HON’BLE SRI JUSTICE B. PRAKASH RAO and HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A. No. 1532 of 2001 DATED: 29.12.2009 Between: Injamoori Anitha .. Appellant And Injamoori Sudharshan .. Respondent JUDGMENT:- (Per Hon’ble Sri Justice G.Bhavani Prasad) The grant of divorce in favour of the respondent-herein in O.P. No.38 of 1998 on the file of the Senior Civil Judge, Nizamabad, by the order dated 16.01.2001 led the aggrieved appellant-wife to file the present appeal. The respondent-husband filed a petition for divorce contending that after the marriage with the appellant herein on 19.05.1985, they lived together happily for six months. Thereafter, the appellant herein started visiting her parents very frequently without informing the respondent herein or his parents. He claimed that notwithstanding any panchayats and advice by the caste elders, the appellant herein ultimately left him on 20.10.1986 without information to him or his parents. He claims that his wife refused to join him in spite of his going to the house of his wife’s parents on 29.10.1986 and in spite of further approaches through the caste elders. He further claimed that the wife was claiming maintenance as per the order in M.C. No.41 of 1989 without coming back to him. Hence, he sought for divorce. The wife, who is the appellant herein, contested the request contending that the marriage and their living together for sometime are admitted while the respondent herein had a second marriage in 1988 due to which the wife had to go back to her parents’ house. The couple was blessed with a son, who was aged 12 years by the time of this petition, but the husband never attempted to take back his wife or the son. Hence, the wife sought for dismissal of the petition. During the enquiry, the trial Court had examined PWs.1 and 2 and RWs. 1 to 3 and Ex.X1 was marked. The trial Court, in the impugned order, noted that the marriage and separate living of the spouses since 29.10.1986 are not in dispute and the only reason claimed by the wife to justify her separate living was the alleged second marriage by the husband and it was further claimed that the husband and the second wife also had three children through their relationship. The trial Court found that the husband filed a petition for divorce almost about 12 years after the separation of the spouses and it also found that the admitted separate living since 1986 and the filing of the maintenance case show that there was no love lost between the couple. The trial Court also observed that notwithstanding the offer of RW1 during the evidence that she was prepared to join the company of the husband, there was no other evidence of her ever attempting to go back to the husband and the trial Court also noted that the claim of PW1 that the case filed against him for bigamy ended in acquittal was not contested. The trial Court further found that there were no details of the alleged second marriage. Therefore, concluding that the wife deserted the husband since 1986, the trial Court granted the relief of divorce to the husband. The complaint of the wife in this appeal is about the trial Court not noting that the husband stated in his evidence as PW1 that he was not prepared to receive his wife and that the wife was compelled to live separately because of such refusal. It was also claimed that the wife positively stated in evidence about his adamant nature in spite of her efforts more than 10 times to rejoin her husband by going to his house and as it was her husband, who married again and had three children through the second wife, the conclusion of desertion by the wife was unjustified. As the wife was always ready to join the husband, the divorce petition ought to have been dismissed. The learned counsel for both the parties are heard at length. The only point for consideration is whether the husband is justified in seeking the relief of divorce from the wife? The husband as PW1, reiterated his claims and stated that the basic reason for separation of the couple is her frequent visits to her parents’ house without any information to the husband or his parents in spite of the panchayats and advices by caste elders. He also stated about the maintenance case filed by the wife, and the orders therein against which the revision filed before the District & Sessions Judge, Nizamabad is since then pending. He denied his second marriage with one Gangamani and having three children through her and also stated that the complaint filed by the wife alleging such second marriage ended in acquittal, and though the judgment of acquittal was not before this Court, such claim of PW1 was left unrebutted and uncontroverted. Though the husband did not give any notice to the wife asking her to come back as admitted by the husband as PW1, the husband, who claimed that he never harassed the wife also further claimed that he was paying maintenance awarded by the Magistrate’s Court. Though he did not take any steps to get the custody of the son born through the wedlock between the parties, his evidence before the trial Court does not in any manner suggest the possibility of the fault for separation lying with him. His father was examined as PW2 before the trial Court and he corroborated the claims of the husband. He also denied the husband getting married again and having three children through the second wife, and though the evidence of PWs.1 and 2 is interested, it cannot be straight away discredited as false in view of the circumstances arising out of the evidence of the wife also due to which it can be considered that it corroborates the claims of PWs.1 and 2. The wife as RW1, while claiming that PW1 went for second marriage in 1988, did not give any details of the date or place of the marriage or any other acceptable circumstances probablizing such second marriage. The wife did not attribute any specific reason for the husband not looking after her properly after three years of their marriage and after having a son, and she had to admit that the complaint filed by her with the police, Dichpally alleging an offence under Section 498-A IPC against the husband and his parents ended in acquittal on merits. She also had to admit that the husband was paying the maintenance amount since five months prior to her evidence and she had not stated that she was a witness to the second marriage. The wife filed a case for maintenance only in 1997 and was silent in spite of their separation since 1986 and in spite of the alleged second marriage in 1988, which also is not natural. The wife as RW1 admitted that she did not file any petition for restitution of conjugal rights in spite of separate living for about 12 years and she did not say anything about the second marriage being witnessed by any person who has either attended the said marriage or has any personal knowledge about the same. More reliance was placed by the wife before the trial Court and here also on the evidence of RW2 who marked Ex.X1 - copy of the admission register of his school to show that one Injamoori Sudershan (a name identical to that of the husband) admitted his daughter, namely Injamoori Madhavi in the school on 14.06.1995. However, his own evidence that there was no student by name Injamoori Venu studying in their school in 3rd class shows that the claims of the wife in this regard were also incorrect and her application to summon the school records speaks about one Injamoori Srinivas, S/o Sudershan studying 3rd class in the said school. It was not even suggested to RW2 that there was any boy with the name of Srinivas S/o.Sudershan studying in the school. That apart, RW2 admitted that he was not the clerk concerned, who was present at the time of the admission of Madhavi in the school, and he had also admitted that there are several persons with the surname Injamoori or with the name Sudershan or Madhavi. It cannot be said from such evidence that the student Madhavi can be identified as the daughter of the respondent herein without any doubt. The witness also had to admit that no birth certificate or caste certificate was produced at the time of admission of Madhavi into the school and thus though the evidence may arouse some suspicion against the husband, it cannot be taken as a conclusive proof of the husband having any children through his second marriage one of whom was admitted in the school in which RW2 was working. RW3, who was examined by the wife to depose about the disputes between the couple, had admitted that he had no personal knowledge about the second marriage of PW1 and that there were no panchayats regarding any disputes between the husband and the wife. He also admitted that he had no personal knowledge of the relations between PW1 and RW1 contrary to his claims in the chief- examination, and thus does not provide any acceptable material to conclude that the husband is responsible for separation of the wife and he had married again. With such material on record, the trial Court cannot be considered unjustified in concluding that the separate living of the wife from the husband amounts to desertion, more so, when the wife herself took up a positive defence that she went away from the husband due to the second marriage and failed to prove such second marriage. The broad human probabilities arising out of the evidence, thus, do not justify separate living of the wife from the husband for more than 12 years notwithstanding the absence of any attempts by the husband to get back the wife or the son through the process of law in the meanwhile. Such desertion, being one of the permissible grounds for dissolution of the marriage under the Hindu Marriage Act, the conclusion of the trial Court cannot be interfered with in this appeal. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs. ___________________ B. PRAKASH RAO, J 29th December, 2009 ____________________ G. BHAVANI PRASAD, J bcj