JUDGMENT : [S.K. Medhil, J.] 1. The present appeal has been preferred under Section 19 of the Family Courts Act, 1984, read with Section 96 of the Civil Procedure Code, 1908, against judgment and decree, dated 12.07.2012, passed by the learned District and Sessions Judge, West Sessions Division, Yupia, in Div. A. Suit No. 08/2010 (YPA). By the impugned judgment, divorce has been granted on the application filed by the respondent no. 1/husband. The appellant herein is the wife. The parties are Hindus by religion. 2. Before going to the issue which needs determination, the facts of the case may be put in a nutshell as follows: 3. The appellant is a permanent resident of the State of Odisha and presently residing at Hyderabad. The respondent no. 1/husband of the appellant is also a permanent resident of Odisha. The husband was initially an Officer of the Air Force and was thereafter working under the Pawan Hans, New Delhi. The marriage of the parties was solemnised on 14.07.1985 at Odisha as per the Hindu rites and rituals. The respondent who was working with the Pawan Hans had occasions to come to the State of Arunachal Pradesh often. The parties have two daughters. 4. The respondent/husband was found to be wholly negligent in looking after his family including the 2 (two) daughters and had also developed an illicit relationship with a lady of Arunachal Pradesh. Subsequently, the suit was instituted in the Court of the learned District and Sessions Judge, West Sessions Division, Yupia. The suit for divorce was filed by invoking the provisions of Section 13 B of the Hindu Marriage Act and in lieu thereof, under Section 13(1) (ib) i.e. on the ground of desertion. 5. The aforesaid suit, as per the appellant was instituted in a Court without jurisdiction and since the appellant was at Hyderabad, she did not receive any notice of the suit and accordingly, the same had proceeded ex-parte. Since the question of mutual consent did not arise, the learned Court proceeded to decide the suit on the basis of Section 13(1)(ib) of the Hindu Marriage Act. 6. The respondent no 1 had deposed as PW-1 and the learned Court held that since the case of desertion was made out, decree was granted, which is the subject matter of challenge. 7. 6. The respondent no 1 had deposed as PW-1 and the learned Court held that since the case of desertion was made out, decree was granted, which is the subject matter of challenge. 7. During the pendency of this appeal, the appellant came to learn that in the meantime, the respondent no. 1 had married a lady of Arunachal Pradesh and vide order dated 21.01.2019, she was arrayed as respondent no. 2. 8. I have heard Ms. N. Hawelia, learned counsel for the appellant, whereas, Shri P. Saikia, learned counsel had appeared for the respondent no. 1/husband. The respondent no. 2 is represented by Ms. H. Jeram, learned counsel. 9. Ms. Hawelia, learned counsel for the appellant submits that the impugned judgment is bad in law, on amongst others, two apparent grounds. By drawing the attention of this Court to the impugned judgment, the learned counsel for the appellant has submitted that desertion has been held to be proved on the only ground that the parties were living separately without any co-habitation for the last 2 (two) years. Secondly, the jurisdiction of the learned District Court has also been challenged as under no circumstances, the District Court, Yupia, will have any jurisdiction to try the suit. 10. On the other hand, Shri P. Saikia, learned counsel for the respondent no. 1, submits that the decree has been rightly passed as the appellant without reasons was staying separately for a period which was more than 2 (two) years. As regards the jurisdiction, the respondent no. 1 had contended that since the respondent no. 1 was residing within the jurisdiction of the learned Court at Yupia, the suit was not barred by law. 11. The issue which will arise for determination is that whether a decree on the ground of desertion has been rightly granted in the instant case. The issue of jurisdiction is also to be determined. 12. Under Section 13(1)(ib) of the Hindu Marriage Act, one of the specific grounds for divorce is desertion. 11. The issue which will arise for determination is that whether a decree on the ground of desertion has been rightly granted in the instant case. The issue of jurisdiction is also to be determined. 12. Under Section 13(1)(ib) of the Hindu Marriage Act, one of the specific grounds for divorce is desertion. For ready reference, the aforesaid Section is extracted herein below: “ ..13.(1) Any marriage solemnised, 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— (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. ” 13. The findings made by the learned District Judge on the aforesaid issue is that since it was proved that the parties were living separately for more than 2 (two) years without any cohabitation, the ingredients of the said Section were fulfilled and therefore, the divorce was granted. For ready reference that part of the finding is extracted herein below: “… The Pws-1 (the petitioner), deposed that since 2004 they are living separately, however, as per the statement in petition Para-7 at Page-3, the parties are living separately without cohabitation since 1998. As the matter is proceeding ex-parte, there is no comment from the respondent with regard to both the dates stated in petition and deposed by the petitioner in the case from respondent side, as such, this Court has no option but to believe that the parties are living separately without having cohabitation either from 1998 or 2004. As per the requirement of the law, as provided under Section- 13 (1) (ib), to grant a decree of divorce to petitioner to dissolve the marriage with respondent, the parties must have deserted or living separately without