THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE G V SEETHAPATHY C.M.A. NO. 2486 OF 1999 JUDGMENT: (PER SRI JUSTICE G V SEETHAPATHY) This appeal is directed against the orders dated 9.6.1999 in O P No. 79 of 1991 on the file of the Additional Senior Civil Judge, Ananthapur. The said petition was filed by the respondent-husband under section 13 (1) (b) of the Hindu Marriage Act, seeking divorce, which was allowed by orders dated 9.6.1999 granting decree of divorce and dissolving the marriage between the appellant and respondent. 2. Heard the learned counsel for appellant and none appeared for respondent. 3. The respondent herein is husband of the appellant, their marriage took place in the year 1974 and they were blessed with a daughter by name Suneetha. According to the respondent-husband, ever since the marriage, the appellant was not willing to stay with him and members of his joint family and under the influence of her parents who are affluent she was insisting that he should be separated from the joint family and live in a separate residence. The respondent-husband further alleges that subsequently in the year 1987, the appellant has deserted him and left the matrimonial home for no proper reason and started staying with her parents and in spite of the respondent-husband issuing a legal notice dated 13.3.1991 the appellant did not rejoin him. 4. The appellant herein filed a counter, inter-alia, alleging that the husband was addicted to vices of drinking and under the influence of alcohol used to beat her and subjected her to cruelty and ill-treatment. It is further alleged that in the year 1990, on the occasion of the marriage of his sister by name Jhansi, the respondent beat the appellant in the presence of the relations and others, and subjected her to humiliation and subsequently the respondent and his mother have necked her out of the house. She therefore contends that she never deserted the matrimonial home of the respondent but she was sent out of the house. 5. In support of their respective contentions, the respondent husband examined himself as P W 1 and examined his mother as P W 2 and an Advocate Commissioner, who took inventory of the articles, as P W 3 and marked documents in Ex A1 to Ex A5. The appellant herein was examined as R W 1 and marked Ex B1 to Ex B7 photos and Ex B8 to Ex B16 the corresponding negatives, on her behalf. 6. On consideration of the evidence available on record, the learned Additional Senior Civil Judge held that the appellant herein herself deserted the respondent and left the matrimonial home for no valid reason and appellant failed to establish that she was subjected to cruelty and that she was necked out of the house as alleged by her. Accordingly, the respondent herein was held entitled for the relief of divorce on the ground of desertion by the appellant and the marriage was duly dissolved. Aggrieved by the same, the wife preferred the present appeal. 7. It is not in dispute that the marriage of the appellant and respondent took place in the year 1974 and during the wedlock they gave birth to a daughter viz., Suneetha. It is also not disputed that for some years after marriage, they lived together in the joint family at the house of the appellant. Subsequently there has been estrangement between them. The appellant contends that she was insulted in the presence of relatives and friends on the occasion of the marriage of respondent’s fifth sister viz., Jhansi in the year 1990 and she was forcefully driven out of the house. She further alleges that even prior to that, she was subjected to cruelty and ill-treatment by respondent who was addicted to vice of drinking and also under the influence of one Lingamma who was working as a cook in the house of the respondent, with a view to get rid of the appellant, so that he can marry another girl. 8. The respondent on the other hand alleges that the appellant who is from a very rich and affluent family is not interested to live as a member of the joint family of the respondent i.e., together with his parents and brothers and ever since marriage, she has been beseeching the respondent to set up a separate residence for which respondent did not agree and ultimately in the year 1987, the appellant under the influence of her parents left the matrimonial home and did not turn up in spite of the efforts made by him to get her back. In support of his contention, besides examining himself as P W 1, the respondent examined his mother also as P W 2 who fully corroborated the testimony of P W 1. Simply because P W 2 is closely related to P W 1, her evidence cannot be brushed aside on the ground of relationship, because in matters like the present one, the dispute involved being matrimonial, it is only the close relations and kith and kin who happen to reside in the house, would be the most competent witnesses who can speak to various events that have taken place. The testimony of P W 1 and 2, on a careful scrutiny by the trial Court, was found to be unshaken and their evidence clearly established the fact that till 1987 there was no serious dispute, except that the appellant has been demanding the respondent to set up a separate residence for which the respondent was not agreeing and ultimately in the year 1987 the appellant has chosen to leave the matrimonial home in view of the persistent refusal by the respondent to live separately from his parents. 