the time when the lock was broke open. He witnessed the incident of opening of the door. Therefore, the presence of P.W.3 at the time of broke open the lock of the door is not believable and his presence at the time of alleged opening of the door is highly doubtful, for the reason that during night he has no business to pass through the petitioner's house and that too he is residing in a house almost 100 yards away to the petitioner's house. In normal course of events, when the ground floor or part of the up stair portion was occupied by grant parents of the minor boy, the cries would certainly be heard by them. On the other hand, there is no possibility of hearing cries by the neighbours without attracting the attention of the grand parents, who are living in the ground floor or part of the first floor of the house. The grand parents were admittedly not present at the time of alleged breaking open of the doors, despite alleged gathering of several persons and making an attempt to open the door. Thus, the story invented by the petitioner appears to be totally artificial and on this artificial ground, the evidence of petitioner cannot be accepted. When such is the case of the petitioner that his parents were in town on the date of incident, neither of them were examined to prove the said incident, which created an apprehension in his mind about the safety of the child, Praneeth. Hence, basing on artificial plea and evidence in support of it, the case of the petitioner cannot be accepted. 24. The trial Court only basing on the oral evidence of P.Ws.1 to 3, believed the entire case set up by the petitioner and added to that P.W.1 was not present when the alleged incident took place and the grand parents are the natural witnesses to such incident, who are in occupation of the ground floor or part of up stair portion, but they were not examined to prove the said incident. Therefore, basing on the evidence of P.W.3, who is the resident of a house almost 100 yards away to the petitioner's house, the plea of the petitioner cannot be accepted, but the trial court on erroneous appreciation of evidence believing the unnatural testimony of P.W.3 granted the decree of divorce. 25. The respondent denied the alleged act of cruelty and testified that she never converted into Christianity and not following the Christianity and contended that she was subjected to cruelty by her in-laws for her failure to meet the illegal demand for sale of Ac. 1.00 cents of land; so as to invest the amount realised from such sale, in his business and driven out her from the house. The respondent was cross-examined at length, but nothing was elicited to prove any of the allegations made against her attributing cruelty except suggesting that she is attending the Church for offering prayers, got denial. The respondent examined her father as R.W.2, who testified about the payment of Rs. 1,00,000/- towards pasupu kunkuma, purchase of Ac. 1.00 cents of land in the name of the respondent etc., and subjecting the respondent to cruelty. Therefore, on consideration of the entire evidence on record, it is clear that the petitioner did not establish the fact that the respondent kept the boy inside the house and locked the door outside, during night of a day in the month of September, 1997 to attend prayer; since P.W.1 is not a direct witness to the incident but he came to know about the incident from the persons, who were present and broke open the doors. Apart from that the evidence of P.W.3 is also not believable in view of the admission made in the cross-examination that he was not present at the time when the lock was broke open. Added to that, the very occurrence of incident is doubtful since the grand parents, who are residing in the ground floor or part of first floor, did not visit the premises in occupation of the petitioner, even while breaking open the lock of the door and gathering several people there. Hence, the story of the petitioner cannot be accepted. 26. Added to that, the very occurrence of incident is doubtful since the grand parents, who are residing in the ground floor or part of first floor, did not visit the premises in occupation of the petitioner, even while breaking open the lock of the door and gathering several people there. Hence, the story of the petitioner cannot be accepted. 26. When the petitioner contended that the respondent subjected him to cruelty, it is for him to establish the same and even assuming for a moment that she was attending the Church for offering prayers, unless such offering prayers, attending the Church, creates any reasonable apprehension that it is harmful or endangerous for him to live with the respondent, it is not a ground to grant decree of divorce. The alleged solitary incident of keeping the child inside, locking the door outside itself is not a ground to break the marital tie between the petitioner and respondent granting divorce, even if the incident is true. 27. The cruelty may be either physical or mental and cruelty in one case may not be a cruelty in the other case and it depends upon the social, educational background, the traditions which they are following, sense to react, responding quickly to the incident, the surroundings in which they are living, are the relevant