S.S. Saron, J.This is an appeal by the wife under Section 28 of the Hindu Marriage Act, (hereinafter referred to as the) against the judgment and decree dated 11.6.1991 passed by the learned Additional District Judge, Chandigarh, whereby the petition of the husbandrespondent for dissolution marriage by a decree of divorce under Section 13(1)(ib) of theon the ground of desertion has been allowed.

2. The husbandrespondent filed petition against the wifeappellant in terms of Section 13(1)(ib) of thefor the grant of a decree of divorce. The marriage between the parties was solemnised on 13.12.1976 at village Boh, Tehsil and District Ambala according to Sikh rites and ceremonies. After marriage the parties lived together for a few days at village Rupakheri, Tehsil Sirhind, District Patiala, at the parental house of the respondent and thereafter started living at Chandigarh in House No. 1505, Sector 22B, where they lived for about a fortnight and the marriage was consummated. There was no issue out of the wedlock. It is stated that the wife from the beginning of the marriage did not adjust with the respondent and showed utter disenchantment with the marriage and left the company of the respondent for her parental house just after about two weeks stay with intention not to return. In this manner the appellant, it is stated, has deserted the respondent and ever since she is living with her parents and at other places wherever she found service. Efforts were made by the respondent and his relations to bring around the appellant and persuade her to rejoin the matrimonial home but the same bore no fruit. The last attempt for reconciliation was made in the month of April, 1987 which failed.

3. The appellantwife filed a written statement and took preliminary objection that the Court at Chandigarh had no territorial jurisdiction to try the petition as neither the marriage was solemnised at Chandigarh nor the parties resided as husband and wife at Chandigarh. Besides, it was stated that the respondent had not come to the Court with clean hands and was taking advantage of his own acts which the law does not permit. The other material particulars with regard to factum of marriage having been solemnised and thereafter living at village Rupakheri, Tehsil Sirhind, District Patiala, at the parental house of the respondent are not denied. It is, however, stated that the parties never resided at Chandigarh at House No. 1505, Sector 22B. It is also denied that the appellant was not wanting to adjust with the respondent. It is rather stated that after few months of the marriage, the respondent started treating the appellant with cruelty as he and his parents were expecting huge amount of dowry which the appellant and her parents could not afford and were unable to meet the demands of respondent. The parents of the respondent demanded many times cash of Rs. 5,000/ and other articles like TV and scooter etc. The respondent was compelling the appellant and her parents for a scooter saying that he is employed as an Assistant in the Office of the Director, Public Instructions, Punjab. There are also allegations of the appellant that the respondent subjected her to severe beatings when her parents were not able to meet his demands. Ultimately, she was turned out of her matrimonial home in three plain cloths and since then she is residing with her parents. It is stated that the respondent never made any effort to bring the appellant back to her matrimonial home. It is the appellant and her parents who made attempt to persuade the respondent to take back the appellant but he refused to do so.

4. On the basis of the pleadings of the parties, the following issues were framed by the learned trial Court :

1) Whether the respondent has deserted the petitioner for a continuance (sic. continuous) period of two years preceding the presentation of the present petition If so, to what effect OPP

2) Whether this Court has no territorial jurisdiction to entertain and try the present petition OPR

3) Relief.

5. The learned Additional District Judge rejected the preliminary objection raised by the appellant regarding lack of jurisdiction. Besides, it was held that the appellant had deserted the respondent and accordingly passed a decree of divorce. It is against the said judgment and decree dated 11.6.1991 that the wifeappellant has filed the present appeal.

