JUDGMENT 1. Heard Sri Akhilesh Tripathi, learned counsel for appellant, Sri Anil Kumar for the respondent wife and perused the record carefully. 2. By means of the instant first appeal under section 19 (1) of the Family Court Act, 1984 (hereinafter referred as 1984 Act), plaintiff-appellant has challenged the judgment and decree dated 10.07.2007 passed by Sri Ravindra Nath Kakkar, Principal Judge, Family Court, Kanpur Nagar, dismissing the Suit No. 15 of 2001 for divorce instituted by plaintiff-appellant against defendant-respondent. The relief sought by the appellant is that this Court may be pleased to allow the appeal, set aside the judgment and decree dated 10.07.2007, passed by the Family Court decreeing the aforesaid suit for divorce, with cost. 3. Before proceeding to decide the appeal on merit, both the parties were suggested by this Court to reconcile their dispute amicably and so, they were directed to appear in person on 9th September, 2012. Learned counsel for parties were also asked by this Court to exercise their good offices to settle the dispute. However, the effort for conciliation failed as is evident from the following order passed by this Court : "Pursuant to the order dated 28th August, 2012 the parties appeared in person. The learned counsel for the parties made a joint effort for conciliation but they could not succeed. The mater was taken up in chambers and was discussed with the parties. It seems that there is no possibility of any conciliation between the parties. The parties are not required to appear in person any more. Let the matter be listed on 3rd October, 2012. In the meantime, the learned counsel for the parties may file their respective number of paper books." 4. Marriage of plaintiff-appellant and defendant-respondent was solemnized on 29.04.1993 as per Hindu rites. They were blessed with two female children on 06.08.1996 and 10.11.1999. At the time of marriage, appellant was unemployed and got employed in Railway Service in year 1996, while defendant-respondent was already selected in year 1990 before her marriage as Scientist in Indian Institute of Pulses Research, Kanpur, but chose to be appointed later in year 1992 and is working as such. Defendant-respondent is M.Sc. Ph.D. whereas, appellant is presently posted as Deputy Chief Engineer in North East Frontier Railway at Gauhati (Assam) since December, 2000. Before that, he was posted as Executive Engineer at New Jalpaiguri, West Bengal. 5. Defendant-respondent is M.Sc. Ph.D. whereas, appellant is presently posted as Deputy Chief Engineer in North East Frontier Railway at Gauhati (Assam) since December, 2000. Before that, he was posted as Executive Engineer at New Jalpaiguri, West Bengal. 5. On 31.03.2001, plaintiff-appellant filed Marriage Petition No. 15 of 2001 for divorce before Family Judge, Vth Additional District Judge, Jalaun at Orai alleging therein that defendant-respondent is living separately having no physical or emotional relationship of any kind with him, though appellant made bona fide and sincere efforts to seek his transfer to U.P. for pursuing her to live with him, but his efforts failed. Contrary to it, defendant-respondent never made any effort to live with him. Hence, appellant was compelled to file Marriage Petition No. 15 of 2001 giving rise to present appeal. 6. Before Family Court following three issues were framed to decide aforesaid marriage petition: Whether defendant has deserted plaintiff since 1999, about for two years, as alleged in suit? It yes, its effect? Whether plaintiff has deserted defendant for any justifiable cause, as alleged in suit? If yes, its effect? Whether plaintiff is entitled to any other relief? 7. Issues Nos. 1 and 2 were decided together as they are related to each other. Court below has noted in its judgment, the allegation made by defendant, that plaintiff appellant was aggrieved with birth of two daughters and wanted a son, therefore, started her harassment mentally, physically and economically. He also pressurized her to leave service, although defendant wife was in service much before her marriage though appellant got employment afterwards. He did not provide any financial support to defendant wife who is living in her paternal house with two daughters. Court below has categorically held that no documentary evidence has been brought on record to show that before filing suit for divorce, petition for restitution of conjugal rights was instituted by appellant under section 9 of Hindu Marriage Act or any legal notice was given to defendant wife to call her to matrimonial home. Defendant wife also relied on law laid down by Apex Court in Shyam Sunder Kohali Vs. Sushma Kohali @ Satya Devi, 2004 (3) SCC 1405 wherein it has been held that on the ground of irretrievable break down of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances the Court may use this ground for dissolving a marriage. Sushma Kohali @ Satya Devi, 2004 (3) SCC 1405 wherein it has been held that on the ground of irretrievable break down of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances the Court may use this ground for dissolving a marriage. It is appellant who is guilty of deserting her wife and two daughters. These two issues were decided in favour of defendant wife. Consequently, issue No. 3 was also decided against appellant and in favour of defendant wife. Family Court accordingly dismissed the suit. 8. Before this Court appellant has again pressed the same issues as were raised in Court below. It is contended that defendant-respondent has deserted appellant without any lawful reason and despite efforts, she has not shown any eagerness to stay with husband, therefore, decree of divorce is justified. It is also contended that denial of family life to appellant amounts to cruelty and on that account also divorce is justified. 9. Case set up by appellant for divorce before Family Court is that after solemnization of marriage on 29.04.1993 defendant wife lived with appellant at Orai and some days after went back to Kanpur, her paternal house. Appellant got selected in Railway Service and despite his postings at different places, he used to come and live at Orai. But defendant wife is not ready and willing to leave her parental house. She is having great affection to her parents and is adamant that appellant should resign and live at Kanpur. He, due to deep love for defendant wife, took leave, time and again, to visit her and they were blessed with a female child on 06.08.1996. But she was not ready to live with appellant even after birth of this child and since year 1996 she did not maintain relationship. In the month of January, 1999, marriage of appellant's brother was slated. His father requested her father that defendant come to Orai and participate in marriage to keep respect and dignity in society. His father prevailed upon it and sent her to Orai in January, 1999. Appellant established physical relationship with her in January, 1999 and again she got pregnant. She returned to Kanpur against appellant's desire. She again gave birth to a female child at Kanpur, but appellant was not informed. His father prevailed upon it and sent her to Orai in January, 1999. Appellant established physical relationship with her in January, 1999 and again she got pregnant. She returned to Kanpur against appellant's desire. She again gave birth to a female child at Kanpur, but appellant was not informed. Time and again, appellant telephonically asked his wife to live with him, but she never shown readiness because she did not like to leave her parental home. Lastly, it is stated that for more than two years, defendant-wife is guilty of desertion and there is no understanding between them, hence, marriage petition under section 13 of Hindu Marriage Act. 10. Contrary to aforesaid version made by appellant, defendant-wife filed written statement (Paper No. 40-Ka) admitting her marriage with appellant but denied the allegations made in marriage petition. She said that during stay at in-law's house, physical contacts were made, resultantly she got pregnant. She gave information of pregnancy to appellant. Appellant who wanted a male child, got her medically examined. From medical report it transpired that there was a female fetus in her womb and he became mentally disturbed. He started exercising undue pressure on her for abortion, for which she was not prepared. Even doctor also did not advise it looking to her health. Appellant started to torture her economically, mentally and physically. 11. It has been further averred by defendant-respondent that on 12.07.1996 after taking all her ornaments, she was driven out. She again went to her matrimonial home in January, 1999 and established physical relationship with appellant and became pregnant. At the time of delivery of daughter defendant-respondent was sent back to her paternal house without giving her ornaments. Since then, she is living at her parental house where on 11.10.1999 she gave birth to second daughter. Inspite of having knowledge of birth of second daughter, appellant never arranged any medical facility nor any injection was provided to save life of her daughter. Appellant got service on 04.07.1994 but he did not care for treatment of daughters or defendant-respondent nor provided any economic help to them. Even he did not celebrate birthday of any of daughters. Nor he ever sent money-order etc. From 