Baharul Islam, C.J.
1. This appeal is by the husband who filed a suit for judicial separation from his wife, the respondent hereto. He sought judicial separation on two grounds : (i) desertion and (ii) cruelty on the part of the wife.
2. The husband has alleged that his wife refused to live with him in his paternal home and was living in a separate rented house in the town of Silchar in which also the petitioner lived with his parents. This, according to the appellant, amounts to desertion; we have perused the relevant evidence on record, The respondent has admitted that she is reluctant to live with her husband; she says she is not living with her husband in that family as in that family two persons, namely, the mother and the sister of the husband, are sufferring from T. B. She says that if the husband comes out from that family and lives either in the house rented by her in the same town or in a separate house to be rented by the husband, she does not have any objection to live with him. These are material facts in this case.
3. According to the appellant, the conduct aforesaid of the respondent amounts to cruelty as well as desertion.
4. Sub-section (1) of Section 10 of the Hindu Marriage Act, 1955, provides:
'10 (1). Either party to a marriage, whether solemnised before or after the commencement of this Act, may present petition to the district court praying for judicial separation on the ground that the other party-
(a) ......... .........
(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party;'
(relevant portion only) Clause (b) shows that the cruelty, if any, is on the part of the husband in insisting that the wife must come and live with him in such a family.
The question is whether her conduct in the background of the above facts can be construed as cruelty to the husband, Admittedly two persons are suffering from T. B. Mr. Senapati, learned counsel appearing for the appellant, submits that T. B. is no longer a fell disease; it is curable and it would be unreasonable on her part to be afraid of T. B. We do not know whether or not T. B. is a fell disease, but it can be said this is not as nominal a disease as common cold. If, therefore, she refused to go to and live with the husband in the family which consists of two persons suffering from T. B., her conduct cannot be construed as cruelty within the meaning of law.
5. The Explanation to Sub-section (1) of Section 10 of the Act defines 'desertion' as follows:
'In this section, the expression 'desertion', with its grammatical variations and cognate expressions, 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.'
As observed above, it cannot be said that the leaving of husband by the wife can be construed as desertion as her refusal cannot be said to be without reasonable ground. She has a genuine fear for the disease which is reasonable.
6. In our opinion the learned District Judge has committed no error in holding that the appellant has failed to make out a case either of desertion or of cruelty on the part of the respondent. This appeal has no force and is dismissed. We leave the parties to bear their own costs.