JUDGMENT : The appellant is aggrieved by the decree of divorce granted by Prl. Senior Civil Judge, Mandya on his file in MC No.26/2009, whereby her marriage with the respondent/husband is dissolved. 2. Briefly stated, the husband filed a petition under Section 13(1) (ia) (ib) of the Hindu Marriage Act (for short, ‘the Act’), for divorce on the ground of cruelty and desertion. His case was, the parties were married on 22.02.2004 at Maddur, as per custom prevailing in their Vokkaliga Community. The marriage was consummated and a male child was born from the wedlock which died immediately after two days of birth. The husband is not a Graduate and wife is a Postgraduate. Taking this aspect of the matter, she used to taunt in all possible ways and used to scold him from the very beginning of the marriage and started quarreling with him. Despite advice and request, she did not correct herself. She did not care to discharge her duties as a dutiful wife. Thus, he was subjected to mental depression and his health deteriorated on account of cruelty meted out on him by the wife. She left the matrimonial house on 1.3.2006 and returned to her parental house. Advices and panchyats from the well-wishers to bring her back to the matrimonial house went in vain. From 1.3.2006, there is nobody to take care of him and cook for him. 3. The petition was contested by the wife. While denying the allegations leveled against her in the petition, she set-up the defence that there was no advice or co-operation from the husband, in spite of his mental harassment she was discharging her duties as dutiful wife. She left the matrimonial house for ceremonies at her parental house, but subsequently, no request or panchayats were made by the petitioner. Her parents made several attempts to send her to matrimonial home but all their attempts failed. Now also, she is ready to live with the husband by forgiving his torturous acts. He has deserted her for his own reasons. After completion of pleadings, the parties entered into trial, examined themselves as PW1 and RW1 respectively, documents Exs.P1 to P11 and Ex.R1 to R29 were marked. On overall consideration of the material, the Trial Court allowed the petition and dissolved the marriage by Decree of Divorce. 4. Sri. He has deserted her for his own reasons. After completion of pleadings, the parties entered into trial, examined themselves as PW1 and RW1 respectively, documents Exs.P1 to P11 and Ex.R1 to R29 were marked. On overall consideration of the material, the Trial Court allowed the petition and dissolved the marriage by Decree of Divorce. 4. Sri. K.J. Kamath, learned counsel for the appellant/wife submits that the finding of the trial Court is not a speaking order. The Trial Court failed to understand feelings of the woman who had lost her child. Her mental condition pursuant to the death of her newly born child was not understood by the Trial Judge. Entire approach of the Trial Court is erroneous in selecting only such of evidence convenient to the husband without evaluating the complete circumstances of the case. In fact, the husband made attempts to contract a 2nd marriage during the subsistence of his marriage with appellant. The wife always made efforts to preserve the marital relationship which was not considered by the Trial Court. Even now, she is ready to join the husband. The Judgment of the Court below is arbitrary and liable to be set aside. 5. In reply, Sri. Sanjaya Gowda, learned counsel for the respondent/husband submits that the marriage was incompatible owing to the fact that the wife is a Master Degree holder and she undermined the husband who was less-educated. Because of her torturous attitude, he suffered depression and Blood pressure which facts are proved by the documentary evidence as per Exs.P1 to P10. In her objection statement itself, she has stated that she was performing her marital duties till 3.1.2006 that by itself fortifies the case of the husband that she abandoned the matrimonial home on 1.3.2006 and never to return. Once she abandoned the matrimonial home, she never cared to join the husband. The petition is filed after three years of desertion. Hence, the husband is found entitled by the Trial Court for divorce on the ground of desertion. During her stay in the matrimonial home, she has caused sufficient mental cruelty on him for being less educated than her, which fact also is proved during the evidence. Thus, he is entitled for decree of divorce on the ground of cruelty also. Hence, the husband is found entitled by the Trial Court for divorce on the ground of desertion. During her stay in the matrimonial home, she has caused sufficient mental cruelty on him for being less educated than her, which fact also is proved during the evidence. Thus, he is entitled for decree of divorce on the ground of cruelty also. The husband having not condoned the cruelty exerted on him and not in anyway taking advantage of his own wrong, the Trial Court has rightly dissolved the marriage. It is already eight years since the parties are separated and there is no chance of their joining together, the marriage is irretrievably broken down. In the above circumstance the judgment of the Court below may not be interfered. 