6. I have heard the learned counsel for the parties and with their assistance gone through the record of the case.

7. The question regarding territorial jurisdiction of the Court may be examined in the first instance. The respondent appeared as his own witness as PW1 and reiterated his submissions made in the petition. Besides, Karamjit Singh son of Tara Singh was also produced by him as PW2. The respondent in his deposition in the Court states that after the solemnisation of marriage the parties lived at village Rupalkheri, Tehsil Sirhind, District Patiala for a few days. Thereafter they came to Chandigarh and started living at House No. 1505, Sector 22B, Chandigarh. He was in service in the office of Director, Public Instructions, Punjab, and was working as a Clerk. In the above said house the appellant lived with the respondent for about 10/15 days. It is thereafter that the appellant in the beginning of January 1977 left for the parental house in District Ambala. The respondent further states that the parties have not been able to adjust and there was disliking and bickering between them. The appellant did not come from her parental house ever since she left. The respondent states that the appellant had gone to her parents house with the intention not to return back or live with the respondent. Since then the parties have been living separately and all efforts made by him and his relations to bring about settlement with the appellant had failed. He had been making attempts to settled the matter but with no result. The last effort was made in April 1987. In his crossexamination, the respondent states that his brotherinlaw was living in House No. 1505, Sector 22B, Chandigarh. He was residing with his brotherinlaw in the said house even before the marriage. He gives the description of the accommodation. He states that from the very first day the behaviour of the appellant was not good towards him. After the marriage they had lived together just for threefour days in the village and then came to Chandigarh. He did not remember now as to how may casual leaves were taken by him in the year 1976. He stated that all his brothers are wellsettled and doing their business and living with their families. He admits that he had been drawing house rent allowance. He denied the suggestion that there had been demands of items like T.V., scooter or Rs. 5,000/ in cash from the wife after the marriage. Lastly, in April 1987 when he approached his inlaws, her brother and parents refused to send her but promised that she will be sent after some time and they had been making such promises earlier also without following them. He did not file any petition for restitution of conjugal rights before filing the present petition.

8. Karamjit Singh, who appeared as PW2, stated that he knew the parties as he was a friend of the respondent. He had joined the marriage party of the respondent, which marriage was performed in the year 1976. After the marriage he met the respondent a few times in Sector 22B probably the house was 3505. He did not, however, correctly remember the house number but states that the house was situated opposite the bus stand in Sector 22. He never found the appellant living with the respondent because she was stated to have left him a few weeks after the marriage. In this crossexamination, he further stated that he appellant remained at the house of her inlaws in the village for about a week. He accepted the suggestion as correct that he belongs to the village of the respondent.

9. The appellant on the other hand, appeared as her own witness as RW1 and stated that she lived at the house of her husband for 25 days at village Rupalkheri, District Patiala and that after marriage she never stayed at Chandigarh with her husband. The parents of the respondent and his sister had shown resentment on seeing the articles of dowry brought in a tin box. They had also given out that the dowry was not according to the status of the respondent who was well educated. She further stated that the respondent had been illtreating her during her stay with him. Besides, the dowry was not displayed by the inlaws of the appellant saying that it was inferior and that would be displayed only after she brings more articles of dowry of good quality. Her motherinlaw asked her to bring scooter for the respondent saying that he was Block Officer and also asked for T.V. and cash of Rs. 5,000/ so that they may be able to show their status in the eyes of the villagers. Her brothers had visited her at the house of the inlaws on the eighth day of the marriage and in their presence also the parents of the respondent showed their resentment regarding the dowry saying that it was insufficient and was inferior, through her husband kept silent. She further stated that after stay of 25 days the respondent had taken her to the house of her parents but he never came to her parents house to take her back. It further stated by the appellant in her deposition before the learned trial Court that the respondent had written letters to her, which she had brought, telling her to get some service and thereafter he could think of taking her back. She did not remember having sent any reply to her husband. However, her husband refused to take her back on all the occasions when he was approached in this regard by her sister and mother on different occasions. He rather used to run away on seeing the visitors. In her crossexamination, she states that she is a matriculate and had appeared in B.A. examination in 1973 but had got compartment. Her husband was a graduate. Before marriage she had come to know about the qualification of her husband and she was told that he was posted at Chandigarh. They were living separately after she was taken to her parents house on the expiry of about 25 days stay. The other suggestion regarding her stay with the respondent and demand of dowry have been denied.

10. On the basis of above, it is to be seen as to whether the Court at Chandigarh has jurisdiction to try the petition and whether the appellant has treated the respondent with cruelty so as to entitle her to the matrimonial relief in terms of Section 13(1)(ib) of the.

