Judgment : A.S. Chandurkar, J. 1. This appeal under Section 19 of the Family Courts Act, 1984 challenges the judgment and order dated 19th June, 2007 passed by the learned Judge, Family Court No.2, Pune in Petition No.486 of 2004 whereby the aforesaid petition filed by the present appellant for divorce on the ground of cruelty and desertion has been dismissed. 2. The appellant-husband and the respondent wife were married on 7th February, 1992 at Pune. The appellant was residing in the joint family. After their marriage, the parties had gone to Matheran where the petitioner noticed that the respondent was suffering from some physical ailment. After some medication the petitioner realized that the respondent was suffering from said ailment even prior to her marriage. The respondent did not conceive from said marriage. While taking treatment the respondent indicated that she was not interested in having a child. The petitioner made attempts to adopt a child but the same was not permitted by the respondent. The behaviour of the respondent was such that the same resulted in causing mental agony to the petitioner. On 21st April, 2003 the respondent left the matrimonial house with all her belongings. She has not returned back thereafter. Ultimately, on 12th July, 2004 the petitioner filed aforesaid petition for divorce on the ground of cruelty. The petition was subsequently amended and the ground of desertion was also pleaded. 3. The respondent filed her written statement vide Exh.19. She denied the averments made by the petitioner in his petition. She denied that her behaviour was such that was causing mental agony to the petitioner. She denied suffering from any physical ailment. On the contrary, she stated that it was the petitioner who was suffering from ailment due to which the marriage could not be conceived. She has stated that she was forced to leave the matrimonial house on 21th April, 2003. She, therefore, stated that no ground was made out for grant of divorce. 4. After considering the evidence led by the parties in support of their respective stand, the learned Judge of the Family Court on the basis of the material on record held that the petitioner had failed to prove that the respondent had treated him with cruelty. It was also held that he had failed to prove that the respondent had deserted her continuously for a period of two years. It was also held that he had failed to prove that the respondent had deserted her continuously for a period of two years. It was further held that in view of provisions of Section 23 of the Hindu Marriage Act, 1955, (hereinafter referred to "the said Act"), the petitioner was not entitled for any relief. Hence, by judgment dated 19th June, 2007 the aforesaid petition came to be dismissed. 5. Smt. Seema Sarnaik, learned counsel for the appellant submitted that the learned Judge of the Family Court erred in holding that the appellant had failed to make out a case of cruelty. As regards behaviour of the respondent, it was submitted that there was sufficient evidence on record to come to the conclusion that it was the respondent who was guilty of treating the appellant cruelly. It was further submitted that various unfounded allegations were made by the respondent against the appellant and his family members. In the absence of any evidence thereof the respondent was guilty of causing mental cruelty to the appellant on said count. It was further submitted that the ground of desertion had also been duly proved by the appellant. The respondent without any justifiable cause had left the company of the appellant. The learned Counsel further submitted that the trial Court was not justified in holding that the appellant was not entitled to any relief in view of provisions of Section 23 of the said Act. It was, therefore, urged that on a proper appreciation of the material on record the only inevitable conclusion that can be drawn was that the appellant had made out a case for grant of divorce on the ground of cruelty and the desertion. 6. None has appeared on behalf of the respondent to support the decree passed by the Family Court though the appeal was heard on 27th June, 2014, 2nd July, 2014 and 3rd July, 2014. In view of the rival pleadings and the material on record the following points arise for determination in this appeal. POINTS (A) Whether the appellant has proved that the conduct of the respondent was such that the same amounted to cruelty under Section 13(1)(ia) of the said Act? (B) Whether the appellant has proved that the respondent was guilty of desertion within the meaning of Section 13(1)(ib) of the said Act? POINTS (A) Whether the appellant has proved that the conduct of the respondent was such that the same amounted to cruelty under Section 13(1)(ia) of the said Act? (B) Whether the appellant has proved that the respondent was guilty of desertion within the meaning of Section 13(1)(ib) of the said Act? (C) Whether the judgment passed by the lower Court calls for any interference? As to point (A) :- 7. To consider the