JUDGMENT By the Court.—Heard Sri Jamwant Maurya, learned counsel for appellant. None has appeared on behalf of respondent. Since record of both matters is connected hence paper book has been filed in First Appeal No. 57 of 2007 and learned counsel for appellant stated that paper book may be read in both appeals. 2. We have heard learned counsel for appellant and proceed to decide appeal ex parte. 3. Both appeals have arisen from common judgment dated 30.11.2004 passed by Sri S.K. Srivastava, Principal Judge, Family Court, Varanasi in Marriage Petitions No. 436 of 2002 and 463 of 2002. The first petition i.e. 436 of 2002 was filed by husband Rajesh Kumar Maurya praying for decree of divorce under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as “Act 1955”). Marriage Petition No. 463 of 2002 was filed by appellant for restitution of conjugal rights under Section 9 of Act 1955. Trial Court had dismissed the petition filed by appellant under Section 9 of Act 1955 but decreed petition filed by respondent and instead of granting decree of divorce it has passed decree of judicial separation. Further Trial Court has also directed respondent husband to pay interim maintenance of Rs. 1000/- per month for next one year to appellant. 4. Plaint case set up by respondent husband in petition filed under Section 13 is that marriage between parties was solemnised on 16.11.1997 at the residence of appellant in accordance with hindu rituals. Appellant visited her parents, four to five times in a year. But in December 1998 she went to her parents and thereafter did not come back. Respondent’s family gave jeweleries and other items in marriage which are still in possession of appellant. There is no issue out of wedlock during this period. Respondent is a Constable in Provincial Armed Constabulary (hereinafter referred to as “PAC”), having been appointed in 1994, and initially posted at Mirzapur. But at the time of filing marriage petition, was posted in 38th Battalion, PAC, Jhansi. 5. Appellants and other family members were asking respondent to stay elsewhere leaving his old parents for which respondent was not agreeable at all. He went to bring appellant back but neither her parents and other relatives allowed respondent to meet her, family members of appellant did not allow respondent to meet her and instead misbehaved. 5. Appellants and other family members were asking respondent to stay elsewhere leaving his old parents for which respondent was not agreeable at all. He went to bring appellant back but neither her parents and other relatives allowed respondent to meet her, family members of appellant did not allow respondent to meet her and instead misbehaved. For this treatment met at in-laws place, respondent suffered depression also for sometime. On 17.9.2002 also he went to bring appellant from her parents place but again not only her relatives misbehaved but also threatened him that he and his family would be implicated in false case and sent to jail and he may also lose his service. The relation between two have deteriorated to a point of non return and hence decree of divorce be granted. 6. Appellant contested divorce petition and denied all allegations made by husband. Factum of marriage and visit to her parents place on 12.12.1997 was admitted. It was further pleaded that appellant is a graduate, simple, lady brought up in a family of cultured and uninfluenced by modern types. She tried her best to keep husband and his family members, happy. Since her parents place is quite near to place of posting of husband, therefore, she used to visit her parents place frequently. The behaviour of her husband and family members was quite cordial upto 1998 but suddenly changed in 1999, reason being not known to her. The family members of respondent ill treated her, stating that she is untouchable and they do not like food prepared by her. They also caused deficiency of grocery items in the house and no member of family was talking to her. When her husband came from his place of posting, she told him about the behaviour of family members but he did not say anything. When again she talked with respondent, he straight away stated that whatever you are doing is not appreciable and it is better if she leaves house and lives in her own way. Respondent also slept appellant and left the house. Subsequently respondent took the almirah key from appellant and got all the ornaments in his possession. On 