ORDER : Heard learned counsel for the parties. 2. Appellant-husband is aggrieved by dismissal of Title Matrimonial Suit No. 412 of 2009 by the judgment and decree dated 31st May, 2016 passed by learned Principal Judge, Family Court, Dhanbad. The suit was instituted for dissolution of marriage on the grounds of cruelty and desertion. 3. The case of the petitioner/husband. Marriage of the petitioner was solemnized on 7th June, 2006 at Dhanbad as per Hindu Rites and Customs with the respondent. They remained peacefully in the matrimonial house, but it is alleged that the Respondent-wife started creating trouble. The main reason for trouble was that the plaintiff after having lost his parents used to live jointly with his elder brother, which was not acceptable to the respondent. She started asking for partition and separation from the rest of the family members which became the cause of tension. It is also alleged that petitioner was pressurized to become Gharjamai by the parents of respondent. He was abused in filthy languages in the presence of neighbor and friends which destroyed the matrimonial life. She left the matrimonial residence and went to her parent’s house in February, 2007 without permission of the petitioner. She refused to talk with him even on telephone. Petitioner and his family members approached the respondent several times and lastly on 1st September, 2009 to bring her back but respondent had threatened several times that he along with his family members would be implicated in false cases. 4. Respondent’s case. Respondent accepted the factum of marriage but denied all what has been alleged in the complaint. She alleged that she was forcibly kicked out by the petitioner from her matrimonial house. She never asked for any partition or separation between the petitioner and his elder brother nor she ever abused the petitioner and his family members. Respondent never asked the petitioner to become Gharjamai but only requested him to mend his own ways and keep her with honour, prestige and dignity. She never left the petitioner’s house either in the month of February, 2007 or on any other date. Thereafter, they were living under the joint mess and worship even on the date of filing of divorce petition. She is also ready to live with him, but it is the petitioner, who ousted her from matrimonial house for demand of dowry. She never left the petitioner’s house either in the month of February, 2007 or on any other date. Thereafter, they were living under the joint mess and worship even on the date of filing of divorce petition. She is also ready to live with him, but it is the petitioner, who ousted her from matrimonial house for demand of dowry. Complaint case has been lodged bearing C.P. Case No. 49/2010 against him and his family members. Respondent contended that she was throughout tortured physically and mentally but for the sake of family prestige she kept mum and lastly she was kicked out by the petitioner. Mediation failed even during the proceedings of matrimonial suit. 5. On the basis of rival pleadings of the parties, the following issues were framed for adjudication: (i) Whether the suit is maintainable? (ii) Whether the petitioner was subjected to cruelty by the respondent? (iii) Whether the respondent deserted the petitioner voluntarily or whether the respondent was subjected to cruelty by the petitioner? (iv) Whether the petitioner is entitled to get a decree of divorce? (v) To what relief or reliefs the petitioner is entitled to? 6. Petitioner examined himself as P.W.-1. P.W.-2 his elder brother, Vani Bhushan Upadhaya and PW-3-Shambhu Singh in support of his case. Respondent examined herself as D.W.-1 and her father DW-2. 7. Issue Nos. II and III relating to cruelty and desertion were taken up together for consideration. 8. Learned trial Court considered the evidence on record and on the basis of statement of petitioner’s witnesses, came to the opinion that the petitioner, in his evidence, had not stated that respondent ever asked him to seek partition from his elder brother with whom he was jointly living. P. Ws. 2 & 3, on the other hand, also have not stated that joint living of petitioner with his elder brother was the real bone of contention between the parties. Petitioner and his witnesses therefore did not say anything about this part of the pleading, if at all it was true. Apart from that, petitioner made out a different case during the course of evidence. He alleged that respondent was behaving like mentally retarded person and she talked about some ‘tantra-mantra’ which destructed the matrimonial life of the petitioner. Petitioner and his witnesses therefore did not say anything about this part of the pleading, if at all it was true. Apart from that, petitioner made out a different case during the course of evidence. He alleged that respondent was behaving like mentally retarded person and she talked about some ‘tantra-mantra’ which destructed the matrimonial life of the petitioner. According to P.W.1, respondent started to behave like a person of unsound mind and she used to see the sky for a long time and talked about some magic and tantras. When her act was objected she abused him and also inflicted assault on him. 9. PW2 during the course of his deposition also stated that when the respondent came to his house at Dhanbad to reside there for some days, very soon, he observed that she always quarreled with the petitioner and her behavior was not normal. P.W.-3 stated that he had gone to the house of the petitioner at Chaibasa and had found respondent always behave roughly causing humiliation to the petitioner. Learned Court found that a new case set up through mouth of the petitioner’s witnesses were not supported by the pleadings. Therefore, they could not be believed. On the other hand, petitioner accepted in his statement that the respondent was Law Graduate and he had arranged for registration at the Court of Chaibasa District, but he further deposed about her as mental retarded person and that she was always weeping. This assertion of the petitioner was not acceptable to learned Family Court also for the reasons that P.W. 2 had in his deposition stated that before solemnization of marriage they had gone to see the respondent with his whole family. 10. Learned Family Court observed that when the marriage was solemnized after full satisfaction of the petitioner and his family members about conduct, behavior and mental condition of the respondent and there was no complaint against her mental status, the new case set up during the course of evidence cannot be relied as probable. 