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I do not think that there was desertion here. There was no separation of house holds. There was separation of bed rooms, separation of hearts, separation of speaking; but one household was carried on, one kitchen where -the cooking was done, and they had their meals from the same supply, the husband providing the money and the wife buying the food. It would be carrying the doctrine of desertion, or constructive desertion, beyond anything within my knowledge of this kind of matter if I were to say that there was desertion here.

24. The evidence of the petitioner that the respondents father was also waiting outside in the car does not seem to be true. The petitioner had not seen him as tie was not present. I am inclined, therefore, to accept the testimony of the respondent that the father or any body else was not in the car (see her evidence at paragraph 30).

25. In the evening the police came to the house of the petitioner followed by the respondent. She tried to get her child with the help of the police but the police did not try to take away the child. The evidence of the petitioner is that the petitioner and his mother asked the respondent to stay in the house, but she refused and went away. Let us analyses it. The evidence is that on the first occasion the respondent went out of the house in the morning. She came back in the evening and then again went away. When did the desertion take place or when did she walk out of the house? Did the desertion commence in the morning when she went out without the child or did it commence in the evening. There is no evidence that when the respondent went out in the morning she had gone away bag and baggage. According to the petitioner's evidence at paragraph 8 there was no fight or quarrel in the morning either between the petitioner and the respondent or his mother. The walking out of the house, therefore upon the own statement of the petitioner, did not take place in the morning. If the desertion did not commence in the morning it commenced in the evening, but does that indicate Animus Deserendi. She did go out of the house in the morning but she did not desert at that hour. She had a tiff with her mother-in-law. She had not been allowed to take her thirteen months old child with herself. The institution of the criminal case was unfortunate. It is, however, not surprising that the respondent lost her balance because of the treatment given to her by the mother-in-law in regard to her newly born child. The going away would not amount to desertion. The respondent has boldly asserted in her written statement that Mr. A.K. Banerjee requested the petitioner and his mother in the evening to let her reside in the house. The petitioner did not have the courage to put Mr. Banerjee in the witness box. The respondent knew that Mr. A.K. Banerjee, Advocate was closely associated with the petitioner and probably may have supported the petitioner. Let with the courage of conviction she stated in her pleading that the entreaty of Mr. Banerjee to let the respondent reside in the house was ignored. I have, therefore, some difficulty in accepting the evidence of the petitioner that he and his mother asked the respondent (see paragraph 11) to stay in the house. It also shows that in the evening the respondent was willing to be in the house. The petitioner withheld the most valuable evidence in the testimony of Mr. A.K. Banerjee. If he had deposed in Court the version of the petitioner would have been corroborated. The inference which I am inclined to draw is that Mr. Banerjee was not inclined to deny the respondents version that he had requested the petitioner and his mother to let the respondent reside in the house. Thus although the respondent acted in a huff in going to the police in the morning the position changed in the evening. Mr. A.K. Banerjee requested the petitioner to let the respondent reside in the matrimonial Home but the mother and son did not condescend. The respondent would then certainly look for some place of shelter. We have the admjssion of the petitioner that after 18.10.1968 he never asked the respondent to come back. Then it was not a case of desertion by the wife rather a case of constructive desertion by the petitioner, the husband.

31. There is yet another letter from the brother to the sister dated April 16, 1968. There are several matters about which the brother had written to his sister. I am unable to find anything of incitement in it.

32. Thus none of the documents relied upon by the petitioner show that the parents of the respondent ever tried to draw a wedge between the respondent and the petitioner. On the other hand, Ext. 2 shows that the respondent was going through untold suffering in the house of the petitioner. This document has been brought on the record by the petitioner himself. He therefore, cannot run away from the adverse circumstances brought out in that letter. It shows the difficult situation which the respondent was facing. That would again amount to constructive desertion by the petitioner himself rather than the respondent. At the lowest, I have no difficulty in holding that the respondent was passed to the position that she would be left with no option but to keep out of the house. That would not be desertion.

39. For all the reasons, stated above my concluded findings are (i) that there was no denial of sexual intercourse by the respondent to the petitioner between February 1967 and October, 1978 ; (ii) even if there was denial, it was from February, 1968; (iii) the plaint and the evidence of the petitioner show mere denial of sexual intercourse. This is upon assumption that every allegation of petitioner is true. The assumption has not been proved. Therefore, it does constitute desertion in the eye of law, and (iv) on 18.10.1968 there was constructive desertion by the petitioner himself. He and his mother hounded out the respondent from the Home. Upon these findings, I am of the view that the petitioner has failed to establish desertion in the legal sense by the respondent.