26.06.1995 to 08.07.1995 she took leave and spent time with appellant at New Delhi. From 27.07.2000 to 11.08.2000, she took leave and discharged marital obligations with him. Even he did not celebrate birthday of any of daughters. Nor he ever sent money-order etc. From 26.06.1995 to 08.07.1995 she took leave and spent time with appellant at New Delhi. From 27.07.2000 to 11.08.2000, she took leave and discharged marital obligations with him. Moreover, after filing of marriage petition on 31.01.2001, in compliance of Court's order, she went to Gauhati (Assam), where he was in service. She performed her marital obligations. On 12.07.1996 she was driven out from matrimonial home after taking her all ornaments (Stridhan). Appellant neither returned those ornaments, nor got her daughters new clothes, nor got issued any insurance policy for them which would have made her free from financial burden of their marriage. Contrary to it, appellant used to pressurize her to offer him her entire salary. Since, appellant never give any financial support to her or her daughters, therefore, she never could dare to resign her service. She always doubted the appellant that he would provide her with bread and butter and would educate her daughters. Therefore, she never could take step to resign her service at the insistence of appellant as she was already tortured by him, mentally economically and physically too much. 12. It is vehemently contended by learned counsel for appellant that impugned judgment and decree Dt.10.07.2007 passed by Family Court is absolutely against law laid down by Hon'ble Apex Court in Navin versus Nitu Kohli, 2007 2006 SC 1675 and Samar Ghosh versus Jaya Ghosh, 2007 (4) SC 511. Court below has manifestly erred in omitting and ignoring to consider the conduct of defendant-respondent who lodged not only FIR against appellant on false and fabricated allegations but also filed case under Section 125 Cr.P.C, which is sufficient to prove that defendant-respondent is guilty of animus-deserendi. 13. Further contention is that Court below has failed to consider the conduct of defendant-respondent who has preferred to live separately for more than 8 years with one-sided decision of having children with her. It has led to grave mental cruelty to appellant particularly when she discarded his entire effort to bring her back. 13. Further contention is that Court below has failed to consider the conduct of defendant-respondent who has preferred to live separately for more than 8 years with one-sided decision of having children with her. It has led to grave mental cruelty to appellant particularly when she discarded his entire effort to bring her back. The presumption as well as inference drawn by Court below that plaintiff appellant has failed to prove the allegations levelled upon defendant wife, is baseless and imaginative because in support of pleas he brought on record a number of applications indicating that he sought transfer from Assam to UP so that he may effectively pursue her to come and live together but could not succeed. Despite being a clear proven case of cruelty and desertion on the part of defendant respondent, as described under Section 13 (1) (i-a) of the Act, there was no justification for the Court below to pass the impugned order and to continue legal tie spoiling career of both the parties. 14. It is vehemently argued by learned counsel for appellant that defendant-respondent lodged FIR under section 506 IPC against appellant and his father on 29.08.2001 and police was also pressurized to arrest them. In petition under Section 482 Cr.P.C. No. 4063 of 2004, on 26.05.2004 further proceeding in Case No. 466 of 2001 pending in Court of Chief Metropolitan Magistrate, Kanpur were stayed. Further, in Case under section 125 Cr.P.C. appellant has filed detailed objection dated 15.09.2003, which is still pending. Thus, defendant respondent has initiated civil and criminal proceedings against appellant which is indicative of the fact that she has absolutely no intention to continue relationship with her husband, i.e., appellant. Moreover, from the averments made in para 6 of the affidavit it is evident that defendant-respondent, having settled at Kanpur in service, has already decided to live with her parents at Kanpur and not to discharge marital duties, either at her in-laws house at Orai or by living with her husband continuously or periodically. Thus, present case falls within the purview of desertion and mental cruelty, which is sufficient ground for divorce, but the Court below has wrongly and illegally held otherwise contrary to section 13 of the Hindu Marriage Act. 15. Thus, present case falls within the purview of desertion and