JUDGMENT : Sudhanshu Dhulia, J. 1. This is wife's appeal against a decree of divorce, which has been granted in favour of her husband (presently the respondent before this Court). 2. The respondent is serving as a 'Havildar' in Kumaon Regiment of the Indian Army. The marriage of appellant and respondent was solemnized on 16.02.2002 at Almora. Out of the wedlock, the couple have two sons, called Manjul and Gaurav, who are presently aged about 14 and 12 years respectively. Admittedly, since the husband/respondent is an Army personnel and is frequently posted in field areas, the wife was residing in a rented accommodation at Almora which is their home district, to give children a better education. They are admitted in a school at Almora town, called "Kurmanchal Academy". It has also come in the evidence that the father-in-law of the appellant also resides with them at Almora. The rent of the accommodation is also being paid from the family funds of the respondent. These facts have been stated right in the beginning, as one of the grounds raised by the husband (respondent) for divorce was desertion. 3. On 08.03.2014, in the early morning hours, the appellant was found lying unconscious in the jungles at "Khurpatal", near Nainital. She was grievously injured. The place where she was found unconscious was nearly 100 kms. from her residence at Almora. After being discovered in the injured state in the early hours of 08.03.2014, by the local villagers, she was first taken to the B.D. Pandey Govt. Hospital at Nainital and later referred to the higher centre at Sushila Tiwari Medical College at Haldwani. The medical report of Sushila Tiwari Government Hospital, where she was brought from Nainital shows that Prema Rautela (the appellant), aged 31 years/F was admitted to the surgery ward. The patient was admitted on an alleged history of assault on head, on 8.3.2014 at 03:00 a.m. X-ray face suggests fracture on the right side and that the patient was unconscious and the injuries were "grievous in nature". 4. She gave her statement under Section 164 CrPC., before the learned Magistrate on 27.03.2014, after her recovery. She states that she has got 42 stitches on her head and about 10 stitches on the inside of her mouth. 4. She gave her statement under Section 164 CrPC., before the learned Magistrate on 27.03.2014, after her recovery. She states that she has got 42 stitches on her head and about 10 stitches on the inside of her mouth. She then recounts as to how she was taken to a place called "Khurpatal" by the husband, and his driver, in the night of 07.03.2014. They first tried to strangulate her and thereafter she was given a blow on head and she lost her consciousness, and fell down the valley. She regained consciousness the next day and with the help of local persons at "Khurpatal" she was first brought to the road side, then to the B.D. Pandey Government Hospital and finally referred to Sushila Tiwari Medical College, Haldwani. In the background of this incident is the allegation of the appellant that her husband had an affair with another woman. For the sake of prudence, we would only refer to this woman here as "Ms. A", as she is not a party in the present proceeding. The appellant states in clear terms that because of her husband's affair with this woman, he had hatched the plan to kill her. 5. Meanwhile, since the appellant was found missing in her house and her two minor children were in the house, on inquiry made by her brother he came to her place and subsequently lodged a first information report where he had pointed out his suspicion against his brother-in-law i.e. the present respondent. Subsequent to the lodging of the FIR, the police conducted investigation and filed its chargesheet against the respondent and another person called Yogesh Sanwal under Section 364, 307 IPC. The husband and Yogesh Sanwal were then arrested and remained in jail for 3-4 months. 6. Meanwhile, back channels were activated by the husband in form of friends and family members. There is hence a reference of a compromise which states that now both the parties have agreed to live amicably. There is also reference of a woman "Ms. A", and an undertaking of the husband that now onwards he will not have any contact with "Ms. A". 7. As to the criminal trial, the less said the better. The present appellant, and all the witnesses, turned hostile and the respondent and Yogesh Sanwal were acquitted on 5.7.2014 by the Additional Sessions Judge, Almora! 8. A", and an undertaking of the husband that now onwards he will not have any contact with "Ms. A". 7. As to the criminal trial, the less said the better. The present appellant, and all the witnesses, turned hostile and the respondent and Yogesh Sanwal were acquitted on 5.7.2014 by the Additional Sessions Judge, Almora! 8. In the entire sequence of events which have been completed before this Court an extremely worrying and ugly aspect has been that the respondent and to some extent the appellant too have abused the machinery of court and the law. 9. We say this as immediately after his acquittal, what the husband does is that he files a petition for dissolution of his marriage before the Family Court at Agra, in Uttar Pradesh! It is an admitted fact that the courts of Agra had no jurisdiction over the matter, in terms of Section 19 of the Hindu Marriage Act, 1955. In that petition, the grounds taken were of desertion and cruelty, and this petition was later dismissed as withdrawn, on 06.03.2017. The order dated 06.03.2017 merely says as under: "Case was presented. Case called out. Plaintiff is present. He has moved an application for withdrawal of his petition as he does not want to press this petition and he wants to withdraw the same and pleads that orders to this effect be passed. Heard and perused the record. Since plaintiff does not want to press his petition, therefore, his petition is accepted in the interest of justice, and the plaint be returned to the plaintiff as per rule." 10. In less than two weeks from the above order dated 18.03.2017, the plaintiff i.e. the respondent filed another suit for similar relief i.e. for dissolution of marriage, on same grounds of desertion and cruelty. This time the petition was filed before the Family Court, Almora, Uttarakhand. The court below therefore framed issues regarding two aspects i.e. desertion and cruelty. 