5.3.1999, appellant’s father came to her in-laws place when respondent alongwith four five friends came and said to her father that she cannot stay there and he may take her. Respondent also slept appellant and left the house. Subsequently respondent took the almirah key from appellant and got all the ornaments in his possession. On 5.3.1999, appellant’s father came to her in-laws place when respondent alongwith four five friends came and said to her father that she cannot stay there and he may take her. Appellants father said that he has come to greet for holi festival but respondent and his family members step to their stand that he must took appellant to his residence and ultimately in the night, her father brought her to his house. Since then she is staying with her father whose financial conditional is not good. She is being punished by respondent but reason is not known to her though she is an ideal hindu wife and has shown desire to live and die with her husband. She wants to live with her husband but he is not ready despite all out efforts. 7. In these circumstances we have to take recourse to legal proceedings by deciding this appeal. 8. Basic pleadings in marriage petition filed under Section 9 by appellant are similar to what her stand taken in written statement in divorce petition and therefore, we are not repeating the same. 9. 7. In these circumstances we have to take recourse to legal proceedings by deciding this appeal. 8. Basic pleadings in marriage petition filed under Section 9 by appellant are similar to what her stand taken in written statement in divorce petition and therefore, we are not repeating the same. 9. Trial Court formulated following issues in both matters : Marriage Petition No. 436 of 2002 **1- D;k izR;fFkZuh us ;kph ij fcuk fdlh eqfDr;qDr dkj.k ds vius ekrk&firk ls vyx jgus dk ncko Mkyk\ “Whether the defendant pressurized the plaintiff without any reasonable reason to live separate from his parents?” 2- D;k izR;fFkZuh dk fcuk fdlh ;qfDr;qDr dkj.k ds vfHkr;tu dj j[kk\ “Whether the defendant was kept deserted without any reasonable reason?” 3- D;k ;kfpdk esa mfYyf[kr /kedh nsdj vkSj djrkx.k O;ogkj djds izR;fFkZuh vkSj muds ifjokj ds yksxksa us ;kph ds lkFk ekufld dzwjrk dk O;ogkj fd;k\ “Whether by giving the threats mentioned in the plaint and doing behaviour of cruelty with the plaintiff, the defendant and her family members have caused mental cruelty to him?” 4- D;k ;kph vkSj ifjokj ds yksxksa us izR;fFkZuh ds lkFk dzwjrk dk O;ogkj fd;k] tSlk fd fyf[kr dFku esa dgk x;k gS\ “Whether the plaintiff and his family members have done cruel behaviour with the defendant, as has been stated in written statement?” 5- D;k Lo;a ;kph us izR;fFkZuh dk fcuk fdlh ;qfDr;qDr dkj.k ds vfHkR;tu dj j[kk\ “Whether the plaintiff, himself, has kept the defendant deserted without any reasonable reason?” 6- ;kph fdl mi"ke dks izkIr djus dk vf/kdkjh gS\** “For which relief the plaintiff is entitled?” Marriage Petition No. 463 of 2002 **1- D;k izR;FkhZ ds ifjokj okyksa us ;kph ds lkFk izR;FkhZ dh vuqifLFkfr esa dwzjrkiw.kZ O;ogkj fd;k] tSlk fd ;kfpdk esa dgk x;k gS\ “Whether the family members of the defendant have done cruel behaviour with the plaintiff in the absence of defendant, as has been stated in the plaint?” 2- D;k izR;FkhZ us ;kph dk fcuk fdlh ;qfDr;qDr dkj.k ds vfHkR;tu dj j[kk gS\ “Whether the defendant has kept the plaintiff deserted without any reasonable reason?” 3- D;k ;kph izR;FkhZ dk Hk;knksgu djrk Fkk] tSlk fd fyf[kr dFku esa dgk x;k gS\ “Whether the plaintiff used to blackmail the defendant, as has been stated in the written statement?” 4- D;k izR;FkhZ us ;kph ij fcuk fdlh ;qfDr;qDr dkj.k ds vius ifjokj ls vyx jgus dk ncko Mkyk\ “Whether the defendant pressurized the plaintiff without any reasonable reason for living separate from his family?” 5- D;k ;kph us izR;FkhZ ls dzwjrkiw.kZ O;ogkj fd;k\ “Whether the plaintiff has done behaviour of cruelty with the defendant?” 6- ;kph fdl mi"k; ds ikus ds vf/kdkjh gS\** “For which relief the plaintiff is entitled?” 10. Since both matters were consolidated, parties led common evidences. Respondents did not adduce any documentary. Oral evidence consisted of statement of respondent himself as PW-1, his father Harkhan Maurya as PW-2, his mother Hiramani as PW-3 and one Shiv Mangal Maurya as PW-4. On behalf of appellant she deposed herself as DW-1. Her father Moti Lal Maurya and mother Smt. Prema Devi were examined as DW-2 and DW-3. One Bachha Lal was also examined on behalf of appellant. Certain documentary evidences were also adduced which would be referred at appropriate stage. 