Rajiv Sharma, J.

This first appeal is instituted against the judgment dated 09.07.2013 rendered by the learned Principal Judge, Family Court, Dehradun in Original Suit (Divorce Petition) No. 2 of 2009.

2. Key facts, necessary for adjudication of this appeal are that the marriage between the petitioner and the respondent was solemnized according to the Hindu rites on 18.10.2000. The appellant (husband) filed a petition under Section 13 of the Hindu Marriage Act, seeking divorce from the respondent (wife). According to the averments made in the petition, the respondent (wife) has left his company without any reasonable ground. Her behaviour towards the appellant was cruel. She has filed complaint against him in the Police Station. The allegations made by the appellant have been denied by the respondent (wife). According to the respondent, she was thrown out of her matrimonial house on 14.07.2003. She shifted to Dehradun for her livelihood. She has never misbehaved with the appellant. The learned court below has dismissed the petition, as narrated hereinabove. Hence, this appeal.

3. The marriage between the parties was solemnized on 18.10.2000. According to the appellant, the respondent has deserted him on 02.07.2003. According to the respondent, she was thrown out of her matrimonial house on 14.07.2003. The appellant is not maintaining her. There is persistent demand of dowry by the appellant. It is in these circumstances, the complaint was also filed before the Police. Though, according to the appellant, respondent has misbehaved with him on a number of occasions, but no independent witness has been produced. Even appellant has not produced his brother Mahesh to substantiate his plea. It is not believable that the appellant was thrown out of the house by the respondent, rather it is the appellant, who has thrown out the respondent from the matrimonial house.

4. According to the appellant, the respondent was lying on the roof of the house by keeping the gas stove on and due to ignorance of respondent, any incident could take place. It is a very hypothetical submission. It is the appellant, who has deserted his wife. The appellant cannot be permitted to take an advantage of his own wrongs. The appellant has earlier filed petition under Section 13 of the Hindu Marriage Act, which was dismissed on 27.03.2006. The appellant has again filed fresh petition on the same or similar grounds, which was taken in the earlier petition, bearing No. 184 of 2003. The appellant has not paid her any maintenance as ordered by the courts from time to time. The appellant has failed to prove that the respondent has caused mental and physical cruelty. It was for the appellant to prove that the respondent has deserted him and has caused physical and mental torture. 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