9. The testimony of P W 1 and 2 is fortified by the admissions made by the appellant-R.W.1 in her evidence and also by her conduct. In the counter affidavit, the appellant-wife has specifically pleaded that on the occasion of the marriage of respondent’s fifth sister by name Jhansi in the year 1990, the respondent beat her in the presence of relatives and friends and subjected her to shame and humiliation and subsequently the respondent and his mother have driven the appellant out of the house. However, strangely she has given a go-bye to the said version in her evidence as R W 1 and did not refer to any such incident at the marriage of the respondent’s fifth sister. She merely stated in the evidence that in the year 1987 she was sent out of the house, she did not disclose any proximate reason or occasion nor she referred to any particular incident or event which has led to driving her out of the matrimonial home. The fact that the appellant herself as R W 1 has not chosen to support the version alleged in her counter indicates that the version in the counter is rather doubtful. She has not examined any witness to speak to the alleged incident of beating or humiliation on the occasion of the marriage of the sister of respondent, though according to her the said incident took place in the presence of number of relatives and friends. She has also not led any evidence to show that the respondent was in the habit of subjecting her to cruelty and ill treatment under the influence of alcohol or otherwise. Though as contended by the learned counsel for appellant such incident which might have taken place within the privacy of the house and therefore might not have attracted the attention of the others, still the conduct of the appellant in not reporting to any one about any such incident at any point of time would go to show that such incidents as alleged by the appellant might not have taken place in the manner alleged. If really the appellant was subjected to cruelty and ill treatment for such a long time by the respondent under the influence of alcohol or under the influence of a cook by name Lingamma with a view to see that the appellant goes out of the house so that respondent can marry some other girl, the appellant would not have kept quiet without informing her parents or other close relations or the neighbours or the elders of the village or Police. She has admittedly not made any complaint at any point of time and no complaint was given to the Police at any point of time. 10. She only relied upon the photographs in Ex B 1 to B 7 which according to her would show that even in the year 1990 when the said photos were taken on the occasion of the marriage of the sister of respondent, the appellant and respondent were present on the said occasion and the said circumstance belies the contention of the respondent that the appellant has deserted and left the matrimonial home in the year 1987. As pointed out by the learned Senior Civil Judge, the photographs in Ex B1 to B7 do not prove the factum of the appellant and respondent living together in the year 1990. It is quite possible that the appellant has attended the marriage of the sister of the respondent which took place in the year 1990. The photographs in Ex B1 to B7 do not show that the appellant and respondent were together even at the time of the occasion of the marriage of sister of respondent. Except filing the photographs in Ex B1 to B7 which do not prove the alleged living of the appellant together with the respondent in the matrimonial home, the appellant has not adduced any other evidence oral or documentary in support of her contention that she was residing in the matrimonial home along with the respondent till 1990 and that she was necked out of the house only thereafter. On the other hand after receiving the notice, the appellant has filed a suit on behalf of her daughter seeking partition of the family properties and separate possession of the share of the daughter. The said circumstances would also indicate that the appellant was not interested in coming back and rejoining the respondent in the matrimonial home. Admittedly, the appellant and respondent have been residing separately since 1987 and there has been no effort by the appellant at any time to get back to the matrimonial home and admittedly she has not issued any notice to the respondent expressing her intention and willingness to rejoin him or demanding that she be taken back. She has also not filed any petition for restitution of the conjugal rights and has been staying away from the respondent along with her daughter since 1987 and subsequent to filing the petition for divorce, she has filed a suit in O S No.2991 of 1991 seeking partition and separate possession of the share of her daughter in the family properties. 11. The Supreme Court in Sanath Kumar Agarwal Vs. Nandini Agarwal[1] held that ‘the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts and by conduct and expression of intention, both anterior and subsequent to the actual act of separation’. In the present case, the conduct of the parties and probabilities apart, the evidence on record would clearly establish that the appellant deserted the respondent and left the matrimonial home in the year 1987, for no valid reason except that the respondent refused to set up a separate residence away from the joint family. On the other hand, the evidence on record and conduct of the parties would show that the appellant who has voluntarily left the matrimonial home was persisting to stay away from the respondent along with the daughter and was not interested in rejoining the respondent. The appellant has also failed to establish that she was subjected to any ill-treatment or cruelty by the respondent-husband. In fact the said allegation made in the counter has been given a go-bye at the time of her evidence. 12. Under these circumstances and in view of the long separation between the husband and wife over a span of almost a quarter of a century, as rightly observed by the trial Court, chances of their reunion have become very bleak. The trial Court is therefore justified in granting the decree of divorce duly dissolving the marriage between the appellant and respondent on the ground of desertion by appellant-wife, which ground has been duly established by evidence. The impugned order dissolving the marriage between the appellant and respondent by decree of divorce does not call for any interference by this Court. In the result the appeal is dismissed. However, in the circumstances there shall be no orders as to costs. _______________ B PRAKASH RAO,J _________________ G.V. SEETHAPATHY,J DATE: 18.1.2010 TVK THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE G V SEETHAPATHY C.M.A. NO. 2486 OF 1999 Date: 18.1.2010 [1] 1990 (1) SCC 475