HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.3609 OF 2002 Dt.31.3.2010 Between: Tokala Balaram .. Appellant And Tokala Laxmi .. Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.3609 OF 2002 JUDGMENT: (Per Sri Justice V.Eswaraiah) Appellant herein is the husband of the respondent. He filed O.P.No.41 of 2000 on the file of the Senior Civil Judge, Bodhan, under Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking dissolution of the marriage with the respondent on the ground of desertion. The said O.P. was dismissed by order, dated 3.10.2002 on the ground that the appellant failed to prove the ground of desertion. Aggrieved by the same, this appeal is filed. The parties are hereinafter referred to as they were arrayed before the court below for the purpose of convenience. The case of the petitioner is that the respondent is the daughter of his maternal uncle and he married her 15 years back prior to the filing of the O.P and they lived happily for a period of four years and when she was pregnant of five months, she went to her parents house and did not return back and she gave birth to a female child Gangamani and after delivery the respondent refused to join with him in spite of several efforts to bring her back she did not co-operate with him and even the efforts through caste elders and relatives have not been materialized. It is stated that at the time of leaving the petitioner’s house, the respondent took away gold and silver ornaments. It is stated that the respondent has got two sisters, who were married and they were also similarly left their husbands and living along with their parents house at Kotgiri. The petitioner is having love and affection with the respondent and all his efforts to bring the respondent back have failed and the respondent refused to join the petitioner, as she has been dancing to the tune of her brother who is working in Irrigation Department of Bodhan. The petitioner is also a Government employee having old aged mother, who is unable to see properly because of her old age, and all his efforts have became futile since past ten years and the respondent has been living separately and deserted the petitioner without any reason. A counter has been filed by the respondent denying all the allegations and she admitted that their marriage took place 15 years back according to Hindu rites and customs and after the marriage both of them stayed at Yedpally. The respondent is the daughter of petitioner’s father’s sister and at the time of marriage dowry and gold ornaments were given by her parents which were sold away by the petitioner. It is stated that she went to her parents’ house one month prior to delivery and after 25 days of the birth of her daughter, the petitioner took the respondent and her daughter to Pothangal for cradle ceremony and after some days he took her and her daughter to Nizamabad which was his place of service. The allegation that the respondent did not go and join the petitioner after delivery of the female child is therefore denied. It is stated that the petitioner himself is addicted to liquor and sold away all the gold and silver ornaments given to her and the dowry amount was also utilized by the petitioner for his personal use and when the respondent fell ill in the month of August, 1995 while they were living in Nizamabad, no treatment was given to her and she was sent to Kotgir village and her parents got her treated and taking advantage of her illness and absence, the petitioner contracted second marriage by name Laxmi of Khadgaon village, Bichkunda Mandal, in the year 1995 and has been staying with her and a daughter was also born through the second wife. Therefore, all the allegations of the petitioner that she and her other married sisters are left their husbands and living at their parents house and she was acting to the tune of her brother are denied. It is stated that the petitioner never sent any amount towards the maintenance of the respondent and her minor daughter Gangamani. It is stated that the petitioner does not have any love and affection either towards the respondent or towards his daughter Gangamani and after the marriage the petitioner lived happily with the respondent for three years and afterwards he started disliking her and used to say that he would marry a second wife as the respondent is short in height and black in complexion and several times he asked the respondent to give consent for divorce to which she did not agree. It is stated that at the instance of the respondent there was a panchayat of caste elders and in the said panchayat the petitioner admitted that he had married second wife and that he would maintain both the wives, but he did not keep his promise. Therefore, the respondent filed M.C.No.33 of 1999 on the file of the Judicial First Class Magistrate, Bodhan under Section 125 Cr.P.C., and during the pendency of the M.C., he filed the said O.P.No.41 of 2000 for dissolution of marriage as a counter blast to the said M.C. It is stated that the Judicial First Class Magistrate, Bodhan, by order dated 22.6.2001 in the said M.C.No.33 of 1999 directed the petitioner to pay maintenance at the rate of Rs.500/- per month each to the respondent and her daughter towards maintenance. It is stated that the petitioner himself neglected to maintain the respondent and her minor daughter