factors to decide whether particular act amounts to cruelty or not. The word 'cruelty' is not defined in the Hindu Marriage Act, but the Apex Court in Savitri Pandey v. Prem Chandra Pandey 2002 (1) ALT 55 (SC) : AIR 2002 SC 591 ruled as follows: "Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. The averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life." 28. In another decision of the Apex Court, in Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675 , the Apex Court defined the word 'cruelty' and held as follows: "To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions." 29. In view of the above principle, the relevant consideration to decide whether a particular act amounts to cruelty or not depends upon the status of the persons, their social background and their quick sense to response. 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. In the present case, the respondent is a house wife and the petitioner is carrying on business of repairing computers. 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. In the present case, the respondent is a house wife and the petitioner is carrying on business of repairing computers. They are literates; no evidence is available as to how such acts amount to cruelty. However, both the petitioner and respondent hail from a respectable family, normally depending upon their social, educational background they may respond quickly to the incidents irritating them in the family life but such irritation in the family, is not a ground to grant decree of divorce unless such conduct is weighty and serious in nature. Here, the petitioner did not adduce any evidence to prove that the conduct of the respondent subjected him to mental cruelty, creating apprehension that it is harmful or endangerous for him to live with the respondent. The trial Court without considering the facts and circumstances including the requirement to grant a decree of divorce under Section 13(1)(ia) of the Act, erroneously granted a decree, believing that the respondent developed faith in Christianity. Such finding is against the law declared by the Apex Court. Hence, we are of the considered view that the attributions made against the respondent by the petitioner would not amount to cruelty to afford a ground to grant a decree of divorce under Section 13(1)(ia) of the Act. 30. One of the circumstances to disbelieve the cruelty is the issuance of legal notice, dated 25-11-2001, calling upon the respondent to join with him to lead marital life. If really, the conduct of the respondent created reasonable apprehension that it is harmful or endangerous for him to live with the respondent, the petitioner would not have issued such notice calling upon the respondent to live with him. The conduct of the petitioner calling upon the respondent to live with him established that the conduct of the respondent did not create reasonable apprehension that it is harmful or endangerous for him to live with the respondent. On this ground also the alleged act of cruelty cannot be believed and decree of divorce can be denied. Therefore, we are not inclined to sustain the finding recorded by the trial Court and it is liable to be set aside since it is not supported by any legal reasoning. On this ground also the alleged act of cruelty cannot be believed and decree of divorce can be denied. Therefore, we are not inclined to sustain the finding recorded by the trial Court and it is liable to be set aside since it is not supported by any legal reasoning. Hence, the finding of the trial Court is hereby set aside holding this point in favour of the respondent and against the petitioner. 31. Point No.2 : The second ground urged by the petitioner for grant of decree of divorce is desertion for more than two years prior to institution of proceedings without any reasonable or justifiable cause, by the respondent. Whereas the contention of the respondent is that she was subjected to harassment for her failure to sell Ac. 1.00 cents of land so as to invest the same in the business being carried on by the petitioner. 32. Undisputedly, the petitioner and the respondent were not living together and even did not disclose the date of leaving matrimonial company of the petitioner by the respondent in the entire petition. Except making an allegation that on one day during night in the month of September 1997, the respondent kept the boy inside the house, attended the Church, etc., and later, the petitioner when questioned about the same, the respondent left the company of the petitioner without informing him. This allegation may at best go to show that the respondent left the company of the petitioner in September, 1997. But, in the evidence of P.W. 2, he testified that in the month of January, 2092, P.W.2 and one Chudamani went to the house of the respondent in connection with the disputes. In the 2nd page of examination-in-chief, P.W. 2, testified that during reconciliation period the respondent did not stay with the petitioner. Therefore, the evidence of P.W. 2, at best shows that despite reconciliation the respondent did not join the petitioner to lead marital life. Whereas, P.W. 1 admitted in his cross-examination at page No. 5 that he got issued a notice dated 25-11-2001 expressing his readiness