The main legal point established in the judgment is that the conduct inflicting mental pain and suffering on one of the parties, to the extent that the parties cannot possibly live together, amounts to mental cruelty. Additionally, the departure from the matrimonial home without reasonable cause constitutes desertion under the Hindu Marriage Act, 1955.

S.K. Palo, J.

The appellant-wife feeling aggrieved by the judgment dated 30-8-2008, pronounced by First ADJ, Seoni in Civil Suit No. 4A/2005 whereby the application under section 13 of Hindu Marriage Act, 1955 filed by the respondent-husband was allowed and the marriage between the appellant and respondent solemnized on 24-5-2001 has been dissolved, preferred this appeal under section 28 of the Hindu Marriage Act, 1955 (for brevity Act, 1955).

2. It is not disputed that the appellant and respondent are husband and wife. Their marriage was solemnized on 24-5-2001. Due to this wedlock, a male child was born to the appellant. The respondent issued a notice to the appellant for restitution of conjugal right. The respondent then instituted Civil Suit No. 6A/2002 in which a finding was given by the Court in favour of the respondent hat the appellant-wife deserted respondent-husband without any sufficient cause, however, the civil suit was dismissed. It is also not disputed that the appellant-wife has filed a criminal case before JMFC, Chhindwara under section 406, Indian Penal Code read with sections 4, 5 and 6 of the Dowry Prohibition Act, which is yet to be decided.

3. The learned trial Court after gone through the pleadings and evidence observed that after her marriage, the appellant-wife pressurized respondent-husband to live separately from his family. When the respondent-husband denied the same, the appellant-wife stopped doing domestic work and started sleeping separately. The appellant-wife also got herself transferred from village Linga, Distt. Chhindwara to Seoni. The appellant-wife treated the respondent-husband with cruelty and deserted the respondent-husband from 7-10-2010. The trial Court, under section 13(1)(i-a), and 13(1)(i-b) Act, 1955 granted decree of divorce in favour of the respondent-husband.

4. In the present case, the appellant-wife has assailed the judgment under section 28 of the Act, 1955 on the ground that the finding of the trial Court is illegal, perverse and contrary to law and contrary to evidence available on record. It is also claimed that the respondent-husband and his family members treated her with cruelty. They harassed and tortured her and compelled her to bring dowry from her parent's house. No remedy left with the wile, except to leave Chhindwara and for that she cannot be held responsible for deserting the husband. On the other hand, it is the husband who is responsible for the said desertion. The husband himself is responsible for the estrangement and separation of the parties, therefore, he cannot take advantage of the same. The learned trial Court has wrongly appreciated the evidence in this regard, hence, the impugned judgment be set aside.

5. During the course of arguments, it is vehemently contended by the learned counsel for the appellant that the learned trial Court also erred in appreciating the evidence that, for the treatment of their child, they had gone to Emakulam (Kerala). In between 22-7-2004 to 5-8-2004, they stayed in the same hotel room and cohabited, therefore, the petition on the ground of desertion is liable to he dismissed for the simple reason that the petition was filed on 4-1-2006 and the husband and wife stayed and cohabited within the period of two years immediately preceding presentation of the divorce petition. He placed reliance on Malathi Ravi, M. D. v. B. V. Ravi, M. D., reported as 2015(1) M.P.L.J. (S.C.) 53 = (2014) 7SCC 640, in which the Hon'ble Apex Court has held that:-

"Hindu Marriage Act, 1955 - Section 13(1)(i-b) - Desertion for continuous period of 2 yrs-Husband admitted to have once stayed with wife at wife's place for 2 days within period of 2 yrs immediately preceding presentation of divorce petition by him-Held, desertion not established."

6. Rebutting to the above submissions, learned counsel for the respondent has submits that the learned trial Court after having gone through the evidence on record has pronounced the impugned judgment which