11. What has to be seen here is whether the Family Court had before it any evidence on these two grounds i.e. on desertion or cruelty! 12. This time the petition was filed before the Family Court, Almora, Uttarakhand. The court below therefore framed issues regarding two aspects i.e. desertion and cruelty. 11. What has to be seen here is whether the Family Court had before it any evidence on these two grounds i.e. on desertion or cruelty! 12. The Hindu marriage can be dissolved by a decree of divorce on a petition presented by either husband or the wife on the following grounds:- (A) whereafter the solemnisation of the marriage, a party had voluntary sexual intercourse with any person other than his or her spouse; (B) has, after the solemnisation of the marriage, treated the petitioner with cruelty; (C) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; (D) has ceased to be a Hindu by conversion to another religion; (E) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. 13. In the present case, a petition for divorce has been filed on ground (B) and ground (C), which have been given under sub-clause (i) and (ia) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955. 14. For desertion what has to be seen is that the appellant before this Court has deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the petition. The petition was presented on 18.03.2017. Admittedly, prior to that and even now the appellant i.e. the wife of the respondent continues to reside at a rented accommodation in Almora with her in-laws. Although the permanent residence and the matrimonial house of the appellant would be in the nearby village in Almora, but she is residing at Almora in order to give better education to her children, which is available in Almora and not in her village. Both the husband and the wife took a conscious decision to reside in Almora for which rent is regularly being paid from the funds of the husband and the in-laws. The father-in-law of the appellant also resides with the appellant at the rented accommodation in Almora. Both the husband and the wife took a conscious decision to reside in Almora for which rent is regularly being paid from the funds of the husband and the in-laws. The father-in-law of the appellant also resides with the appellant at the rented accommodation in Almora. We shall also see that in the present matrimonial proceedings, the father-in-law of the appellant has filed an affidavit in the court below rejecting every claim of the plaintiff/respondent (who is his son), of cruelty as well as of desertion. We will come to this aspect later. In short, for all effective purposes, the appellant was residing in her matrimonial house in Almora. It cannot be called desertion. Where is desertion? All the findings of the trial court to this effect are absolutely perverse. 15. Section 13 of the Hindu Marriage Act, 1955 prescribes "desertion" as one of the grounds to dissolve a marriage by a decree of divorce. The precise words as given in Section 13 (i-b)are where the spouse "has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition". All the same, in the case at hand, there is no finding to this effect. We have nothing on record to show as to when the respondent filed the first petition for divorce in Agra, as we only have the order dated 06.03.2017, by which it was dismissed. Therefore, even assuming that the petition which has to be taken into reckoning is the petition filed before the court in Almora when it was filed on 18.03.2017, there is no finding that the appellant had deserted the respondent, two years prior to the filing of the petition. Admittedly, the appellant is residing at Almora with her two children and with her father-in-law. Her husband i.e. the respondent is an Army person who is posted in field areas and other places. Where has the appellant left her matrimonial house? 16. "Desertion" though has not been defined under the Act, stands well established by a catena of judgments of the Hon'ble Apex Court. Though it is essentially a matter of inference to be drawn from the facts of each case, yet it must have two elements. There must be a fact of separation together with animus deserendi or the intention to desert. Though it is essentially a matter of inference to be drawn from the facts of each case, yet it must have two elements. There must be a fact of separation together with animus deserendi or the intention to desert. This has been explained by the Hon'ble Apex Court in the seminal decision by the majority in the case of Bipinchandra Jaisinghbai Shah v. Prabhavati reported in (S) A.I.R. 1957 S.C. 176, which was later followed in the case of Lachman Utamchand Kirpalani v. Meena alias Mota reported in AIR 1964 SC 40 , wherein the Hon'ble Apex Court has observed as under:- "For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (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. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time." 17. In the case at hand, the appellant had never left her matrimonial house. The house where she is residing with her children and father-in-law at Almora, for all practical purposes is her matrimonial house. Even if there is a separation or an artificial separation between the respondent and the appellant, there is no animus deserendi on the part of the appellant. The house where she is residing with her children and father-in-law at Almora, for all practical purposes is her matrimonial house. Even if there is a separation or an artificial separation between the respondent and the appellant, there is no animus deserendi on the part of the appellant. Hence the essential ingredients of desertions have never been established. 