and she never deserted the petitioner and therefore the petitioner is not entitled for dissolution of marriage. The petitioner got himself examined as P.W.1 and he stated that they lived happily for about four years after marriage and the respondent became pregnant and during 5th month her parents took away to their house and a daughter by name Gangamani was born and her age is 13 years when he deposed on 22.11.2001 and after delivery the respondent did not turn up to the petitioner and she is living with her parents and all his efforts to get her back have become futile. He wrote letters to the respondent and her parents, but did not receive any reply from them. It is stated that the respondent filed M.C.No.33 of 1999 before the Judicial First Class Magistrate, Bodhan. It is stated that panchayats were held at Kotgir and Pothangal villages, but the respondent refused to join the petitioner before the panchayatdars. It is admitted that the mother of the petitioner is the sister of the respondent’s father and after his marriage he used to live along with the respondent in a rented house at Yedpally. After delivery of the respondent, he also visited the parents’ house of the respondent several times. Before filing the O.P. he did not issue any notice to the respondent asking her to join him and the O.P was filed 15 months after filing of the maintenance case by the respondent. He denied the suggestions about the ill-health of the respondent and he himself sent her away to her parents house for treatment an in the meanwhile he contracted second marriage with one Laxmi of Khadgaon village of Bichkunda Mandal and a daughter was also born to her. The so-called panchayat held at Kotgir village was also denied. P.W.2, resident of Pothangal village, stated that he know the petitioner and the petitioner lived with the respondent after the marriage for about four years amicably at Yedpally village and after four years the respondent became pregnant and she gave birth to a female child at her parents house and after delivery she did not come back to the petitioner’s house. Petitioner went to the respondent’s house to get her back, but she did not turn up. He also went along with others asked the respondent to join the petitioner, but she refused for the same. The respondent filed a maintenance case against the petitioner and at that time also he requested to come and join with him, but she refused to do so. Petitioner is ready to take her back, but the respondent is living separately. In the cross- examination he stated that he does not belong to the caste of the petitioner and he does not know the names of the father and brother of the respondent and he does not know about the letters said to have been written by the petitioner and he does not know about the cause of non-joining of the respondent with the petitioner and he informed by the petitioner that the petitioner is having old aged parents. P.W.3 is also another resident of Pothangal village. He stated that the petitioner and respondent lived at Yedpally after their marriage for four years and the parents of the respondent took her for delivery and she did not turn up. He also along with others went to the parents’ house of the respondent to bring the respondent, but she did not turn up. Petitioner is having old aged mother and petitioner did not marry again. In the cross examination, it is admitted that he was examined as R.W.2 in the maintenance case and he does not know whether he stated in the said maintenance case that he went to the respondent’s house to bring her and he also does not know whether any notice was sent by the petitioner to the respondent’s father. He went to the respondent’s house about 8 to 10 years ago, but the respondent refused to join the petitioner. He does not know whether the respondent and petitioner lived together at Nizamabad six years ago and he also does not know about the illness of the respondent and on account of which she is said to have been sent to her parents’ house. The respondent got herself examined as R.W.1. She stated that her marriage took place with the petitioner 15 years ago and after the marriage both of them stayed at Yedpaly village in the house of petitioner’s paternal aunt. She gave birth to a female child by name Gangamani. The petitioner is her father’s sister’s son and at the time of marriage her parents gave gold and silver ornaments and the petitioner sold away the same for getting his job in Telecom Department and thereafter he demanded Rs.25,000/- more for getting job and her father gave the said amount to the petitioner, but he did not refund the said amount and also the said gold and silver ornaments. She went to her parents’ house prior to delivery and 25 days after delivery the petitioner took her to his parents’ house to celebrate cradle ceremony and thereafter they went to Nizamabad where he was working. It is stated that when she fell ill in the house of the petitioner, he sent her to her parents’ house and she was treated by her parents alone. While she was at her parents’ house at Kotgir, the petitioner contracted second marriage with one Laxmi of Khadgaon village. After one year of her stay at Kotgir, a panchayat was held wherein the petitioner admitted that he contracted second marriage and he agreed that he will keep her at Pothangal village one month and after