11. Respondent and his parents, in their statements stated clearly that real dispute between parties was that appellant wanted to live separately from her in-laws. Shiv Mangal Maurya is maternal uncle of respondent and he also supported the said submission. 12. Trial Court returned issue 1 of divorce suit and issue 4 of suit under Section 9, in favour of respondent and against appellant. Similarly issues 5 and 3 in divorce suit and issue 5 of restitution petition were also answered in favour of respondent and against appellant. Thereafter in both matters issue 2 was taken together and answered in favour of respondent and against appellant. Issue 4 in divorce petition, issue 1 in restitution petition was also similarly answered. Ultimately Trial Court had found that instead of granting decree of divorce here is a case justifying decree of judicial separation since both have been living together till 1998 and for their mediation a Panchayat was also called and it may be possible that in future they may reconcile. 13. The grounds for challenging judgment of Trial Court to the extent it has dismissed restitution suit are that judgment of Court below is perverse. 14. The plaint case set up by appellant is perverse, erroneous and re-appraisal of evidence is required. Trial Court has committed substantial error and there is defect in the decision of the case on merit. Court below has failed to appreciate pleadings and to decide relevant and material issues, whereas respondent without reasonable excuse has withdrawn from society of appellant. Appellant’s oral and documentary evidence was not properly considered and Trial Court had ignored to find out truth of allegations made in the petition. Court below has failed to appreciate pleadings and to decide relevant and material issues, whereas respondent without reasonable excuse has withdrawn from society of appellant. Appellant’s oral and documentary evidence was not properly considered and Trial Court had ignored to find out truth of allegations made in the petition. The findings recorded by Trial Court is not supported by evidence and it is recorded on misconception, ignoring material evidence, therefore, findings recorded by Trial Court, are perverse, illegal and bad in fact and law both. 15. With regard to impugned judgment passed in Marriage Petition No. 436 of 2002, granting decree of judicial separation, appellant has taken grounds that judgment is perverse, erroneous and re-appraisal of evidence is required. Trial Court has failed to decide relevant and material issues. Court below has failed to decide question of ‘desertion’. It is matter of inference to be drawn from the facts and circumstances of the case. The conduct of respondent and evidence on record was not considered. Wrong allegations were made against the father of appellant. Sufficient evidence was adduced on behalf of appellant, but not considered. The provisions of Sections 23 & 23-A of Act 1955 as amended upto date, was not followed. Judgment and decree under Section 10 of Act 1955, in respect of judicial separation, has been passed on conjectures and surmises. The conclusion is not based upon evidence available on record. The truthfulness of allegations made in the pleadings by respondent was not considered properly. Judgment and decree was passed without considering material available on record and ignoring ingredients of Section 10 as enumerated regarding factum of separation. 16. The intention to bring cohabitation permanently to animus deserendi is the essential ingredients of desertion. The two elements are essential so far as deserted spouse is concerned. (i) Absence of consent (ii) Absence of conduct giving reasonable cause to the spouse leaving matrimonial home to form necessary intention aforesaid. 17. All these aspects have been ignored by Court below. 18. For deciding these appeals, in our view, following points for determination need be answered by us: (i) Whether Court below has rightly passed decree of judicial separation and its finding is based on evidence and also satisfy necessary ingredients needed for such decree; (ii) Whether Trial Court was justified in rejecting appellant’s petition for restitution of conjugal rights. 19. 