mental cruelty, which is sufficient ground for divorce, but the Court below has wrongly and illegally held otherwise contrary to section 13 of the Hindu Marriage Act. 15. Further contention is that Court below has failed to take into consideration the fact that defendant-respondent did not make appellant, nominee in his provident fund, whereas appellant has made her nominee in his provident fund. Further, she has named her both daughters with Surname 'Chandra' being used by her father and brothers as her brothers' names are Suresh Chandra, Umesh Chandra, Mukesh Chandra, Rajesh Chandra and father's name was late Buddha Chandra. This Surname is not in use in family of appellant. It is crystal clear that she is interested to live at her paternal house and is guilty of desertion. Appellant has never harassed or tortured her and never subjected her to beating as alleged by her. She was already in service on the post of Scientist and thereafter promoted as Senior Scientist and drawing a handsome salary of Rs.22,000/- per month. She was never suffering from financial problems. She was always kept with love and respect by him. Thus, findings recorded by Court below that appellant is guilty of deserting his wife, is illegal and contrary to material available on record. The Court below has also not considered that defendant wife has refused to get herself transferred from Kanpur to Gauhati (Assam), the place where appellant is/ was posted. 16. Per contra, learned counsel for defendant respondent invited attention of Court to additional statement filed by her in court below wherein it has been alleged that acceeding to his proposal to call on 28.12.2003, she went herself at his residence and lived in co-habitation with him for about 15 days. After satisfying him physically and mentally, with his willingness, she came back to Kanpur without her ornaments which were snatched from her earlier on 12.07.1996. Moreover, appellant has not brought anything on record to show that before filing divorce petition, offer made by him to live with him was ignored or discarded by her. Thus, the case set up by appellant, either before this Court or before Family Court, is based on false and fictitious allegations. Moreover, appellant has not brought anything on record to show that before filing divorce petition, offer made by him to live with him was ignored or discarded by her. Thus, the case set up by appellant, either before this Court or before Family Court, is based on false and fictitious allegations. The defendant wife is, and, was always ready and willing, to live with appellant as is evident from following chart of leave taken by her; Sl. No. Details of Leaves Days 1 19.04.1993 to 20.04.1993 2 2 26.04.1993 to 07.05.1993 12 3 26.06.1995 to 30.06.1995 5 4 01.07.1995 to 07.07.1995 7 5 17.07.1995 to 05.08.1995 20 6 06.03.1996 to 08.03.1996 3 7 06.08.1997 to 08.08.1997 3 8 22.09.1997 to 23.09.1997 2 9 15.11.1997 to ........ 1 10 02.01.1997 to 12.02.1997 11 11 27.07.2000 to 11.08.2000 46 12 18.09.2000 to ........ 1 13 26.09.2000 to 28.09.2000 3 14 29.12.2000 to 30.12.2000 2 15 06.11.2001 to 08.11.2001 3 16 12.11.2000 to 13.11.2001 2 17 08.05.2002 to 10.05.2002 3 18 01.07.2002 to 05.07.2002 5 19 31.01.2003 to 07.02.2003 8 20 01.01.2004 to 15.01.2004 15 17. From perusal of following table it would be clear that defendant-wife has got converted leave also: Sl. No. Details of Converted Leave Days 1 20.09.1994 to 25.09.1994 6 2 12.09.1995 to 22.09.1995 11 3 30.11.1995 to 02.12.1995 3 4 10.06.1996 to 13.06.1996 4 5 24.10.1997 to 01.11.1997 9 6 21.02.2000 to 26.02.2000 6 7 04.04.2000 to 08.04.2000 5 8 17.04.2000 to 22.04.2000 6 9 06.06.2000 to 24.06.2000 19 10 19.09.2000 to 25.09.2000 7 11 11.02.2002 to 16.02.2002 6 12 23.12.2002 to 28.12.2002 6 13 31.01.2003 to 07.02.2003 8 18. Besides above, defendant-respondent also got maternal leave of 135 days w.e.f. 16.08.1999 to 29.12.1999. From above charts, the allegation of appellant that defendant-respondent never took leave to spend time with him is false and baseless. 