JUDGMENT 1. These two appeals filed by the wife arise out of the judgment and decree dated 5th June 2018 passed by the court of I Additional Senior Civil Judge, Chitradurga, in M.C.No.128/2015 and the judgment and decree dated 23rd September 2019 passed by the court of Senior Civil Judge and J.M.F.C., Hiriyur, in M.C.No.33/2015. 2. Since the subject matter of the appeals are interlinked and the parties being common, both the appeals are heard together analogously and disposed of by this common judgment. 3. Brief facts of the case that would be relevant for the purpose of disposal of these appeals are: The marriage of the appellant-wife was solemnized with the respondent-husband on 28.06.2009 at Sri Vasavi Kalyana Mantapa, Hiriyur town, as per the rites and customs prevailing in their community. After the marriage, the couple lived together as husband and wife at Vedavathi Nagar, Hiriyur along with the parents of the husband. The respondent-husband, who was pursuing his Post-graduation in Mysore at the time of marriage, was subsequently appointed as an Assistant Professor in a private college at Ujire, Belthangady taluk, Dakshina Kannada district in the year 2010. Though the respondent asked the appellant to join him at Ujire, she refused to accompany him and she went to her parents house and started residing there. After repeated efforts were made by the respondent and his parents, the appellant agreed to join the respondent at Ujire and they stayed together in a rented house for a period of about 3 to 4 months. 4. Meanwhile, the respondent admitted the appellant for pursuing her D.Ed. course in Ujire. After the appellant got herself admitted for the D.Ed. course, respondent got appointed as an Assistant Professor in a government college at Gulbarga. Therefore, while leaving to Gulbarga, he got the appellant admitted to a hostel at Ujire for the purpose of pursuing her D.Ed. course. 5. The respondent joined the college at Gulbarga in the year 2014 and started residing at Gulbarga from September 2014 onwards. In the meanwhile, from 28.05.2014 to 03.06.2014, the father of the respondent was admitted in Pathanjali hospital, Chitradurga and thereafter in S.S. Hospital, Davangere and subsequently in Manipal Hospital at Udupi. course. 5. The respondent joined the college at Gulbarga in the year 2014 and started residing at Gulbarga from September 2014 onwards. In the meanwhile, from 28.05.2014 to 03.06.2014, the father of the respondent was admitted in Pathanjali hospital, Chitradurga and thereafter in S.S. Hospital, Davangere and subsequently in Manipal Hospital at Udupi. It is the case of the respondent that when his father was admitted in the hospital, the appellant did not bother to visit him and on the other hand, she telephoned the respondent and asked him not to take care of his father. It is the further case of the respondent that after he started residing at Gulbarga, though he had requested the appellant to join him, she had refused to join him at Gulbarga and on the other hand, she used to abuse him over phone in filthy language and she also used to threaten him stating that she will commit suicide and also file false case against him and his parents. On these allegations, the respondent had filed a petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') on 11.08.2015 with a prayer to dissolve the marriage between the parties solemnized on 28.06.2009, by a decree of divorce.6. The appellant-wife had entered appearance in the said proceedings and while admitting the relationship, she had denied all other allegations made against her. She had specifically stated that at the instance of his parents and elder brother, the respondent was ill-treating her. She had also stated that during her stay at Hiriyur immediately after the marriage, her inlaws had abused and ill-treated her and finding it unable to bear the ill-treatment, she had taken shelter in her parents house for a few days. Thereafter she had joined her husband at Ujire. She had stated that since the respondent had failed to take care of her, she had filed a petition under Section 125 of Cr.P.C. seeking maintenance from him. She had also stated that, she had initiated proceedings under Section 9 of the Act for restitution of conjugal rights. She had further stated that at the instance of his parents, the respondent had got her aborted on two occasions. She had pleaded that she was always ready and willing to join her husband and accordingly prayed to dismiss the divorce petition. 7. She had further stated that at the instance of his parents, the respondent had got her aborted on two occasions. She had pleaded that she was always ready and willing to join her husband and accordingly prayed to dismiss the divorce petition. 