ground of cruelty, it would be necessary to take into account the averments made by the appellant in the petition filed for divorce. The petitioner has stated that when they had gone to Matheran immediately after their marriage, the appellant realized that the respondent was suffering from an ailment but was not disclosing the same to him. According to the appellant, the respondent was suffering from said ailment even prior to their marriage. The appellant has further stated that the respondent used to pass comments with regard to his behaviour. She used to say that the petitioner was under the thumb of his father. She used to further say that the appellant should not listen his father. According to the appellant, he was residing in a joint family and such comments caused tremendous mental agony. The appellant has further stated that the respondent had given a threat of committing suicide. When this fact was informed to the family members of the respondent, they had stated that the respondent was suffering from blood pressure. The conduct of the respondent in not permitting the marriage to conceive and further opposing the steps taken to adopt a child also caused mental distress to the appellant. The respondent left the matrimonial house on 21st April, 2003. When the appellant asked her to return back, she used to tell the appellant to seek partition of the property or to transfer the house in her name as a condition for coming back. This behaviour also resulted in causing mental agony to the appellant. These are the facts pleaded by the appellant while seeking divorce on the ground of cruelty. In the written statement filed by the respondent these allegations are denied. In her specific pleadings the respondent has stated that after her marriage she realized that the appellant was suffering from schizophrenia which act was never disclosed to her before the marriage. These are the facts pleaded by the appellant while seeking divorce on the ground of cruelty. In the written statement filed by the respondent these allegations are denied. In her specific pleadings the respondent has stated that after her marriage she realized that the appellant was suffering from schizophrenia which act was never disclosed to her before the marriage. The appellant used to take at least eight tablets daily and hence was never interested in fulfilling maternal obligations. The appellant was also avoiding his own medical check up. It was further stated that the appellant and his father were court birds and various litigations were pending in different courts. She has further stated that the appellant and his relatives did not allow the respondent to talk to her relatives. She has further stated that she was forced to leave the matrimonial house on 21st April, 2003 and thereafter no attempts were made by the appellant to take her back. 8. The appellant examined himself vide Exh.85. In the affidavit in lieu of evidence, the pleadings in the petition have been reiterated. The appellant produced on record medical papers of the respondent to prove that she was not conceiving after the marriage. He has further produced documentary evidence in relation to his income tax returns and other monetary transactions. The appellant was cross-examined by the respondent. It is stated that he did not lodge any report to the police after noticing certain articles and some money missing. He has further admitted that no police complaint was lodged against the respondent's brother when he had threatened him. In his cross-examination he has stated that he under went various tests as advised by the doctor. He admitted that his mother was suffering from schizophrenia. He has further stated that till 21st April, 2003 he had no intention to take divorce as he wanted to cohabit with the respondent. He has denied that due to illness he was under tension and did not feel like having sexual relations with the respondent. He has denied the suggestion given to him that the respondent had never tried to commit suicide. He has further denied that he was not allowing the respondent to talk to her relatives. In paragraph 23 of the affidavit the appellant denied the special pleadings of the respondent in paragraphs 19 to 24 as being false. He has denied the suggestion given to him that the respondent had never tried to commit suicide. He has further denied that he was not allowing the respondent to talk to her relatives. In paragraph 23 of the affidavit the appellant denied the special pleadings of the respondent in paragraphs 19 to 24 as being false. In his cross-examination in paragraph 43 the appellant denied that he was being treated for schizophrenia. One Shantilal Pokharna has been examined vide Exh.105. He was the Branch Manager of the Bank where the appellant was having an account. He has been examined with regard to the transactions in the joint account of the appellant and the respondent. 