The burden of proving desertion lies with the petitioner, who must establish the fact of separation and the intention to permanently end cohabitation, beyond reasonable doubt.

Indrani Datta, J.

1. Appellant-wife has assailed the judgment and decree dated 7-8-2008 passed by the Additional Principal Judge, Family Court, Gwalior in HMA No. 205-A/06, by which petition filed by respondent-husband under Section 13(1) (i-a) and 13(1) (i-b) of Hindu Marriage Act stood allowed on the ground of desertion and the marriage between the parties has been dissolved.

2. The respondent-husband filed a petition for divorce against the appellant-wife. For the sake of convenience wife is referred to as "appellant" and husband is referred to as "respondent".

3. Brief facts for adjudication of present appeal are that the respondent filed a divorce petition alleging that he was married with appellant on 21-2-2000 in Gwalior. After the marriage, the appellant lived with him only for four days and thereafter she returned to her parental home and did not come back and she is living separately from the respondent without any sufficient cause. On 23-6-2005 respondent's sister's marriage took place and appellant attended the wedding ceremony but without meeting respondent and his parents, she returned back to her father's home. At that time she took away ornaments worth Rs. 50,000/- and cash of Rs. 28,000/- with her. Thereafter, appellant lodged a false report against the respondent at Mahila Thana. Compromise has taken place between the parties concerning that report and then appellant started living with respondent. She used to go frequently to her parental house. It is alleged that the appellant treated respondent with cruelty as she never wanted to live with him. She never performed her matrimonial duties and obligations. Her conduct and behaviour towards respondent and his parents was worst and aberrant. Thereafter, she left the matrimonial house forever and is residing separately with her parents without any reasonable and proper cause. Hence, on the ground of cruelty and desertion, respondent is entitled to decree of divorce.

4. Petition was opposed by the appellant on the ground that respondent and his family members used to ill-treat her. Respondent himself wanted to get rid of her. She never behaved cruelly with respondent or his family members. On 23-6-2005 at the time of marriage of respondent's sister, the respondent and his family members maltreated, assaulted and beaten her, hence she lodged a report at Mahila Thana Gwalior where the respondent and his family members begged their pardon and got compounded the matter. She is always ready to reside with respondent but due to respondent's and his family members' ill-treatment and cruel behaviour, she is compelled to live separately in her parental house. In the year 2006 at the time of Rakhee festival when father of appellant approached her matrimonial home, she went with him to her parental home with the consent of in-laws and respondent. Thereafter, on 23-8-06 respondent sent a notice to her falsely levelling allegations about taking away ornaments and cash amount. It was further averred that the respondent himself does not want to reside with appellant. She has not deserted him. Hence prayed for dismissal of petition.

5. On the basis of pleadings of the parties, the learned Trial Court framed following issues:

(i) Whether, appellant wife has treated respondent with cruelty ?

(ii) Whether, appellant had deserted the respondent ?

(iii) Whether, the respondent is entitled to get a decree of divorce ?

(iv) Relief and cost ?

6. The learned Trial Court has decided the issue No. 1 in favour of appellant that it is not established that she has treated respondent with cruelty. The learned Trial Court granted the decree of divorce in favour of respondent on the ground of desertion. Hence evidence produced by the parties concerning desertion is only to be considered.

7. The learned Counsel for the appellant urged that the impugned judgment and decree passed by the Trial Court below is contrary to record and against the settled principle of law, hence deserves to be set aside. T