JUDGMENT : Ashok Kumar Gaur, J. 1. The present batch of appeals has been filed by the appellant wife challenging the judgment & decree dated 25.06.2016, wherein the petition filed by the respondent-husband seeking divorce has been allowed and the application filed by the appellant-wife for restitution of conjugal rights under section 9 of the Hindu Marriage Act has been dismissed. 2. The facts in nutshell for deciding both the appeals are as under : The appellant and respondent got married as per Hindu Customs on 26.11.2001 at Jaipur. Out of the wedlock, one son, namely, Garvit was born on 10.02.2005. 3. The respondent-husband filed an application under section 13 of the Hindu Marriage Act on 15.07.2012 alleging that after marriage of the appellant and respondent, the appellant stayed with respondent at Mandsaur only for 15-17 days. It was alleged that during appellant's stay at Mandsaur, she continuously used to fight, her behaviour was cruel & unjust towards respondent and his parents for no good reasons. It was alleged that the appellant was the only daughter and she had three other brothers and due to this, she was a pampered child in her family and her behaviour was very rude. The respondent pleaded that appellant came to her parental place along with her father and brother and respondent had to shift Jaipur and he stayed with the appellant for almost 4 years, just to convince her to come back to Mandsaur but it was all in vain. 4. The respondent-husband pleaded that he and his parents tried their best to convince the appellant and her parents to send her back but neither the appellant came back to Mandsaur nor there was any affirmative reply from her and her parents side. The respondent pleaded that even after staying for considerable time with her at Jaipur, she never changed her behaviour and used to misbehave with him and without any justification she was bent upon to stay at Jaipur. It was pleaded that appellant used to give threat of committing suicide, lodging of FIR for demand of dowry, while there was no such demand by the respondent. It was alleged that the parents of appellant and her brother had come to Mandsaur on 06.04.2002 and after staying for one day, they quarreled with the parents of the respondent and while returning back from Mandsaur on 07.04.2002, they took their articles & belongings. It was alleged that the parents of appellant and her brother had come to Mandsaur on 06.04.2002 and after staying for one day, they quarreled with the parents of the respondent and while returning back from Mandsaur on 07.04.2002, they took their articles & belongings. It was alleged that appellant was staying on her own at Jaipur and she was teaching in Jyotiba Phule College/Kanodiya Girls College and also running her own coaching institute in the name of I.P.L Classes at Jamna Nagar, Sodala, Jaipur. 5. It was alleged that on several occasions i.e. on 24.04.2004, 09.02.2006, 02.07.2007 and thereafter on 18.09.2010 when the respondent came to take back the appellant-wife, she used abusive language and quarreled with the respondent. It was alleged that on 27.04.2012 again when the respondent had gone to appellant's house, she again misbehaved in presence of the friend of the respondent-husband. The respondent had also sent legal notice through his counsel to call back the appellant from Jaipur and he then filed an application under section 9 of the Hindu Marriage Act for restitution of conjugal rights in the court of District Judge, Mandsaur (M.P.) bearing Case No. 113/2007, however, on assurance of parents and relatives of the appellant-wife to join the matrimonial home at Mandsaur, the said proceedings were dropped by the respondent-husband. The respondent alleged that appellant was staying away from him for the last more than 5 years having no physical relation/cohabitation and the appellant was staying away from the respondent without any justification and failed in discharging matrimonial obligations. The respondent pleaded that on the ground of cruelty and desertion, he was entitled for decree of divorce. 6. The appellant-wife filed reply to the application and denied the allegations. The appellant took plea that when she reached matrimonial home at Mandsaur her in-laws removed the servants and fastened the chores responsibility on her. They called her by bad names in local dialect and with insulting names of her parents. It was pleaded that in the month of July, 2002, the respondent-husband came to Jaipur for preparation of RJS and APP Examination and appellant lived with the respondent in rented house at Jaipur. 7. It was pleaded that when respondent came to know about their son Ashish @ Garvit is mentally retarded and suffering from Genetic Disorder Down Syndrome, he went to Mandsaur leaving the appellant and child unattended and helpless. 