19. From the averments contained in plaint, we do not find that plaintiff raised issue of 'cruelty' on the part of defendant-respondent. This issue is being sought to be raised for the first time before this Court in this appeal. Whether there is a case of cruelty or not is a mixed question of fact and law. Unless the relevant necessary facts are pleaded and evidence adduced, in our view this question cannot be raised for the first time before Appellate Court. This issue is being sought to be raised for the first time before this Court in this appeal. Whether there is a case of cruelty or not is a mixed question of fact and law. Unless the relevant necessary facts are pleaded and evidence adduced, in our view this question cannot be raised for the first time before Appellate Court. Learned counsel for appellant, however, contended that necessary averments contained in appeal as also the available evidence would show that there was a case of cruelty also though specifically term 'cruelty' was not pleaded but Appellate Court can look into this aspect of matter. It is in these circumstances, for the purpose of deciding this appeal, we formulate following points for determination: Whether appellant has proved a case of desertion on the part of defendant-respondent so as to get a decree of divorce? Whether plea of cruelty on the part of wife can be allowed to be raised for the first time at appellate stage when no such issue was raised before trial Court? Whether a case of cruelty has been made out by appellant against the wife so as to justify decree of divorce in his favour? Point No. 1 20. Plaint case set up by appellant is that he is resident of Orai where he has a parental permanent residence. Marriage was solemnized on 29th of April, 1993 according to Hindu rituals. Appellant and respondent both are Hindu. After marriage respondent came to stay at Orai and marriage was consummated at Orai. Appellant got employment after marriage and was posted at different places. However, he used to frequently visit Orai and stayed there. Defendant after marriage came to Orai but after, a few days, went back to Kanpur where her parents are residing. She has extreme closeness with parents and was not ready to leave her parental house. She insisted upon appellant to leave job and stay at Kanpur. Since appellant has lot of affection with respondent, he used to meet her taking leave from time to time. A daughter was born out of their wedlock on 06th of August, 1996. Since thereafter, defendant has not maintained her relations with appellant being not ready to stay with him. She insisted upon appellant to leave job and stay at Kanpur. Since appellant has lot of affection with respondent, he used to meet her taking leave from time to time. A daughter was born out of their wedlock on 06th of August, 1996. Since thereafter, defendant has not maintained her relations with appellant being not ready to stay with him. In January, 1999 on the eve of marriage of appellant's brother, his father requested respondent's father to send her to Orai for attending marriage ceremony for which he agreed and respondent visited Orai in January, 1999. During this period husband and wife established relations as a result whereof respondent again became pregnant, but then without any consent or permission she went back to Kanpur where she gave birth to another female child but did not give information to appellant. He continuously telephoned her persuading to come and stay with him but she was not ready to live at her in-laws house. For the last two years respondent is guilty of desertion and for that reason appellant is entitled for a decree of divorce. 21. Defendant admitted factum of marriage and birth of two female children. However, her allegation is, when she became pregnant second time, appellant got her tested and found that wife had a female embryo whereupon he insisted upon wife for medical termination to which she did not agree and when tortured mentally and physically, she left in-laws residence and came back to her parental house at Kanpur. Second daughter was born on 10.11.1999. On 28th December, 2003 she had gone to stay with appellant and remained there for 15 days and both enjoyed married life. They had cohabitation also. She returned thereafter on 15th January, 2004. Respondent is always ready and willing to stay with plaintiff-appellant and maintain her family relations but appellant himself is not ready to keep respondent and two daughters with him. He is inclined to go for a second marriage with heavy dowry. Respondent did M.Sc. (Horticulture) and thereafter, doctorate also. On account of her qualifications her employment was ensured in 1990 but she joined on 11.11.1992. At the time of settlement of marriage, it was agreed between appellant and respondent that appellant shall allow respondent to continue her employment and observe matrimonial relations by frequently visiting each other's place of posting. Respondent did M.Sc. (Horticulture) and thereafter, doctorate also. On account of her qualifications her employment was ensured in 1990 but she joined on 11.11.1992. At the time of settlement of marriage, it was agreed between appellant and respondent that appellant shall allow respondent to continue her employment and observe matrimonial relations by frequently visiting each other's place of posting. Subsequently, since