Mere departure from the matrimonial home does not amount to desertion unless it is shown that the deserting spouse intended permanent forsaking and abandonment of the other spouse without consent and without reasonable cause.

Alleging cruelty and desertion the appellant herein filed an application under S. 13 of the Hindu Marriage Act for the dissolution of the marriage between the parties by a decree of divorce. The trial court dismissed the petition vide the order impugned in this appeal by holding that petition herein has completely failed to prove his case projected in the petition filed.

2. The facts of the present appeal are that the marriage between the parties was solemnized in the month of June, 1967 and out of wedlock one male child was born in, the month of Nov. 1969. It was alleged by the! husband-appellant that the conduct and behaviour of the respondent with him after the marriage was neither good nor proper or affectionate and she wanted money and monetary gains for her parents from him. The petitioner submitted that he was posted at Udhampur and had kept the respondent-wife at Sumelpur along with his parents where she is alleged to have mal-treated with the parents of the appellant. It is further alleged that respondent used to disobey whatever his parents used to tell her to do. She used to slip away from the house without the consent of his parents. The respondent-wife at times threatened the appellant and his parents. It was submitted that it was not possible for the parties to live together any more.

3. In the objections filed by the respondent it was submitted that her conduct towards the petitioner and all his family members was extremely cordial, affectionate and good. Even though the petitioner had not shown much affection for her and had exhibited an indifferent attitude towards respondent, she as a pious Hindu lady served the petitioner and his parents in the best possible manner and showered all her love and affection on the petitioner. The respondent continued to live in the house of the petitioner with the hope that he may improve his conduct and behaviour but all in vain. The respondent had denied of being cruel to the petitioner or having deserted him.

3A. On the pleadings of the parties the following issues were framed by the trial court : -

1. Whether the respondent has treated the petitioner with cruelty? OPP

2. Whether the respondent has deserted the petitioner for a period of more than two years? OPP

3. Relief.

The petitioner examined Hans Raj, Risal Singh and Gurdial as his witnesses and in rebuttal the respondent produced Ranja Ram, Pushpa Devi, Bishan Dass and Sardari Lal as her witnesses. Both the petitioner and the respondent also appeared in the Court as their witnesses.

4. I have heard the learned counsel for the parties and perused the record.

5. And the effort was made for reconciliation between the parties which failed.

6. After going through the statements of witnesses of the parties named hereinabove I have come to the conclusion that the petitioner failed to prove either the cruelty or desertion attributed to the respondent-wife in this case. No evidence worth any mention was produced by the petitioner to prove the issue regarding cruelty.

7. Mere abandoning the matrimonial house may not amount to desertion unless it is shown that the deserting spouse had intended permanent forsaking and abandonment of spouse by the other without that others consent and without reasonable cause. Desertion is a total repudiation of the obligation of marriage and is not to withdrawal from a place but from a state of things. The person who actually withdraws from cohabitation is not necessarily the deserting the party. The offence of desertion is a course of conduct which exists independently of its duration and is a continuing offence. Pollock described it as.-

"Desertion is not a single act complete in itself and revocable by a single act of repentance. The act of departure from the other spouse draws its significance from the purpose with which it is done as revealed by conduct or other expressions of intentions. A mere temporary parting is equivocal unless and until its purpose and object is made plain."

8. The Supreme Court in

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