18. For deciding these appeals, in our view, following points for determination need be answered by us: (i) Whether Court below has rightly passed decree of judicial separation and its finding is based on evidence and also satisfy necessary ingredients needed for such decree; (ii) Whether Trial Court was justified in rejecting appellant’s petition for restitution of conjugal rights. 19. Serious dispute between parties is evident from their respective pleadings, though both have blamed each other. Appellant has admitted in her own pleadings that in the year 1999, a matrimonial feud accrued with her husband and on 5.3.1999 her husband turned her out from her matrimonial home, after keeping her jewellery, cloths and other articles. She was residing since 6.3.1999 at her parental house. She has pleaded in her petition that on 5.12.1998 her husband brought her at her matrimonial home. All jewellery was brought by her from parental house. Her husband went on to his posting at Jhansi. When he came back in the month of February, 1999, she appraised him about conduct of his family members, parents and other in-laws. Then her husband told her that he does not want to keep her as his wife, because he did not like her. When the appellant-opposite party raised objection about the conduct of her husband, then her husband slapped her 2-3 times and turned her out of her matrimonial home. 20. Although, she has refuted this suggestion of respondent that she pressurized her husband to reside separately from his parents, but for her own, she has stated that her in-laws often criticize her work. Likewise DW-2 Shri Motilal Maurya and DW-3 Smt. Prema Devi parent of Smt. Alka Maurya have stated that marriage of their daughter was solemnized on 16.11.1997 and a matrimonial dispute arose between them after one and half year of their marriage. DW-2 has accepted this fact that elder brother of Rajesh Kumar Maurya appraised him in the month of March, 1999 that there is some family feud between Rajesh Maurya and Alka Maurya. Then he went alongwith Panna and his son Manish at matrimonial home of his daughter. He asked father of his son-in-law Rajesh Maurya, about him. His father called Rajesh Maurya at 4 PM then Rajesh Maurya appraised him that his daughter Alka Maurya would not be able to reside with him. Then he went alongwith Panna and his son Manish at matrimonial home of his daughter. He asked father of his son-in-law Rajesh Maurya, about him. His father called Rajesh Maurya at 4 PM then Rajesh Maurya appraised him that his daughter Alka Maurya would not be able to reside with him. He also stated that a Panchayat was convened at the house of Kanhaiyalal Patel but it was not successful. PW-2 Shri Motilal Maurya has also refuted this suggestion that in the month of December, 1998 he went at the matrimonial home of his daughter and abused respondent and his family members and brought her daughter at her parental house. 21. DW-3 Smt. Prema Devi has corroborated statement of her husband (DW-2) and stated that on 5.3.1999 her daughter was turned out of her matrimonial home by keeping her jewellery and cloths. She has also stated that on 25.2.2001 a panchayat was convened but it was not successful, because Rajesh Maurya had not brought her daughter with him at her matrimonial home. 22. DW-4 Shri Bachalal contacted Commandant of Rajesh Kumar Maurya for restitution of conjugal rights of Smt. Alka Maurya, but he did not comply with his commitment. Likewise, a panchayat was convened at his place of posting of his company at BHU. It also could not reach to any logical end. Witness PW-4 Bachalal is cousin of appellant. 23. PW-1 Rajesh Maurya has stated that his marriage was solemnized in the month of November, 1997 with Smt. Alka Maurya. He was posted on the post of constable in P.A.C. Department. He has stressed on this fact that his wife pressurized him for residing separately from his family members. On this basis also, she had often altercation and scuffle with his family members. He has contended that his wife came to his house only 3-4 times and when he went to bring her, he was abused and was threatened in 2002 of getting termination from service. He was also threatened to beat him up and to send him jail. 24. Shri Harkhan Maurya and Smt. Hiramani are parents of Rajesh Maurya. They have proved this fact that appellant had pressurized their son to reside separately from other family members. PW-2 Harkham has also stated that he attempted to bring his daughter-in-law at his house, but he was threatened of assault and abused. 