S.S. GREWAL, J

(1) THIS Letters Patent Appeal has been filed against the judgment of learned single Judge of this Court dated 28-1-1987, whereby, judgment and decree passed by the trial Court granting divorce on the ground of desertion in favour of Mohinder Singh (hereinafter referred to as the husband) against Harbans Kaur (hereinafter referred to as the wife), was set aside.

(2) ADMITTEDLY, the marriage between the parties was solemnized on 29-6-1979 at village Khadial, District Sangrur. After the marriage, as per allegations of the husband, the parties lived together as husband and wife for about 11/2 years at village Shahpur Kalan. No child was, however, born out of the said wedlock. About 3 1/2 years prior to the filing of the present petition i. e. somewhere in the year 1981, Shingara Singh, brother of the wife, came to village Shahpur Kalan, and, took away the wife with him on the pretext that her father Kartar Singh was seriously ill and the latter wanted to see her. It was further pleaded that at the time when the wife accompanied her brother, she took away all her gold ornaments and other clothes. After about 20 days or so the husband went to the house of her in-laws in order to bring his wife. At that time her father told him that she would be sent to her matrimonial home later on. The wife did not return to the house of her husband. The husband and his father along with a panchayat went to the parental house of the wife. In spite of persuasion by the panchayat, the wife did not return to her matrimonial home. Thus, the wife had deserted her husband for a continuous period of more than two years immediately preceding the presentation of the petition for grant of decree of divorce. It was further pleaded that even during the period when the wife stayed with the husband, she never co-operated her husband that she behaved in a rash manner and in this way she treated her husband with cruelty.

(3) IN her written statement, the wife admitted the factum of her marriage. According to her she lived with her husband for about 31/4 years. She denied that her brother-Shingira Singh brought her from her husbands house or that she brought any ornaments or clothes with her. She further pleaded that she was forcibly deprived of her all gold ornaments and valuable articles and after giving beating she was turned out of her matrimonial home. Her father went twice to the house of her husband and requested the husband to keep her with him but the husband refused to do so. She further pleaded that she apprehends danger to her life at the hands of her husband. It was also pleaded in the written statement that father-in-law of the wife used to coerce her to bring more dowry from her parents who could not meet the demand.

(4) ON the pleadings of the parties the following issues were framed by the learned trial Court :-

1. Whether the respondent had been treating the petitioner with cruelty OPP 2. Whether the respondent has deserted the petitioner for a period of more than two years prior to the presentation of the present petition OPP

(5) ISSUE No. 1 was decided against the husband by the trial Court which finding was upheld by the learned single Judge. Under issue No. 2 the trial Court held that the wife had deliberately deserted the husband without any reasonable cause, and on said finding trial Court granted decree of divorce. Finding of the trial Court on issue No. 2 was, reversed by the learned single Judge and the judgment and decree of the trial Court was set aside and application for grant of divorce was dismissed.

(6) AGGRIEVED against the judgment of the learned single Judge the husband has filed this Letters Patent Appeal.

(7) IT was mainly contended on behalf of the husband that there is ample, legal, cogent and reliable evidence on the record that the wife intentionally left the house of the husband; that she is living separately and has wilfully deserted him without his consent and without any reasonable cause for a period of over two years before filing of the present petition.

(8) THE argument is devoid of any merit. It has neither been specifically pleaded in the petition for grant of decree of divorce moved by the husband that the misconduct on the part of the wife either in leaving the matrimonial home or not returning to the matrimonial home was wilful or intentional. Nor any specific evidence has been produced in this Court by the husband in this regard.

(9) BURDEN lies upon the husband to affirmatively prove the essential ingredients of desertion which he had failed to prove in this case namely (1) that the wife was living separately with animus deserendi without his consent, and (2) absence of his conduct in giving reasonable cause to her to leave the matrimonial home. I find support on this point from the observations of the apex Court in Lachman Utamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40 [LQ/SC/1963/187] .

(10) ACCORDING to the evidence produced by the husband after about two years of the marriage the wife has left his house when her brother came to take her and took away gold ornaments and clothes, and, thereafter did not return to his house. The sole testimony of the husband and his father Nek Singh on this point is not creditworthy as the same is materially contradicted, by the testimony of the wife, her father Kartar Singh and that of Gurdial Singh. According to them, after the marriage, the wife live at the house of the husband for about three years. She was maltreated and given beating, as her parents could not meet the demand of the husband and his father for bringing more money from her father for installing electric motor, and, after giving her beating she was turned out of the house by the husband. It is difficult to believe that the wife would leave her matrimonial home without any rhyme or reason as pleaded by the husband. It is in evidence that the wife has five brothers and three sisters. Thus it seems quite improbable that the father or brothers of the wife would keep her at their house instead of sending her back to the house of her husband, in case the behaviour of the latter towards his wife had been above-board. It is in evidence that the wife could not bear any child.

(11) THE learned single Judge made efforts for effecting reconciliation between the parties and has observed as follows :-

"from the manner in which the husband acted in this Court it appears that it is not safe for the wife to go with her husband and live with him as the whole efforts on the part of the husband was not to pay maintenance and in order to evade the same, he made an offer to take her back, this offer does not seem to be a genuine one. "

(12) FROM the circumstances, referred to above, it is quite evident that the wife had reasonable cause to live separately from her husband and she had not wilfully withdrawn from his society, with animus deserendi. The husband has thus failed to prove affirmatively both the grounds of desertion and cruelty pleaded by him for getting divorce from his wife, in this case.

(13) FOR the foregoing reasons, there is no merit in this appeal and the same is hereby dismissed, with no order as to costs. Appeal dismissed.