appellant got employment in Railway his services were transferable from one place to another, while respondent's service was not transferable, therefore, it was not possible for both to stay at one place. Appellant was pressurizing respondent to leave her job. Respondent visited residence of appellant wherever he was posted taking leave from time to time. The entire dispute arose when she conceived second time with a female child. Appellant pressurized for abortion to which respondent did not agree and this caused him serious displeasure. He started misbehaving with respondent mentally, physically and even economically. Neither he took care of treatment of new born child nor otherwise took care of mother and children both. He is not providing any financial help to respondent and two children either for food, lodging, education or any other purpose. She has also given details when she proceeded on earned leave to stay with appellant at New Delhi, Gauhati and other places. Appellant insisted upon respondent to hand over entire salary to him, while he himself never gave his own salary to respondent at any point of time. He never maintained cordial smooth family relations and always tried to harass respondent in one or the other ways. Father of respondent died on 10th September, 2003 leaving behind four sons, two daughters which includes respondent and widow i.e. her mother. Respondent's four brothers and sister are already married. Since it is a big family now, therefore, it cannot be said that respondent is interested to stay at her parental residence. Respondent's father was an IPS officer and at the time of marriage on 29th April, 1993 was posted as Commandant 39th Battalion PAC Mirzapur. Functions of Tilak and marriage both were performed with lot of grandeur and lot of jewelry and other items including gift items were given to appellant and his family. 22. From pleadings and evidence, the admitted facts which have borne out are that father of wife was a Senior Officer in Indian Police Service when marriage was performed in 1993. Functions of Tilak and marriage both were performed with lot of grandeur and lot of jewelry and other items including gift items were given to appellant and his family. 22. From pleadings and evidence, the admitted facts which have borne out are that father of wife was a Senior Officer in Indian Police Service when marriage was performed in 1993. At that time, wife was already in employment working as a Scientist in Indian Pulse Research Centre, Kanpur, which is an unit of Indian Council of Agriculture Research. The husband was unemployed at the time of marriage though he was also qualified engineer. After marriage, it appears that he appeared in Indian Railway Service of Engineers, 1994 Examination and having been selected, was appointed in Railway Service on 02.01.1996, which is a class-1 service. It is said that before joining Railway Service, he also worked for two years as Assistant Executive Engineer Group-A in CPWD which shows that this employment started sometime in 1994. A letter dated 26th September, 2000 (Paper-51 Ga/13) is on record to show that appellant made a request to Railway Board to transfer him from Northeast Frontier Railway to North Central Railway/Northern or Central Railway so that he may be able to stay with his wife and children. At that time, appellant was posted as Executive Engineer (Construction), NF Railway, New Jalpaiguri. It is evident from record that after posting of appellant in Railway Service, he has been posted at Malda, Siliguri, Guwahati etc. Though appellant as PW-1 has denied respondent's visit and stay with him at his various places of posting, but respondent DW-1 in her oral deposition has stated specifically that she visited and stayed with appellant at his places of posting at Malda, Siliguri, Guwahati, Katihar etc. 23. It cannot be doubted that desertion is a ground for divorce under section 13 (i) (b) of Hindu Marriage Act, 1955. However, it says that it would be a ground for divorce only when the other party has deserted petitioner for a continuous period of not less than two years immediately preceding the presentation of petition. 23. It cannot be doubted that desertion is a ground for divorce under section 13 (i) (b) of Hindu Marriage Act, 1955. However, it says that it would be a ground for divorce only when the other party has deserted petitioner for a continuous period of not less than two years immediately preceding the presentation of petition. Term 'desertion' as defined in Explanation to section 13 (i) reads as under: Explanation.-- 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 to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. 