JUDGMENT : Banwari Lal Sharma, J. The appellant-wife has preferred this Miscellaneous Appeal under Section 28 of the Hindu Marriage Act, 1956 (sic 1955) against the judgment and decree dated 14.7.2011 passed by the learned District Judge, Dungarpur in Civil Miscellaneous Case No. 31/2007 whereby application under Section 13 of the Hindu Marriage Act filed by the respondent was allowed. 2. The brief facts of the case are that the respondent-husband filed an application under Section 13 of the Hindu Marriage Act before the Court of learned District Judge, Dungarpur seeking divorce on the ground of desertion and cruelty. It was stated in the application that his marriage with the appellant was solemnised in the month of April, 1993 and soon after the marriage, she started living separately with her parents and when he and his family members tried to bring her back, she, on the pretext of false allegations, refused to come back. She in registered a false case under Section 498A I.P.C. and also filed application under Section 125 Cr.P.C. It was also stated that there was no issue from their wedlock and stated that due to these facts there is no possibility to establish the matrimonial life between both of them and prayed for dissolution of marriage by granting decree of divorce. 3. The appellant-wife filed reply to the application and denied the averments made in the said application and stated that she lived with the respondent-husband and was performing her matrimonial life but when, in the year 2002, her husband started torturing her and expelled her from matrimonial home, she was live with her parents and thus she started living with parents. It was also lied that the case under Section 498A I.P.C. was also rightly lodged on the true facts. It was also stated that she wanted to live with the respondent-husband but himself did not want to keep her. Thus, she prayed for dismissal of the plication. 4. It was also lied that the case under Section 498A I.P.C. was also rightly lodged on the true facts. It was also stated that she wanted to live with the respondent-husband but himself did not want to keep her. Thus, she prayed for dismissal of the plication. 4. On the basis of the pleadings of the parties, the learned Court below framed the following issues:- ^^1- vk;k foif{k;k dks mlds firk us izkFkhZ ds lkFk vdkj.k ugha jgus fn;k vkSj vyx cuk;s j[kk vkSj dksbZ u dksbZ cgkuk cukdj izkFkhZ ds lkFk jgus ls cprh jgh vkSj foi{kh;k us izkFkhZ dks MstjVsM dj j[kk gS\ 2- vk;k izkFkhZ us foif{k;k dks ekjihV dj izrkfM+r dj mls ?kj ls fudky fn;k vkSj mlds lkFk vekuoh; O;ogkj fd;kA bl dkj.k mldk izkFkhZ ds lkFk thou ;kiu djuk laHko ugha gS\ 3- vuqrks"kA^^ 5. On behalf of the respondent-husband, AW-1 Mahendra Kumar, AW-2 Devendra and AW-3 Dinesh were examined and on behalf of the appellant-wife, she examined herself as NAW-1 and NAW-2 Daya Shankar. 6. The learned Court below, after hearing the parties, decided all the issues against the appellant-wife and granted decree of divorce vide impugned judgment ;ed 14.7.2011, Hence, this appeal. 7. I have heard Mr. Bharat Singh, learned Counsel appearing on behalf of the appellant-wife. No one appeared on behalf of the respondent-husband despite Service. 8. Mr. Bharat Singh, appearing on behalf of the appellant, has submitted that : learned Court below, while granting decree of divorce, proceeded on the assumptions and presumptions. The respondent-husband has failed to prove the ground of desertion and cruelty. It was submitted that in the application, mere allegations were made in a general way. On the contrary, it was the respondent-husband, who himself committed cruelty and expelled her from the matrimonial 1 me, therefore, she was forced to live with her parents. It was also submitted that the respondent-husband did not try to bring her back. I was also submitted that she lived with the respondent-husband up to the year 2002 and when he started torturing her and expelled her from the matrimonial home, she was to live with her parents. Thus, the respondent-himself deserted her. It was also submitted that the respondent-husband did not try to bring her back. I was also submitted that she lived with the respondent-husband up to the year 2002 and when he started torturing her and expelled her from the matrimonial home, she was to live with her parents. Thus, the respondent-himself deserted her. It was further submitted that she lodged an F.I.R. for the offence under Section 498A I.P.C. in the year 2002 and the notice for mutual divorce was sent in the year 2007, which is in retaliation to the F.I.R. lodged against him. The learned Court below, while passing the decree of divorce, did not consider these aspects of the matter and granted the same on the ground that there are contradictions in the statements, which is against the material available on record. It was also submitted that on the ground of irretrievable break down of marriage, decree of divorce cannot It granted. Thus, he prayed for setting aside the decree of divorce. He placed reliance on the judgment delivered in the case of Shyam Sunder Kohli v. Sushrn Kohli @ Satya Devi, RLW 2004(3) SC 634, and Vishnu Dutt Sharma v. Manju Sharma, 2009(2) CT (SC) 491. 9. I have considered the submissions made by the learned Counsel for the appellant. 