9. In so far as the respondent is concerned, she examined herself vide Exh.119. In the affidavit in lieu of examination-in-chief the specific pleadings made in the written statement have been reiterated. In her cross-examination she stated that she or her family members did not lodge any complaint with any authority against the appellant and his family members from 1992 till April, 2003. She has denied that she used to give money to her brother without seeking permission of the appellant. She has denied that after marriage they had gone to Matheran. She has further denied that she was suffering from blood pressure prior to her marriage. She has admitted that the appellant took her for medical treatment several times so as to enable her to conceive. She has denied taking any gold ornaments while leaving the matrimonial house. She has denied that she herself left the matrimonial house. She has further stated that she did not lodge any report against the appellant on 21st April, 2003. 10. The respondent further examined one Sangita Katariya vide Exh.133. She was her elder sister. She has stated that on 20th February, 2004, she along with her brother Kishor, his wife Nilima and the respondent had gone to Pune at the appellant's house. She has stated that they were not permitted to enter the house and were told to take the respondent back. In her cross-examination she has denied the suggestion that she had never visited Pune on 20th February, 2004. Popat Bora (Exh.134) who is the maternal uncle of the respondent was also examined. Similarly, Nilima Munot (Exh.135) has also been examined to prove the visit to Pune on 22nd February, 2004. 11. In her cross-examination she has denied the suggestion that she had never visited Pune on 20th February, 2004. Popat Bora (Exh.134) who is the maternal uncle of the respondent was also examined. Similarly, Nilima Munot (Exh.135) has also been examined to prove the visit to Pune on 22nd February, 2004. 11. The averments made with regard to cruelty by the appellant indicate that the respondent was not conceiving and hence had to undergo medical treatment. This treatment was rendered by the appellant willingly. It is clear from the record that the parties visited various doctors to get over the problems faced by the respondent. The other averments made by the appellant that are alleged to have resulted in cruelty indicate that the same are not of such a nature that would enable a party to seek divorce on the ground of cruelty. It can be said that the same were result of normal wear and tear of the marriage. There is no material on record to hold that the behaviour of the respondent was of such a nature that the same resulted in causing cruelty to the appellant to enable him to seek divorce on said count. However, it is to be noted that the respondent in paragraph 21 of her written statement (Exh.19) had come up with a specific case that the appellant was suffering from schizophrenia since long. The material averments in that regard are as under; "It is submitted that the petitioner was suffering from schizophrenia since long which is mental disease, and this material fact was never disclosed to anyone." The appellant in his examination-in-chief denied aforesaid allegations in the following manner; "Respondent's special pleadings from paragraphs 19 to 24 Exh.19 are false and denied by me." The appellant, thereafter in his cross-examination in paragraph 43 stated that it was not true that he was taking treatment for schizophrenia. It is, therefore, clear that while it was the specific case of the respondent that the appellant was suffering from schizophrenia since long, this fact was specifically denied by the appellant on oath. It was, therefore, necessary for the respondent to have substantiated the same by leading evidence in that regard. However, there is no evidence whatsoever led by the respondent that could lead to a finding that the appellant was in fact suffering from schizophrenia. It was, therefore, necessary for the respondent to have substantiated the same by leading evidence in that regard. However, there is no evidence whatsoever led by the respondent that could lead to a finding that the appellant was in fact suffering from schizophrenia. Thus, in the absence of any evidence in that regard it will have to be held that the allegations made by the respondent in her written statement that the appellant was suffering from schizophrenia has not at all been proved. 