7. It was pleaded that when respondent came to know about their son Ashish @ Garvit is mentally retarded and suffering from Genetic Disorder Down Syndrome, he went to Mandsaur leaving the appellant and child unattended and helpless. The appellant pleaded that the respondent had made his intention clear to go for decree of divorce and then remarry and the fact is that she had not deserted the respondent-husband and on the contrary, the husband deprived of her conjugal relations. 8. On the basis of the pleadings of the parties, the learned Family Court framed the following issues:- ^^¼1½ vk;k vizkfFkZ;k us fookg vuq"Bkiu ds i'pkr~ izkFkhZ ds lkFk ;kfpdk esa of.kZr rF;ksa ds ifjizs{; esa Øwjrkiw.kZ O;ogkj fd;k gS \ ¼2½ vk;k vizkfFkZ;k us izkFkhZ dk fiNys ikap o"kZ ls vf/kd le; ls fcuk fdlh ;qfDr;qDr dkj.k ds ifjR;kx dj j[kk gS \ ¼3½ vk;k izkFkhZ fookg&foPNsn dh fMØh izkIr djus dk vf/kdkjh gS \ ¼4½ vuqrks"kA** 9. The respondent-husband in support of his case got himself examined as PW-1, Virendra Singh as PW-2 and Basanti Lal as PW-3 and also placed on record documentary evidence Exhibit-1 to 81 and produced CD of audio recording as Articles 1 & 2. The appellant-wife in support of her claim got herself examined as DW-1 and Dr. Ramendra Pal as DW-2. 10. The appellant-wife during pendency of the aforesaid application under section 13 of the Hindu Marriage Act, filed application under section 9 of the Hindu Marriage Act on 11.02.2016 for restitution of conjugal rights at Jaipur. The appellant narrating the facts of leaving her without any justification, prayed that she wanted to stay with her husband and as such, sought decree of restitution of conjugal rights. 11. The respondent-husband filed reply to the said application and denied all the allegations and averred that filing of application under section 9 of the Hindu Marriage Act is an afterthought with an intention to delay the proceedings of divorce. The learned Family Court on the basis of pleadings of the parties under Section 9 framed the following two issues:- ^^¼1½ vk;k izkfFkZ;k nkEiR; vf/kdkjksa dh iquLFkkZiuk dh fMØh izkIr djus dh vf/kdkfj.kh gS \ ¼2½ vuqrks"kA** 12. The learned Family Court on the basis of pleadings of the parties under Section 9 framed the following two issues:- ^^¼1½ vk;k izkfFkZ;k nkEiR; vf/kdkjksa dh iquLFkkZiuk dh fMØh izkIr djus dh vf/kdkfj.kh gS \ ¼2½ vuqrks"kA** 12. The learned Family Court decided to examine both applications (Sec. 9 & section 13 of the Hindu Marriage Act) together and by its order dated 02.06.2016 when both the matters were ordered to be tried together, the issues were re-numbered from serial Nos. 1 to 5, the same are reproduced as under:- ^^¼1½ vk;k vizkfFkZ;k us fookg vuq"Bkiu ds i'pkr~ izkFkhZ ds lkFk ;kfpdk esa of.kZr rF;ksa ds ifjizs{; esa Øwjrkiw.kZ O;ogkj fd;k gS \ ¼2½ vk;k vizkfFkZ;k us izkFkhZ dk fiNys ikap o"kZ ls vf/kd le; ls fcuk fdlh ;qfDr;qDr dkj.k ds ifjR;kx dj j[kk gS \ ¼3½ vk;k izkFkhZ fookg&foPNsn dh fMØh izkIr djus dk vf/kdkjh gS \ ¼4½ vk;k vizkfFkZ;k nkEiR; vf/kdkjksa dh iquLFkkZiuk dh fMØh izkIr djus dh vf/kdkfj.kh gS \ ¼5½ vuqrks"kA** 13. The learned Family Court after considering the evidence led by both the parties, has come to the conclusion that the respondent-husband has been able to prove issues No. 1 to 3 in his favour and ground of desertion and cruelty are well established and became entitled for decree of divorce. The learned Family Court also held that issue No. 4 of decree of restitution of conjugal rights, the appellant-wife has not been able to prove the same and as such, her application has been rejected. 14. The appellant-wife in such backdrop of the case has approached this Court by filing two separate appeals i.e. D.B. Civil Misc. Appeal No. 4098/2016 challenging the impugned judgment & decree dated 26.06.2016 wherein her application under section 9 of the Hindu Marriage Act has been dismissed and D.B. Civil Misc. Appeal No. 4099/2016 against the decree of divorce granted by the learned Family Court by the self same judgment. Learned counsel for the appellant has urged that court below has erred in framing the composite issues after filing of application under section 9 of the Hindu Marriage Act. The issue No. 4 was not sufficient to decide the application by a common order. The 15. Learned counsel for the appellant has urged that court below has erred in framing the composite issues after filing of application under section 9 of the Hindu Marriage Act. The issue No. 4 was not sufficient to decide the application by a common order. The 15. learned counsel submits that the learned Family Court failed to frame proper issue arising from the pleading of the parties and as such, the judgment impugned is vitiated & deserves to be set aside. 16. The learned counsel for the appellant has further urged that learned Family Court did not consider the statement of PW-2 Virendra Singh, father of the respondent, who had admitted in its cross-examination that he was practicing advocate at Jaipur. The learned counsel has urged that once it was admitted that the respondent was settled in Jaipur with the appellant and their son, the respondent had left the appellant and their son unattended and helpless and yet respondent went back to Mandsaur, this act of respondent amounted to desertion of the appellant and not the vice versa as decreed by the learned Family Court. 