7. During the pendency of the divorce petition, the appellant-wife had filed a petition under Section 9 of the Act seeking for restitution of conjugal rights. In the said petition, the appellant-wife had contended that at the time of marriage, the respondent was pursuing his M.Tech. graduation at Mysore and immediately after the marriage, the couple started living in their matrimonial house at Hiriyur town, Chitradurga district and after completion of the M.Tech. course, the respondent joined as Assistant Professor in a private college at Ujire, Belthangady taluk, D.K.District, in the year 2010. However, he did not initially arrange for a house at Ujire and he and his parents opposed for setting up a separate house at Ujire and therefore, the appellant was staying in her matrimonial house at Hiriyur and the respondent used to visit Hiriyur twice a month. 8. In the meanwhile, in view of the continuous harassment by the in-laws, the appellant had taken shelter in her parents house and thereafter the respondent had taken a rented house at Ujire in the year 2013 and the appellant had joined him in the said house at Ujire and they lived together in the said house for a short period. Meanwhile, as per the request of the respondent, the appellant joined D.Ed. course at Ujire in the year 2013 and after a short period, the respondent got a job at Gulbarga as Assistant Professor in a government college and therefore, the appellant was admitted in a hostel by the respondent and he went to Gulbarga and started residing there. In the month of July 2015, appellant completed her D.Ed. course and since the respondent was staying in a single room at Gulbarga, as per his request, she resided with her parents after completion of her D.Ed. course. To her utter surprise, she received a notice in M.C.No.33/2015 filed by the respondent under Section 13(1)(ia) and (ib) of the Act, seeking dissolution of their marriage. Immediately thereafter she met her husband and he informed her that the petition was filed at the instance of his parents and his brother. course. To her utter surprise, she received a notice in M.C.No.33/2015 filed by the respondent under Section 13(1)(ia) and (ib) of the Act, seeking dissolution of their marriage. Immediately thereafter she met her husband and he informed her that the petition was filed at the instance of his parents and his brother. She contended that she was always ready and willing to stay with her husband and it is under these circumstances, she had filed a petition under Section 9 of the Act. 9. The respondent had entered appearance in the said proceedings and filed his reply contending that the appellant was ill-treating him and his parents and even when his parents were not well, she had failed to take care of them and she was in the habit of going to her parents house very often even without informing him. He also contended that the appellant used to threaten him that she would commit suicide. He also contended that the appellant did not want him to take care of his parents and she was demanding for a separate residence and she wanted to live a luxurious life. He further stated that on 20.11.2014 at the time of Deepavali festival, the appellant quarreled with him and demanded for a sum of Rs.40 lakhs and threatened that she will commit suicide by writing a death note and thereafter she had left to her parents house and it is under these circumstances, he was constrained to file a divorce petition. 10. The parties had led their evidence before the trial court and also had got marked documents in support of their case. The petition filed by the appellant-wife for restitution of conjugal rights in M.C. No.128/2015 was dismissed by the court of I Additional Senior Civil Judge, Chitradurga vide its judgment and decree dated 5th June 2018 and the petition filed by the respondent-husband under Section 13(1)(ia) and (ib) of the Act in M.C.No.33/2015 was allowed by the court of Senior Civil Judge and J.M.F.C., Hiriyur vide its judgment and decree dated 23.09.2019. Being aggrieved by the aforesaid two judgments and decree, the appellant-wife has filed M.F.A. No.5240/2018 and M.F.A. No.8827/2019 respectively. 11. Learned counsel for the appellant-wife submits that both the trial courts have completely failed to appreciate the oral and documentary evidence available on record and have passed erroneous judgments. Being aggrieved by the aforesaid two judgments and decree, the appellant-wife has filed M.F.A. No.5240/2018 and M.F.A. No.8827/2019 respectively. 