25. 24. Shri Harkhan Maurya and Smt. Hiramani are parents of Rajesh Maurya. They have proved this fact that appellant had pressurized their son to reside separately from other family members. PW-2 Harkham has also stated that he attempted to bring his daughter-in-law at his house, but he was threatened of assault and abused. 25. PW-3 has stated that her daughter-in-law/appellant had altercation and scuffle with Rajesh Maurya and other family members and she, on her own, left her matrimonial home. PW-4 has corroborated statements of PW-1 to PW-3 and proved this fact that Smt. Alka Maurya left her matrimonial home. He has also stated that a panchayat was convened at the house of Kanhaiyalal Patel and respondent-Rajesh was prepared to bring his wife at his house. He has proved this fact that the petitioner-respondent (Rajesh Maurya) was pressurized by appellant to reside separately from his parent. The appellant in the month of December, 1998 left her matrimonial home and when respondent attempted to bring her at his house, he was abused and misbehaved. 26. Thus after one and half years from marriage, dispute, between parties rose to the extent that appellant left her in-laws place on 5.3.1999 and stayed thereat when two matrimonial cases were filed. Appellant in her statement has said that on 5.3.1999 only her father came to greet Holi festival but from statement of DW-3, mother of appellant, it is admitted that on 5.3.1999 when her daughter was forced to leave place of her in-laws, husband of DW-3 i.e. father of appellant, brother of appellant, Manish, and others namely Aguwa, Panna Lal Patel were present. It shows that pleading of appellant in para 21 of written statement that only her father came to her in-laws place is not correct. He was accompanied with several other persons also as is deposed by appellant’s mother in her examination-in-chief. It is also admitted by DW-3 that appellant sent letter to respondent and before that got a photocopy thereof and kept with her. This conduct is unusual and shows well planned step on the part of appellant and in our view, is a factor which would justify an inference against the conduct of appellant. 27. It is also admitted by DW-3 that appellant sent letter to respondent and before that got a photocopy thereof and kept with her. This conduct is unusual and shows well planned step on the part of appellant and in our view, is a factor which would justify an inference against the conduct of appellant. 27. In a case where basic evidence is oral, both parties have adopted an attitude of cross and mutual blame, and deny allegations made against them, Court assess evidence on the basis of preponderance of probability, conduct, attitude of parties and their demeaners in Court. Wrong pleading by appellant, her preparation of evidence by keeping photocopy of personal letter sent to respondent and the common stand of all witnesses in support of respondent justify an inference that there was something wrong on the part of appellant and she left in-laws place alongwith her father, brother and others at a time of major festival i.e. Holi and all these things shows that there was a serious dispute between husband and wife for which fault was on the part of appellant. The parents of appellant, in cross-examination and suggestion, have not said about reason of dispute between parties while respondent and his witnesses appeared have categorically said that sole reason was that appellant want to leave separately from her in-laws. 28. These factors which are very uncommon, in our view justify an inference that view taken by Court below on the basis of evidence is neither perverse, improper nor illegal so as to justify a decree of reversal. Court below has also taken care of the fact that since there does not appear to be any stage of physical assault or criminal proceedings etc., and relations are not so strain that parties may not reconcile in future, hence has confined decree to judicial separation only and not divorce. 29. Since decree of judicial separation has been granted, suit for restitution obviously has to be dismissed. We find no fault on the part of Court below in passing such a decree. 30. In these facts and circumstances, we answer both the aforesaid questions against appellant and in favour of respondent. 31. In the result, appeals are dismissed. Parties shall bear their own costs.