12. In V. Bhagat Vs. D. Bhagat (1994) 1 SCC 337 it was held that making unfounded allegations in the pleading without providing the same constitute mental cruelty and the husband cannot be asked to live with the wife thereafter. It was further observed that such pleadings were bound to cause immense mental pain and anguish to the other party. As noted above the respondent had come up with a specific case that the appellant was suffering from schizophrenia. There was however, no evidence led by the respondent to prove the said assertion. Schizophrenia being a mental ailment the same is bound to cause anguish to the party who has alleged to be suffering from it. In view of the settled position of law as the respondent has made unfounded allegations against the appellant without substantiating the same, in our opinion, it would amount to causing mental cruelty and would thus entitle the appellant for grant of divorce on the ground of cruelty. The learned Judge of the Family Court while considering the issue of cruelty has not taken into account the aforesaid aspects. It has merely been observed that it could not be said that the contention raised by the respondent that the appellant was suffering from schizophrenia was a wild allegation much less without proof. In fact, in paragraph 35 of the impugned judgment it has been observed that medical literature referred to did not indicate that the medicines being taken by the appellant were with regard to schizophrenia. The aforesaid finding, therefore, cannot be sustained for the reasons recorded herein above. Point No.1 is, therefore, answered in the affirmative and it is held that by making unfounded allegations against the appellant in the written statement amounts to causing mental cruelty under Section 13(1)(ia) of the said Act. As to point No.(B) :- 13. The aforesaid finding, therefore, cannot be sustained for the reasons recorded herein above. Point No.1 is, therefore, answered in the affirmative and it is held that by making unfounded allegations against the appellant in the written statement amounts to causing mental cruelty under Section 13(1)(ia) of the said Act. As to point No.(B) :- 13. The ground of desertion has been raised by the appellant by amending the petition during pendency of the proceedings. By moving application below Exh.77 on 27th April, 2006, it was urged by the appellant that on 21st April, 2003 the respondent left his company and deserted him without any justifiable cause. It was further stated that certain amounts that were kept in the joint bank account were withdrawn by the respondent unilaterally and were taken by her to her house. Despite efforts to call the respondent back after 21st April, 2003 she did not return. The learned Judge of the Family Court by order dated 6th May, 2006 allowed the application for amendment. In view of the appellant being permitted to raise the ground of desertion, it will be necessary to consider as to whether the appellant has proved such desertion on the part of the respondent for a period prior to two years from 27th April, 2006 for a continuous period of two years the respondent had deserted the appellant for no justifiable reason. 14. In response to the plea of desertion as permitted to be raised by way of amendment, the respondent denied that she had deserted the appellant on 21st April, 2003 without any justifiable reasons. She further denied that the appellant had made various calls to the respondent to call her back to the matrimonial house. She stated that she was still ready and willing to cohabit with the petitioner. The appellant in support of aforesaid ground has stated that the respondent left the matrimonial house on 21st April, 2003 without any justifiable reason. Despite various phone calls she did not return back. In his cross-examination the appellant has stated that he had gone to the station to see off the respondent on 21st April, 2003. He has further stated that he had purchased sweets for her brother. Despite various phone calls she did not return back. In his cross-examination the appellant has stated that he had gone to the station to see off the respondent on 21st April, 2003. He has further stated that he had purchased sweets for her brother. The respondent in her affidavit has stated that she was forced to quit the matrimonial house on 21st April, 2003 and thereafter no attempts were made by the appellant or his family members to take her back. She has referred to the incident of February, 2004 when she along with her family members had been to Pune but they were not allowed to enter the matrimonial house. In her cross-examination she has denied the suggestion that she had left the appellant's house on her own. She has, however, admitted that she had not stayed with the appellant since 21st April, 2003. She admitted that she did not lodge any complaint against the appellant on 21st April, 2003. She has denied the suggestion that she had left the house on her own. The deposition of the other witnesses examined by the respondent are on the aspect of the visit by the respondent along with them in February, 2004. Reference to their deposition would be made a little later. 