JUDGMENT : P.G.M. PATIL, J. 1. The respondent wife being aggrieved by the judgment and decree dated 20.8.2010, passed in M.C. No. 85/2008, on the file of I Addl. Senior Civil Judge, Gokak, has filed this appeal. 2. The status of the parties is referred to as per their ranking before the trial Court. 3. The petitioner husband filed a petition under section 13(i-b) of Hindu Marriage Act, seeking a decree for dissolution of his marriage with the respondent wife. It is the case of the petitioner that their marriage was solemnized at Vitthal Mandir, Pandarapur in the year 1988; thereafter they led marital life and out of wedlock two daughters are born viz. Savita and Suprita. The respondent was not at all interested in leading marital life with the petitioner and was not co-operating with the petitioner. She had no regards for the family members of the petitioner and was interested in residing with her parents. The petitioner and his parents advised her on various occasions to lead proper marital life. The petitioner made all efforts to have a separate accommodation during his service tenure but she did not choose to join his company. The petitioner and other elderly members of the family and elders of the village made several efforts by approaching the respondent to resume the conjugal rights with the petitioner. However she has deserted the petitioner willfully and voluntarily without any reasonable cause in the year 1996. The respondent secured a job in the year 1996 as Primary School Teacher and she started residing at Ramadurg along with her sister Rukmini, whose husband died long back. Two daughters are also residing with the respondent. There is no cohabitation between the petitioner and the respondent since 1996. 4. The petitioner has further stated that his brother had filed a suit for partition and separate possession of family properties in O.S. No. 141/2006. The said suit came to be decreed on compromise petition. In the said compromise, the respondent and her two daughters have taken a sum of Rs. 3,25,000/- from the petitioner and his brother towards their legitimate share in the family properties and also towards permanent alimony. The respondent also admitted and consented that all the monetary service benefits and pensionary benefits of the petitioner shall be availed by his another wife Latha. The respondent has given up all her rights in the family properties. 3,25,000/- from the petitioner and his brother towards their legitimate share in the family properties and also towards permanent alimony. The respondent also admitted and consented that all the monetary service benefits and pensionary benefits of the petitioner shall be availed by his another wife Latha. The respondent has given up all her rights in the family properties. The very keeping up of marriage tie idle between the petitioner and respondent is unnecessarily causing harassment to the petitioner. Therefore on the ground of desertion the petitioner had sought for a decree of divorce. 5. On receipt of notice, the respondent appeared before the trial Court and filed her statement of objections, wherein she has admitted marital relationship with the petitioner. She has denied rest of the allegations made in the petition including the cause of action for filing the petition. She has also questioned the territorial jurisdiction of the Court. She has further stated that the petitioner has not made out any sufficient ground to grant a decree of divorce and that with a view to harass and cause mental torture to her, he has filed a false petition on untenable and flimsy grounds. Therefore the petition is liable to be dismissed with compensatory cost of Rs. 10,000/-. 6. On the basis of the pleadings of the parties, the trial Court framed the following points: (1) Whether this Court has no territorial jurisdiction to entertain the present petition? (2) Whether the petitioner has proved that the respondent has deserted the petitioner for such a long period as claimed by the petitioner? (3) Whether the petitioner is entitled for the decree of divorce? (4) Whether the petition is liable to be dismissed with exemplary cost of Rs. 10,000/-? (5) What order? 7. In order to prove his case, the petitioner got examined himself as PW-1 and two witnesses as PW-2 and PW-3 and got marked one document as Ex.P.1. On behalf of respondent, she has got examined herself as RW-1 and got marked two documents as Exs.R.1 and R.2. The trial Court after hearing both the parties, answered point Nos. 1 and 4 in the negative, point Nos. 2 and 3 in the affirmative and allowed the petition thereby the marriage of the petitioner and respondent was dissolved. 8. On behalf of respondent, she has got examined herself as RW-1 and got marked two documents as Exs.R.1 and R.2. The trial Court after hearing both the parties, answered point Nos. 1 and 4 in the negative, point Nos. 2 and 3 in the affirmative and allowed the petition thereby the marriage of the petitioner and respondent was dissolved. 8. It is apposite to state that during the pendency of this appeal the respondent herein Bhimappa S/o Venkappa Nadagouda died and his second wife, son and two daughters were impleaded. It is also noteworthy that respondent No. 1(b) Vikram son of respondent Bhimappa through his second wife Smt. Latha also died during the course of the appeal proceedings and his name was deleted. 9. We have heard the learned counsel for the parties and have perused the entire record. 10. Learned counsel for the appellant herein submitted that the petitioner husband miserably failed to prove that the respondent wife has deserted him for a continuous period of not less than two years immediately preceding the presentation of petition as provided under section 13(1)(i-b) of Hindu Marriage Act. It is further submitted that the explanation to this provision is also relevant in the present case. The learned counsel further submitted that admittedly the petitioner has contracted second marriage during the subsistence of his marriage with the respondent and that even assuming that the respondent has received a sum of Rs. 3,25,000/- in the compromise entered into in O.S. No. 141/2006, her matrimonial rights are not at all affected. The petitioner has alleged that the respondent has deserted him since 1996. On the other hand, the petitioner has admitted that the respondent gave birth to 2nd daughter in the year 1998. Therefore the question of desertion by the wife from 1996 does not arise at all. 11. Per contra, the learned counsel for the respondent herein/husband while supporting the impugned judgment and decree submitted that he has proved that his wife has voluntarily deserted the petitioner husband at least after decree of compromise was passed in O.S. No. 141/2006, wherein she received a sum of Rs. 3,25,000/- from the petitioner and her brother along with some property and consented that the second wife would be entitled to monetary service benefits and pensionary benefits of the petitioner. 