Neetu @ Jyoti vs Chetan Kumar

D.K. Paliwal, J.—Appellant/wife has challenged dismissal of her petition for divorce preferred under 13 of the Hindu Marriage Act, 1955 (in brevity the Act) vide judgment dated 18.08.2006 passed by 2nd Additional District Judge, Ashoknagar, Guna, in case no. 31-A/2005 H.M.A. by preferring this appeal u/s 28 of the Act. Brief facts of the case are that marriage of appellant/plaintiff with the respondent/defendant was solemnized on 23.01.2003 according to Hindu customs and rites. In the marriage, father of the plaintiff had spent about Rs. 2,50,000/- and gold and silver ornaments, household articles and cash of Rs. 50,000/- were given to the respondent/defendant. After the marriage, respondent started demanding cash of Rs. 1,50,000/- and in the golden night itself the respondent threatened the appellant to leave her if the demand is not fulfilled. On denial, she was beaten by respondent. After eight days of marriage, she came to her parental home and narrated this to her mother. After about one month, mother-in-law of the appellant came to her parental house and assured her mother that respondent shall keep the appellant well and took appellant with her. But again the demand of dowry was made and on account of this she was beaten and misbehaved by the respondent. When the appellant visited third time to her matrimonial home, she was beaten by her in-laws in connection with demand of dowry. In the month of April 2003, respondent and his mother planned to kill her in the kitchen, but anyhow she saved herself. When the appellant informed her parents, they came to her matrimonial home. This time again mother of the respondent assured that such things will not be repeated in future. But the demand of dowry was continuously made and she was harassed on account of that. Thereafter, the parents of the appellant brought her back and since then she is residing with her parents.

It is further pleaded that respondent has left the appellant for a period of more than two years and is not interested to keep her as his wife. It is prayed that the marriage be dissolved by the decree of divorce on the ground of cruelty and desertion.

In reply, the respondent denied all the allegations regarding demand of dowry and beating. It is further denied that respondent has deserted the appellant. It is pleaded that the allegation of demand of dowry is false. It is pleaded that he never ill treated appellant. The allegation of cruelty has been made just to create a ground for divorce. Appellant herself is not interested to live with him. Despite respondent made several efforts to bring her back, the appellant did not return. It is prayed that the petition be dismissed.

On the basis of pleadings, learned trial Court framed four issues and after recording evidence of the parties, held that ground of cruelty and desertion has not been proved, therefore, appellant is not entitled to decree of divorce. Being dissatisfied, appellant approached to this Court.

It is submitted by learned counsel for the appellant that impugned judgment and decree is manifestly contrary to law and record and also against the well settled principles of law. The learned Trial Court has wrongly disbelieved the cogent and un-rebutted testimony of the appellant. The learned trial Court on surmises and wrong assumptions, decided issue Nos. 1 and 2 in negative. It is apparent on the record that the appellant is residing with her parents for more than two years and the respondent has not taken her back. Therefore the judgment and decree passed by learned Court below being perverse and contrary to law, is not sustainable and be set aside and the petition for divorce be allowed.

Learned counsel for the respondent/husband has defended the findings recorded by court below, submitting that the appellant has failed to prove cruelty and desertion. It is contended that the learned Trial Court has assigned cogent reasons in support of its finding. Therefore there is no scope for any interference by this Court.

In the backdrop of the submissions of the learned counsel for the parties, we have thoroughly scrutinized the evidence and material available on record.

It is not disputed that marriage in between the appellant and respondent was solemnized in accordance with Hindu customs and rites on 23.01.2003 and the appellant/wife is residing with her parents since May 2003.

The cruelty is not defined under the Act. The concept of cruelty has been explained by the Hon''ble Apex Court in the matter of Naveen Kohli Vs. Neelu Kohli, as under:-

47.-- The word ''cruelty'' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behavior in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the inquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be inquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment.

In the case of V. Bhagat Vs. Mrs. D. Bhagat, this Court had occasion to examine the concept of ''mental cruelty''. This Court observed as under:

Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

This Court, in the case of Praveen Mehta Vs. Inderjit Mehta, , defined cruelty as under:

Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behavior by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subject to mental cruelty due to conduct of the other.