15. Under Section 13(1)(ib) of the said Act to constitute desertion, it will have to be proved that the party guilty of such desertion left the other party without any just and reasonable cause and such desertion was for a period of not less than two years immediately preceding presentation of the petition. The fact that the respondent left the matrimonial house on 21st April, 2003 is not in dispute. The only dispute is with regard to the manner in which she has left the matrimonial house. According to the appellant, it was he who had seen the respondent off on said date. According to the appellant, the respondent voluntarily left the matrimonial house and thereafter never returned back despite various calls being made to her. On the other hand, the respondent has come up with the case that she was forced to leave the matrimonial house by the appellant and his relatives. She has further admitted that she did not file any report with anybody in that regard. On the other hand, the respondent has come up with the case that she was forced to leave the matrimonial house by the appellant and his relatives. She has further admitted that she did not file any report with anybody in that regard. On assessing the rival stands as taken, the one taken by the appellant appears to be more probable inasmuch as the appellant admits in paragraph 31 of his cross-examination of seeing off the respondent on the said date after which she left the matrimonial house. Absence of any grievance or complaint on the part of the respondent about being forcibly driven out of the matrimonial house is a relevant factor that cannot be ignored. It will, therefore, have to be held that it was the respondent who had left the company of the appellant on 21st April, 2003. 16. It will now be necessary to consider whether there was any justifiable cause for the respondent to leave the matrimonial house. The respondent has not been able to place on record any evidence to indicate that she was compelled to leave the matrimonial house. She has not examined any witness in support of her stand that she was being ill-treated in the matrimonial house. The evidence led by the appellant indicates that the respondent was being provided medical assistance in view of the ailments suffered by her in relation to the blood pressure. Further attempts were also made to get over the aspect of the respondent not conceiving after the marriage. This fact is admitted by the respondent in her deposition. Considering the over all nature of evidence on record, it cannot be said that the respondent was compelled to leave the matrimonial house on account of the conduct of the appellant and his family members. It is, therefore, clear that the respondent had left the matrimonial house on her own accord and without any reasonable cause. 17. The respondent has further admitted that after 21st April, 2003 the parties did not cohabit together. The respondent has not made any attempts to return to the matrimonial house. The visit to Pune on 28th February, 2004 is sought to be relied upon as an attempt to resume cohabitation. It will, therefore, be necessary to examine whether the respondent has proved that she along with her relatives had come to her matrimonial house on said day. The respondent has not made any attempts to return to the matrimonial house. The visit to Pune on 28th February, 2004 is sought to be relied upon as an attempt to resume cohabitation. It will, therefore, be necessary to examine whether the respondent has proved that she along with her relatives had come to her matrimonial house on said day. Suggestion given to the appellant in this regard in his cross-examination has been denied. The respondent has referred to aforesaid visit in paragraph 6 of her affidavit Exh.119. She has stated that she was accompanied by her sister, Sangita at that time. However, in her cross-examination in paragraph 16 she has stated that her sister, Sangita had been to the appellant's house only once at the time of their marriage and had not gone thereafter. Said Sangita Katariya who is her elder sister has referred to aforesaid visit in her affidavit. She has stated that on 20th February, 2004 the main door was locked. However, on knocking the door the appellant and his father came out and told them to leave. They were not permitted to enter the house on the said day. She has denied suggestion that she had never visited Pune and the appellant's house on 20th February, 2004. Similar stand has been taken by Nilima Munot, sister-in-law of the respondent. In her cross-examination she has stated that on said date the appellant's father did not allow them to enter the house. There was, however, no occasion to have a talk with the appellant. She has then stated in her cross-examination that thereafter they went to the appellant's mother's place. 18. It is pertinent here to note that all these details about the main door being locked on 20th February, 2004, the respondent and her relatives being told to leave by the appellant and his father and they thereafter having gone to the house of the appellant's mother at Nandivihar have not been stated by the respondent in her deposition. In fact, she would have been the best person to narrate aforesaid events but having not stated the same, a doubt is created as regards the occurrence of said events and the respondent's visit on 20th February, 2004. In fact, she would have been the best person to narrate aforesaid events but having not stated the same, a doubt is created as regards the occurrence of said events and the respondent's visit on 20th February, 2004. Hence, it will have to be held that the respondent and her relatives have not been able to lead cogent evidence about their visit to the house of the appellant on 20th February, 2004. In view of this, it is clear that after the respondent left the matrimonial house on 21st April, 2003 both the appellant and the respondent did not meet thereafter. Thus, desertion by the respondent from 21st April, 2003 will have to be held as proved. 