18. As regarding cruelty, the less said the better. A benefit has been given by the trial court for the crime allegedly committed by none else but the husband. We have already referred to the incident dated 7.3.2014 and shown as to how the appellant was taken out from her house by none other than her husband, who had hatched a plan to kill her. Not only do we have the medical report before us, her statement under Section 164 CrPC., already referred above needs to be elaborated here. She says in her statement (under Section 164 CrPC) that she was married to Govind Singh Rautela in the year 2002 and out of the wedlock they have two sons aged about 12 years and 9 years at the relevant time. Her husband is in the Indian Army in Kumaon Regiment, and has an extra-marital relation with a woman i.e. "Ms. "A". He receives frequent telephone calls from the said woman, and this affair is going on for the last 3-4 years. About a week, she was informed by her husband that he has purchased a new Santro car, and she should not reveal this to anyone as he wanted to give her a surprise. Her husband then gave her a phone call from Madhya Pradesh, and said that he is coming to Almora. After coming to Almora, he made a phone call to the appellant and asked that the door should be left open in the night. On 07.03.2014, at about 10 p.m. he came to the house leaving the car and the driver outside, and then said that his driver is to be dropped at a place called "Kosi" and the appellant must accompany him to that place in his new car, which she obeyed. But instead of "Kosi", the husband took her to different places and after some time she became suspicious of both the husband and the driver. When she wanted to contact her brother, the husband snatched the mobile phone from the appellant. But instead of "Kosi", the husband took her to different places and after some time she became suspicious of both the husband and the driver. When she wanted to contact her brother, the husband snatched the mobile phone from the appellant. Then they took her to a remote place in the night. The appellant then states as to how the husband of the appellant and the driver tried to strangulate her. Thereafter she was hit by an object on her head and she lost consciousness. She regained consciousness the next day when she found herself lying in a "Jungle". She was grievously injured. In the hospital 42 stitches in her head and 10 stitches inside her mouth, had to be made. Thereafter she was referred to the higher centre at Haldwani. She then states clearly that it was her husband and the driver who had tried to kill her. 19. As we have already referred above, the elders in the family intervened in the matter, which resulted in a compromise, and as a result all the witnesses in the trial turned hostile, and the respondent was acquitted. Capitalizing on this compromise as well as the proceedings of the trial court, which resulted in his acquittal, the husband/respondent moved a petition before the court below for dissolution of marriage, on ground that the charge of attempt to murder made by his wife against him has been proved to be false as he has been acquitted, and making false criminal charge against the husband amounts to cruelty! This has been accepted by the trial court, and finding has been given that this amounts to cruelty at the hands of the wife. The trial court has given no credence to the theory of extra-marital affair of the husband, and how wrong the trial court has been on this, we shall state in a while. 20. We are also afraid that the trial court has also failed to appreciate the evidence, as ought to have been done, in a court of law. 21. The order of the trial court is peppered with long and tedious sermons on matrimonial life. The impugned judgment starts with quotations from Leo Tolstoy and Dave Meure. Towards the end of the judgment there are long lectures on duties of wife towards husband, and vice versa, and on the sanctity of marriage. 21. The order of the trial court is peppered with long and tedious sermons on matrimonial life. The impugned judgment starts with quotations from Leo Tolstoy and Dave Meure. Towards the end of the judgment there are long lectures on duties of wife towards husband, and vice versa, and on the sanctity of marriage. The learned Judge also goes on to say that it is not always that husband is wrong, at times wife too has to share the blame. There are comments then on evils of dowry, on women who make false allegations against their husband, etc. 22. It is alright for a Judge to refer to works of great authors, as the Hon'ble Apex Court has referred in a judgment of (Oma alias Omprakash and another v. State of Tamil Nadu, (2013) 3 SCC 440 ). The views of the great authors, jurists, academicians and law teachers may be food for thought for a Judge, but ultimately a court has to decide the case before it after examining the facts and the evidence before it and after application of binding precedents (Oma alias Omprakash supra). In the above judgment, the Hon'ble Apex Court while setting aside the judgment had remarked as under:- "We may point out that clear reasoning and analysis are the basic requirements in a judicial decision. Judicial decision is being perceived by the parties and by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts based on settled judicial precedents and a Judge shall not do anything which will undermine the faith of the people." 23. The order of the court below is highly opinionated, and we also are of the opinion that the matter has not been examined properly. 24. In the case at hand, we may also mention a subsequent event, which has an important bearing in the case. The suit of the divorce was decreed on 27.09.2017. Section 15 of the Hindu Marriage Act, 1955 prescribes a period till when a divorced person cannot remarry, which is the period prescribed for appeal which is 90 days. 25. In other words, the respondent could not have married till 90 days were over, and the appeal not been filed. Both these conditions were necessary. The respondent, however, married on 15.11.2017 which is barely 49 days from the decree of divorce! 25. In other words, the respondent could not have married till 90 days were over, and the appeal not been filed. Both these conditions were necessary. The respondent, however, married on 15.11.2017 which is barely 49 days from the decree of divorce! And he has married none else but "Ms. A", the one against whom consistent allegations were made by the appellant. We say nothing as to this marriage, as that is not the matter before us. We have only stated this fact as this is an admitted position before us. 26. Under these circumstances, we are of the considered view that the trial court has fallen into a great error in arriving at a finding of cruelty and desertion against the wife. Consequently, we allow the appeal and set aside the judgment and order dated 27.09.2017 passed by the Judge, Family Court, Almora in O.S. No. 46 of 2017.