11. Learned counsel for the appellant-wife submits that both the trial courts have completely failed to appreciate the oral and documentary evidence available on record and have passed erroneous judgments. He submits that the respondent-husband had failed to make out a case either on the ground of cruelty or on the ground of desertion and therefore, the trial court was not justified in decreeing the petition filed under Section 13(1)(ia) and (ib) of the Act. He submits that the material on record would go to show that from June 2013 onwards till July 2015, the appellant-wife was at Ujire pursuing her D.Ed. course and immediately thereafter, she was served with a notice in M.C. No.33/2015 filed by the husband seeking a decree of divorce. He submits that since the appellant was admittedly pursuing her studies in Ujire at the instance of the respondent, it cannot be said that she had deserted him and she had willfully stayed away from her husband. He also submits that there is absolutely no evidence to show that the appellant had treated the respondent with cruelty after solemnization of marriage and therefore, the trial court was not justified in granting a decree of divorce. He submits that it is the respondent, who had failed to perform his marital obligations and he was staying in a rented room at Gulbarga and did not take back his wife after she completed her D.Ed. course and therefore, the trial court ought to have allowed the petition filed under Section 9 of the Act for restitution of conjugal rights. 12. Per contra, learned counsel for the respondent husband submits that the appellant-wife was throughout quarreling with her husband and his parents. She had not taken care of her in-laws. He submits that the parties have been residing separately for the last nearly seven years and therefore, no purpose would be served in continuing their marital tie. He submits that the marriage between the parties has broken irretrievably and therefore, the trial court was justified in granting a decree of divorce. He submits that the appellant was guilty of desertion and she had willfully stayed away from the husband and therefore, she is not entitled for a decree of restitution of conjugal rights. Accordingly, he prays to dismiss the appeals. 13. He submits that the appellant was guilty of desertion and she had willfully stayed away from the husband and therefore, she is not entitled for a decree of restitution of conjugal rights. Accordingly, he prays to dismiss the appeals. 13. We have given our anxious consideration to the arguments addressed on both sides and also perused the material available on record. 14. In order to substantiate his case in M.C.No.33/2015, the respondent-husband had examined himself as PW-1 and another witness was examined as PW-2. Six documents were got marked as Exs.P-1 to P6. In support of her defence, the appellant-wife had examined herself as RW-1 and had got marked four documents as Exs.R-1 to R-6. In M.C.No.128/2015, the appellant-wife had got herself examined as PW-1 and got marked five documents as Exs.P-1 to P-5. In support of his defence, the respondent-husband had examined himself as RW-1 and got marked 10 documents as Exs.R-1 to R-10. 15. It is not in dispute that at the time of marriage, the respondent-husband was still pursuing his M.Tech. course at Mysore and immediately after the marriage, the couple resided together in the matrimonial house at Hiriyur along with the parents of the respondent and the respondent left the appellant in the matrimonial house and went to Mysore to pursue his studies. After he completed his M.Tech. course in the year 2010, he got an employment as an Assistant Professor in a private college at Ujire in Belthangady taluk, D.K. District. But he had not taken the appellant along with him to Ujire and on the other hand, he was staying in a rented room at Ujire while his wife was staying with his parents at Hiriyur. It is the specific case of the appellant-wife that during her stay at Hiriyur, the in-laws were ill-treating her. She has stated that they not only abused her but also physically assaulted her and unable to bear with the torture meted out on her, she was constrained to take shelter in her parents house. 16. The respondent, who had married the appellant in the year 2009, had failed to take care of his wife even after he got an employment as Assistant Professor at Ujire. While he was staying in a rented room at Ujire, he had left his wife in his parents house at Hiriyur town, Chitradurga district. 