In view of above, we shall now proceed to examine whether appellant has succeeded in proving cruelty. According to appellant, from the very first day of marriage the respondent and her in-laws started demanding cash of Rs. 1,50,000/- and beating her. In this respect, Smt. Neetu deposed that after marriage as soon as she reached the house of the respondent, her mother-in-law Smt. Urmila told her that her father had promised to give cash of Rs. 2,50,000/-along with household articles but only gave cash of Rs. 50,000/-. Therefore, cash of Rs. 1,50,000/- more be given. When she said that her father has given so much in accordance with his capacity, therefore, she would not ask for any more, on account of this, on the second day, respondent beat her. Her husband also said that he has relations with so many girls and if the cash of Rs. 1,50,000/- is not brought by her, he would not keep her. She further stated that after one month of her return to her parental house, her mother-in-law came and by assuring that she would keep her well, took her to matrimonial home. As soon as she reached the matrimonial house, her mother-in-law asked whether she has brought cash of Rs. 1,50,000/- and on account of this, she was badly beaten by her mother-in-law. She informed the incident on telephone to her parents. Thereafter, her father brought her to parental house. After a month, her husband came to take her back and assured that he would behave properly. She came with her husband, but again she was harassed. In the month of April, 2003 her husband and mother-in-law planned to kill her by opening the knob of gas cylinder at 12-1 in the night and asking her to make tea. When she opened the door of the kitchen, she felt smell of cooking gas and complained to her husband and mother-in-law, but they insisted nothing is there and her husband himself lit the gas and her mother-in-law tried to push her towards the fire, but anyhow she saved herself and came out. She informed about this to her parents. They came and brought her to parental home. She further deposed that on 15.05.2003, her husband, mother-in-law and maternal sister beat her by belt, danda and hands respectively. She has further stated that during Lok Sabha election when her father was on election duty, her husband came to her parents house and beat her in presence of her mother and family members. On 26.01.2005, her husband threatened her on telephone that he would set her on fire by pouring petrol. She lodged the report of this incident on 27.01.2005, but no action has been taken. On 2.05.2005 Crime No. 191/2005 has been registered against her husband and mother-in-law.

Ram Dayal (PW-2) says that before one and half years ago at 9 a.m. he was going to the house of Prakash Chand. He heard some noises from his house and he went inside. He saw that Chetan Kumar was beating Neetu by means of fists and kicks. He and other neighbours intervened. In para-3 of his cross-examination this witness has stated that when he was passing through the lane near the house of Prakash Chand, he heard some noises. He has mentioned this fact in his affidavit but why it has not been mentioned, he can''t say. Thus, on the one hand this witness says that he was going to the house of Prakash Chand and on the other hand he says that he was passing through the lane near the house of Prakash Chand. In para-6, he is unable to state the names of the neighbours who reached on the spot. According to this witness, he is a labourer and he used to leave his house in the morning to do the job and come back in the evening. In view of this, the presence of this witness at the time of incident becomes doubtful. The testimony of this witness does not inspire confidence of the Court.

Abdul Latif (PW-3) and Anandi Lal (PW-4) have stated that when Neetu came to her parental house, she told that her husband and mother-in-law demand cash of Rs. 1,50,000/- and beat her. They have also stated that Neetu told them that her husband and mother-in-law tried to kill her by opening the knob of gas cylinder.

Abdul Latif (PW-3) in his cross-examination has stated that the husband of Neetu had not threatened in his presence, but threatened him on telephone. It is surprising that Abdul Latif is not a near relative of Neetu and her parents, therefore, the fact of giving threatening over telephone to this witness appears to be false. Neetu herself has not stated that she complained regarding the demand of dowry and harassment given by her mother-in-law to Abdul Latif. Had Neetu really made complaint regarding the demand of dowry and ill-treatment to Abdul Latif, there was no reason for Neetu not to say so in her statement. Abdul Latif has categorically stated in para-5 that he is working in the forest department along with the father of Neetu. Thus this witness is an interested witness. In view of the above, the testimony of this witness does not inspire the confidence of the Court.

Anandi Lal (PW-4) says in his cross-examination para-4 that husband of Neetu had not beaten Neetu in his presence. In para-4, he says that, he can''t say when Neetu told about the demand of dowry and ill-treatment. Had Neetu really complained to this witness, there was no reason for Neetu not to say so in her statement. Anandi Lal categorically admitted in para-3 of his cross-examination that he and Prakash Chand, the father of Neetu, are relative. In view of above, the testimony of this witness also cannot be relied on.

