( 1 ) THIS is an appeal under Section 28 of the Hindu Marriage Act from a decree passed by the Additional District Judge, Gwalior, for judicial separation on petition by the husband.

( 2 ) MANGLABAI was married to Deorao in 1951. In 1952 they were blessed with a son. They lived together upto July 24, 1953 when Mangalabai went away to her mother's house. After that she did not go to her husband at any time. The boy is living with his mother,

( 3 ) ON February 7, Deovao made a petition under Sections 10 and, 13 of the Hindu marriage Act praying for a decree for judicial separation as also for a decree for divorce on the grounds that Mangalabai had deserted him without any cause, that in spite for his repeated requests she did not return to his house and that she was living in adultery. This petition was resisted by Mangalabai on the grounds that she was beaten by Deorao and his father on July 24, 1953, because of which she apprehended danger to her life; that even before this her husband and father-inlaw ill-treated her; and that the charge of adultery against her was false. The learned Additional District Judge found that, ill-treatment on the part of the husband and the father-in-law was not proved, that she declined to return to her husband's house and that there was a firm intention on her part to desert her. husband. As admittedly they had been living apart for more. than two years, he passed a decree for judicial separation on those grounds. However, a decree for divorce was refused because there was not evidence of adultery.

( 4 ) IT is strenuously urged by Shri Jain that Mangalabai was beaten by Deorao and his father Which, coupled with previous ill-treatment compelled her to leave her husband's roof. It was therefore, constructive desertion by the husband and his petition should have been dismissed for that reason.

( 5 ) THERE is no dispute that the parties to the marriage have been living separately since July 24, 1953. This petition was made after two years. It is to be determined whether it was the wife who deserted the husband or that the husband was guilty of constructive desertion.

( 6 ) IN the context of matrimonial law, desertion represents a legal conception which is not easy to be defined. A comprehensive definition, has not been attempted, advisedly. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. A certain set of facts in the peculiar circumstances of the particular case may not lead to the same inference in the circumstances of another case. All cases must be determined on their own particular facts and in no class of cases is that trite observation truer than in matrimonial cases. The circumstances vary infinitely from case to case. It is dangerous "to formulate, principles of law out of particular circumstances in particular cases, and then treating those principles of law as being, so to speak, explanations or riders to the actual statutory language". (See Simpson v. Simpson (1951) 1 All E R 955, 958 ).

( 7 ) A large body of case law has developed from the legal significance of desertion. It is an established proposition that desertion is withdrawal not from a 'place' but from a "state of things" (See, for instance, Baker v. Baker, (1952) 2 All ER 248 ). In order that desertion may furnish a ground for Judicial separation, the petitioner must prove the following ingredients :-- (1) Factum of separation; (2) Animus deserandi i. e. the intention to bring Cohabitation permanently to an end; and (3) Period of not less than two years immediately preceding the presentation of the petition, during which separation has been continuing. If in fact there has been a separation, the essential question is whether the act could he attributable to an animus deserandi.

( 8 ) IN this case the first and third elements are undisputed. If it is found that mangalabai was the deserting spouse, she did not take advantage of the locus poenitentiae. She never decided to go back to the

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