The burden of proving desertion and mental cruelty lies with the petitioner, who must establish it beyond reasonable doubt. Additionally, a party seeking divorce should not take advantage of their own wrongs or disability for relief.

RAJIV SHARMA, J.

This first appeal is instituted against the judgment dated 13.05.2013 rendered by the learned Judge, Family Court, Haridwar in Suit No. 11 of 2008.

2. Key facts, necessary for adjudication of this appeal are that the marriage between the parties was solemnized according to Hindu rites 21.05.2005. According to the averments made in the petition, the behaviour of the respondent towards the appellant was disrespectful. The respondent-wife committed mental and physical cruelty to the appellant. She has deserted him. It is in these circumstances, the divorce petition was instituted by the appellant seeking divorce.

3. The averments made by the appellant were denied by the respondent. Respondent has vehemently denied that she ever used derogatory remarks against her husband. She has never abandoned the matrimonial home but it is the appellant who left her on 06.08.2007 to live with her parents. The divorce petition was dismissed by the learned trial court on 13.05.2013. Hence this appeal.

4. The appellant has appeared as PW1. He has supported the grounds taken in the petition. According to him, the relatives of the respondent have come to his house and have taken her away on 04.01.2006. However, PW2 Vijay Pal has not supported the version of the appellant that the respondent’s relatives have taken her away with them. PW2 Vijay Pal did not know that on which date the respondent was taken away by her relatives to her parents’ house. The appellant has stated that the respondent has refused to prepare tea in presence of his brother-in-law Anil Chauhan. However, Anil Chauhan, being a material witness has not been produced. The respondent, while appearing as witness, has categorically denied the contention raised by the appellant. According to her, the appellant has left her with her parents on 06.08.2007 and has never made any sincere efforts to bring her back. The statement of respondent has duly been supported by her father Ram Pal, who appeared as PW2.

5. The appellant cannot be permitted to take advantage of his own wrongs. It is the appellant who has left the respondent with her parents and has never made efforts to bring her back. He could not prove that the relatives of the respondent have taken her away on 04.01.2006. Rather, it is the appellant who has deserted the respondent. The appellant has miserably failed to prove that the respondent has caused physical or mental cruelty to him. It is the appellant who has deserted the respondent. In this regard, the Hon’ble Apex Court in the case of Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957 SC 176 has held that: -

“Two essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held that desertion is a matter of inference to be drawn from the facts and circumstances of each case. Their Lordships have held as under:

“What is desertion? "Rayden on Divorce" which is a standard work on the subject at p.128 (6th Edn.) has summarized the case-law on the subject in these terms:-

"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".

The legal position has been admirably summarized in paras 453 and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd Edn.), VoL 12, in the following words:-

"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, th