6. In the light of the above submissions and on perusal of the impugned judgment of the Trial Court, the following point arises for consideration: Whether the Trial Court is justified in dissolving the marriage on the grounds of 1) Cruelty and 2) Desertion? 7. On a travel through pleadings and evidence led in by both the parties, it is striking that both of them improved their case during trial by bringing in evidence which was not akin to their pleadings. At this stage itself, it may be summoned that any amount of evidence constructed without the foundation of pleadings is no evidence in the eye of law. Interestingly, the learned Trial Judge, out of 32 paras of his judgment has spent 26 paras to epitomize the pleading, reiterate the evidence and submissions made at the bar. At Para No.27, with his fragile discussion, records his conclusion “The records show that because of taunting and scolding by the respondent on the basis of educational qualification of petitioner, he was under depression…….” We fail to understand, which was the record that certified depression suffered by the husband was due to taunting and scolding by the wife. In support of his case, the husband had produced Ex.P1, a certificate issued by Dr. C.R. Chandrashekar, Professor of Psychiatry, Department of Psychiatry, NIMHANS, Bengaluru, Ex.P2 – Hospital identity card, Ex.P3 – Prescription ship. For better understanding of the situation, we deem it proper to reproduce Ex.P1, which read thus: Department of Psychiatry CERTIFICATE This is to certify that MR. M.L. Chandrashekar, S/o. Linge Gowda, Tavaragere, Mandya, registered in the Department of Psychiatry on 23.12.2005 (P/233209). For better understanding of the situation, we deem it proper to reproduce Ex.P1, which read thus: Department of Psychiatry CERTIFICATE This is to certify that MR. M.L. Chandrashekar, S/o. Linge Gowda, Tavaragere, Mandya, registered in the Department of Psychiatry on 23.12.2005 (P/233209). He was treated for depression with Psychotic Symptoms of six months duration. He came for the follow up on 21.10.2005, 16.12.2005 and on 25.03.2006. He had improved. Sd/- Dr. C.R. Chandrashekar, Professor of Psychiatry That goes to show that he suffered depression from June 2005. All the while his wife was with him during his ailment, treatment and convalescence period. He admits that she had accompanied him to the Hospital. It is to his knowledge that if it is a case relating to matrimonial problems, the patient’s spouse would be interviewed separately and thereafter counseled together by the concerned Psychiatrist which did not happen in his case. The last prescription is dated 25.03.2006 and drugs is prescribed for duration of 2 months. As per his evidence, he continued the said medicine for six months, if so that was against Doctor’s advice. The marriage is dated 22.02.2004. A male child was born on 9.11.2004 and died two days after its birth. Thereafter he has gone into depression. If history given by him to the Doctor was called for before the Court, it would have thrown light on the facts now in dispute between the parties. Withholding such vital evidence from the Court probably was for the reason, that it was not convenient to this case which further would give room for adverse inference against him under Section 114(g) of the Evidence Act. It is an arranged marriage. On his own admission, he had met the wife prior to the marriage and difference in the education level was also discussed between them. The wife categorically denied his allegation that because of his lower education qualification, he was subjected to scornful remarks incessant scolding and taunting. That being so burden was heavy on the husband to discharge the burden of proving his case with a firm and unimpeachable evidence. It is not for an adjudicator in our adversarial system to provide a scaffold to strengthen the fragile evidence led in. Definitely the Court below transgressed it’s jurisdiction by recording it’s perverse finding as noted supra. Thus, allegation of cruelty dilutes without proof. 8. It is not for an adjudicator in our adversarial system to provide a scaffold to strengthen the fragile evidence led in. Definitely the Court below transgressed it’s jurisdiction by recording it’s perverse finding as noted supra. Thus, allegation of cruelty dilutes without proof. 8. Now coming to the question of desertion:- The pleading at para No.5 of the petition is The respondent without any valid reasons, left the company of the petitioner on 01.03.2006 and joined her parental home and many unsuccessful advice and panchayaths from the well wishers of the petitioner and the respondent were also held to bring back the respondent to the house of the petitioner are all fell in vain. Counter to the above allegation is at para No.4 of objections statement is: “It is true to say that for the ceremonies of respondent parental home, the respondent left the petitioner’s house. But subsequently no request or panchayaths are made by the well-wishers of the petitioners. But on the other hand the respondent and the parents of respondent had made several attempts to send the respondent to the petitioners’ house, but all attempts failed.