19. The ground of desertion was added by way of amendment during pendency of the proceedings. The application for amendment vide Exh.77 was moved on 27th April, 2006 and the same was allowed on 6th May, 2006. Thus, desertion for a period of two years preceding 6th May, 2006, being the date of the amendment being allowed will have to be taken into consideration. The learned Judge of the Family Court while considering the issue as regards desertion observed that as the petition for divorce was filed on 12th July, 2004 and the amendment raising the ground of desertion was allowed on 6th May, 2006, the same would relate back to the date of the filing of the said proceedings. It was observed that as the desertion as alleged was from 21st April, 2003, a period of two years would not be completed as on the date of filing of the divorce petition. Similarly, it has been observed that there was no reason to disbelieve the evidence of the respondent's witness on said aspect. As observed above, the period of two years of desertion would have to be considered preceding 6th May, 2006. Said amendment would not relate back to the date of filing of the original proceedings inasmuch as there being a statutory requirement of desertion prior to two years of presentation of the proceedings. The period of desertion will have to be reckoned for a period of two years preceding 6th May, 2006. Moreover, the material evidence on record and the contradictions there under have not been noted by the learned Judge of the Family Court. The period of desertion will have to be reckoned for a period of two years preceding 6th May, 2006. Moreover, the material evidence on record and the contradictions there under have not been noted by the learned Judge of the Family Court. Hence, the finding in that regard recorded by the Learned Judge of the Family Court is contrary to law as well as contrary to the evidence on record. Hence, considering the findings recorded herein above, it is held that the respondent had deserted the appellant without reasonable cause for a period of more than two years from 6th May, 2006. Thus, from the evidence on record it is clear that while the appellant has proved that he was in no way responsible in any manner whatsoever for the respondent leaving the matrimonial house it is also clear from the evidence on record that there was an animus deserendi on the part of the respondent and that she was residing separately on her own accord. In absence of any attempts to rejoin the company of the appellant after 21st April, 2003, desertion as contemplated by provisions of Section 13(1)(ib) stands duly proved. Hence, point No.2 is answered in the affirmative and in favour of the appellant. As to point (C): 20. The learned Judge of the Family Court has held the appellant disentitled to relief in view of provisions of Section 23 of the said Act. However, in view of the evidence on record, we have come to the conclusion that the appellant has succeeded in making out a case of cruelty under Section 13(1)(ia) and desertion under Section 13(1)(ib) of the said Act. Hence, there is no question of the provisions of Section 23 of the said Act being attracted in such situation. It cannot be said that the appellant was taking disadvantage of his own conduct. In view of the aforesaid discussion, it is clear that the appellant has succeeded in making out a case for grant of divorce on the ground of cruelty under section 13(1)(ia) of the said Act as well as on the ground of desertion under Section 13(1)ib) of the said Act. Accordingly, judgment dated 19th June, 2007 passed by the learned Judge of the Family Court will have to be set aside. Hence, we pass the following order. Accordingly, judgment dated 19th June, 2007 passed by the learned Judge of the Family Court will have to be set aside. Hence, we pass the following order. ORDER a) Appeal is allowed; b) The judgment dated 19th June, 2007 passed in Petition No.486 of 2004 by the learned Judge, Family Court No.2, Pune is quashed and set aside; c) It is declared that the appellant has made out a case for grant of divorce on the ground of cruelty under Section 13 (1) (ia) and on the ground of desertion under Section 13 (1) (ib) of the said Act. The marriage solemnized between the parties on 7th February,1992 stands dissolved by passing decree for divorce under Section 13 (1) (ia) and Section 13 (1) (ib) of the said Act; d) It would be open for the respondent to seek appropriate relief under the provisions of Section 25 of the said Act; e) Decree be drawn up accordingly. There would be no order as to costs.