JUDGMENT Raghvendra Singh Chauhan, J. - The appellant, Shankaranand Pandey, has challenged the legality of the judgment and decree dated 15.02.2018, passed by the Family Court, District Udham Singh Nagar, in Civil Suit No. 166 of 2013, whereby the learned Family Court has dismissed the suit filed by the appellant-plaintiff under Section 13 of the Hindu Marriage Act, 1955. 2. Briefly the facts of the case are that Mr. Shankaranand Pandey, and Mrs. Manju Pandey were married on 22.01.2003 in accordance with Hindu customs and rites. During the wedlock, on 12.10.2003 they were blessed with a son. However, the child was physically challenged, and suffers from medical disabilities. According to the appellant-plaintiff, the child is being looked-after by him, and his aged parents. Moreover, according to the appellant-plaintiff, after the birth of the child, the respondent-wife did not care for the child. After taking all her Stridhan and Rs. 20,000/-, on 01.09.2011, the respondent-wife left the matrimonial home. Moreover, according to the appellant-plaintiff, after one year of marriage, the couple did not have any physical relationship. Furthermore, in order to harass the appellant-plaintiff, and his aged parents, the respondent- wife has filed cases against him, under Section 125 Cr.P.C., and has demanded maintenance from him. Despite the best efforts to bring back the respondent-wife from her paternal home, she has refused to join the appellant-plaintiff. Therefore, the plaintiff filed a suit for divorce on both the grounds of cruelty and desertion. 3. In order to support his case, the appellant-plaintiff examined three witnesses, including himself. In turn, the respondent-wife examined two witnesses, including herself. After going through the evidence produced by both the parties, the learned Family Court dismissed the divorce suit filed by the appellant-plaintiff. Hence, the present appeal before this Court. 4. The learned counsel for the appellant-plaintiff has vehemently pleaded as under:- Firstly, the learned Family Court has not appreciated the evidence in proper perspective. Secondly, the plaintiff had asserted and proven the fact that the respondent-wife is an educated and liberated woman, who does not wish to be saddled with matrimonial responsibilities. Instead, she wants to move freely with her own friends. Thirdly, the respondent-wife never discharged her matrimonial responsibilities of either having physical relationship with her husband, or of looking-after her own child, or looking-after her aged in-laws. Fourthly, on 01.09.2011, she left the matrimonial home during the absence of the plaintiff. Instead, she wants to move freely with her own friends. Thirdly, the respondent-wife never discharged her matrimonial responsibilities of either having physical relationship with her husband, or of looking-after her own child, or looking-after her aged in-laws. Fourthly, on 01.09.2011, she left the matrimonial home during the absence of the plaintiff. Despite the best efforts of the plaintiff, the respondent-wife never returned to the matrimonial home. Hence, according to the learned counsel for the appellant, the appellant had produced sufficient cogent and convincing evidence to establish both the grounds of cruelty and desertion. But, despite the best evidence produced by the plaintiff, the learned Family Court has erred in dismissing the divorce suit. 5. On the other hand, Mr. Pooran Singh Rawat, the learned counsel for the respondent, has vehemently argued as under:- Firstly, it is not the respondent-wife, who had left the matrimonial home without rhyme or reason. According to the respondent-wife, and even according to the testimony of Prema Pandey (P.W.3), the plaintiff's mother, the plaintiff used to physically assault the respondent-wife. Moreover, he was addicted to alcohol. He would come back home, and would accuse his wife of having illicit affairs with other men. He would also physically beat her up with kicks and slaps. Once or twice, even the in-laws intervened to protect her. Eventually, after a fight, according to Mrs. Prema Pandey (P.W.3), it is the father-in-law, who took the respondent-wife to her paternal home and dropped her there. He also assured her that once his son, the plaintiff, calms down, they will take her back to the matrimonial home. However, no one from the in-laws' family came to pick her up. Therefore, under these circumstances, the respondent-wife had no other option, but to leave the matrimonial home. Hence, the intention to desert does not exist in the present case. Secondly, since it is the husband, who has meted out cruelty, both physical and mental, to the wife, since it is the husband, who has alleged that the respondent-wife is having illicit affairs, it is the husband, who is the guilty of inflicting cruelties upon the respondent-wife. Therefore, the plaintiff cannot take the benefit of his own wrong. Hence, the learned Family Court was justified in dismissing the divorce suit. Therefore, the learned counsel has supported the impugned judgment and decree. 