….” Obviously, the drafting is poor and the language employed fail to furnish material particulars of the defense stand. However, in her affidavit evidence (drafted in Kannada) the wife stated, that on 09.03.2006, she was taken to her parental house for the baby warming ceremony of her sister-in-law. Though invitation was extended to every body in her marital home except her mother-in-law others, did not attend. She had proposed to return to the marital home after the village deity festival. Her sister-in-law delivered a child on 24.03.2006. No body from her matrimonial home attended neonatal ritual. During April, 2006, her father-in-law informed her brother to come alone to come to their home for talks. During their interaction, her brother informed her in-laws that the husband is suspecting fidelity of his wife, they expressed ignorance, her husband when enquired by his parents in this regard abused her brother and sent him back. Above piece of evidence was not successfully contradicting during her cross-examination. During their interaction, her brother informed her in-laws that the husband is suspecting fidelity of his wife, they expressed ignorance, her husband when enquired by his parents in this regard abused her brother and sent him back. Above piece of evidence was not successfully contradicting during her cross-examination. Instead of examining from the evidence as to whether the separation of couple from 01.03.2006 is due to wife’s willful abandonment of matrimonial home; and whether she carried animus deserendi to put permanent end to her relationship with her husband, the Trial Court harps upon the evidence adduced by the wife about the subsequent incident i.e., the husband making effort to marry another girl during the Pendency of present proceedings. The documentary evidence given by her to corroborate the contention of his effort for second marriage is brushed aside on the ground that the statements given before police produced and marked in evidence cannot be relied. While holding so, learned Judge acted against the basic principles of appreciation of evidence. The matrimonial proceedings being civil in nature appreciation of evidence is on the parameter of ‘preponderance of probabilities’. However, the question of considering subsequent events could be looked into only after the petitioner /husband discharged the burden of proving the facts alleged by him and denied by the other side. His case was his effort to bring back the wife from her parental home through well wishers and panchayathdars went in vein. But during cross-examination, the falsity of said contention exposed wherein, he stated that family members of both parties met twice in his house and two to three times at the residence of the wife to sort out the difference. Two stray admissions given by the wife have overweighed with the Court to hold that wife left the company of her husband for no valid ground. The first being when she left the matrimonial home, there was no any sort of clash; the second one is, she has stated during her deposition in the C.Misc.No.13/2011, that from 2006, till date she had no special reason to stay back in her parental home. The above statements in our opinion are not contrary to the defense set up by her. She never made any wild allegation against husband or his family members. Her counter case was the husband made several attempts to dessert her. The above statements in our opinion are not contrary to the defense set up by her. She never made any wild allegation against husband or his family members. Her counter case was the husband made several attempts to dessert her. Instead of finding deficiency in the case of the husband for not leading corroborating evidence of witnesses the court puts a reserve burden unknown to the settled procedure that she did not examine the uncle of the petitioner in whose residence conciliation talks were held once. Despite noticing that efforts were made from wife’s side for settlement of dispute another perverse finding is drawn by the court that the wife has not made any attempt to join the company of the husband. With utmost disapproval of above observation, we emphasize that the deposition of the wife recorded in Domestic Violence case was not placed in evidence in this case. If the entire case record of Domestic Violence case was laid before the Trial Court, then there would have been occasion to draw inference, as to under what circumstance, the wife gave such statement. In that view of the mater, inference drawn on a stray admission is most illegal. It was not a case for maintenance under section 125 of Cr.P.C. to examine whether wife had valid reason to stay separately from her husband. It was the case where husband was required to establish ingredients desertion as contemplated in explanation Clause to Section 13, Sub-Section 