ORDER : Arun Bhansali, J. 1. This appeal under Section 28 of the Hindu Marriage Act, 1955 ('the Act') is directed against judgment dated 7.4.2010 passed by the District Judge, Sirohi, whereby the petition for dissolution of marriage filed by the respondent-husband has been allowed and the marriage between the parties has been dissolved. 2. The respondent-husband filed petition under the Act with the averments that the marriage between the parties was solemnized on 6.7.1999, a child was borne to them on 2.12.2000, but soon thereafter the wife left the matrimonial home at Abu Road and started living with the daughter at her parental home at Ajmer w.e.f. 24.12.2001. It was alleged that the wife has deserted the husband and by her actions has committed cruelty and therefore, the marriage between the parties be dissolved. 3. The appellant-wife filed reply and denied the averments / allegations made in the petition. 4. The trial court framed three issues. On behalf of the husband, he himself was examined as AW-1 and exhibited certain documents. On behalf of the respondent, the wife examined herself and her father. 5. After hearing the parties, the trial court came to the conclusion that the allegations of cruelty were not proved, however, held that desertion was proved and consequently, granted the decree for dissolution of marriage. 6. It is submitted by learned counsel for the appellant that the finding of the trial court regarding desertion is baseless and is contrary to the material available on record. It was submitted that admittedly, the appellant had to leave the matrimonial home on 24.12.2001 and where after, when the husband filed petition under Section 9 of the Act for restitution of conjugal rights, the petition was dismissed on 7.10.2005 inter-alia holding that the appellant was justified in leaving the matrimonial home. Where after, the petition was filed on 17.5.2008 under Section 13 of the Act alleging cruelty and desertion. It was submitted that between the period 24.12.2001 to 17.5.2008, there was no condonation of the act on part of the respondent, which led to the appellant leaving the matrimonial home and which aspect was upheld while dismissing the application filed by the husband under Section 9 of the Act on 7.10.2005. 7. It was submitted that between the period 24.12.2001 to 17.5.2008, there was no condonation of the act on part of the respondent, which led to the appellant leaving the matrimonial home and which aspect was upheld while dismissing the application filed by the husband under Section 9 of the Act on 7.10.2005. 7. It is submitted that fundamental requirement of animus and factum to exist together were missing in the present case and the respondent cannot take advantage of his own wrong. 8. It was submitted that qua the cause which it is claimed to have arisen on 24.12.2001, already the Court of competent jurisdiction had recorded a finding that the petitioner had reasonable cause to leave the matrimonial home and where after the respondent has failed to mention any point of time when a fresh cause after 24.12.2001 arose so as to giving a cause to file the petition. The action of the appellant in leaving the matrimonial home on 24.12.2001 for which she had reasonable cause cannot be taken as a cause of action for the respondent and therefore, the finding recorded by the Tribunal deserves to be set-aside. 9. It was further submitted that the trial court treated the documents Ex.1 to Ex.28 as efforts made by the husband as the basis for coming to the conclusion that despite efforts being made by the husband, the wife did not respond. It is submitted that the entire correspondence sought to be relied on i.e. Ex.-1 to Ex.-28 have been prepared only with a view to file the present petition as the letters have been written in quick succession only with the view to prepare a ground for filing the petition. 10. It is submitted that the appellant neither condoned the action of the respondent nor any bona fide efforts were made by the respondent after application under Section 9 of the Act was rejected. No supporting witness except for the applicant was produced along with the copy of letters, which cannot form the basis for the trial court to record the finding against the appellant. It is also submitted that the trial court was not justified in picking up one statement in the cross-examination out of context where the appellant stated that it can take her 8, 18 or 28 years in starting to live with the respondent, as the basis for recording the finding against the appellant. It is also submitted that the trial court was not justified in picking up one statement in the cross-examination out of context where the appellant stated that it can take her 8, 18 or 28 years in starting to live with the respondent, as the basis for recording the finding against the appellant. 11. Further submissions were made that irretrievable broken down of marriage is not a ground available under the Act and therefore, the judgment impugned deserves to be quashed and set-aside. 