6. Therefore, the plaintiff cannot take the benefit of his own wrong. Hence, the learned Family Court was justified in dismissing the divorce suit. Therefore, the learned counsel has supported the impugned judgment and decree. 6. Heard the learned counsel for the parties, perused the record, and examined the impugned judgment and decree. 7. In the case of Bipin Chander Jisinghbhai Shah v. Prabhawati, (1957) AIR SC 176, the Hon'ble Supreme Court observed as under:- "If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. 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 coexist. 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." 8. In the case of Rohini Kumari vs. Narendra Singh, (1972) 1 SCC 1 , the Hon'ble Supreme Court opined as under:- "The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. In the case of Rohini Kumari vs. Narendra Singh, (1972) 1 SCC 1 , the Hon'ble Supreme Court opined as under:- "The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of 'constructive desertion' is discussed at p. 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him." 9. Furthermore, in the case of Bipin Chander Jaisinghbhai Shah (supra), while dealing with the burden of proof in the case of desertion, the Hon'ble Supreme Court held as under:- "It is settled law that the burden of proving desertion-the "factum" as well as the "animus desrendi"- is on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner husband has still to satisfy the Court that the desertion was without just cause. As Dunning, L.J. observed: (Dunn v. Dunn, (1948) 2 AllER 822 at p. 823]: "The burden he (counsel for the husband) said was on her to prove just cause (for living apart). As Dunning, L.J. observed: (Dunn v. Dunn, (1948) 2 AllER 822 at p. 823]: "The burden he (counsel for the husband) said was on her to prove just cause (for living apart). The argument contains a fallacy which has been put forward from time to time in many branches of the law. The fallacy lies in a failure to distinguish between a legal burden of proof laid down by law and a provisional burden raised by the state of the evidence ..The legal burden throughout this case is on the husband, as petitioner, to prove that this wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That is a fact from which the court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and, indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the court has still, at the end of the case, to ask itself: Is the legal burden discharged? Has the husband proved that she deserted him without cause? Take this case. The wife was very deaf, and for that reason could not explain to the court her reasons for refusal. The Judge thereupon considered reasons for her refusal which appeared from the facts in evidence, though she had not herself stated that they operated on her mind. Counsel for the husband says that the Judge ought not to have done that. If there were a legal burden on the wife, he would be right, but there was none. The legal burden was on the husband to prove desertion without cause, and the Judge was right to ask himself at the end of the case: Has that burden been discharged?" This, in our opinion, is as well the law in this country under the Act." 10. Therefore, all these settled principles of law would necessarily have to be kept in mind while deciding the present case. 11. The plaintiff, Shekharanand Pandey (P.W. 1), has reiterated the facts narrated hereinabove in his examination-in-chief affidavit submitted by him. Therefore, all these settled principles of law would necessarily have to be kept in mind while deciding the present case. 11. The plaintiff, Shekharanand Pandey (P.W. 1), has reiterated the facts narrated hereinabove in his examination-in-chief affidavit submitted by him. In his cross-examination, he claims that in 2011 his wife left his house, on her own. Since she is "a person of bad character", therefore, she left the matrimonial home voluntarily. He admitted, in the cross-examination, that "he has not submitted any evidence to prove his allegation that his wife is of loose character". He further claims that "he had gone to his in-laws' house in order to bring his wife back. Even his mother had gone to his wife's paternal home". According to him, his wife had refused to resume the matrimonial relationship. She wanted to be free and liberated. He further claimed that no one from his in-laws' side came to drop of his wife at the matrimonial home. In his cross-examination, he denies the fact that his wife was dropped-off at her paternal house. He denies the fact that he comes home deadly drunk, and use to assault his wife. 12. However, Mrs. Prema Pandey (P.W. 3), the plaintiff's mother, admits in her cross-examination that the respondent-wife, Manju Pandey, left the matrimonial home on 01.09.2011. She further states that it is Manju Pandey's father-in-law, namely, Khyali Ram Pandey, who went to drop-off the respondent-wife at her paternal home. She further claims that from the date of marriage till the day the respondent-wife left the matrimonial home, she stayed with them. She further admits that "her son, Shekharanand Pandey, used to drink liquor even earlier, and even now, he drinks liquor". However, according to her the reason for his drinking liquor is the tension