1 of the Act, which reads thus: “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 willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” 9. The question as to what precisely constitutes desertion came up for consideration before the Supreme Court in an appeal from Bombay in Bipin Chandra Vs Prabhavati, AIR 1957 SC 176 . The question as to what precisely constitutes desertion came up for consideration before the Supreme Court in an appeal from Bombay in Bipin Chandra Vs Prabhavati, AIR 1957 SC 176 . The Apex Court while considering the provisions of Sec.3 (1) of the Bombay Hindu Divorce Act, 1947 whose language is in pari materia with that of Section 10(1) of the Act, on an elaborate consideration of the several English decisions in which the question of the ingredients of desertion were considered and cited the summary of the law in Halsbury’s Laws of England (3rd Edn.) Vol 12 with approval. “In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.” The position was thus further explained by the Supreme Court. “If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there: (1) The factum of separation; and (2) The intention to bring cohabitation permanently to an end (animus deserendi) Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouses leaving the matrimonial home to form the necessary intention aforesaid....… Desertion is matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference that is to say the acts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the act of separation and the animus deserendi co-exist. If in fact, there has been a separation the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the act of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time” The enunciation of the law on the topic in Bipin Chandra (Supra) still holds the field. 10. In the present case, separation of the parties for 8 years and inference of irretrievable break down of marriage has overweighed for the Court below to dissolve the marriage. “Irretrievable break down of marriage” is not contemplated as a ground for dissolution of the marriage under the Act. The subordinate Courts do not enjoy jurisdiction to dissolve a marriage on its irretrievable break down. The party who has come to the Court when fails to prove his case, he cannot be gifted with a relief of his intent. In Apurba Mohan Ghosh Vs. Manashi Ghosh, reported in AIR 1989 Cal. 115 , it has been held that in view of the provisions of Section 23 of the Act, the Court would grant relief only when any of the statutory grounds mentioned in the Act is found to exist. In V. Bhagat Vs. D. Bhagat, 1994 SCC (1) 337, the Apex Court has held that irretrievable breakdown of the marriage is not a ground by itself for a decree of divorce. While scrutinizing the evidence on record it may be relevant to determine whether the ground alleged is made out. A matrimonial Court is expected to be sensitive and cognoscente of natural course of human conduct, the versatilities and multiple dimensions of their problems. There is not even a spell from the side of the husband what effort was personally made by him as dutiful husband to bring back his wife to the marital home. All the while on his showing the talks were held between the families which ultimately failed. Ignoring the vacuum in the case of the husband, the Trial Court arbitrarily holds the wife guilty for not making effort to join the husband. 11. It is a wrong approach to the facts and circumstances of the case. All the while on his showing the talks were held between the families which ultimately failed. Ignoring the vacuum in the case of the husband, the Trial Court arbitrarily holds the wife guilty for not making effort to join the husband. 11. It is a wrong approach to the facts and circumstances of the case. His allegation of ‘cruelty’ against the wife which he failed to establish, by itself gives a clue as to why he successfully distanced from his wife without personally attempting to bring her back to the matrimonial home. He allows the time to pass through to build up a case of statutory desertion to fit the case into the bracket of Section 13(1) (ib) of the Act which contemplates desertion for a continuous period of two years and then comes to the Court with the present petition. We are conscious of the fact that mere dismissal of a petition for divorce will not bring an happy ending to the story, however, it would avoid an erring spouse getting the benefit of his own wrong. Hence, the impugned judgment and decree cannot be sustained. In the light of the above discussion, the appeal filed by the appellant/wife is allowed. The judgment and decree dated 4.9.2014 passed in MC No.26/2009 on the file of the Principal Senior Civil Judge, Mandya, allowing the petition filed under Section 13 (1) (ia) (ib) of Hindu Marriage Act, is hereby set-aside. The respondent/husband is directed to pay a sum of Rs.10,000/- to the Appellant/wife being litigation expenses of this case within three weeks from today. If the said amount is not paid within above period, she is entitled to execute this order against him.