one month the second wife will be with his mother at Pothangal. As per the said arrangement, she was taken to the petitioner’s house at Pothangal and during her stay the petitioner did not provide the minimum necessities and used to ask her to attend agricultural work. The petitioner himself quarelled with her and she was driven out from the house and therefore she went and staying at her mother’s place. It is stated that the petitioner did not provide maintenance to her and her daughter and therefore she filed the said maintenance case. In the cross-examination it is stated that she never refused to join the petitioner after delivery and 25 days after delivery she went to Pothangal for cradle ceremony and then shifted to Nizamabad. It is stated that she never left the company of the petitioner and she was always ready to go and live with the petitioner. It is stated that her sisters are not living at Kotgir like her. R.W.2, resident of Kotgir, deposed that the delivery of the respondent took place at Kotgir and after delivery the petitioner and respondent went to Pothangal with their daughter and they performed the cradle ceremony of their daughter and the respondent followed the petitioner wherever he lived and worked and she came back to Kotgir after six years of her delivery from Nizamabad and she fell ill. As the petitioner neglected her to get treatment, she came to Kotgir for the purpose of treatment and her parents got treated her. A panchayat was held before the caste elders of both the villages of Kotgir and Pothangal in which the petitioner admitted that he contracted second marriage and he will maintain both the wives by keeping one after another for one month each at his place. The petitioner asked the respondent to attend agricultural work and do beedi-rolling work at Pothangal, but she does not know the rolling of beedies. The court below on appreciation of the aforesaid pleadings and the evidence available on record held that the petitioner failed to prove that the respondent deserted him without any reasonable cause and accordingly dismissed the petition. Heard both the counsel and perused the order impugned and the material available on record. The point that arises for consideration in this appeal is whether the petitioner was able to establish the desertion on the part of the respondent deserting the petitioner without any cause. It is not in dispute that the petitioner and the respondent are closely related and the respondent is the daughter of petitioner’s father’s sister. According to the petitioner no dowry and ornaments were given at the time of the marriage, but according to the respondent customary gold and silver ornaments were given. Admittedly, they lived happily together for a period of five years and according to the petitioner, she left the house while she was carrying 5th month of pregnancy. But, according to the respondent just before the delivery only she was sent to her parents’ house for delivery and 25 days after her delivery she was brought back to the petitioner’s house and cradle ceremony was performed. It is stated that after the respondent went for delivery, she never turned back to the petitioner in spite of repeated requests and efforts made through caste elders, relatives and mediators. But, according to the respondent, it is stated that even after delivery she joined with the petitioner and while she was living at Nizamabad she fell ill and the petitioner himself neglected to get her treated and on the other hand he himself sent her to her parents house where she got treatment and while she was undergoing treatment, he contracted the second marriage with one Laxmi of Khadgaon village. The respondent has stated in her counter that after living for three years continuously the petitioner used to tell that she is short in height and black in complexion and asked her to give her consent for divorce for contracting second marriage for which she refused to do so. It is also stated that while the respondent was living with the petitioner at Nizamabad, she fell ill and the petitioner neglected her and failed to provide treatment and sent her to her parents’ house where she was treated by her parents and the petitioner contracted second marriage. Even R.W.2 deposed that panchayats were held at Kotgir and Pothangal and caste elders of both the parties have participated wherein the petitioner admitted of contracting second marriage and he would maintain both the wives. Under those circumstances, it cannot be said that the respondent herself voluntarily deserted the petitioner. Admittedly, the petitioner did not give any notice to the respondent asking her to join and he failed to file any application for restitution of conjugal rights and on the other hand when the respondent filed M.C.No.33 of 1999 on the ground that the petitioner himself deserted her and neglected her and her daughter, the said O.P. was filed as a counter blast. Therefore, it cannot be said that the respondent herself neglected and deserted the petitioner. Therefore, we are of the view that the petitioner is not at all entitled for a decree of divorce on the ground of desertion. We do not see any merit in the appeal. The appeal is accordingly dismissed. There shall be no order as to costs. _______________ V.ESWARAIAH, J. _______________ B.N.RAO NALLA, J. 31.3.2010 kpr