within the family. She further admits that when her son used to come home in a drunkard state, he used to abuse his wife both verbally and physically. According to her, "they tried to reason with both the husband and wife". She further admitted that when the child would be taken to the Doctor, both Manju, the respondent, and Shekharanand, the plaintiff, would take the child to the Doctor. According to this witness, Manju, the respondent-wife, looked after the child well. She further admitted in her cross-examination that one week before Manju left the matrimonial home, she was physically assaulted by her husband. According to this witness, Manju, the respondent-wife, looked after the child well. She further admitted in her cross-examination that one week before Manju left the matrimonial home, she was physically assaulted by her husband. She further admitted that "her husband had filed a report against her son with the police station". But according to her, "this was done in order to merely frighten the son". She further admitted that "Manju had come back with her relatives and with the Village Pradhan". She further admitted that "neither she, nor her husband went to Manju's paternal home to bring her back". She further admitted that "the plaintiff never went to Manju's paternal place to bring her back". Lastly, she admitted that "she has no objection, if the couple were to live together". 13. A bare perusal of the testimonies of Shekharanand Pandey (P.W. 1), and Mrs. Prema Pandey (P.W. 3) clearly reveals that the testimony of the latter knocks the bottom out of the case of the plaintiff. For, while the plaintiff claims that the respondent-wife had voluntarily left the matrimonial home without any rhyme or reason, during his absence, Mrs. Prema Pandey (P.W.3) informs the Court that her son used to come home drunk, and used to orally and physically abuse the respondent-wife. One week before Manju left the matrimonial home, there was a fight between the couple. Her son had assaulted Manju. Most importantly, according to this witness, Manju was dropped-off at her parental house by her father-in-law, Khyali Ram Pandey. 14. Therefore, the plaintiff is unjustified in claiming that the wife had voluntarily left the house. Moreover, he is unjustified in claiming that "she had left the house without any rhyme or reason". For, the cruelties, both verbal and physical, were inflicted by the plaintiff upon the respondent-wife. Therefore, the respondent-wife has a reasonable ground for leaving the matrimonial home. 15. Moreover, since the plaintiff never tried to bring the wife back to the matrimonial home, since her in-laws also did not try to bring back the respondent-wife to the matrimonial home, the respondent-wife had no intention to desert her matrimonial home. 16. It is, indeed, trite to state that in a case of desertion, the plaintiff has to establish both physical separation between the parties, and the intention to desert on the part of the erring party. 16. It is, indeed, trite to state that in a case of desertion, the plaintiff has to establish both physical separation between the parties, and the intention to desert on the part of the erring party. If one of these two elements is missing, the erring party cannot be blamed for having deserted the matrimonial home. 17. In the present case, since the respondent-wife was subjected to both mental and physical cruelties, she has a legally justifiable reason for leaving the matrimonial home. Therefore, the intention to desert is conspicuously missing in the present case. In fact, it is the appellant who had forced the respondent-wife to leave the matrimonial home by his conduct. Thus, the appellant has committed the constructive desertion of the wife. Hence, the appellant cannot be permitted to take the benefit of his own wrong. 18. According to the respondent-wife, Manju Pandey (D.W.1), the plaintiff used to allege that she was having an illicit affairs with other men. Moreover, even in his testimony, Shekharanand Pandey (P.W. 1) claims that "his wife was a woman of loose morales. She would freely roam around with other men". However, in his cross-examination, he admits that "he has not produced any evidence to substantiate these allegations". Such an allegation does tantamount to mental cruelty. For, such baseless, and callous allegations assassinate the character of a woman. Therefore, the plaintiff has inflicted cruelty upon the respondent-wife. Needless to say, the plaintiff cannot take the benefit of his own fault. 19. Since it is the cruel behavior of the plaintiff, which has compelled the respondent-wife to leave the matrimonial home, the plaintiff is unjustified in claiming that the respondent-wife has inflicted cruelty upon him, and has deserted him. Hence, the plaintiff has failed to establish his case even on the basis of probability. Thus, the learned Family Court was justified in dismissing the divorce suit filed by the plaintiff. 20. For the reasons stated above, this Court does not find any merit in the present appeal. It is, hereby, dismissed. 21. In sequel thereto, pending application, if any, also stands disposed of. 22. No order as to costs.