JUDGMENT :

SONIA GOKANI, J.

1. The appellant has preferred the present appeal against the judgment dated 15.11.2014 passed by the learned Principal Senior Civil Judge, Gandhinagar in Hindu Marriage Petition No.8 of 2014, filed on 17.11.2009 by respondent-husband herein under Section 13(1)(a) of the Hindu Marriage Act, 1955 (‘the Act’ hereinafter) on the ground of mental cruelty and desertion, which is in challenge in this First Appeal.

2. Brief facts in capsulized form are as follow:

2.1 The marriage between the parties, who are both primary school teachers was solemnized on 06.05.1993 as per the Hindu Customs and traditions at Prantij. On 03.07.2006, the appellant gave birth to a baby boy named Pratyaksha at her parental home, where she had gone for her delivery in the month of February 2006. She went back to her matrimonial home at Lavarpur after delivering the baby boy.

2.3 It is the allegation of the appellant-wife that she was illegally driven out from matrimonial home in village Lavarpur and had to stay with her parents in Gandhinagar in the year 2006 and she came back to her matrimonial home in 2009 prior to the filing of the Hindu Marriage Petition on 17.11.2009. It is the allegation of the appellant-wife that the respondent-husband had extra marital affairs and he perpetrated cruelty upon the appellant-wife, who was deserted and the Court committed grave error in coming to the conclusion that she went away to her parental home and never returned to the matrimonial home. In fact, it is a matter of fact that she has continued to be in matrimonial home and is residing there. However, it is the respondent-husband, who has chosen not to return home and has gone elsewhere for staying, which is nothing but an intentional negligence on his part. He, therefore, is disentitled to get the decree for desertion as the statutory period of desertion was not completed.

2.4 It is further the case of the appellant-wife that the essential ingredients of the desertion are (i) the factum of separation, (ii) the intention to bring cohabitation permanently to an end and (iii) these both ingredients should continue during the entire statutory period. On the basis of Section 13(1)(i-a) of the Act, and the explanation to Section 13 (1)(i-b), it cannot be said that the conduct of appellant-wife is indicative of firm determination not to return to marital home or to discharge her obligations.

2.5 It is a specific case of the appellant-wife that she is residing at her matrimonial home and even after she was driven out by the husband, she had returned back to her matrimonial home in the month of October 2009.

2.6 It is the say of the appellant that the respondent-husband is, in fact, not performing his obligation and he cannot take disadvantage of his own wrong when the wife is already staying at matrimonial home. It appears that the appellant-wife and the minor son have preferred Regular Civil Suit No.344 of 2009 seeking declaration of the rights in the ancestral property which includes the matrimonial home.

2.7 Serious grievance is raised on some of the findings and observations of the Family Court Judge, where he has said that there is no possibility of any retrieval of the relationship. The Family Court, according to the appellant-wife, ought to have dismissed the petition for dissolution holding that he had an extra marital relationship with one lady Jyotshnaben at Prantij Primary School, which had led to the unfortunate situation for the appellant-wife and her son who is presently aged 16 years.

2.8 An application for additional evidence is also filed which is supported by the affidavit of Patel Indiraben, a school teacher and who is a wife of Mr.Harshadbhai Patel i.e. brother of appellant’s husband thus, she is sister-inlaw.

3. On admission, the matter had come up for hearing where along the line of memo of appeal, learned advocate, Mr.K.V.Shelat has argued for and on behalf of the appellant-wife. He has strenuously urged that the Court may allow the