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(12) In view of these findings, the learned Single Judge has held that the letter of the wife to the Chief Minister making complaints and allegations against her husband amounted to cruelty. Regarding the Shivratri day incident, the learned Single Judge has held that the wife was not a party to the same since there was no evidence to connect her with the said incident. On the question of desertion, the learned Single Judge has held that it was the wife who was responsible for driving the husband out of the matrimonial home. Applying the doctrine of constructive desertion, the learned Single Judge has held that though the present is a case of husband leaving the matrimonial home, yet this was on account of the conduct and behavior of the wife and therefore, it is the wife who is guilty of desertion and not vice versa. It has been held that the physical act of departure of a spouse does not necessarily make him or her guilty of desertion. The onus of justifying departure from the matrimonial home is always on the deserting spouse. The spouse may be forced out of the house. Therefore, merely on the basis of the fact of departure from the matrimonial home, the Question of desertion cannot be decided. Desertion has to be decided on the basis of animus deserandi. The learned Single Judge relying on his findings regarding cruelty on the part of the wife, held that the husband could not reasonably be expected to live with her in the circumstances created by her. Thus, the finding on desertion is based on the finding on cruelty, (13) The learned Single Judge has noted in his judgment that the other allegations of cruelty .made by the husband against the wife in the petition were not pressed before him. The same applies to the hearing before us.

(52) On the question of desertion, the learned single Judge, after referring to the doctrine of constructive desertion, has based his finding on the conduct of the wife which he held to be cruel to the husband. According to the learned single Judge, this conduct of the "wife drove the husband out of the matrimonial home. It is no doubt true as a proposition of law that a spouse can create a situation whereby the other spouse is driven out of the matrimonial home. Therefore, it cannot always be said that the spouse leaving the house alone is the deserting spouse. This is what has been referred to as the doctrine of constructive desertion. As already held by us, the finding of the learned, single Judge on cruelty is not sustainable and, therefore, , follows that the wife cannot be said to be cruel and responsible for driving the husband out of the matrimonial home. As a necessary corrollary it follows from this that there is no desertion on the part of the wife and the husband has not been driven out of the house on account of the wife's conduct or behavior.