JUDGMENT : MR. JUSTICE A.Y. KOGJE, J. 1. The present appeal is directed against the judgment and order dated 02.09.2013 by the Principal Judge, Family Court, Rajkot in Family Suit No. 24 of 2008. The family suit was filed by the husband-Hirjibhai Ghadiya under section 13 seeking divorce on the ground of desertion by the respondent. The family suit came to be rejected by the impugned order and hence, the husband has preferred the present appeal. 2. The facts in brief are that the appellant-husband herein entered into a marriage as per the Hindu rites and rituals with respondent-wife on 16.02.1985 (hereinafter to be referred to as husband and wife respectively). Out of the wedlock, two daughters and one son were born. With the passage of time, the husband and wife started residing separately where the elder daughter and the son continued to reside with the husband whereas the youngest daughter resided with the wife. The basis for filing the petition for divorce by the husband was that since after the birth of the youngest daughter i.e. seven years prior to filing of the petition, the wife had withdrawn from the society of the husband without any valid reason thereby depriving the husband from his matrimonial rights. 3. During the course of the trial, evidence was led by both sides which included the oral evidence of husband and wife respectively and also various other proceedings between the husband and wife and the final judgment in such cases. 4. After considering the evidence on record the Family Court came to the conclusion that the husband has failed to establish desertion on the part of the wife and hence, dismissed the family suit. 5. Heard learned advocates for the respective parties. Learned advocate for the appellant submitted that there was no reason for the wife to withdraw from the society of the husband and the wife having separated for seven years prior to filing of the petition, the husband has made out the case for divorce on the ground of desertion. He submitted that though the effort was made by the husband to reconcile, the wife was adamant and did not come back to the matrimonial home. He submitted that though the effort was made by the husband to reconcile, the wife was adamant and did not come back to the matrimonial home. It is submitted that the Family Court has committed an error by considering the fact that the husband was living in adultery and for that reason, the wife had withdrawn from the society whereas there is no such evidence against the husband and the Family Court has shifted the burden of proof to disprove the adultery upon the husband. 6. As against this, learned advocate for the wife submitted that sufficient evidence was brought on record about the adulterous life of the husband as a result of which, she was forced to withdraw from the society of the husband. It is submitted that in fact, the husband is living with another woman and that itself is cruelty against the wife. Upon instructions, it is submitted that the husband has now married to another woman and on account of such stressful environment, the elder daughter had committed suicide and now even the son, who was residing with the husband, is thrown out of the husband's house. It is submitted that the husband has not honoured his duties towards the marriage. He has not paid any maintenance to the wife and the youngest daughter. 7. The Court has heard the submissions of both the sides and perused the documents on record. 8. The suit is filed on the ground of desertion by wife and in the pleading as well as the evidence of the husband recorded at Exh 90, the contention raised is that the wife had withdrawn from the society of the husband without any reason and she was adamant and was having independent mind and frequently used to insult the husband in the society and had therefore, on her own withdrawn from the society of the husband though the husband was always ready and willing to perform his duties towards the marriage. In the evidence it is deposed that since 11 years, the wife is residing separately with the youngest daughter and is therefore entitled to the decree of divorce on the ground of desertion. In the evidence it is deposed that since 11 years, the wife is residing separately with the youngest daughter and is therefore entitled to the decree of divorce on the ground of desertion. The Court observed that in the cross examination of the husband, the husband has categorically deposed that even if the wife and the youngest daughter are ready and willing to come and reside with him, he is not ready and willing to accept them. It is also coming out on record from his deposition that during this period he has not taken up any responsibility of the youngest daughter and towards her education also he has not contributing anything except for providing one computer. From the deposition it is also evident that the husband on his own has not made any attempt to bring back the wife and the youngest daughter to the matrimonial home. To the specific question put to the husband regarding any legal notice or notice asking wife to come back to the matrimonial home was ever issued, the husband has answered in negative. 9. The perusal of the evidence of wife at Exh 40 wherein it is deposed in no uncertain terms that through out the matrimonial period while she was residing with her husband she was being treated with cruelty. The husband was having illicit relationship with another woman and that the husband had already accepted that woman as his wife and was therefore totally negligent towards the marriage with the respondent-wife. In the deposition therefore, it is coming out that it was a reason sufficient for the wife to reside separately along with the youngest daughter. It is also deposed that in separate proceedings arising out of the matrimonial, the wife had in fact, made an attempt to settle the matter and went back to the matrimonial home but on account of continuing relationship of the husband with the another woman, she could not continue to reside in the matrimonial home. 10. It is also deposed that in separate proceedings arising out of the matrimonial, the wife had in fact, made an attempt to settle the matter and went back to the matrimonial home but on account of continuing relationship of the husband with the another woman, she could not continue to reside in the matrimonial home. 10. The evidence on record at Exh 41 is the judgment of the Court of Judicial Magistrate First Class in the proceedings under section 125(1) of CR.P.C between the same parties wherein in the judgment referring to the deposition of the wife about the husband living in adultery, the Court has held that the wife was justified in living separately and that the husband has abandoned the wife and youngest daughter. Based on the evidence and the findings, the Court proceeded to grant maintenance to both the wife and the daughter. 11. The case of the husband that the wife had withdrawn from his society without any valid reason is countered by the evidence on behalf of the wife as the husband was living in adultery. She had a reason to reside separately. The Family Court may not be entirely correct in holding that it was the burden of the husband to disprove adulterous life. However, in the instant case when the wife has alleged adulterous life and produced supporting evidence on record to support her such contention, it cannot be said that merely on suspicion of adulterous life the wife has withdrawn from the society. This Court is of the view that in this fact situation, it was for the husband to at least deny the existence of adulterous life or to produce anything on record in this regard. The perusal of the record indicates that no such efforts are made on the part of the husband and therefore, the wife was justified in residing separately and her such residing separately cannot be considered his withdrawal from society of the husband without reason so as to entitle the husband divorce on the ground of desertion. 12. No interference is therefore required. The appeal is hereby dismissed.