A.N. Dikshita, J.

1. The Appellant Smt. Priti Swami has preferred this second appeal against the judgment and decree dated 20.2.1984 passed by Fthe District Judge, Meerut, dismissing the appeal preferred by her against the judgment and decree dated 25.10.1983 passed by the trial court decreeing the petition with costs and dissolving the marriage of the Respondent Lokesh Kumar Swami with that of the Appellant Smt. Priti Swami and granting divorce with effect from the date of the decree, i e. 25.10.1983.

2. The facts giving rise to this second appeal are that the Respondent filed a petition Under Section 13 of the Hindu Marriage Act (hereinafter called the Act) amongst others on the main allegation of cruelty and desertion by the Appellant wife. The petition was resisted by the Appellant. Both the sides led evidence and on the pleadings of the parties the trial court framed the following issues:

1-Whether the Respondent treated the Petitioner with cruelty :

2-Whether the Respondent has deserted the Petitioner without reasonable, cause

3-To what relief, if any, is the Petitioner entitled

3. The trial court recorded a finding on issue No. 2 that the Appellant had deserted the Respondent without reasonable cause. However, on issue No. 1 the trial court found that the Respondent had failed to prove cruelty. In view of the finding on issue No. 2 the trial court held that the Appellant had deserted the Respondent without any reasonable excuse for a continuous period of not less than two years immediately preceding the date of the presentation of the petition and hence granted a decree of divorce on this ground alone as provided Under Section 13(B) of the Act. The marriage was thus dissolved and divorce was granted from the date of the decree.

4. Feeling aggrieved an appeal was preferred by the Appellant to the court of District Judge, Meerut, who after scanning the evidence affirmed the findings recorded by the trial court and dismissed the appeal. Hence this Second Appeal to this Court.

5. Before counsel for the parties could be heard on merits, Sri K.R. Sirohi, learned Counsel for the Appellant submitted that the trial court did not try to effect reconciliation between the parties as contemplated by Section 23(2) of the Act. It was, however, admitted that the lower appellate court had tried to bring about reconciliation but it being of no avail the appeal was ultimately heard and dismissed on merits. At the instance of the learned Counsel for the Appellant and in view of the agreement to this suggestion by Sri N.C. Rajvanshi, learned Counsel for the Respondent, an effort was made at this stage as well to bring about a reconciliation between the parties. It, however, failed and the appeal was heard on merits.

6. Learned Counsel for the parties have been heard.

7. Learned Counsel for the Appellant submitted that the courts below under a misconception of law have held that the Appellant was guilty of desertion without any reasonable excuse though in fact there was no evidence of the alleged desertion. It has also been submitted that there was no evidence that the Appellant had ever intended to sever the matrimonial ties. It is further submitted that the ingredients of Section 13(1)(b) of the Act were not satisfied in this case and both the courts below failed to appreciate this material aspect.

8. I do not find any merit in the contentions advanced on behalf of the Appellant.

9. In support of the allegations in the petition for annulment of marriage and grant of divorce the Respondent, inter alia, had stated on oath that the Appellant did not show from the very first day of the marriage any affection, respect or love for the Respondent and wanted to live at Delhi where her family resided and did not warit to stay at the matrimonial home at Meerut; that the environment at Meerut was not to the Appellants taste or liking as was often expressed by her; that the Appellant wanted to take up a job at Delhi; that on 5.1.1981 in the absence of the Respondent and without his consent and inspite of the entreaties made by the fumily members of the Respondent the Appellant left the matrimonial home with all her belongings including clothes and ornaments without any reasonable cause and went to Delhi with the intention to abandon the married life, and that after 5.1.1981 the Appellant did not return to the matrimonial home. In his deposition the Respondent had categorically stated that the Appellant had told him that the married life between him and the Appellant could be started again only if the Respondent leaves Meerut and his parents and other family members and stayed with her at Delhi; that the Appellant wanted to live independently and that she had no love or affection for the Respondent or any interest in marriage.

10. The Appellant filed a written statement taking up certain pleas and making a denial to the allegations in the petition asserting that she was willing to perform her duties as wife which were considered and rejected by the courts below. From the statement of the Appellant in court it is quite clear that the Appellant had decided to take up a job somewhere else; that the conditions in the Respondents house were unbearable to her and it was not possible for her to live with the family members of the Respondent; that she had decided to take up a job at Delhi and that in January 1981 she left her matrimonial home.

11. On the basis of the evidence adduced by the parties the trial court found that the Respondent got permanent job at Government Girls Senior Secondary School, Brahmpuri, Delhi. The Trial Court also found that the Appellant is living in Delhi with her brother with effect from 5.1.1981. It was also found by the trial court that the Appellant resigned from her service in Trishla Devi Kanohar Lai Inter College Meerut on 8.1.1981 as the job at Delhi was better and a permanent one hence the resignation was sent resigning from service in Trishla Devi Kanohar Lai Inter College, Meerut. The factum of separation was also found having been proved in view of the fact that the Appellant requested the Respondent to get himself transferred to Delhi but to no avail. The separation having been found to have been proved by the trial court the other aspect of permanent intention to abandon the married life without the consent of the Respondent or without reasonable cause was considered by the trial court and it was found that desertion also stands established. The lower appellate court also found that the conduct of the Appellant clearly shows that her intention right up from the very beginning was not to live in the matrimonial home at Meerut but to stay at Delhi. It was found by the lower appellate court that the Appellant left her husbands house for about one year between 27.12.1978 and 27.12.1979 without any justifiable cause and did not attend on her ailing husband when he fell ill. It was further found by the lower appellate court that even after getting the job at Meerut she had no intention to live at Meerut and was consistently trying for another job at Delhi. After remaining at Delhi with effect from 5.1.1981 she did not care to come back even once. The plea of the Appellant that she is willing to return and live with her husband was repelled.