3,25,000/- from the petitioner and her brother along with some property and consented that the second wife would be entitled to monetary service benefits and pensionary benefits of the petitioner. Therefore the learned counsel submits that the Court has to draw an inference in the fact situation of the case that the respondent wife voluntarily and willfully deserted the husband from the year 2006 after passing of the compromise decree in O.S. No. 141/2006. Learned counsel for the respondent further submitted that when the compromise decree was passed in the said suit, the petitioner husband requested the respondent wife to join his company and she turned down his request. Therefore it would amount to willful desertion on the part of the wife. The learned counsel further submitted that the very act of the respondent wife in consenting the 2nd wife to receive the monetary service benefits and pensionary benefits of the petitioner goes to show that she had no intention to join the company of the petitioner to discharge her matrimonial obligation. Learned counsel for the respondent further submitted that though the respondent wife has alleged ill-treatment at the hands of the petitioner and his family members, she never complained of the same at any point of time. 12. After hearing the learned counsel for the parties, the following point would arise for our consideration in this appeal: Whether the Court below is justified in granting a decree of divorce on the ground of desertion under section 13(1)(i-b) of Hindu Marriage Act? 13. It is seen from the record that the only ground on which the petitioner husband sought for a decree is that of desertion as provided under section 13(1)(i-b) of the Act. The said provision reads as under: “13. Divorce - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party: (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.” 14. Explanation appended to sub-section (1) of section 13 reads as follows: Explanation - 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. 15. Therefore in order to get a decree of divorce on the ground of desertion, the petitioner husband has to plead and prove that the wife has deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. Further the explanation is also very much relevant. The explanation provides that the expression ‘desertion’ means, desertion of the petitioner by the other party to the marriage without reasonable cause and when the consent was against the wish of such parties and includes the willful neglect of the petitioner by the other party to the marriage. Therefore the burden is on the petitioner husband to plead and prove that the respondent wife has deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition and further that she has so deserted him without reasonable cause as provided in the explanation. So far as proof of the ground under section 13(1)(i-b) of the Act is concerned, the Hon’ble Supreme Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastane, (1975) 2 SCC 326 , has held as follows: (a) Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1)(b) of the Act. (b) The belief regarding the existence of a fact must be founded on a balance of probabilities. As a prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to f ix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. As a prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to f ix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the Court has often difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note. But whether the issue is one of cruelty or of a loan on a pro-note, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. 16. Therefore the burden lie on the petitioner to establish on the principle of probabilities that the wife has voluntarily and willfully deserted his company as stated in Section 13(1)(i-b) of the Act and he has to further prove that the wife has so deserted him without reasonable cause and without the consent or against his wish and that it includes willful neglect of the petitioner. 17. The petitioner has pleaded in paragraph No. 2 of the petition that the respondent willfully and voluntarily deserted the company of the petitioner without there being any reasonable cause, in the year 1996. He has also further stated that the petitioner, his parents and elderly persons made several efforts and advised the respondent to join his company and lead marital life. But she did not respond to the same and she did not join the company of the petitioner. On the other hand, the petitioner himself has admitted that the second daughter namely Suprita was born to the petitioner and respondent on 24.1.1998 and their first daughter Savita was born on 31.3.1993. Therefore the pleadings in paragraph No. 2 of the petition that the respondent has willfully deserted the company of the petitioner in the year 1996 itself goes in view of the birth of second daughter on 24.1.1998. 18. The petitioner has further pleaded in paragraph No. 5 of the petition that the respondent deserted his company in the year 1996. Therefore the pleadings in paragraph No. 2 of the petition that the respondent has willfully deserted the company of the petitioner in the year 1996 itself goes in view of the birth of second daughter on 24.1.1998. 