having cohabitation for last two years immediately preceding the presentation of the petition. As per the requirement of the law, as provided under Section- 13 (1) (ib), to grant a decree of divorce to petitioner to dissolve the marriage with respondent, the parties must have deserted or living separately without having cohabitation for last two years immediately preceding the presentation of the petition. The instant petition is filed before this Court on 22.11.2010, therefore, even if we accept either of the dates i.e. 1998 as stated at Para-7, Page-3 of the petition or 2004 as deposed by the petitioner before this Court as Pws-1, the conditions laid down for granting decree of divorce on desertion is fulfilled, as such, this Court is of the opinion that, the petitioner had proved his case for granting of decree of divorce on the ground of desertion as per the provisions laid down u/s 13 (1) (ib) of the Act.” 14. No doubt, desertion is a ground in the statute for divorce and such desertion should be for a continuous period of not less than 2 (two) years preceding the presentation of the petition, the requirement is that the party who seeks the divorce has to prove that the opposite party has deserted the first party for the aforesaid period as indicated above and the said burden is of the first party to prove that. However, in the instant case, it is rather the opposite inasmuch as it is the applicant husband, who had deserted the appellant and yet got the benefit of the said provision of law. That apart, the Hon’ble Supreme Court while interpreting the said clause, has clearly laid down that there has to be animus deserendi i.e. the intention to desert. The parties seeking divorce is required to prove that the opposite party does not have the intention to ever come back to a marital relationship. 15. The Hon’ble Supreme Court in the case of Debananda Tamuli vs Smti Kakumoni Kataky, reported in (2022) 5 SCC 459 , has held as under: 7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976. The said Explanation reads thus: “13. Divorce.— (1) ………… [Substituted by Act 68 of 1976 (w.e.f. 27-05-1976)] [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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]” 16. Dealing with the concept of desertion, the Hon’ble Supreme Court in Savitri Pandey v. Prem Chandra Pandey[ (2002) 2 SCC 73 ] has held as follows:- “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati, held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.” 20. In the said case, reference was also made to Lachman Utamchand Kirpalani’s case wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. 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. For holding desertion as proved 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. 21. 21. The question as to what precisely constitutes "desertion" came up for consideration before this Court in an appeal for Bombay where the Court had to consider the provisions of S. 3(1) of the Bombay Hindu Divorce Act, 1947 whose language is in pari materia with that of S. 10(1) of the Act. In the judgment of this Court in Bipin Chandra v. Prabhavati, 1956 SCR 838 ; ((S) AIR 1957 SC 176 ) there is an elaborate consideration of the several English decisions in which the question of the ingredients of desertion were considered and the following summary of the law in Halsbury's Laws of England (3rd Edn.) Vol. 12 was cited with approval : "In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the order without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases." 17. In the instant case, it appears that the opposite party no. 1 has miserably failed to prove the ground of desertion and therefore, the impugned decree is unsustainable in law. 18. Though in view of the aforesaid finding, there is no requirement to decide the question of jurisdiction, since the said question is a question of law, this Court has decided to examine the said issue. In this case, Section 19 (iv) has been taken into consideration. 19. Section 19 (iv) of the Hindu Marriage Act reads as follows: 19. Court to which petition shall be presented. Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction— (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.] Jurisdiction of the Court If a marriage is solemnised at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on a ground that the husband resides outside the limits of municipal corporation; 20. Though there is a provision for presentation of a petition in a place where the first party is residing, such petition is subject to Section 19(iv), as per which, the respondent is residing outside the territories to which this Act extends or has not been heard for a period of 7(seven) years or more by those persons who would naturally have heard of him if he was alive. 21. The ingredients of the aforesaid sub-section are not at all applicable in the instant case and it appears that the learned Court has assumed jurisdiction not conferred in law and on these point also, the impugned judgment and decree is non est in law. 22. Under the aforesaid facts and circumstance, this Court is of the unhesitant opinion that the impugned judgment and decree dated 12.07.2012, passed by the learned District and Sessions Judge, West Sessions Division, Yupia, in Div. A. Suit No. 08/2010 (YPA) is unsustainable in law and accordingly, the same is set aside. 23. At this stage Ms. Jeram, learned counsel for the respondent no. 2 submits that though in the interregnum stage, the respondent no. 1 had married her, presently she is also divorced from the said respondent no. 1. 24. This Court is of the opinion that any issue raised by the respondent no. 2, has to be done in an independent and separate proceedings and cannot be a part of adjudication on the present case. 25. The appeal, accordingly, stands disposed of.