11. Chapter V of the provides for jurisdiction and procedure. Section 19 deals with the jurisdiction of the Court to which a petition under the should be presented. Section 19 of themay be noticed which reads was below :

"19. Court to which petition shall be presented. Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for period of seven years or more by those persons who would naturally have heard of him if he were alive."

12. The case of the respondent is that the parties to the marriage last resided together at Chandigarh and, therefore, the Court at Chandigarh had jurisdiction to entertain and try the petition. This assertion of the respondent had been denied by the appellant. I have perused the evidence on record. It is not in dispute that the respondent was working as an Assistant in the office of the Director Public Instructions which office is situated at Chandigarh. Thereafter, in the normal course of events, it was quite natural for him to be staying at Chandigarh. Since the parties were newly married, it was also quite natural for the wife to be with him. He in his deposition stated that parties resided at Chandigarh at the house of his brotherinlaw. His friend who is from the village of the respondent namely Karamjit Singh appeared as PW2. He deposed on oath in Court on 8.3.1991 and stated that the respondent lived at Chandigarh in the year 1976 and he met him few times in Sector 22B and the house probably was 3505. However, he gives the location of the house to be opposite the bus stand.

13. Learned counsel for the appellant, however, with considerable stress emphasised that there is no record to substantiate the fact that the parties ever resided at Chandigarh. He has emphasised that Karamjit Singh PW2 in his deposition had stated that he never met the appellant in the house. Therefore, in these circumstances, he contends that the learned trial Court clearly erred in entertaining the petition.

14. I have given my thoughtful consideration to the said contention and from the evidence and material on record am of the view that the parties last resided at Chandigarh. This is in view of the fact that the respondent was employed at Chandigarh and being newly married his wife resided with him. Therefore, the finding of the learned trial Court, on issue No. 2 regarding jurisdiction is affirmed.

15. In order to appreciate desertion as a ground of divorce in a matrimonial case, the provisions of Section 13(1)(1b) of themay be noticed, which read as under :

"13. Divorce. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented, by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

(1) xx xx xx xx

(1a) xx xx xx xx

(1b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition : or

(ii) xx xx xx xx

(iii) xx xx xx xx

Explanation. xx xx xx xx

(a) xx xx xx xx

(b) xx xx xx xx

(iv) xx xx xx xx

(v) xx xx xx xx

(vi) xx xx xx xx

(vii) xx xx xx xx

Explanation. In this subsection, the expression `desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatically variations and cognate expressions shall be construed accordingly."

16. The said provisions have been considered by the Honble Supreme Court in a recent decision in the case of Adhydatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, (2002) 1 Supreme Court Cases 308 [LQ/SC/2001/2556] wherein it was held as follows :

7. "Desertion" in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are :

1. the factum of separation;

2. the intention to bring cohabitation permanently to an end animus deserdendi;

3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;

The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include "wilful neglect" of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, 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 deserdendi). 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 petition for divorce bears the burden of proving these elements in the two spouses respectively and their continuance throughout the statutory period."

17. It is in the light of the above dictum that the question of desertion is to be examined in this case. The fact of separation (factum deserdendi) is there. The second essential element is that of animus deserdendi i.e. the intention to bring cohabitation permanently to an end. As already noticed the appellant has only examined herself in the witness box and has stated that she is willing to live with the respondent. However, the said assertion is not supported by any real intention on her part to live with the respondent.

18. It is the admitted case of the parties that the marriage was solemnised on 13.12.1976 and thereafter the parties lived together for about 25 days only in the village. Both the parties say that each had been making efforts to live with other. The appellant states that she was left at her parental house by the respondent and therafter he never came to take her back. Besides, whenever he was approached for taking her back by her sister and mother, he used to run away on seeing the visitors. On some occasion he had been telling the persons who approached him that he would consult his mother and only thereafter he would tell. Now she was prepared to go and live with the respondent. In her deposition in the Court she has stated that the respondent had written letter which she had brought telling her to get some service and thereafter he could think of taking her. Despite having stated this fact and despite the fact that the letter was bought by her, she had not produced or exhibited the same on record. Had it been produced on record, it would have given an insight into the mind of the respondent and could have elicited the truthfulness or otherwise of the case set up by him. Therefore, failure on the part of the appellant to prove this best piece of evidence would warrant the drawing of an adverse inference against her.