12. Reliance was placed on Devi Singh v. Smt. Sushila Devi : AIR 1972 Rajasthan 303; Om Prakash v. Smt. Madhu alias Laxmi : AIR 1997 Rajasthan 214; Hari Mohan Sharma v. Smt. Santosh Pareek : 2007(1) RLW 820; Savitri Pandey v. Prem Chandra Pandey : (2002) 2 SCC 73 . 13. Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the petitioner, it was submitted that admittedly, separation between the parties took place on 24.12.2001 and ever since they were living separately. After the order was passed rejecting the application under Section 9 of the Act, serious efforts were made by the respondent to ensure that the appellant returns back to the matrimonial home and material in this regard has been placed on record, which has not been controverted by the appellant. Once, the sincere and serious efforts were made by the respondent after 2005, and the appellant chose not to return back to the matrimonial home, the trial court was justified in coming to the conclusion that the appellant has deserted the respondent and in those circumstances, the judgment impugned does not call for any interference. 14. It was submitted that from the entire material available on record, which has been already considered by the trial court and the attitude of the appellant in not returning back to the matrimonial home, despite a passage of over 16 years since she left the matrimonial home in December, 2001 clearly indicates a irretrievable break down of marriage between the parties and therefore, once the trial court has granted decree based on the material available on record, the same does not call for any interference in the present appeal. 15. Reliance was placed Naveen Kohli v. Neelu Kohli : 2006 (4) SCC 558 . 16. 15. Reliance was placed Naveen Kohli v. Neelu Kohli : 2006 (4) SCC 558 . 16. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 17. At the outset, it may be noticed that the fact that the petitioner left the matrimonial home on 24.12.2001 is not in dispute. Where after, the respondent-husband filed petition under Section 9 of the Act seeking restitution of conjugal rights. 17. At the outset, it may be noticed that the fact that the petitioner left the matrimonial home on 24.12.2001 is not in dispute. Where after, the respondent-husband filed petition under Section 9 of the Act seeking restitution of conjugal rights. The said petition came to be dismissed on 7.10.2005, wherein the trial court came to the following conclusion:- ^^nksuksa vksj ls ,d nwljs ij vkjksi izR;kjksi yxk;s x;s gS ysfdu ftl rjg dk i=kpkj nksuksa i{kksa dk gSA iRuh ds lkFk ifr dk ml le; rdjkj gS vkSj ifr dh loksZifjrk ;k ikfjokfjd nknkfxjh ;g dgk tk ldrk gS fd iRuh dks mlds ifjokj ds lnL; ugha j[krs vkSj gkykafd ,d gh ckj ;g ?kVuk gksuk lhek us crk;k ysfdu mlds ckn Hkh i=ksa ds vuqlkj /kefd;ka ifr us iRuh dks nhA fnukad 11-04-2002 dk i= Li"V :i ls cksy jgk gS tks ifr dk vkpj.k Lo;a dk cksy jgk gSA lkjk fglkc ysus vkSj lkjk fglkc vxj ugha fn;k rks iRuh dh [kky m/ksM+ nsuk Hkh ifr us dgk gSA igys ?kj ds lc yksxksa ls ng'kr gksuk vkSj ckn esa ifr ls Hkh ng'kr gksuk crk;k gSA vxj bu rF;ksa dks ns[kk tk, rks iRuh vyx tks jg jgh gS og ,slk eglwl djrh gS fd mldk llqjky esa 'kks"k.k gh ugha gqvk cfYd og Hk; eqDr gksdj Hkh llqjky esa ugha jg ldrhA blfy, tks lk{; ifr dh vksj ls is'k dh xbZ gS vxj iRuh dh lk{; dks vxj ns[kk tk, rks og vyx fdlh dkj.k ls jg jgh gS rks LokHkkfod gS fd iRuh vius llqjky i{k }kjk fd;s x;s nqO;Zogkj vkSj nfd;kuqlh izd`fr ds dkj.k ijs'kku gS vkSj ifr us [kky m/ksM+us rd dk Hkh dg fn;k vkSj dkQh :i;s Hkh ekaxs gS vkSj bl i= izn'kZ&, 3 esa Hkh ;gh /kedh bl rjg dh nh gS fd vxj :i;s ugha Hkstk rks vizR;{k :i ls iRuh dks NksM+us dk i= dh vafre ykbZuksa esa fy[kk gS fd vxj :i;s ugha Hksts rks fu.kZ; ysus ls iwoZ fdlh lkekftd Kku ds fo}ku~ ls lykg e'kfojk vo'; dj ysuk ,slk ifr dk ekuuk gSA ifr guqerflag us iRuh dks ,d rjg ls /kefd;ka nh gSA LokHkkfod gS fd bu ifjfLFkfr;ksa esa dksbZ Hkh iRuh ml ifjokj ds lkFk jgus dks rS;kj ugha gks ldrh tgka mls Hk; yxs vkSj vlqj{kk dh Hkkouk cyorh gksrh tk,A iRuh vius ifr ds lkFk vxj mijksDr ifjfLFkfr;ksa esa ugha jg jgh gS rks lkFk ugha gksus dk ;qfDr;qDr dkj.k izkFkhZ mijksDr foospu ds vk/kkj ij ;g lkfcr ugha dj ik;k gS fd iRuh us mlds lkFk vxj fdlh ;qfDr;qDr dkj.k ds ugha jgdj nkEiR; lEcU/kksa dk fuoZgu ugha fd;k gSA izkFkhZ ifr dk gh vkpj.k bu ifjfLFkfr;ksa esa xyr jgk gSA vkns'k vr% izkFkhZ ifr guqerflag dk ;g izkFkZuk i= fo:) vizkFkhZ;k lhek egkokj varxZr /kkjk 9 fgUnw fookg vf/kfu;e Lohdkj fd;s tkus ;ksX; ugha gS vkSj [kkfjt fd;k tkrk gSA** 18. A perusal of the above finding reveals that the trial court came to the conclusion that the appellant had reasonable cause in not living with the respondent as she feared for her life and consequently rejected the application. 