The main legal point established is that desertion under Section 13(1)(i-b) of the Hindu Marriage Act requires the intentional permanent forsaking and abandonment of one spouse by the other without consent and without reasonable cause.

JUDGMENT

Asha Menon, J. - This appeal has been filed by the appellant/wife against the judgment dated 28.05.2019, passed by the learned Family Court, (South), Saket, Delhi, allowing the divorce petition filed by the respondent/husband and dissolving the marriage between the parties.

2. The brief facts as may be relevant for the disposal of the present appeal are that the marriage between the parties was solemnised on 17.04.2011, as per Hindu rites and ceremonies. According to the respondent/husband, immediately thereafter, differences arose between them on account of the conduct and behaviour of the appellant/wife. The parties were blessed with a son on 05.12.2012. However, it is apparent that the parties have been living separately since 24.06.2012.

3. In November 2012, the respondent/husband filed a petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as "HMA") seeking restitution of conjugal rights. Subsequently, on 18.11.2014, he withdrew the said petition. Thereafter, on 15.07.2014, he filed a petition seeking divorce from the appellant/wife on grounds of cruelty and desertion under Section 13(1)(i-a) and 13(1)(i-b) of the HMA.

4. The following issues were framed on 11.05.2018:

(i) Whether the respondent after the solemnization of the marriage has treated the petitioner with cruelty within the meaning of Sec.-13(1)(i-a) of the Hindu Marriage Act? OPP.

(ii) Whether the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition within the meaning of Sec.13(1)(i-b) of the Hindu Marriage Act? OPP

(iii) Whether the petitioner is entitled to decree of divorce, as prayed for? OPP

(iv) Relief.

5. The respondent/husband examined himself as PW-1, whereas the appellant/wife examined herself as RW-1. On an assessment of the evidence on record and after considering the submissions made before it, the learned Family Court concluded that the respondent/husband had failed to establish cruelty on the part of the appellant/wife but found that she had deserted him and was thus not interested in the matrimonial relationship. Accordingly, the learned Family Court dissolved the marriage between the parties on the ground of desertion under Section 13(1)(i-b) of the HMA.

6. This appeal has been filed by the appellant/wife being aggrieved by the dissolution of the marriage.

7. Mr. Amanpreet Singh, learned counsel for the appellant/wife has submitted that the learned Family Court had wrongly concluded that the appellant/wife was not interested or willing to live with the respondent/husband and argued that the recording of evidence by the Local Commissioner was in furtherance of a conspiracy to tamper with the evidence and get the desired result, by wrongly recording as the statement made by the appellant/wife to the effect that she was not willing to live with the respondent/husband, as it was false. Thus, when she had no intention to desert the husband and her physical absence from the matrimonial home could be directly attributed to the harassment meted out to her by the husband and his family members, the learned Family Court erroneously concluded that the factors to establish desertion were duly proved. Hence it was prayed that the decree of dissolution of marriage be set aside and the present appeal be allowed.

8. We find no merit in the submission of learned counsel for the appellant/wife that the Local Commissioner had wrongly recorded her testimony inasmuch as the appellant/wife was cross-examined on 19.03.2019 and the impugned judgment was pronounced on 28.05.2019 and yet, in all this time, no such contention was raised before the learned Family Court.

9. Ordinary human behaviour is such that a prudent person would immediately react and respond when his interest is at stake. If the learned Local Commissioner, being a retired District & Session Judge, had wrongly recorded the deposition of the appellant/wife during her cross-ex