16. The respondent, who had married the appellant in the year 2009, had failed to take care of his wife even after he got an employment as Assistant Professor at Ujire. While he was staying in a rented room at Ujire, he had left his wife in his parents house at Hiriyur town, Chitradurga district. It is only in the year 2013 after the wife took shelter in her parents house, the respondent arranged for a separate house on rent at Ujire and thereafter the appellant had joined him at Ujire and they lived as husband and wife for a short period at Ujire. The appellant-wife has stated that she got pregnant in the meanwhile and the respondent-husband got the pregnancy aborted forcibly at Ujire, which was against her will. The material on record would go to show that the respondent-husband thereafter got appointment as Assistant Professor in a government college at Gulbarga and therefore, he got admitted the appellant-wife, who was pursuing her D.Ed. course in Ujire at his instance, in a hostel at Ujire. 17. After admitting the appellant in a hostel at Ujire, the respondent joined as Assistant Professor at Gulbarga and he started residing there in a rented room from the year 2014 onwards. In the meanwhile, the appellant used to visit Gulbarga and even the respondent used to visit Ujire. After the appellant completed her D.Ed. course at Ujire in the month of July 2015, though she intended to join the respondent-husband, since he had not arranged for a separate residence at Gulbarga, as per his request, she was constrained to take shelter in her parents house. However, immediately thereafter in the month of August 2015, the respondent-husband had filed a petition under Section 13(1)(ia) and (ib) of the Act, seeking dissolution of his marriage with the appellant on the ground of cruelty as well as desertion. 18. For the purpose of seeking a relief under Section 13(1)(ia) of the Act, the respondent was required to prove that the appellant-wife had treated him with cruelty after solemnization of his marriage with her. The material on record would go to show that immediately after the marriage, he had left his wife in his parents house and gone to Mysore to pursue his further studies. The material on record would go to show that immediately after the marriage, he had left his wife in his parents house and gone to Mysore to pursue his further studies. Thereafter after completing his Post-graduation, he got a job in Ujire and started residing at Ujire in a rented house while he had left his wife in his parents house at Hiriyur for a period of nearly three years from 2010 to 2013. Since the respondent-husband had not provided a separate house at Ujire, the appellant-wife was constrained to stay in his parents house at Hiriyur and he used to visit Hiriyur twice a month. It is the specific case of the appellant that though she had requested the respondent to set up a separate house at Ujire, he had refused the same at the instance of his parents. It is only after the appellant took shelter in her parents house finding it unable to bear the ill-treatment meted out on her by her in-laws, the respondent-husband arranged for a separate house at Ujire in the year 2013 and in the said house, the couple resided as husband and wife for a short period and in the meanwhile, the respondent husband had got the appellant aborted. Thereafter at the request of the respondent-husband, the appellant got admission for D.Ed. course at Ujire and after she got admitted for D.Ed. course, the respondent got an appointment as Assistant Professor in a government college in Gulbarga and he, therefore, admitted his wife in a hostel at Ujire and left for Gulbarga. 19. The material on record would go to show that from the month of June 2013 till the month of July 2015, the appellant-wife was pursuing her D.Ed. course at Ujire and after she completed her course, since the husband was staying in a rented room in Gulbarga, she took shelter in her parents house and immediately thereafter in the month of August 2015, the respondent-husband had filed a petition under Section 13(1)(ia) and (ib) of the Act, seeking decree of divorce against the appellant wife. Though the respondent-husband has contended that the appellant was ill-treating him and his parents, he had failed to prove the same before the trial court. No specific instances of any cruelty has been narrated by him before the trial court. Though the respondent-husband has contended that the appellant was ill-treating him and his parents, he had failed to prove the same before the trial court. No specific instances of any cruelty has been narrated by him before the trial court. The material on record would go to show that it is the appellant-wife, who was being ill-treated by her husband by not providing her separate house and she was made to stay with her in-laws, who allegedly were ill-treating her in the matrimonial house in the absence of her husband. 