KEJRIWAL, J. — This Special Appeal under Section 18 of the Rajasthan High Court Ordinance has been directed against the judgment passed by learned Single Judge of this Court on 9.2.1987, confirming the judgment and decree dated 5.9.1985, passed by learned District Judge, Jaipur City, Jaipur, dismissing the application of divorce submitted by the appellant against the respondent.

(2). The brief relevant facts of the case are that on 28.5.1983, the appellant filed an application under Section 13 of the Hindu Marriage Act (for short the Act) for divorce against the respondent with the allegations that the marriage of the parties took place on 22.11.1978, at Jaipur in accordance with the Hindu rites and customs, that the respondent lived with the appellant till April, 1980 and thereafter she went to her fathers house without the consent and permission of the appellant and never returned back, that the respondent had deserted the appellant for a continuous period of more than two years, that the respondent has been suffering from mental disorder and she treated the appellant with cruelty at times when she was not in her senses. It was further alleged that the father of the respondent also treated the appellant with cruelty.

(3). The respondent in her reply denied the allegations of the appellant. She stated that the appellant himself left the respondent to her fathers house after two-three days of Dipawali 1982; that she never treated the appellant with cruelty; that the allegations regarding mental disorder are vague and false. She prayed that the application of divorce be dismissed and a decree for restitution of conjugal rights be passed.

(4). The learned District Judge, Jaipur City, Jaipur, after recording evidence of both the parties, vide his detailed order dated 5.9.85, decided all the issues in favour of the respondent and dismissed the application for divorce. The appellant has challenged the decree of learned District Judge, Jaipur City, Jaipur before this Court and the learned Single Judge rejected the appeal vide his judgment dated 9.2.1987.

(5). Being aggrieved with the judgment of learned Single Judge, the petitioner-appellant has filed this appeal.

(6). We have heard Mr. R.M. Lodha, learned counsel for the appellant and N.K. Maloo, learned counsel for the respondent and perused the record and judgments of both the lower courts.

(7). Mr. Lodha argued that the respondent deserted the appellant without any reason in May, 1980 and as such the lower court should have passed a decree of divorce on the ground of desertion. He argued that it was for the respondent to show that the desertion was for sufficient, reason but the respondent did not show any reason of desertion. He further argued that the respondent did not return back and thus she permanently broke the marital relations and as such the lower court should have granted decree of divorce on this point. In support of this argument Mr. Lodha placed reliance on Saroja vs. Arumugham (1) & Dr. K.C. Sikroria Vs. Smt. Sarla Sikroria (2). These authorities are not applicable to the facts of the present case. The respondent in her reply alleged that the appellant himself left her to her fathers house after Dipawali, 1982. Learned District Judge and also the learned Single Judge did not believe the statement of the appellant and believed the assertion of the respondent that she lived with the appellant till Dipawali 1982. It is further to be noted that the respondent in her reply prayed for a decree of restitution of conjugal rights and both the lower courts have granted the decree. We have also called the parties for reconciliation. At both the times the respondent showed her intention to live with the husband i.e. the appellant but the husband was not prepared to keep the respondent. In view of this, in our considered opinion, it can not be said that the respondent deserted the appellants.

(8). Mr. Lodha next argued that the respondent treated the appellant with cruelty at the tim

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