24. Therefore, two important aspects which must exist at the time of filing of a petition for divorce, on the ground of desertion, are; -- (1) The other party is guilty of desertion i.e. separated without any reasonable cause; and (2) On the date of presentation of divorce petition, the other party has deserted for a period not less than two years continuously. 25. In the present case, it is the own case of appellant that in January, 1999 respondent came to matrimonial home, i.e., in-laws residence at Jalaun and stayed with appellant, lived as husband and wife and maintained their physical relations also. Though the allegation of husband is that respondent went back to her parents' place at the end of January, 1999 but judicial cognizance can be taken of the fact that second daughter was born on 11th October, 1999. Meaning thereby, the couple had cohabitation at least up to February, 1999. The divorce petition was filed on 31st January, 2001. Thus, it cannot be said that on the date of filing divorce petition, requirement of Statute that the other party has deserted for a period, not less than two years, was satisfied. 26. The Court below has further recorded a finding that respondent has taken earned leave from 27.07.2000 to 11.08.2000, 31.01.2003 to 07.02.203 and 29.12.2003 to 15.01.2004. It is also admitted by appellant that pursuant to an order passed by a Court in Guwahati, both had stayed together as husband and wife, maintaining their relations, from 28th December, 2003 to 15th January, 2004. This finding could not be shown, as incorrect. It is also admitted by appellant that pursuant to an order passed by a Court in Guwahati, both had stayed together as husband and wife, maintaining their relations, from 28th December, 2003 to 15th January, 2004. This finding could not be shown, as incorrect. We, therefore, find that one of the ground that desertion has continued for a period not less than two years was not satisfied. Hence, appellant has rightly been denied relief of divorce on the ground of desertion. 27. The second ingredient is that separation should be without any lawful cause. In the present case, it is admitted that wife is a Scientist, in a renowned agricultural institute, i.e., Indian Pulse Research Institute which is a unit of Indian Council of Agricultural Research. She is posted at Kanpur. She was employed much before the marriage was settled and solemnized between the parties. At the time when marriage was settled, appellant knew that respondent is in such an employment that she is not liable to be transferred outside Kanpur. Knowing it well and agreeing that she may continue with her employment at Kanpur, the marriage was solemnized. From the plaint, it is evident that service of respondent never caused an issue with appellant in maintaining normal matrimonial relations. She used to go to stay with him from time to time, and both enjoyed married life as a result whereof respondent has given birth to two daughters. It appears that with the birth of second daughter, husband got some-kind of strained relations and made an attempt to seek divorce. He did not make any attempt for restitution as has admitted in oral deposition. No suit under section 9 for restitution of conjugal rights was ever filed by him. Even the allegation of respondent that husband is not providing any alimony for taking care of daughters, has also not been shown to be incorrect. Even if respondent was not staying with the husband continuously since she was employed at Kanpur, but evidently visited to stay with him from time to time. Even the allegation of respondent that husband is not providing any alimony for taking care of daughters, has also not been shown to be incorrect. Even if respondent was not staying with the husband continuously since she was employed at Kanpur, but evidently visited to stay with him from time to time. It, thus, cannot be said that there was separation on the part of respondent "without any lawful cause." In Uday Shanker Prasad versus Sangeeta Rani, 2008 (3) UC 0185, a Division Bench of High Court Uttarakhand at Nainital, in similar circumstances has said in para - 7 as under: "...............In these circumstances, where the Respondent is in Government service and doing her job, she cannot be expected to live all the time with her husband in Purnia and it cannot be said that she has deserted the Petitioner for a continuous period of two years preceding the presentation of the petition without any sufficient cause." 28. We, therefore, answer point No. 1 formulated above against appellant and confirm findings of Trial Court which also had been recorded against appellant on this aspect. 