20. The respondent-husband had stated that during the months of May and June 2014, his father was admitted in hospital and during the said period, the appellant had not taken care of them. Admittedly, the material on record would go to show that during the said period, the appellant was pursuing her studies at Ujire and it is at the instance of the respondent, she got herself admitted to pursue her D.Ed. course. The respondent having got the appellant admitted in a hostel at Ujire for pursuing her D.Ed. course cannot at the same time contend that she was also required to take care of his parents, who were residing at Hiriyur. The material on record would go to show that the respondent's elder brother, who was an Engineer, was staying at Karwar and therefore, it cannot be said that there was nobody else to take care of the parents of the respondent. Having regard to the facts of this case, the appellant-wife visiting her parents house frequently or demanding a separate residence cannot be considered as 'cruelty' on her part. The normal wear and tear in a marital life cannot be construed as 'cruelty' for the purpose of Sec. 13(1)(ia) of the Act. The couple hardly lived together after marriage and the respondent had kept himself away from the company of the wife. The trial court without appreciating these aspects of the matter has erred in holding that the appellant-wife had treated her husband with cruelty after solemnization of their marriage. 21. For the purpose of seeking the relief under Section 13(1)(ib) of the Act, the respondent-husband was required to prove before the trial court that the appellant-wife was guilty of willful desertion of her husband continuously for a period of two years. 21. For the purpose of seeking the relief under Section 13(1)(ib) of the Act, the respondent-husband was required to prove before the trial court that the appellant-wife was guilty of willful desertion of her husband continuously for a period of two years. The material on record would go to show that in the year 2014, initially the couple had stayed together in a rented house in Ujire and thereafter when the respondent husband got an appointment as Assistant Professor at Gulbarga, he admitted his wife in a hostel at Ujire for the purpose of pursuing her D.Ed. course. The appellant-wife has stated that while she was pursuing her D.Ed. course at Ujire, she used to visit Gulbarga occasionally and so also the respondent-husband used to visit Ujire occasionally. It is at the instance of the respondent husband, the appellant was studying at Ujire for the purpose of pursuing D.Ed. course and therefore, there is no justification on the part of the respondent in contending that the appellant-wife had deserted him. Material on record would go to show that no efforts were made by the respondent to bring back his wife from her parents house. 22. The trial court has completely failed to appreciate the oral and documentary evidence available on record and has proceeded to allow the petition filed by the respondent under 13(1)(ia) and (ib) of the Act, mainly on the ground that the relationship of the parties had deteriorated and their marriage had irretrievably failed. Unless the parties make out a case for grant of relief either under Section 13(1)(ia) or Section 13(1)(ib) of the Act, the trial court was not justified in decreeing the petition solely for the reason that the relationship between the parties was strained. 23. The material on record would go to show that the appellant-wife was always willing to stay with her husband and the fact that she had filed a petition under Section 9 of the Act for restitution of conjugal rights immediately after receiving summons in the petition filed by her husband seeking divorce would go to show that she was always willing and ready to join her husband. But it is the husband, who had kept her away and had not taken care of her. But it is the husband, who had kept her away and had not taken care of her. The material on record would further go to show that the husband had completely failed to perform his marital obligations and on the other hand, the appellant-wife was admitted by him in a hostel for pursuing her studies while he stayed away in a rented room at Gulbarga, which is around 600 kilometers away from Ujire. 24. The trial court has dismissed the petition filed by the appellant-wife seeking restitution of conjugal rights mainly on the ground that the same has been filed subsequent to filing of the divorce petition by the husband and therefore, it shows the conduct and attitude of the appellant-wife. The trial court has failed to appreciate that till the month of July 2015, the appellant was admittedly pursuing her D.Ed. course at Ujire and thereafter at the instance of her husband, she was staying with her parents and in the month of August 2015 itself, a petition seeking divorce was filed by the husband, which was an utter surprise to the appellant wife. Therefore, the trial court was not justified in holding that since the appellant-wife had filed a petition seeking restitution of conjugal rights after the husband had filed a divorce petition, the said petition was filed by her to retaliate her husband. 