11. Respondent, in her deposition, had complained of torture and assault for demand of Rs. 1 Lakh and a motorcycle as dowry by the petitioner after two months of her marriage. According to her, she was brutally assaulted on 18.08.2007 and got grievous injury on her forehead. Her father got treated and saved her. She was further assaulted on 12.02.2009. 11. Respondent, in her deposition, had complained of torture and assault for demand of Rs. 1 Lakh and a motorcycle as dowry by the petitioner after two months of her marriage. According to her, she was brutally assaulted on 18.08.2007 and got grievous injury on her forehead. Her father got treated and saved her. She was further assaulted on 12.02.2009. In this regard C.P. Case No. 49/2010 had been filed. At Para-14 she had also stated that she is ready to live with her husband if she is not tortured for illegal demand of dowry. D.W.-2 has supported the statements made in the written statement and the case of the respondent. He also alleged that petitioner and his family members always used to assault and torture the respondent for money and motorcycle and he brought her back to get her treated for injuries which she received at his hands. He is still ready to send her with the petitioner if she is not tortured in future for demand of dowry. 12. Learned trial Court on analysis of the material evidence on record and the concept of cruelty in marriage, came to a finding that the petitioner had not been able to prove this ground to the extent required by law for seeking dissolution of marriage. In the opinion of learned Court cruelty should be a conduct of such a character as to have caused danger to life or health, bodily or mental, or given rise to reasonable apprehension of such danger. Cruelty is something different from normal wear and tear in between spouses and it is not every instance of altercation in between them. Petitioner had failed to prove that respondent had ever subjected the petitioner with such a cruelty which caused mental distress and agony to him. The witness examined by the petitioner had not stated anything which could create an impression that he was subjected to cruelty of such a nature which caused reasonable apprehension in his mind that he would not survive anymore. Therefore, this issue was decided against him. On the point of desertion also learned trial court found from the statement of P.W.-2- brother of the petitioner that the respondent had gone to matrimonial home after panchayati on 6th July, 2008 and lived there for some period, though this fact was denied by P.W.1-petitioner. Therefore, this issue was decided against him. On the point of desertion also learned trial court found from the statement of P.W.-2- brother of the petitioner that the respondent had gone to matrimonial home after panchayati on 6th July, 2008 and lived there for some period, though this fact was denied by P.W.1-petitioner. In the light of the evidence of P.W.2 learned court found that the suit had been instituted on 4th September, 2009 before expiry of the statutory period of 2 years of alleged desertion. Learned Family Court discussed the two essential conditions for constituting desertion i.e. (i) the factum of separation and (ii) the intention to bring co-habitation permanently to an end (Animus Deserendi) and ultimately came to the conclusion that the petitioner had failed to show that the respondent had deserted him for 2 years before institution of the suit. This issue of desertion was also decided against him. Accordingly, the entire suit was dismissed on contest with a litigation cost of Rs.10,000/- 13. Learned counsel for the appellant has assailed the findings of learned Family Court on both counts. He submits that petitioner and his other two witnesses have supported the case on merits. Their deposition shows that the respondent used to behave in abnormal fashion. She used to insist for Tantra-mantra and became abusive when being objected. The respondent also pressurized the petitioner for seeking partition from his family and live separately from his elder brother. This was the reason for the respondent to ill-treat the petitioner after some period of marriage. Learned counsel for the appellant has however not been able to overcome the findings of learned Family Court that the plea relating to mental retardation or unsoundness made out during the course of evidence was not pleaded by the petitioner in his plaint and is a totally new case made out on his behalf. Learned counsel for the appellant has also not been able to overcome the findings on the point of desertion as P.W.-2-elder brother of the petitioner-appellant himself stated that a Panchayati was held between the spouses on 16th July, 2008 and she lived with the petitioner for some period thereafter. If that be so, there was contradiction between the statement of P.W.-1- petitioner and his elder brother-P.W.-2 on a very vital point in relation to the ingredient of Section 13(1)(ib) of Hindu Marriage Act. If that be so, there was contradiction between the statement of P.W.-1- petitioner and his elder brother-P.W.-2 on a very vital point in relation to the ingredient of Section 13(1)(ib) of Hindu Marriage Act. The suit was instituted on 4th September, 2009 without exhausting the mandatory period of 2 years from the date of alleged desertion. In substance, appellant has not been able to dislodge the findings of learned Family Court on both counts. It has further transpired during the course of submission that the appellant has been convicted in the complaint case bearing no. C.P. Case No. 49/2010 lodged by the respondent-wife. If that be so, this was a reasonable cause for the respondent to leave the matrimonial home. This finding rendered by the competent court of jurisdiction also would have the effect of showing that the appellant had been responsible for cruelty in marriage rather than the respondent. 14. Learned counsel for the respondent has supported the finding rendered in the impugned judgment. He submits that findings of ingredient of cruelty or desertion have not been conclusively established on the weight of evident on record. The respondent always lived with honour and dignity with the appellant, but it is the husband, who has been unwilling to do so. He has shown disinclination during the course of mediation as well. In those circumstances, appellant should not be allowed to take advantage of this own wrong. 15. We have considered the submission of parties and relevant material on record and also perused the impugned judgment. On the basis of the aforesaid discussions and analysis of the material evidence made above, we do not find any reason to disturb the findings of learned Family Court. The appeal therefore fails. It is accordingly dismissed. Decree accordingly. Appeal dismissed.