29. Now, coming to points No. 2 and 3, we find that there is not even a whisper to suggest of any pleadings which may constitute an allegation of cruelty for seeking divorce under section 13 of Act, 1955. As we have already discussed the question of cruelty is a mixed question of fact and law. Unless there is a specific pleading in this regard and evidence adduced, the question of cruelty cannot be gone into. Since no case of cruelty was made out by appellant in the plaint, he cannot be allowed to raise this issue for the first time in this appeal. Even otherwise, we do not find that there is any material whatsoever to show that there was any cruelty on the part of respondent, justifying a decree of divorce sought by appellant in the present case. 30. It is then contended that both the parties are staying away for the last almost ten years. Since 1999, they are not staying together except for a brief period when for 15 days they stayed together under order of a Court at Guwahati. 30. It is then contended that both the parties are staying away for the last almost ten years. Since 1999, they are not staying together except for a brief period when for 15 days they stayed together under order of a Court at Guwahati. In the circumstances, marriage between the parties has reached to a point of irretrievable break down, hence, Court must grant decree of divorce so that the parties may stay happily and live their own life in their own terms. We find no substance on this aspect also. Under the Statute there is no ground like irretrievable break down of marriage justifying divorce. It is a doctrine laid down by judicial precedence. In particular, Apex Court has exercised power under Article 142 of Constitution to allow divorce on the ground of irretrievable break down of marriage. Moreover, if only one party is claiming that there is a complete break down of marriage, while the other party is continuously willing to stay and live married life with other party, the party claiming divorce on this ground cannot be allowed to get advantage of his own wrong. In this regard, relying on certain judgments of Apex Court, a Division Bench in Ram Babu Babeley versus Smt. Sandhya, 2006 (1) JCLR 393 (All) has laid down certain inferences which reads as under: - (i) The irretrievable break down of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, this circumstance can be taken into consideration as laid down by Hon'ble Apex Court in the case of Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and V. Bhagat versus D. Bhagat, AIR 1994 SC 710 . (ii) No divorce can be granted on the ground of irretrievable break down of marriage if the party seeking divorce on this ground is himself or herself at fault for the above break down as laid down in the case of Chetan Dass Versus Kamla Devi, AIR 2001 SC 1709 , Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and Shyam Sunder Kohli v. Sushma Kohli, (2004) 7 SCC 747 . (iii) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties can not live together as laid down in Chandra Kala Trivedi versus Dr. SP Trivedi, (1993) 4 SCC 232 . (iv) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases also where the conduct or averments of one party have been so much painful for the other party ( who is not at fault) that he cannot be expected to live with the offending party as laid down in the cases of V. Bhagat versus D. Bhagat, (supra), Ramesh Chander versus Savitri, (1995) 2 SCC 7 , Ashok Hurra versus Rupa Bipin Zaveri, 1997(3) AWC 1843 (SC), 1997(3) A.W.C. 1843(SC) and A. Jayachandra versus Aneel Kaur, (2005) 2 SCC 22 . (v) The power to grant divorce on the ground of irretrievable break down of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties, as observed by Hon'ble Apex Court at paragraph No. 21 of the judgement in the case of V. Bhagat and Mrs. D. Bhagat, AIR (supra) and at para 12 in the case of Shyam Sunder Kohli versus Sushma Kohli, (supra). 31. In the present case, it cannot be said that marriage has reached a stage of irretrievable break down, particularly when entire attempt is on the part of appellant only to seek divorce, while respondent has made all efforts to save marriage tie. 32. Even the conduct of appellant of not taking care of two daughters shows that he himself is not ready to discharge moral and statutory obligations of a husband and father. He wants to take advantage of a situation created by him by seeking divorce on the pretext of irretrievably break down of marriage. Therefore, even this argument does not appeal to us at all. 33. Points No. 2 and 3 are also answered against appellant. 34. In the result, we confirm the judgment of trial Court and find no merit in appeal. It is accordingly dismissed with costs throughout.