25. It is not the case of the appellant-wife that she was not ready and willing to join her husband at Gulbarga. It is the specific case of the appellant-wife that her husband had promised that he would be setting up a separate house at Chitradurga for the purpose of their stay and it is under this context, she had filed a petition under Section 9 of the Act for restitution of conjugal rights contending that she was willing to lead marital life with him in Chitradurga. It was not her case at any point of time that she was not interested to live with him either at Gulbarga or any other place and therefore, the trial court was not justified in dismissing the petition merely for the reason that the appellant-wife had stated in her petition filed under Section 9 of the Act that she is intended to live a marital life with the respondent in Chitradurga. 26. 26. The material on record would clearly go to show that the respondent-husband without any reasonable reason had withdrawn himself from the company of the appellant-wife and he was staying in a rented room at Gulbarga even after she completed her D.Ed. course and it is he, who had asked her to stay in her parents house and the very fact that he had not arranged for a separate house at Gulbarga would go to show that he was not willing to take back his wife. There is no material on record to show that he had made arrangements for their stay at Gulbarga after the wife had completed her studies in Ujire and there is no material to show that husband had made any efforts to bring back his wife. Under the circumstances, the trial court was not justified in dismissing the petition filed by the appellant-wife under Section 9 of the Act. 27. On an overall appreciation of the oral and documentary evidence available on record, it is very clear that at no point of time, the appellant-wife had either ill-treated her husband or her in-laws as sought to be contended by the respondent-husband. On the other hand, it is the respondent, who had ill-treated his wife by not taking care of her and by failing to perform his marital obligations. It is the respondent, who had failed to provide a separate house for the appellant to stay with him and on the other hand, he was continuously staying away in a rented room while his wife was made to stay with his parents, who were ill-treating her. Further, as stated earlier, it is at the instance of the respondent husband, the appellant-wife had joined D.Ed. course at Ujire and admittedly the respondent had made arrangements for her stay in a hostel at Ujire to pursue her studies. For the period from June 2013 onwards till July 2015, the appellant-wife was pursuing her D.Ed. course at Ujire at the instance of the respondent- husband, whereas the petition for divorce has been filed by him in the month of August 2015, which is immediately after the appellant-wife came back from Ujire after completing her D.Ed. course. For the period from June 2013 onwards till July 2015, the appellant-wife was pursuing her D.Ed. course at Ujire at the instance of the respondent- husband, whereas the petition for divorce has been filed by him in the month of August 2015, which is immediately after the appellant-wife came back from Ujire after completing her D.Ed. course. All these material would clearly go to show that the respondent husband has failed to make out a case for dissolution of his marriage with the appellant-wife by a decree of divorce either on the ground of cruelty or on the ground of desertion. On the other hand, the material on record would go to show that the respondent was guilty of willfully deserting the appellant and withdrawing from her company without there being any valid reason. 28. Under the circumstances, we are of considered view that the impugned judgments and decree passed by the trial court, which are challenged by the appellant-wife in these two appeals are illegal and not sustainable in law. Accordingly, the following order: Both M.F.A. No.5240/2018 and M.F.A. No.8827/2019 are allowed. The judgment and decree dated 5th June 2018 passed by the court of I Additional Senior Civil Judge, Chitradurga, in M.C. No.128/2015 and the judgment and decree dated 23rd September 2019 passed by the court of Senior Civil Judge and J.M.F.C., Hiriyur, in M.C. No.33/2015 are hereby set aside. The petition filed in M.C. No.128/2015 by the appellant-wife under Section 9 of the said Act for restitution of conjugal rights is hereby allowed and the judgment and decree dated 5th June 2018 is decreed. The divorce petition in M.C. No.33/2015 filed by the respondent-husband under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955, is dismissed.