Smt. Hemlata (PW-5), the mother of Neetu, says that from the second day of marriage, husband and mother-in-law of her daughter started harassing her in connection with demand of Rs. 1,50,000/-. When Neetu came to her house after 8-10 days, then she narrated the incident. After one month the mother-in-law of Neetu came and assured that she would keep her well. Thereafter again Neetu was beaten by her husband in connection with demand of dowry. Her daughter informed her on telephone. Thereafter Neetu was brought back by her father. This time husband of Neetu came and assured that he will not ill-treat Neetu in future and took her with him. But again her daughter was ill-treated and harassed by her husband and her in-laws. She further says that once at about 12-1 in the night her husband and mother-in-law attempted to kill her daughter by opening the knob of gas cylinder and asking her to make tea. Her daughter informed her over telephone, then she and her husband went to Pachore but on the assurance of her in-laws they returned back. After 4-5 days again husband, mother-in-law and maternal sister beat Neetu. She further says that at the time of Lok Sabha election Chetan Kumar came to her house and beat her daughter. Thereafter also Chetan Kumar gave threatening to kill her daughter over telephone by pouring patrol. She has lodged the report of the incident. She has further stated that Chetan Kumar used to give threatening to her husband and his colleagues over telephone.

Prakash Chand (PW-6), the father of Neetu, has repeated what his daughter Neetu and wife Hemlata have stated. As noticed above, according to Neetu, on the first day of marriage demand of dowry was made by her mother in law, but her mother Hemlata and father Prakash Chand say that the demand was made after second day of marriage. Prakash Chand (PW-6) has stated in para -13 that he cannot say on which date the husband of Neetu and mother-in-law attempted to kill her. He categorically admitted that he has not lodged any report of this incident. Hemlata (PW-5) also admitted in para -13 that she has not lodged any report regarding attempt to kill her daughter. Neetu also admitted in para 18 that she has not lodged any report regarding attempt to kill her. Prakash Chand (PW-6) says that he has lodged the report when husband of Neetu gave threatening over telephone to kill her daughter. It is very surprising that report regarding threatening over telephone has been lodged but report regarding attempt to kill Neetu has not been lodged. We fail to understand when this witness can lodge the report of mere threatening given over telephone, why he would not lodge any report of actual attempt to kill her daughter.

According to Neetu and her parents the demand of dowry and ill-treatment started just after the marriage. As noticed earlier, marriage took place on 23.01.2003. According to Neetu, she lodged the report on 27.01.2005 to SP which was sent to TI Ashok Nagar, but police has directed to settle the dispute in Pariwar Paramarsh Kendra. But her husband has not attended Pariwar Paramarsh Kendra. Thereafter, she gave an application on 23.04.2005 and police has registered Crime No. 191/2005 on 2.05.2005. Photocopy of the complaint alleged to be given to S.P. Ashok Nagar on 27.01.2005 has been filed as Ex-P7. From the perusal of Ex-P7, it appears that it does not contain any endorsement showing it was received by the S.P. Ashok Nagar. There is no endorsement that it has been sent to T.I. Ashok Nagar. No evidence has been adduced that police has directed the complainant to settle the dispute in Pariwar Paramarsh Kendra. Had complaint Ex-P/7 really submitted to S.P., Ashok Nagar and the same was sent for proceeding further to Pariwar Paramarsh Kendra, there was no reason of absence of any endorsement sending to the Pariwar Paramarsh Kendra.

Ex-P/6 shows that this complaint has been addressed to S.P., Ashok Nagar, in which a reference of earlier complaint filed on 27.01.2005 has been made. But this complaint also does not show by whom it was received. It does not contain any seal of the office of SP Ashok Nagar. It also does not reveal that who has received it.

From the report Ex-P/5, it is seen that Neetu has lodged the report mentioning that when she went to her matrimonial home after marriage her mother-in-law told that her parents have not given cash of Rs. 1,50,000/- and on account of this, she was beaten and harassed. It is further mentioned that when she visited her matrimonial home second time, again she was beaten by her mother-in-law and her husband. She narrated the incident to her father over telephone. Her father also tried to pacify her mother-in-law and her husband, but they remained firm and turned out her. On this complaint, Crime No. 191/2005 has been registered.

Had the incidents alleged to be taken place on several dates as stated by Neetu really taken place, their reference must have been given in Ex. P/6 and Ex-P7.

Considering the fact that there is no receipt and endorsement of the office of SP Ashok Nagar on Ex-P/7 and Ex-P/6 and there is no reference of these complaints in Ex-P/5, the only conclusion which can be drawn is that Ex-P/6 and Ex-P/7 are afterthought and as such no complaints have been made prior to lodging of the report (Ex-P/5).

Had demand of dowry and beating really started from the very first day of marriage, there was no reason, not to call any Panchayat to settle the dispute, but no such Panchayat has been called and no report has been lodged prior to 2.05.2005. These facts raise a serious doubt regarding the demand of dowry, beating and ill-treatment given by the husband and mother-in-law. As noticed earlier, the father of Neetu had lodged the report of threatening over telephone, but has not lodged any report regarding the demand of dowry and continuous beating given to her daughter. This conduct also falsify the allegations of demand of dowry and harassment meted out to Neetu.