12. From the above it is clear that there was evidence before the courts below to arrive at certain conclusions and it was not a case where there was no evidence to arrive at those conclusions as submitted on behalf of the Appellant.

13. The contention of the learned Counsel for the Appellant regarding misconception of law by the courts below may now be examined. I find that the finding of the courts below on the material issue is wholly in consonance with the law laid down by the Supreme Court in the case of Bipinchandra v. Parbhavati : AIR 1957 SC 176 [LQ/SC/1956/84] , wherein desertion has been explained. Quoting from Rayden on Divorce the case law on the subject was summarised in these terms:

Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spquse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.

The Supreme Court further found that the legal position has been summarised in paras 453 and 454 at pages 241 to 243 of Halsburys Laws of England (3rd Edn.). Volume 12, which is reproduced below:

In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that others consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, the home. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.

The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a crosscharge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.

After quoting the above passages the Supreme Court held that desertion is a matter of inference to be drawn from the facts and circumstances of each case. The offence of desertion would commence when the fact of separation and the animus deserendi co-exist. Two essential conditions must be there so far as the deserting spouse is concerned, namely, the factum of separation and the intention to bring cohabitation permanently to an end (animus deserendi). As regards the deserted spouse two elements are similarly essential (1) absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention. The courts below found that separation had been proved. The intention to bring cohabitation permanently to an end was also found to have been established. It has been found as a fact that the Appellant left the matrimonial home without the consent of the Respondent as well as the absence of conduct giving reasonable cause to the Appellant leaving the matrimonial home. The Appellant has been found from the material on record that she never intended to stay in the matrimonial home at Meerut and was having an intention to reside at Delhi. Requests were made to the Respondent to get himself transferred to Delhi which were spurned by the respondeat. The view taken by the Supreme Court in the case of Bipinchandra v. Parbhavati (supra) was approved and followed in the case of Lachman Utamchand Kiroalani v. Meena alis Mota : AIR 1964 SC 40 [LQ/SC/1963/187] . In this case the Supreme Court found that desertion was a matter of inference to be drawn from the facts and circumstances of each case including the conduct of the parties. It was thus open to the courts below to draw an inference regarding desertion on the evidence before them including the conduct of the parties. On the basis of the material just referred to in the preceding paras if the courts below drew the inference to the effect that the facts and circumstances and the conduct of the Appellant proved desertion by her, it cannot be said that the finding of the courts below was based on no evidence or it was conjectural. Similarly on the admitted facts it was rightly inferred by the courts below that the Appellant by her conduct and living separately from the Respondent for a continous period of more than two years had proved the factum of separation and the intention to bring cohabitation perma- nently to an end (animus deserendi). The ingredients of Section 13 of the Act were fully satisfied in this case and the submission of the learned Counsel to the contrary deserves to be rejected.

14. In the case of Smt. Rohini Kumari v. Narendra Singh : AIR 1972 SC 459 [LQ/SC/1971/630] it was held that to constitute the offence of desertion it is necessary that there must be a determination to put an end to matrimonial relation and cohabitation, as without the animus deserendi there can be no desertion. In view of the above discussions it is clearly found that the ingredients enjoining desertion have been fully proved by the Respondent and accepted by the courts below. After the de sertion has been established there is no obligation on the deserted husband to appeal to the deserting spouse to change her mind. In the case of Lachman Utamchand v. Meena alis Mota (supra) it was held by the Supreme Court that once desertion is established there is no obligation on the deserted spouse to appeal to the deserting spouse to change her mind. The Appellant had deserted as has been found by the courts below without just cause during the entire period. Mere pleading after the petition is filed that she is willing to reside with her husband the Appellant cannot take advantage as there was no obligation on the Respondent to accept her. There has been no intention on the part of the Appellant to leave Delhi such an offer was made only to frustrate the petition and more so when no steps were taken by the Appellant to leave her job. The offer does not appear to be bonafide nor it has been so found by the courts below.

15. Another aspect which is also revealing from the records is that the Appellant wanted to live separately from the family of the Respondent. An offer made by the Appellant to live separately from his parents would be an unreasonable condition. In Krishnabai v. Punamchand : AIR 1967 MP 200 [LQ/MPHC/1967/10] , the offer of the wife to live with her husband provided he lived separately from his parents was held to be an unreasonable condition made not in good faith.

16. To sum up the findings of the courts below neither suffer from any misconception of law nor it was a case where there was no evidence, regarding desertion. These findings being based on evidence led by the parties are findings of fact and cannot be interfered with in second appeal.

17. Learned Counsel for the Appellant has cited Devi Singh v. Smt. Sushila Devi, 1980 MLR 16, Rajendra Prasad Jain v. Smt. Rama Jain, 1980 MLR 135 and Sukhdev Kaur v. Mange Singh, 1981 MLR 207. These cases do not help the Appellant as they are distinguishable on facts. In the first case it was held that if one spouse by his words and conduct compels the other spouse to leave the matrimonial home the former would be guilty of desertion though it is the latter who has physically separated from the other and has left the marital home. This is not the situation in the instant appeal before me. In the second case cited by the learned Counsel the wife had left the marital home and was living with her parents due to the beatings given by the husband. It was in such circumstances that it was held that there was no desertion by the wife but such is not the situation here. Similarly in the third case cited it was found that the wife had not left her matrimonial home without any excuse, and, therefore, there was no desertion by her. Again this is not the situation in the instant appeal before me.

18. No substantial question of law being raised in this second appeal and the findings of the courts below being findings of fact this appeal deserves to be dismissed.

19. In the result the appeal fails and is hereby dismissed with costs.