19. In a case of this nature where once an application under Section 9 of the Act has been rejected, what would be the parameters, in case a petition for dissolution of marriage is filed alleging desertion, this Court in the case of Devi Singh (supra), while dealing with a similar nature petition laid down as under :- "13. I have carefully scanned the petition. It did not in express terms say in any paragraph as to when the desertion had begun. It is far from saying as to when the physical act of separation and the animus deserendi coincided. If one were to take the initial separation on 12-4-1963 as the commencement of the period of desertion then there is a formidable hurdle in the path of the appellant-husband and it is the judgment in the previous case. The learned District Judge who decided that case, after discussing the evidence of the parties, drew the following conclusion: "In the instant case, there is the positive evidence to show that legal cruelty was exercised on the wife and she and her child were neglected to provide them with food. No blame was attached by the 'husband to her character. In that circumstance, the attitude of the husband certainly amounts to legal cruelty, and constitutes a ground for refusing a decree for restitution of conjugal rights. The relations between the parties have come to such a stage that it cannot be expected of them normally to live together and it is in the interest of happiness, health and safety of the wife that she should not be forced to be in the company or society of the husband by a decree of restitution of conjugal rights". In the teeth of such a finding which was given in a case between the same parties which raised precisely the same issue about the allegation of cruelty on the part of the husband one cannot legitimately hold that the wife was in desertion when she allegedly left the husband's home on 13-4-1963. One does not know thereafter as to when the so called desertion really commenced. One does not know thereafter as to when the so called desertion really commenced. The matter was sub judice in the previous appeal till it came to be dismissed in default on 6-3-1968. 14. Now I may turn to the statement of the appellant if he has brought any additional facts in the present case. I have already adverted to the averments contained in the petition. It was mentioned therein that the wife had great distaste for the company of her husband and she had given out that she would never live with the petitioner. If this fact were established then perhaps St could be said that there is commencement of the desertion though one cannot be sure as to when and on what date precisely there was desertion on the part of the wife. As P.W.I. Devi Singh had nowhere stated to whom his wife had stated at any time that she would never return to him. Such other persons before 'whom she had said so. has not been mentioned by Devi Singh, nor has he produced any other witness. Therefore, it cannot be said that the petitioner has brought anything new in the present case. 15. Learned counsel has emphasised, as I have already observed, the present attitude of the wife. Learned counsel had argued that the wife had shown a strong determination to oppose the husband's prayer for restitution of conjugal rights. Apart from, this she was having an independent career and was in no mood to live with the husband. I have considered these circumstances, but to my mind, they do not advance the petitioner's case to any significant extent. One comes across a stalemate when the husband's prayer for restitution of conjugal rights against the wife is dismissed on the ground of cruelty. The question is in that event what is to happen? Are we to proceed always on the state of events that existed prior to the filing of the application for restitution of conjugal rights or new things that happen afterwards, and if so. what should be the nature of the new things that may affect the status quo to the advantage of restoration of marital relations between the two spouses. No direct authority could be brought to my notice. There are, of course some observations in Trilok Singh's case. AIR 1972 All 52 . what should be the nature of the new things that may affect the status quo to the advantage of restoration of marital relations between the two spouses. No direct authority could be brought to my notice. There are, of course some observations in Trilok Singh's case. AIR 1972 All 52 . After observing that the finding on the crucial question of feet recorded in the former suit for restitution of conjugal rights would be res judicata and it would not be open to the husband as a petitioner to reagitate the same question of fact again in the latter suit, the learned Judge went on to say that if the wife condoned the conduct of the husband and went back to live with him and then again came away without any reasonable cause and against the will of the husband then the wife can be said to be in desertion. The learned Judge, however, did not proceed to dilate further on this question as it was not one of the questions raised in the appeal. 