18. The petitioner has further pleaded in paragraph No. 5 of the petition that the respondent deserted his company in the year 1996. He has further stated that if at all the respondent is interested to join the company of the petitioner, she had one more occasion in the suit filed by the brother of the petitioner against the petitioner and respondent. At that time also the petitioner made a request to her to join his company. He has further stated that the respondent allowed to enjoy his service benefits and inherited properties of the petitioner by other heirs, so the respondent has given up her claim and rights etc. This itself goes to show that she was not interested to join the company of the petitioner. This is all the pleadings regarding desertion by the respondent wife. 19. When we come to the evidence of the petitioner, in order to prove desertion, the petitioner has got examined himself as PW-1. He has reiterated the averments made in the petition. In his examination-in-chief filed in the form of affidavit he has reiterated that the respondent voluntarily deserted his company in the year 1996. In paragraph No. 5 of his examination-in-chief he has stated that a compromise decree was passed in O.S. No. 141/2006 on 6.7.2006 and at the time of compromise, the respondent has received a sum of Rs. 3,25,000/- from himself and his brother towards her share and permanent alimony and further she consented that the second wife Latha would be entitled to receive the monetary service benefits and pensionary benefits of the petitioner. 20. In continuation of paragraph No. 5, in paragraph No. 6 the petitioner would depose that on the basis of the above facts an inference has to be drawn that the respondent had no intention to lead marital life with him and therefore she has voluntarily deserted his company. 20. In continuation of paragraph No. 5, in paragraph No. 6 the petitioner would depose that on the basis of the above facts an inference has to be drawn that the respondent had no intention to lead marital life with him and therefore she has voluntarily deserted his company. The contents of paragraph No. 5 in the petition that at the time of compromise of the suit, the respondent had one more occasion to join his company and at that time also he requested her to join his company, but she failed to join his company is not at all stated in his examination in chief. Therefore the submission made on behalf of the respondent that the Court has to draw an inference on the basis of the facts and circumstances and evidence produced by the petitioner that the respondent has voluntarily and willfully deserted the company of the petitioner after the compromise decree was passed in the suit cannot be accepted. 21. The provisions of Section 13(1)(i-b) of the Act extracted above and the explanation thereto provides that the petitioner has to prove that the respondent has deserted the petitioner without reasonable cause. In the case on hand admittedly the petitioner husband contracted second marriage with one Smt. Latha in the year 1997. This fact is admitted by the petitioner himself and she is also party in the suit bearing O.S. No. 141/2006 in which a compromise decree was passed. It is also admitted that even after contracting second marriage with Smt. Latha, the petitioner had marital relationship with the respondent wife and through such marital relationship the second daughter Suprita was born on 24.1.1998. In the face of aforesaid admitted facts, it does not lie in the mouth of the petitioner that the respondent wife has voluntarily and willfully deserted his company without any reasonable cause. The very fact that during the subsistence of his marriage the petitioner had contracted second marriage in the year 1997 and through his second wife a son namely Vikram was born is sufficient to give a reasonable cause to the respondent to stay away from the company of the petitioner without forfeiting her rights and obligations arising out of marital relationship with the petitioner. Only for the reason that the respondent is a party to the compromise in O.S. No. 141/2006 and she has received the alleged amount of Rs. Only for the reason that the respondent is a party to the compromise in O.S. No. 141/2006 and she has received the alleged amount of Rs. 3,25,000/- in lieu of her permanent alimony and that she has also given consent for the second wife to receive monetary benefits and pensionary benefits of the petitioner’s service, is not sufficient to draw an inference that the respondent wife has willfully deserted the company of the petitioner. 22. In catena of decisions the Apex Court and this Court have held that heavy burden lies upon the petitioner who seeks relief on the ground of desertion to prove four essential conditions. In Lachman Utamchand Kirpalani vs. Meena alias Mota, AIR 1964 SC 40 , the Apex Court has held as follows: “Heavy burden lies upon a petitioner who seeks relief on the ground of desertion to prove four essential conditions, namely: (1) the factum of separation; (2) animus deserndi; (3) absence of his or her consent and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner shall be corroborated. In short the proof required in a matrimonial case is to be equated to that in a criminal case.” 23. The Division Bench of this Court has relied on the said judgment in Prabhavathi vs. K. Somashankar, ILR 2002 Kar. 3505. Applying the principles stated above, in the case on hand it can be safely held that the respondent wife remained living separately for the reason that the petitioner has contracted second marriage and has got a son through the second wife. Under such circumstances, the respondent wife cannot be expected to join the company of the petitioner husband to lead marital life. Therefore on consideration of the entire material on record we are of the considered opinion that the petitioner husband has miserably failed to prove that the respondent wife deserted his company for a continuous period of not less than two years immediately preceding the presentation of the petition without any reasonable cause. The learned trial Judge has ignored the fact of second marriage of the petitioner during the subsistence of his marriage with the respondent and having a child through second wife. The learned trial Judge has ignored the fact of second marriage of the petitioner during the subsistence of his marriage with the respondent and having a child through second wife. Under such circumstance, the finding recorded by the trial Court that the respondent wife has voluntarily and willfully deserted the company of the petitioner husband without any reasonable cause is perverse and liable to be set aside. The point for consideration is accordingly answered in the negative. In the result, the appeal succeeds. Accordingly we proceed to pass the following: ORDER: The appeal is allowed with costs. The judgment and decree dated 20.8.2010 passed in M.C. No. 85/2008, on the file of I Addl. Senior Civil Judge, Gokak, is hereby set aside. Consequently, the petition filed by the husband under section 13(1)(i-b) of the Hindu Marriage Act, is hereby dismissed.