19. The evidence on record as noticed above shows that the respondent is working at Chandigarh. He lived with the appellant at House No. 1505, Sector 22B, Chandigarh for about 10/15 days. The appellant om the beginning of January 1977 left for the house of her parents at District Ambala and she has not come back ever since she left. The respondent has stated that the appellant had gone to her parents house with an intention not to return back or live with him. Karamjit Singh (PW2) states that he never saw the appellant living with the respondent because she was stated to have left him a week after the marriage. As against this the bald statement of the appellant that she wants to live with the respondent is not of much consequence. The going away of the appellant and in the absence of material or evidence on record to show that she made sincere efforts to come back is a circumstance which shows that there was an intention on the part of the appellant to bring the cohabitation permanently to an end (animus deserendi). Therefore, in my view the respondent has satisfied the two elements for the grant of matrimonial relief. Insofar as the deserted spouse is concerned, there is an absence of consent on the part of the respondent for the appellant to leave him. Besides, the conduct of the appellant not to return, besides there has been no cohabitation between the parties ever since the appellant left matrimonial home which includes the statutory period of two years immediately preceding the presentation of the petition. Therefore, the ingredients as spelt out in Adhydatmas case (supra) are established by the respondent which entitles him to the grant of decree of divorce.

20. Even otherwise, the marriage between the parties in fact has broken down for all intents and purposes. It has all through remained an empty shell. Irretrievable breakdown of marriage though is not a ground for grant of matrimonial relief of divorce under the, however, the Honble Supreme Court in V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337 [LQ/SC/1993/1001] : 1994(1) RCR 354 (SC) in a case relating to divorce on the ground of cruelty, held that where allegations and counterallegations (are) made by the parties, delay in disposal of the proceedings and the fact that marriage had irretrievably broken down, were to be kept in mind while determining whether marriage should be allowed to dissolve. The following observations are apposite :

"The assertion of the wife that she wants to live with the husband even now, appears to be a mere assertion. After all the allegations made against her in the petition and the allegations levelled by her against the petitioner, living together is out of question. Rapprochement is not in the realm of possibility. For the parties to come together, they must be superhumans, which they are not. The parties have crossed the point of no return long ago. The nature of the allegations levelled against each other show that intense hatred and animosity each bears towards the other. The marriage is over except in name."

xxx xxx xxx xxx xxx xxx

"It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved under Section 13(1)(ia) of Hindu Marriage Act and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years detailed hereinbefore we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter."

21. Besides, the Honble Supreme Court in Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706 [LQ/SC/2002/675 ;] ">(2002) 5 SCC 706 [LQ/SC/2002/675 ;] [LQ/SC/2002/675 ;] : 2002(3) RCR(Civil) 529 (SC) while considering cruelty as a ground of divorce in terms of Section 13(1)(ia) of the Act, observed as under :

"As noted earlier, the parties were married on 6.12.1985. They stayed together for a short period till 28.4.1986 when they parted company. Despite several attempts by relatives and wellwishers no conciliation between them was possible. The petition for the dissolution of the marriage was filed in the year 1996. In the meantime so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably without any fault on the part of the respondent."

Keeping in view the above observations though an irretrievably breakdown of marriage is not a ground for divorce, however, is a factor to be kept in mind as to whether the marriage should be dissolved or not.

In view of the above facts and circumstances and the fact that the marriage was solemnised in 1976 and parties resided together only for about 25 days, it is in the fitness of things that the order under appeal dissolving the marriage by a decree of divorce is sustained. Consequently, the appeal is without any merit and the same is dismissed. However, in the circumstances of the case, there shall be no order as to costs.