Mere living separately due to employment does not constitute desertion under Section 13(1)(ib) of the Hindu Marriage Act if there is no intention to end the marital relationship.

S.K. Dubey, J.

1. This appeal under Section 28 of the Hindu Marriage Act, 1955 (for short, the 'Act') has been preferred by the husband against the refusal of grant of a decree of dissolution of marriage by divorce.

2. The husband/appellant/petitioner (for short, the 'petitioner') presented a petition under Section 13(1)(ia) and (ib) of the Act on 1-12-1987 in the Court of District Judge, Shajapur, averring therein that the petitioner who is employed in M. P. Electricity Board at Shajapur, was married to the respondent according to Hindu rites in the year 1980 and from the wedlock they have a daughter. Two years after the marriage, the respondent got an employment in Education Department near Ujjain and was living since then at her parents' house. Because of the employment the respondent was not discharging her duties towards petitioner, who asked her to get herself transferred to Shajapur or to relinquish the job. The petitioner complained of the respondent's cruel ill-treatment with . petitioner's parents, and with him in not allowing him to cohabit with her and in mentally torturing him by not following his wishes and not living with him. At occasions the respondent quarrelled with the petitioner, levelled against him the charge of adultery and threatened to commit suicide, once the respondent mixed poisonous material with the food and gave it to the petitioner. Besides, it was alleged that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition without reasonable cause and without his consent and against his wishes. The respondent denied all the allegations and submitted that the petitioner wants to marry one Anju Gupte and, therefore, presented the petition on false and made up grounds; the respondent got the employment in Education Department at the instance and with the consent of the petitioner only as the financial condition of the family of the petitioner was not sound. As regards her posting the petitioner insisted not to get her transferred to Shajapur, as he was likely to be transferred; she used to go on holidays and Summer vacations to Shajapur to live with her husband and never refused to cohabit. During conciliation proceeding, the trial Court ordered the respondent to stay in her matrimonial home for 15 days so as to resolve the differences, if any, amicably, which the respondent complied, but the petitioner at his residence even refused to talk to her.

3. The trial Court after appreciating the evidence adduced by parties found none of the charges proved, dismissed the petition for grant of decree of divorce, which has been challenged in this appeal.

4. Shri K.L. Sethi, counsel for the appellant, and Ku. K. K. Wagh, counsel for the respondent, were heard.

5. Shri Sethi, counsel for the appellant, placing reliance on a decision of the apex Court in Dr. N.G. Dastane v. Mrs, S. Dastane, AIR 1975 SC 1534, contended that the trial Court has erred in not deciding the c'ase on balance of probabilities, as in matrimonial matters proof beyond reasonable doubt, which generally governs criminal trials or trials involving inquiry into issues of a-quasi criminal nature, is not applicable. The conduct of the respondent clearly demonstrates that she is not living with the petitioner in the matrimonial home to deny him the right of cohabitation, which is mental cruelty and falls within the ambit of 'cruelty' used in Clause (ia) of Sub-section (1) of Section 13 of the Act; in the circumstances, therefore, living of the two together has become incompatible with the relationship of which the foundation is that one spouse must give the other physical support and mental happiness, as sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Counsel also placed reliance on a short-noted decision of this Court in Umadevi v. Naresh-chandra 1988 (ii) M