JUDGMENT : 1. Heard learned counsel for the parties. 2. Appellant-husband is aggrieved by dismissal of Title Matrimonial Suit No. 13 of 2015 instituted on grounds of cruelty and desertion for dissolution of his marriage with the respondent vide judgment dated 14th June 2017 and decree dated 24th June, 2017 passed by learned Additional Principal Judge, Additional Family Court, Dhanbad. The case of the parties: 3. Plaintiff pleaded that from his marriage with the respondent on 10.03.1985 as per Hindu custom and rites, three children were born, who are as follows: (1) Julee aged 24 years, (2) Tinku Kumari aged 22 years and (3) Gouri Devi aged 18 years. 4. He alleged that respondent had treated him with cruelty and their marriage has irretrievably broken down. She denied sexual relationship with him which amounts to cruelty. Accordingly, he pleaded for dissolution of marriage. 5. Defendant contested the suit by filing written statement. She accepted the factum of marriage and the three children were born out of the wedlock. According to her, plaintiff works in Bank of India, Lodna Branch and had good marital life but plaintiff got entangled with another woman, Moni Goswami, whom he wanted to marry. Then he started neglecting the respondent and their daughter. For maintenance, a Maintenance Case No. 374 of 2011 was filed, where he was directed to pay Rs. 3000/- per month, which is being paid. They entered into a compromise on 9th July, 2013, where under he undertook to live with the defendant and paid the maintenance also. There was another agreement on 22nd September, 2013 i.e., not to torture her. However, on 20th November, 2013 she filed M.P Case No. 374 of 2011 for maintenance, but the same was not being paid regularly. Respondent also lodged a case against her husband under Sections 494/321/323/307/504/506/34 of I.P.C being G.R. Case No. 1728 of 2015 relating to illicit relationship with Moni Goswami. She contended that the suit for divorce was filed to save skin. Mediation failed during pendency of the suit. 6. The following issues were framed for adjudication on the basis of rival pleadings of the parties: (i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has got a valid cause of action for the suit? (iii) Whether the marriage between the plaintiff and the defendant is fit to be dissolved on the grounds of cruelty and desertion? The following issues were framed for adjudication on the basis of rival pleadings of the parties: (i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has got a valid cause of action for the suit? (iii) Whether the marriage between the plaintiff and the defendant is fit to be dissolved on the grounds of cruelty and desertion? (iv) What other relief or relief’s the plaintiff is entitled? 7. During trial, plaintiff examined himself as P.W.1, but did not adduce any documentary evidence, whereas respondent-wife examined herself as D.W-1 and adduced the following documents in her support: (i) Exhibit- A is paper cutting of news articles in Prabhat Khabar, (ii) Exhibit-B is photocopy of Joint agreement dtd. 02/07/2013 along with Letter dtd. 28/09/2012 addressed to the Dy. Commissioner, Dhanbad, (iii) Exhibit-C is photocopy of Letter dtd. 16/09/2013 addressed to the S.P., Dhanbad along with bond dtd. 22/09/2013 executed by plaintiff, (iv) Exhibit-D is copy of plaint of M.P. Case No. 374/2011, (v) Exhibit-D/1 is photocopy of joint compromise petition dtd. 20/11/2013, (vi) Exhibit-D/2 is photocopy of CC of order dt. 20/11/2013 passed in M.P. Case No. 374/2011, (vii) Exhibit-E is CC of F.I.R of Saraidhela P.S. Case No. 114/2015 and order dtd. 13/06/2015 passed in B.P. No. 1029/2015, (viii) Exhibit-F is photographs of plaintiff and defendant. 8. Learned trial court examined the case of the parties on the basis of the pleadings and evidence on record and decided the Issue No. III, which related to cruelty and desertion against the plaintiff. Rest of the two formal issues were decided accordingly against him holding that there was no valid cause of action to bring the suit and the suit was not maintainable. The matrimonial suit was accordingly dismissed as the plaintiff had not been able to prove his case on the test of preponderance of probabilities. 9. Learned counsel for the appellant submits that the marriage has irretrievably broken down since the parties are living in separation for about 9 years since 16th March, 2011. Respondent has filed criminal cases against him being Saraidhela P. S. Case No. 114/2015 and Jorapokhar P. S. Case No. 140 of 2015. Besides that, she has also prosecuted maintenance cases against him. Respondent is not inclined to resume conjugal life with him. She is living in desertion without any reasonable cause and by denying sexual relationship has also inflicted mental cruelty upon her. Besides that, she has also prosecuted maintenance cases against him. Respondent is not inclined to resume conjugal life with him. She is living in desertion without any reasonable cause and by denying sexual relationship has also inflicted mental cruelty upon her. There is no love and affection left between the parties. As such, it would be futile to maintain a legal tie of matrimonial relationship. Therefore, the impugned judgment may be set aside by decreeing the suit and the appeal by dissolution of marriage. 