KAN SINGH, J.—This is a husbands appeal directed against the judgment of the learned District Judge, Bikaner dated 25-2-70 whereby the learned Judge dismissed the husbands application under sec. 10 of the Hindu Marriage Act, 1955, hereinafter to be referred as the "Act" for judicial separation and while dismissing the application the learned Judge awarded an amount of Rs. 40/- per month as permanent maintenance to the wife under sec. 25 of Act.

2. The appellant Purshotam Kewalia and Smt. Devki respondent were married according to Hindu rites in July, 1937. At that time they were both children, while the husband, was 15, the wife was 10 years of age. According to the husband, the wife started living with the husbands parents at Jaisalmer and at that time the husbands relatives came to know that the wife was mentally deranged and was of violent nature. Then the wife had left her in-laws some two or three days there after without informing any one and for no cause. The wife never returned to her husband and there was no cohabitation between the couple at any time. The husband proceeded to state that he continued to make efforts to fetch his wife, but the wife did not show her willingness to return. According to the husband, the wife, did not even communicate with him for almost 22 years and he even did not know whether she was dead or alive. In August, 1967, however, the wifes brother took her to husbands mother in the absence of the husband and the husbands mother was pressed to keep Devki with her, but the husbands mother expressed her inability to do so, as she was not knowing how Smt. Devki had lived for as many as 22 years since her separation from the husband. Then Smt. Devki started living in a rented house near the house of the husbands mother.

3. It was in these circumstances that the husband applied for judicial separation against the wife. The main ground taken by him was desertion for a continuous period exceeding two years before the presentation of the application.

4. The learned District Judge recorded evidence of the parties and came to the conclusion that the wife has not been shown to be in desertion. In the result, he dismissed the husbands application, but at the same time awarded permanent maintenance to the wife at the rate of Rs. 40/- per month.

5. Learned counsel for the appellant has raised a two-fold contention. In the first place, he argued that the husband has been successful in showing that the wife had been in desertion for a continuous period of more than two years preceding the filing of the application. In the second place, he submitted that the learned District Judge had no jurisdiction to award permanent maintenance to the wife under sec. 25 of the Act once he had dismissed the application for judical separation

6. In a recent case Devi Singh vs. Smt. Sushila Devi(l), I had occasion to discuss the concept of desertion within the meaning of sec. 10 of the Act. After referring to a Supreme Court case I had noticed that two essential conditions must be there so far as the deserting spouse is concerned :(1) factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Likewise, two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. It was further pointed out that the inference regarding animus deserendi 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. The offence of desertion commences when the fact of separation and the animus deserendi co-exist, but it is not necessary that they should commence at the same time. The de fac

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