16. Learned counsel for the appellant, as observed above, takes the stand that in that the wife had offered to return to the husband, she had condoned the husband's previous cruelty and, therefore, that should not stand in the way of the husband in the present petition and as the wife was not returning to the husband, she should be taken to be in desertion. The argument is ingenious no doubt, but I am afraid that is hardly sufficient for raising the plea of condonation. In the petition nowhere has the petitioning husband pleaded condonation, even though he was fully aware of what has been held by the competent court in the previous litigation. Condonation has to be pleaded and it cannot be left to be inferred just on the basis of a bit of a statement here or a bit there. The cross-examination of the husband reveals that though the wife was showing her willingness to return, she was demanding some assurance from the husband. The husband was asked a question in cross-examination, if he was prepared to give in writing to the wife that he would behave properly in future, but he declined to give any written assurance. 17. The cross-examination of the husband reveals that though the wife was showing her willingness to return, she was demanding some assurance from the husband. The husband was asked a question in cross-examination, if he was prepared to give in writing to the wife that he would behave properly in future, but he declined to give any written assurance. 17. Having devoted consideration to the matter, while I may not go as far as to hold that once an application for restitution of conjugal rights has been dismissed on the basis of legal cruelty on the part of the petitioning spouse that should result in the closure of freezing of the marital relationship for good, there could be reconciliation and change of hearts even subsequently, but then it would be the duty of the spouse who is in the wrong to take the initiative and make bona fide and reasonable efforts to induce the wronged spouse to resume marital relations. Here, in the present case, it was the wife who was held to be the wronged party and the husband was held to be in the wrong. Therefore, once the husband's petition for restitution of conjugal rights was dismissed it was for him to make bona fide and reasonable efforts to appeal to the good sense of the wife and to satisfy her that should she return to him, she would be treated with all conjugal kindness due to her as his wife. Where the husband has not been able to show this in his subsequent petition, the previous state of things resulting in a reasonable apprehension in the mind of the wronged spouse about the future behaviour of the other spouse would be there and as long as a reasonable apprehension in the mind of the wronged spouse continues it cannot be said that the spouse so wronged is in desertion. I am, therefore, in agreement with the learned District Judge that the appellant has failed to prove desertion on the part of his wife, the respondent here."(emphasis supplied) 20. I am, therefore, in agreement with the learned District Judge that the appellant has failed to prove desertion on the part of his wife, the respondent here."(emphasis supplied) 20. From the above, it is apparent that once the husband's petition for restitution of conjugal rights is dismissed, it is for him to make bona fide and reasonable efforts to appeal to the good sense of the wife and to satisfy her that should she return back to him she would be treated well and unless the husband is able to show the same in the subsequent petition, the wife cannot be wronged being in desertion. 21. The entire emphasis in the present case of the respondent has been the correspondence Ex.-1 to Ex.-28 to indicate the efforts for seeking restitution, which plea has been accepted by the trial court. 22. It would be appropriate to have a look at the letters exhibited as Ex.-1 to Ex.-28. A bare look at the said letters would indicate that all the letters have been sent under certificate of posting (UPC) by the respondent to the petitioner and / or to certain other persons. The very fact that each and every letter by the respondent has been sent under UPC clearly indicates that the effort has been to collect evidence, essentially for the purpose of filing a present nature petition. 23. It would be appropriate to indicate the dates of the letters and to whom / by whom, the same were written at a glance, which are as under:- Exhibit Date From To 1 23.5.2007 Respondent Appellant 2 23.5.2007 Respondent Chairman, Kohli Samaj Mahapanchayat 3 30.5.2007 Respondent Daughter 4 4.6.2007 Respondent Appellant 5 12.6.2007 Respondent Appellant 6 17.6.2007 Respondent Chairman, Kohli Samaj Mahapanchayat 7 21.6.2007 Respondent Smt. Sarswati (Aunty) 8 29.6.2007 Respondent Madan Singh 9 6.7.2007 Respondent Dr. Rajesh Kajot 10 26.8.2007 Respondent Father-in-law 11 12.7.2007 Respondent Father-in-law 12 24.7.2007 Respondent Smt. Sarswati (Aunty) 13 6.8.2007 Respondent Appellant 14 17.8.2007 Respondent Chairman, Kohli Samaj Mahapanchayat 15 7.9.2007 Respondent Harish (Uncle) 16 21.9.2007 Respondent Smt. Sarswati (Aunty) 17 4.10.2007 Respondent Appellant 18 22.10.2007 Respondent Harish (Uncle) 19 22.11.2007 Respondent Madan Singh 20 7.12.2007 Respondent Father-in-law 21 24.12.2007 Respondent Madan Singh 22 12.1.2008 Respondent Harish (Uncle) 23 25.1.2008 Respondent Appellant 24 25.1.2008 Respondent Smt. Sarswati (Aunty) 25 6.7.2007 Madan Singh Respondent 26 26.8.2007 Chairman, Kohli Samaj Mahapanchayat Respondent 27 ------ Envelop ----- 28 6.12.2007 Madan Singh Respondent 24. A bare perusal of the above tabulation would indicate that the respondent started writing letters on 23.5.2007 and wrote letters in quick succession till 25.1.2008 to the appellant, her aunty, uncle and her father i.e. all the letters were written within a period of about eight months. 