Desertion requires continuous period of 2 years. Cruelty can be proved by preponderance of probability based on evidence and conduct of parties.

S.C. Pandey, J.

1.This is an appeal filed by the wife against the judgment and decree dated 31st of October, 1995 in Civil Suit No. 51-A/94 decided by the learned Special Judge, Marriage and Family Dispute, Sagar. The respondent filed an application under Section 13 of the Hindu Marriage Act, 1955, registered as Civil Suit No. 51-A/94, against the appellant on the ground of desertion and cruelty.

2. The case of the respondent was that after marriage on 9.2.1989 in village Kesli, the appellant came to her matrimonial home at village Chandpur. Thereafter, on 12.2.1989 she went to village Kesli. It was claimed that the respondent and the appellant did not cohabit together as husband and wife for two days when the appellant remained with her at Kesli between the period of 10.2.1989 to 12.2.1989. The respondent claimed that the appellant did not allow sexual contact with her on the ground that she was having manstrul discharge during that period. Thereafter, the appellant was not sent back by her father on the ground that the appellant was haying her examination. Thereafter, the father of the appellant Shri Ramcharan Pachauri sent her back without the usual ornaments worn by the wife. Even after coming back to the matrimonial home she denied physical contact with the respondent. It was claimed by the respondent that for a whole month, she did not permit him to have sexual intercourse with her. It was claimed by the respondent that the appellant did not like him because he was not educated. Thereafter for last 2 years, the appellant went back to her father and remained at her parental home for 2 years compelling the respondent to file an application for divorce. However, on 5.3.1994, at the instance of the Court, there were reconciliation between the husband and wife and the appellant went back to her "matrimonial home. It was claimed that during the period she remained there for about 3 months. The respondent did not permit any sexual contact and then against went back to her parental home. On these allegations, the civil suit aforesaid was filed.

3. The suit filed by the respondent is that the case led by the respondent was false. It was denied that she did not permit the respondent to have sexual relations with her. It was claimed that after 5.3.1994 they had sexual relations. According to the appellant, the root cause of quarrel between them was the demand of dowry on the part of the respondent and the members of his family which could not be fulfilled by her father who was merely a teacher. It was claimed that on account of aforesaid demand of dowry, she was being treated cruelly and beaten. She used to live without food and she became ill. It was further claimed that the members of the family of the respondent had driven her out after seizing all those ornaments in her possession. It was claimed by the appellant that after 5.3.1994, she became pregnant but on account of the weakness of the appellant due to ill-treatment on the part of the respondent and the members of his family, the appellant became so ill that there was an abortion.

4. On these allegations, the case was tried by the Court below. The Court below after recording the evidence, came to the conclusion that the appellant has deserted the respondent and treated the respondent cruelly. Therefore, the decree for divorce was granted.

5. In this appeal, the learned Counsel for the appellant argued that so far as the first part of the issue is concerned that the appellant deserted the respondent, it cannot be held that the judgment and decree passed by the Court below was in accordance with law. It was asserted by the learned Counsel for the appellant that in order to succeed under Section 13(1)(ib), there must be a desertion of the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. In this case, it was claimed that on the date the application was filed, the appellant had not deserted the respondent f