Chetan (DW-3), deposed that he solemnized the marriage with Neetu without any dowry. After marriage his wife visited thrice to her matrimonial home. He kept her happy, but Neetu used to complain that she does not like living there. He or his mother never demanded Rs. 1,50,000/-. and ill-treated or beat Neetu. He further denied that after marriage he told Neetu that he has relations with so many girls. Chetan Kumar remained firm in his cross-examination. There is no reason to disbelieve his testimony.

Usha Sharma (DW-2) says that she was residing as a tenant in the house of Chetan Kumar. Neetu was happy in her matrimonial home. She was never ill-treated for demand of dowry. Neetu never complained her that she is harassed by her husband and mother-in-law.

Girish Kumar (DW-1) says that he is neighbour of Chetan Kumar. Chetan Kumar was doing job in some bank. Neetu remained happy in her matrimonial home. She never ill-treated by Chetan Kumar or his mother. Both these witnesses, Girish Kumar (DW-1) and Usha Devi (DW-2) cross-examined at length, but nothing has been come out from their cross examination which could render their testimony doubtful.

In view of the above, we find that the testimony of Neetu, Ramdayal, Abdul Latif, Anandilal, Smt. Hemlata and Prakashchand does not inspire confidence of the court.

Thus, the allegation of demand of dowry from the very first day after marriage and ill-treatment and beating by the husband and mother-in-law is not proved.

The other instance of cruelty is that in the golden night, husband told that he has physical relations with so many girls. There is no shortage of girls for him. According to Neetu (PW-1) when after marriage she went to her matrimonial home, on the golden night her husband told her that he has no shortage of girls and he has relations with so many girls.

Had husband of Neetu really told her that he has no shortage of girls and he has relations with so many girls, there was no reason for Neetu not to tell this fact at least to her mother, Hemlata, otherwise, also it appears very unnatural and funny that a husband on the very first night, which is commonly called as golden night, would tell his newly wedded wife that he has physical relations with so many girls. It is very difficult to believe this statement of Neetu. It appears that this fact has been pleaded just to obtain the decree of divorce. No other ground of cruelty has been pleaded.

In view of the above, we are unable to persuade us to agree with the submission of learned counsel for the appellant that trial Court has not appreciated the evidence in its proper perspective.

The other ground pleaded by the appellant is of desertion. As noticed earlier, there is no dispute that Neetu is residing with her parents since May, 2003. Before we shall proceed to examine whether respondent has deserted the appellant-wife, it would be proper to refer the observations of the Apex Court.

The Hon''ble Apex Court in the case of Savitri Pandey Vs. Prem Chandra Pandey, has observed as under:-

7A. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held:

For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years'' period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus --poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.

Following the decision in Bipinchandra case this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.

To prove desertion in matrimonial matter it is not always necessary that one of the spouses should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.

According to Neetu (PW-1), she is residing with her parents since May, 2003. During this period, she has not made any physical relation with her husband. In para 21 she denied that her husband came to bring her back but she refused. She further denied that her husband and mother-in-law want to keep her and she is not willing to live with her husband because he is not having a high status as she has.

Hemlata, the mother of Neetu, has categorically admitted in para 9 that her daughter does not want to live with her husband. Prakash Chand, father of Neetu, has stated in his chief examination that it is not possible for his daughter to live as wife of defendant. Thus, from the statement of Hemlata and Prakash Chand it becomes clear that Neetu herself is not willing to live with her husband as his wife.

It may be noticed that Prakash Chand has admitted in his cross-examination para 15 that his son-in-law and his mother are good and literate persons. They also own a big house. Hemlata (PW-5) admitted in para 11 that her daughter Neetu is the only daughter-in-law in her matrimonial house. In view of the categorical admission of parents of Neetu that Neetu is the only daughter-in-law in her matrimonial home, it is very difficult to believe that her husband Chetan Kumar does not want to keep her.

Thus, the appellant has not proved that she has been deserted by her husband. From the evidence available on record, it seems that the appellant-wife herself is not willing to live with her husband. In view of above, the appellant has failed to prove the essential ingredients of desertion i.e. animus deserendi. Hence, in our opinion, the appellant has failed to prove the grounds of desertion. The learned trial Court has rightly held that the ground of desertion is not proved. We see no reason to interfere in the well merited findings recorded by the learned trial Court. The appeal is devoid of any merits and is hereby dismissed. Appellant shall bear his cost as well as cost of respondent. Advocate fee as per schedule. Decree be drawn up accordingly.