17. The learned counsel for the appellant has further submitted that the issue of cruelty has been decided in cursory manner against the appellant, on the contrary the appellant had suffered the cruelty and the finding recorded by the learned Family Court being perverse, deserves to be set aside. 18. The learned counsel for the appellant has urged that appellant had not persistently refused to cohabit with the respondent-husband as she was willing to live with respondent but the respondent and their parents caused cruelty and compelled the appellant to leave the matrimonial home at Mandsaur, as such, the act of the appellant did not come within the definition of desertion, on the contrary the respondent himself failed to maintain the matrimonial association. 19. Per contra, the learned counsel for the respondent has urged that judgment & decree dated 25.06.2016 does not suffer from any infirmity. There has been proper appreciation of evidence and ample proof that the ground of cruelty and desertion are well established from record need no further indulgence of this Court. 20. We have heard the learned counsel for the parties and scanned the material available on record. 21. There has been proper appreciation of evidence and ample proof that the ground of cruelty and desertion are well established from record need no further indulgence of this Court. 20. We have heard the learned counsel for the parties and scanned the material available on record. 21. The first and foremost objection raised by counsel for the appellant is with regard to framing of composite issues and try all the four issues together after filing of the application under section 9 of the Hindu Marriage Act, the Court finds that initially four issues were framed on an application filed under Section 13. Issue No. 1 was with regard to cruelty, issue No. 2 was with regard to desertion, issue No. 3 was with regard to entitlement of decree of divorce and issue No. 4 was with regard to relief. On an application later filed under section 9 of the Hindu Marriage Act, two separate issues were framed on the said application. Issue no. 1 was with regard to the entitlement of the appellant to get a decree of restitution of conjugal rights and issue No. 2 was with regard to relief. A perusal of the order impugned of the learned Family Court indicates that vide order dated 02.06.2016 it decided to examine both the applications filed under Sections 13 & 9 of the Hindu Marriage Act together and issues were re-numbered from serial nos. 1 to 5. 22. In our considered view, the learned Family Court has framed the issues on the basis of the pleadings of the parties and no illegality has been committed in doing so. This Court finds that initially, issues were framed with regard to cruelty and desertion and after application being filed under section 9 of the Hindu Marriage Act for restitution of conjugal rights by the respondent, the learned Family Court framed the separate issues. 23. The submission of the learned counsel for the petitioner that the issue with regard to decree of restitution of conjugal rights filed under section 9 of the Hindu Marriage Act was not framed properly and different & substantial issues should have been framed, suffice it to say that on the basis of averments made in the application under Sections 9 and reply thereto, the issue No. 4 was framed by the learned Family Court. It is well settled law that if the issues are not properly framed, the party feeling aggrieved has a remedy under the law to assail the same. The appellant at no point of time raised any grievance about framing of such an issue and as such, has estopped to challenge the same at this stage before this Court. Moreover, this Court finds that the issue with regard to restitution of conjugal rights has been properly framed and parties have lead their evidence in support of their defence, as such, no illegality can be attributed in framing of issue by the learned Family Court. 24. The submission of the learned counsel for the appellant is that neither cruelty nor desertion was proved and as such, the decree needs to be interfered, firstly we deal with the issue of cruelty. 25. Cruelty, which is a ground for dissolution of marriage, is will-full and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental or as to give rise a reasonable apprehension of such a danger. The mental cruelty falls within purview of a matrimonial wrong. The cruelty has been used in relation to human conduct and human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. Cruelty can be intentional or unintentional. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be by conduct, words, gestures, by a mere silence, violent or non-violent. 26. The Apex Court in the case of Ramchander v. Ananta [(2015)11 Supreme Court Cases 539] has reiterated that "mental cruelty" is necessarily a matter of inference to be drawn from the facts and circumstances of the case and instances of cruelty are not taken into isolation but cumulative effect of facts and circumstances emerging from evidence on record and then drawing a fair inference whether a person has been subjected to mental cruelty due to conduct of the other spouse. It has been further held that the "mental cruelty" as set out in Sammar Gosh (supra) are only illustrative and not exhaustive. The relevant para of the said judgment is reproduced as under:- "10. The expression 'cruelty' has not been defined in the Hindu Marriage Act. It has been further held that the "mental cruelty" as set out in Sammar Gosh (supra) are only illustrative and not exhaustive. The relevant para of the said judgment is reproduced as under:- "10. The expression 'cruelty' has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of 'mental cruelty' can be drawn and they are only illustrative and not exhaustive." 27. In the case in hand, the learned Family Court has considered the various acts of the appellant, by which it was established that the appellant has caused mental cruelty to the respondent-husband. In the case in hand, the learned Family Court has considered the various acts of the appellant, by which it was established that the appellant has caused mental cruelty to the respondent-husband. The extract of cross-examination of the respondent-husband, being relevant for the present purpose is reproduced as under:- ^^;g ckr lgh gS eSus t;iqj esa vkdj vkjŒtsŒ dh rS;kjh dh FkhA ;g dguk lgh gS vkjŒtsŒ fd rS;kjh ds nkSjku vizkfFkZ;k esjs lkFk jgh gS ;g dguk xyr gS fd ml le; eSa vizkfFkZ;k dks lkFk ugha j[kuk pkgrk fQj dgka i<+kbZ esa fMªLVjcsUl ds dkj.k ihgj esa jgus dh dgrk FkkA ;g lgh gS fd vizkfFkZ;k ml le; tkac esa yx x;h FkhA ;g dguk xyr gS fd vizkfFkZ;k vkjŒtsŒ dh i<+kbZ ds nkSjku esjk iwjk /;ku j[krh gksA ;g dguk xyr gS fd vizkfFkZ;k esjs ekrk firk dk vieku ugha djrh gksA o >xM+k ugha djrh gksA ;g dguk xyr gS fd vizkfFkZ;k esjs ekrk firk dks cksyrh gks fd ,slh Hkk"kk dk iz;ksx ugha djsa ;g dguk xyr gS fd vizkfFkZ;k us eq>s t;iqj jgus dk ncko ugha Mkyk gksA ;g dguk xyr gS fd vizkfFkZ;k us eq>s 2009 ls LosPNk ls ugha NksM+k gksA ;g dguk xyr gS fd eSusa vizkfFkZ;k dks t;iqj NksM+k gksA ;g dguk xyr gS fd eSa vizkfFkZ;k ds lkFk t;iqj jg jgk Fkk rc eSa rhu ckj vizkfFkZ;k dks NksM+dj x;k gksA fQj dgk ;g lgh gS eSa vizkfFkZ;k dks t;iqj esa rhu ckj NksM+dj x;k gksA vc [kqn dgk vizkfFkZ;k esjs dgus ls eanlkSj tkus dks rS;kj ugha gSA** The extract of cross-examination of the appellant-wife is reproduced as under:- ^^twu 2002 esa eSa vkSj vt; eUnlkSj ls t;iqj vk;s FksA eSa vius firk ds lkFk ugha] izkFkhZ ds lkFk vk;h FkhA ;g dguk xyr gS fd eSa izkFkhZ ds lkFk ugha vk;h gksA vt; eq>sa t;iqj ls NksM+dj rhu ckj pys x;sA ;g xyr gS fd eanlkSj budh ekrk ds gLr{ksi dkj.k NksM+k gksA ;g xyr gS fd eSa eanlkSj tkus ds fy, rS;kj ugha gksA ;g dguk xyr fd esjh lkl us eq>s dqN dgk gks xokg us [kqn dgk fd lkl eq>s xkyh&xykSp ds lkFk ekjus dh /kedh nsrh Fkh fd dkV ds rq>s f'keuk esa cgk nawxh rsjs eka rsjh maxyh Hkh ugha <aw< ik,xhA ;g xyr gS fd eSa esjh ekrk ds dgus ls t;iqj jg jgh gwa cfYd izkFkhZ eq>s t;iqj NksM+dj pyk x;kA xokg us [kqn dgk fd izkFkhZ eq>s t;iqj NksM+dj pyk x;k blfy, etcwjh esa esjh eka ds ikl jgh gwaA ;g xyr gS fd esjh eka us eq>s fl[kk;k gks vkSj bl dkj.k esa t;iqj jg jgh gwa ;g xyr gS fd eSa viuh ekrk ds fl[kkoV esa jgus ds dkj.k t;iqj jgh gwaA xokg us [kqn dgk fd izkFkhZ eq>s t;iqj NksM+dj pyk x;k blfy, eSa etcwjh esa t;iqj jgh gwaA** 28. The evidence which has come on record clearly establish that appellant since belonged to Jaipur, was never interested to stay at the small place i.e. Mandsaur and right from the initial days of her marriage, on one pretext or other, she wanted to come back to Jaipur and stay in the pink city of Jaipur. 29. The careful scrutiny of evidence of both the parties reveal that respondent had established before the learned Family Court that appellant was not interested at all to stay at Mandsaur. The respondent who is a law graduate and enrolled with the Bar Council of Rajasthan also establish that he had shifted to Jaipur in 2002 and stayed upto 2005 and tried to retain the cordial relations as husband & wife and to save his matrimonial home and after he remained unsuccessful in RJS and APP competitive examination, left with no option to go back to Mandsaur and from that stage, the trouble started and all efforts to call the appellant back to Mandsaur remained futile. 