10. Learned counsel for the respondent submits that marital relationship between the parties started from 10th March, 1985 and had been good as it would appear from the birth of three children, one son and two daughters, all of whom are now major. However, appellant started neglecting her and got entangled with another woman, Moni Goswami, whom he wanted to marry her. She also filed M.P. Case No. 374 of 2011 for her maintenance in which Rs. 3,000/- was allowed. Despite compromise entered into between the parties on more than one occasion, the appellant has failed to live with her and denied conjugal life. Appellant should not be entitled to take advantage of his own wrong in view of Section 23 of Hindu Marriage Act, 1955. Besides that, criminal cases have been instituted by the respondent against him on allegations of illicit relationship. Therefore, respondent had reasonable cause to stay away from him. There are no ostensible grounds made out under the Hindu Marriage Act for dissolution of their marriage. Respondent has always been willing to resume conjugal tie. It is submitted that irretrievable break down of marriage is not a recognized ground for divorce under the Hindu Marriage Act. As such, the appeal is fit to be dismissed. 11. We have considered the submission of learned counsel for the parties, gone through the impugned judgment and also taken into the account the rival pleadings of the parties and evidence adduced on their behalf. As the factual matrix of the case noted above shows the marriage is now 35 years old and there are three children born out of the wedlock. The suit for dissolution of marriage has been instituted in 2011 alleging that parties are living separately since 16th March, 2011. As the factual matrix of the case noted above shows the marriage is now 35 years old and there are three children born out of the wedlock. The suit for dissolution of marriage has been instituted in 2011 alleging that parties are living separately since 16th March, 2011. Grounds of desertion therefore are not made out since the mandatory period of living separately for 2 years immediately before presentation of the suit in terms of Section 13(1) (i-b) are not made out. Learned trial court has also considered the evidence on record and especially Ext.-B & C dated 2th July, 2013 and 16th September, 2013, i.e., the bond, which the plaintiff had executed to keep the defendant acknowledging his guilt. Therefore, the factum of separation of more than 2 years before presentation of the petition was not made out neither was animus deserendi made out from the conduct of the respondent. 12. On the ground of cruelty plaintiff alleged that she had filed criminal cases against him which has caused pain and suffering and amounts to mental cruelty. She has also filed maintenance case being M.P. Case No. 374 of 2011 in which compromise was arrived at on 20th November, 2013 and the plaintiff undertook to pay Rs. 3,000/- per month. Respondent however in her evidence has spoken about the illicit relationship of the appellant with one Moni Goswami, where after he had become traceless. She got a news article published on 27.07.2011 in Prabhat Khabar. Later on, he appeared in his house but again started his activity, which led to filing of a complaint before Deputy Commissioner, Dhanbad on 22nd July, 2013. This was followed by execution of a compromise, where appellant undertook to live together and pay Rs. 3,500/- per month. She, however, filed a complaint on 11/09/2013 before Superintendent of Police, Dhanbad for execution of the bond and thereafter before Mahila Police Station, Dhanbad. Again, the appellant undertook to keep her and her children and at the same time paid Rs. 5,00/- per month in the hand to the defendant. However, plaintiff again neglected her. Plaintiff started living in a rented house at Digwadih No. 10. She has stated that when she went there she found Moni Goswami and lodged a protest. However, she was brutally assaulted by both which resulted in filing of C.P. Case No. 515 of 2015. 5,00/- per month in the hand to the defendant. However, plaintiff again neglected her. Plaintiff started living in a rented house at Digwadih No. 10. She has stated that when she went there she found Moni Goswami and lodged a protest. However, she was brutally assaulted by both which resulted in filing of C.P. Case No. 515 of 2015. The complaint case was converted into Jorapokhar P.S. Case No. 140 of 2015. She also stated that all her children have got married and are living happy conjugal life. She further stated that after institution of divorce suit, he had abstained from visiting her place and she was compelled to live separately. He has neglected to maintain her. He did not contribute in marriage of their younger daughter Gouri Devi. 13. From the evidence of the parties as discussed above, it can be safely inferred that the grounds of cruelty are not made out against the respondent. Rather, because of the conduct of the appellant, he is facing criminal case. The outcome of the criminal case is not yet known. If the appellant has given reasonable cause for the respondent to stay away, he cannot be allowed to take advantage of his own wrong in view of the prescription of law under Section 23 of the Hindu Marriage Act. Cruelty as defined under Section 13(1) (i-a) of the Hindu Marriage Act should be of such a nature that it creates a reasonable apprehension in the minds of the other spouse that it is not possible and safe to live with him/her. 14. In the facts of the present case, appellant has failed to establish such a serious charge of cruelty upon the respondent wife after living together for 26 years of their marriage. Moreover, the couple were blessed with three children, all of whom have become major and have been married. So far as the allegations of illicit relationship is concerned that would depend upon the outcome of the criminal case, but in the present appeal, it cannot be taken as a ground against the respondent to decree the suit. Leaned trial court has weighed the circumstances after proper appreciation of the evidence and rightly refused to grant relief in his favour. We do not find any error in appreciation of evidence or application of law to hold otherwise. The appeal being devoid of merit is accordingly dismissed.