25. A bare look at the contents of the letter would reveal that the contents thereof are omnibus and have apparently been written only in the nature of a formality to indicate that some effort was being made by the respondent, the letters neither indicate any bonafides nor sincerity in the alleged efforts made by the respondent. 26. The evidence led by the respondent, does not even give out the reason for writing/exchanging such large number of letters in quick succession i.e. 27 letters over a period of about eight months, neither any correspondence previous to the letter Ex.-1 has been shown nor any action subsequent to Ex.-24 thereto has been indicated and the petition for dissolution of marriage has been presented on 17.5.2008. 27. From the above state of the documentary evidence available on record, it cannot be said by any stretch of imagination that by writing the letters to the appellant, her relatives and officials of the Panchayat, any bona fide effort was made by the respondent, which was not appropriately responded by the appellant so as to indicate desertion on her part subsequent to the finding recorded by the Court in 2005 about her having a reasonable cause in living separately. 28. 28. Further the trial court did not consider the contents of the material placed by the appellant on record, which is a letter dated 1.3.2002 Ex.-A/4 written by the respondent to the appellant, wherein several questions were raised regarding appellant's income, her alleged failure to support the respondent financially, seeking her to send money to the respondent, directing her to get her services transferred and suggesting her to take advise from a social scientist before refusing to send the money demanded by him. The said letter clearly indicates the true intent and nature of the respondent and the behaviour met out to the appellant and therefore, the finding recorded by the trial court essentially based on the superficial letters written by the respondent / made up correspondence cannot be sustained. 29. Another reason recorded by the trial court pertains to evidence, which was recorded during the trial wherein the appellant indicated that though she wants to live with the respondent, however, it may take time, which could 8, 18 and / or 28 years. The said statement of the appellant has been blown out of proportions by the trial court and the trial court has based its judgment on the one line statement without even taking note of the requirements in a typical case like the present, wherein the respondent was already bound by the finding recorded by the competent court pertaining to his conduct and that the appellant was having a reasonable cause to live separately. 30. In view of the above, the finding of the trial court regarding the appellant having deserted the respondent, cannot be sustained and the same is, therefore, set-aside. 31. So far as the submissions made by learned counsel for the respondent regarding irretrievable break down of marriage based on the fact that the parties were living separately since the year 2001 is concerned, the facts of the present case wherein the conduct of the respondent has already been established by rejection of the application under Section 9 of the Act and the present attempt, which has been made in the present case by creating evidence by writing letters in quick succession and sending them under postal certificate clearly indicates the impatience on part of the respondent and in those circumstances, the plea raised regarding alleged irretrievable break down of marriage cannot be accepted. 32. 32. Besides the above, having considered the said plea based on the law laid down by Hon'ble Supreme Court in the case of Naveen Kohli (supra) and after the analysis and evaluation of the entire evidence, suffice it to say that in the context of the facts of the present case, it cannot be said that the so called brake down is irreparable and that the marriage is totally dead merely for the reason that the parties are living separate. In view of the above discussion, the appeal is allowed. The judgment and decree dated 7.4.2010 passed by the District Judge, Sirohi is set-aside. The petition filed by the respondent - husband under Section 13 of the Act seeking dissolution of marriage is dismissed.