The conduct of the deserting spouse is relevant in determining whether desertion has occurred, and the burden of proof lies on the deserting spouse to prove that the desertion was justified.

, J.

1. This is husbands appeal whose petition for divorce on the basis of desertion and cruelty was allowed by the learned Additional District Judge, but dismissed in appeal and consequently, petition for divorce was dismissed.

2. The marriage between the parties took place on February 19, 1973. Out of this wedlock, one daughter was born on June 10, 1914 and a son was born on October 12, 1975. Earlier, there was a litigation between the parties. They separated finally on March 21, 1980. The petition for divorce was filed alleging that inspite of the best efforts on the part of the husband, the wife did not return to his house. Earlier, the husband had filed a petition under Sec.9 of the Hindu Marriage Act, (hereinafter called the Act), for restitution of conjugal rights and in view of that application, the wife returned to his house at Kurukshetra. After staying there for four days, she, again left on August 14, 1976, for Delhi. Meanwhile he got his petition dismissed. He further pleaded that the wife filed the petition under Sec.25, Code of Criminal Procedure, in the Court of Delhi, which was ultimately got dismissed by her. She also filed a complaint under Sec.494 which was dismissed for default in 1979. Thereafter, he again shifted to Delhi at the instance of his wife in the middle of 1979. however, she started insulting him At his persuation, she agreed to come to Kurukshetra and to stay with him. On March 21, 1980, she came to Kurukshetra with the children, but she again left his house on March 25, 1980, without any reason and without his consent. Thus, she has deserted him since that date without any sufficient cause; hence he prayed for a decree of divorce in his favour. The said allegations were controverted by her. She pleaded that she was maltreated and turned out of his house in April, 1974 and since then, she had been residing at Delhi. The application under Sec.9 of the Act was dismissed on the ground of nonpayment of maintenance pendente lite and the litigation expenses. Moreover, the husband had developed illicit relations with one Pushpa and was leading a comfortable life with her. He also filed a complaint against her and her father under Sections 323 and 506, Indian Penal Code, which was dismissed on September 10, 1979. She also pleaded that in the complaint under Sec.494, Indian Penal Code, the husband promised that he would not keep the said Pushpa with him and stay at Delhi with her. Thereafter, he lived with her at Delhi up to March 22, 1980, and then deserted her without any reasonable excuse. His another Petition under Sec.9 of the Act, was also dismissed on October 29, 1981, on account of non-payment of litigation expenses. The learned Additional District Judge came to the conclusion,- "in my opinion, the insistence on the part of the respondent that the petitioner should come and live with her at Delhi and then and only then, she would live with him, as his wife, would not only amount to desertion by her, without any reasonable excuse, but, in my opinion, would also amount to mental cruelty, on which ground as well, the petitioner is entitled to a decree of divorce against the respondent. "

3. In appeal, efforts for reconciliation were made by the learned Single Judge. As a result, the wife agreed to go to her husband on May 15, 1984, and the case was adjourned to May 25, 1984 in order to find out whether they started living together or not. However, according to the allegations made by the wife, she was turned out of the house on June 30, 1984, by the husband by giving her beating She also stated that she cohabited with husband during her stay with him. However, the affidavit filed by the wife in this behalf was controverted by the husband. The learned Single Judge after going through the entire evidence and commenting upon the statement of the husband, came to the conclusion :-

" the answers to the questions in cross-examination go a long way to show that he was concealing the true facts. T