30. This Court finds that appellant herself admitted that she was highly qualified and was serving as Lecturer in Jaipur from the year 2002 to 2010 and as such, she spent her maximum time at Jaipur. The personal preference of the appellant throughout remained her career and was not interested to go back to her matrimonial home at Mandsaur. These aspects have been considered at length by the ld. Family Court and that certainly has caused mental cruelty to him. 31. This Court further finds that there was no inclination of the appellant-wife to stay with her husband at Mandsaur and even when a notice was sent to join back the matrimonial home, there was no response by a positive assertion to go and stay with the husband at Mandsaur (M.P.). 32. This Court finds that the appellant had not voluntarily taken any step to join back her matrimonial home. The stay of the appellant with her husband at Jaipur during 2003-2005, never led to situation where after shifting of husband back to Mandsaur, the appellant could have gone back and joined her matrimonial home at Mandsaur. 33. 32. This Court finds that the appellant had not voluntarily taken any step to join back her matrimonial home. The stay of the appellant with her husband at Jaipur during 2003-2005, never led to situation where after shifting of husband back to Mandsaur, the appellant could have gone back and joined her matrimonial home at Mandsaur. 33. This Court finds that filing of the application under section 9 of the Hindu Marriage Act for restitution of conjugal rights by appellant was not with a bona fide intention but a counter to defuse the application filed by the husband seeking divorce under section 13 of the Hindu Marriage Act and in fact, there was no intention of the appellant to return to her matrimonial home. The filing of the application under section 9 of the Hindu Marriage Act can be inferred as an afterthought to defeat the application filed by the husband seeking divorce on the ground of cruelty & desertion. 34. The second ground on which decree of divorce has been granted is desertion. 35. For grant of decree of divorce on the ground of desertion, it has to be established that the other party to the marriage has deserted the party seeking divorce for a continuous period of not less than two years immediately preceding the presentation of the petition and it amounts to matrimonial offence. The another principle for proving the desertion is to bring cohabitation permanently to an end. The two basic principles of desertion i.e. living separately and end of cohabitation permanently will be required to be proved in a given case. 36. The concept 'desertion' has been examined by the Apex Court in Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi reported in (2002) 1 SCC 308 wherein it was held as under:- "7. 'Desertion' in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are : 1. The factum of separation; 2. The intention to bring cohabitation permanently to an end animus deserndi; 3. 'Desertion' in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are : 1. The factum of separation; 2. The intention to bring cohabitation permanently to an end animus deserndi; 3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period; The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include will-full neglect of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes will-full neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (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 spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period." 37. We have also looked into the issue of desertion which is found to be proved against the appellant by the learned Family Court. We find that appellant had no inclination and intention to stay back at Mandsaur where the marriage was solemnized. The appellant while admitting in evidence has clearly deposed that she was employed at Jaipur and she stayed at Mandsaur for a very short period after marriage. The desertion was not by the respondent-husband that the respondent left Jaipur after the child was born with abnormality. 38. The appellant while admitting in evidence has clearly deposed that she was employed at Jaipur and she stayed at Mandsaur for a very short period after marriage. The desertion was not by the respondent-husband that the respondent left Jaipur after the child was born with abnormality. 38. The Court finds that once the appellant had married with respondent who was indisputably residing at Mandsaur (M.P.) and who shifted for the time being to Jaipur to save his matrimonial home, it is not conceivable as per pleadings on record that the respondent while leaving Jaipur in 2005 deserted his wife, on the contrary, this Court finds that long separation and staying away depriving right of cohabitation of respondent without any just cause, establish the fact of deserting the respondent by the appellant. 39. In view of the above, we do not find any legal infirmity in the judgment & decree impugned dated 25.06.2016 passed by the learned Family Court No. 1, Jaipur and the present appeals deserve to be dismissed. 40. Consequently, both the misc. appeals are dismissed. No order as to cost.