10. AW-1 Mahendra (respondent-husband), in his statement, stated that he got married with Hemlata (appellant herein) in the year 1993 according to the Hindu customs and rites and she left the matrimonial home after 2-3 days of the marriage and was living in the parental home. He tried to bring her back but she did not come. She lodged a case under Section 498A and also filed an application under Section 125 Cr.P.C. in the year 2002. He sent notice on 30.7.2007. She moves here and there on her accord and is living separately on her own accord. 11. AW-2 Devendra, in his statement, stated that he knows Mahendia (respondent herein) for the last 20 years. Mahendra got married with Hemlata (appellant herein) about 15 years ago. She lived with Mahendra for about 2-3 days. 12. AW-3 Dinesh Kumar in his stated that his elder brother Mahendia (respondent herein) got married with Hemlata (appellant herein) and she was being kept well but she was not treating fairly with his brother. She left the matrimonial home on her own accord and was moving Bombay, Ahmedabad, etc. She lived with Mahendra for about 2-3 days. 12. AW-3 Dinesh Kumar in his stated that his elder brother Mahendia (respondent herein) got married with Hemlata (appellant herein) and she was being kept well but she was not treating fairly with his brother. She left the matrimonial home on her own accord and was moving Bombay, Ahmedabad, etc. on her own accord. Mahendra never tortured her and on the false pretext, a case was lodged against Mahendra. She is living separately for the last 15 years. 13. NAW-1 Hemlata (appellant), in her statement, stated that she got married with Mahendra (respondent) about 10-12 years and she lived with him for about 7-8 years. Thereafter, when he started torturing her and demanded dowry, she was bring back to her parental home by her father and she was living with her father for the last 6-7 years. 14. NAW-2 Daya Shankar, father of appellant-wife, in his statement, stated that he got married his daughter with Mahendra about 15 years ago. He used to torture his daughter and demanding dowry, therefore, he brought his daughter back to his house. He also called panchayat on which he again sent his daughter to here matrimonial home but she was being tortured, therefore, he again brought here back to his house and since then she was living with him. He wanted to sent her back but since she was being tortured, he did not sent her back. 15. The learned Tribunal, while deciding the application, has granted the decree of divorce on the ground that there are contradictions in the statement of the appellant-wife and her father. Whereas, from the perusal of their statement, it is clear that there are no such contradictions much less material contradictions. On the contrary, they both have stated that the appellant-wife lived with the respondent-husband upto the year 2002 and when, thereafter the respondent-husband started torturing her and expelled her from the matrimonial home, she was to live with her father. Further, the respondent-husband has stated that he made efforts to bring her back but no evidence was produced in support of this. On the contrary, the appellant-wife and her father, both have stated that they called panchayat and after panchayat, the appellant-wife was sent back to her matrimonial home and there is no rebuttal to this fact. Further, the respondent-husband has stated that he made efforts to bring her back but no evidence was produced in support of this. On the contrary, the appellant-wife and her father, both have stated that they called panchayat and after panchayat, the appellant-wife was sent back to her matrimonial home and there is no rebuttal to this fact. The respondent-husband has stated that the appellant-wife left the matrimonial home on her own accorded 2-3 days after the marriage, i.e. in the year 1993 itself. The appellant-wife lodged the F.I.R. under Section 498A I.P.C. and filed application under Section 125 Cr.P.C. in the year 2002, which is undisputed. The respondent-husband gave notice for mutual divorce in the year 2007 and thereafter the application under Section 13 of the Hindu Marriage Act was filed. Thus, it can safely be inferred that the said application was filed in relation of the criminal case registered against him. further, there was no reason for the appellant-wife to lodge criminal case in the year 2002, after 9 years of marriage, if she had left the matrimonial home in the year 1993 itself, i.e. soon after the marriage. 16. In view of the above, the respondent-husband has miserably failed to prove desertion and cruelty against the appellant-wife. On the contrary, it was respondent-husband who committed cruelty and deserted the appellant-wife and one cannot take benefit of his own wrong. The learned Court below did not consider these facts and thus has committed illegality while granting decree of divorce. 17. The Hon'ble Supreme Court, in the cases of Shyam Sunder Kohli (supra) and Vishnu Dutt Sharma (supra), has specifically held that irretrievable break down of marriage is not a ground of granting decree of divorce. 18. In the case in hand also, the appellant-wife is ready and willing to live with the respondent-husband. Thus, on the ground of irretrievable break down also, decree of divorce cannot be granted. 19. In view of the above, the learned Court below has committed illegality while passing the decree of divorce, which deserves to be quashed and set aside. Resultantly, this Appeal is allowed and the impugned judgment and decree dated 14.7.2011 passed by the learned Court below is quashed and set aside and the divorce petition filed by the respondent-husband is dismissed. Appeal allowed.