and willingness to take back the respondent to his house provided she reconverts into Hindu religion. It is also admitted that the reply notice dated 16-2-2002 was issued by the respondent denying her conversion into Christianity, expressing her readiness and willingness to live with him, but she did not join him. It is also admitted that the reply notice dated 16-2-2002 was issued by the respondent denying her conversion into Christianity, expressing her readiness and willingness to live with him, but she did not join him. Thus, the admission goes to show that the respondent had no intention to live separately, to put an end to matrimonial cohabitation, permanently. It really, she had such intention, she would not state about her readiness and willingness to lead marital life with the petitioner through reply notice dated 16-2-2002. The admission of P.W.1 established that the respondent had no intention to put an end to the matrimonial cohabitation permanently. 33. The word 'desertion' is not defined under the Hindu Marriage Act, separately, but under explanation to Section 13(1)(ib) of the Act, the word 'desertion' is explained as follows: "In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party of the marriage, and its grammatical variations and cognate expression shall be construed accordingly." 34. In Adhyatma Bhattar Always v. Adhyatma Bhattar Sri Devi, AIR 2002 SC 88 , the Apex Court defined the word 'desertion' and held as follows: "Desertion" in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are: 1. the factum of separation; 2. the intention to bring cohabitation permanently to an end - animus decidendi', 3. the element of permanence which is a prime condition require that both these essential ingredients should continue during the entire statutory period." 35. In the earliest decision of the Apex Court in Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 , the Apex Court held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. 36. In the earliest decision of the Apex Court in Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 , the Apex Court held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. 36. In view of the explanation to Section 13(1)(1b) of the Act and the law declared by the Apex Court in Adhyatma B hat tar Alwar (4 supra) and Bipinchandra Jaisinghbai Shah (4 supra), two essential conditions must exist: (1) the factum of separation (2) the intention to bring cohabitation permanently to an end (animus deserendi). But proof of desertion is difficult, but the Court may draw inferences from the proved facts and circumstances of each case, and if there is animus deserendi to live separately putting an end to matrimonial cohabitation, permanently, it amounts to desertion. In the instant case, the main allegation of the petitioner is that the respondent is living separately since September, 1997, but, he did not plead or prove that she is living separately with an intention to put an end to the matrimonial cohabitation, permanently and unless such animus deserendi exists, such separate living does not amount to desertion. In Lachman Utamchand Kirpalani v. Meena @ Mota AIR 1964 SC 40 , the Apex Court laid down certain guidelines, how to decide desertion. In view of the principle laid down by the Apex Court in Lachman Utamchand Kirpalani (5 supra), it is for the petitioner to prove that the respondent has withdrawn from his conjugal society without any reasonable cause for her separate living. According to the evidence of R.W. 1 and 2, the petitioner and her parents subjected the respondent to cruelty for her failure to meet the illegal demand. Of course, this plea is not substantiated by any satisfactory evidence. However, the material on record does not disclose anything that the respondent is living separately with an intention to put an end to the matrimonial relationship permanently as she herself informed the petitioner by issuing the reply notice that she is ready and willing to join the petitioner to lead marital life. Even after considering the facts and circumstances of the case, it is difficult to draw an inference that the respondent living separately with an intention to put an end to the matrimonial relationship or matrimonial cohabitation, permanently. Even after considering the facts and circumstances of the case, it is difficult to draw an inference that the respondent living separately with an intention to put an end to the matrimonial relationship or matrimonial cohabitation, permanently. But the trial Court on erroneous appreciation of evidence granted the decree of divorce without considering the facts of the case with reference to law declared by the Apex Court, committed grave error in granting decree of divorce. Hence, the decree and decretal order of the trial Court deserves to be set aside. Accordingly, the order under challenge is hereby set-aside holding this point in favour of the respondent and against the petitioner. In the result, the Civil Miscellaneous Appeal is allowed setting aside the divorce decree and order dated 28-4-2004, passed in H.M.O.P.No. 60 of 2002 by the Additional Senior Civil Judge, Guntur. In consequence, the miscellaneous petitions, if any, pending in this appeal, shall stand closed. No order as to costs.