HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.223 OF 2003 Dt.10.6.2010 Between: Guduru Rama Rao ..Appellant And Guduru Sesharatnam ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.223 OF 2003 JUDGMENT: (Per Sri Justice V.Eswaraiah) The appellant herein is the husband of the respondent wife. He filed H.M.O.P.No.70 of 1994 on the file of the Principal Senior Civil Judge, Guntur, under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 (for short, the Act) seeking divorce by dissolution of their marriage. The said O.P. was dismissed by order and decree dated 5.10.1998. Against which, the husband filed this appeal. The parties are hereinafter referred to as they were arrayed before the court below for the purpose of convenience. It is the case of the petitioner that their marriage was performed on 13.6.1983 at the house of the parents of the respondent at Penumuli village as per Hindu rites and customs and the petitioner also is native of the same village. After the marriage, the respondent joined the petitioner and the marriage was consummated. The petitioner was an agriculturist and both of them are living in Penumuli village. In 1984, the petitioner got employment as Store Keeper in Ramco at Mangalagiri and used to travel every day from Penumuli to Mangalagiri to attend his duties. It is stated that in his absence the respondent used to pick up quarrel with his mother and used to go to her parents house in the same village. Once she left in January, 1986 and in February 1986 he shifted his house from his native place to Pedavadlapudi by taking a house on rent and began to live along with the respondent. They lived happily for some time and thereafter the respondent started to pick up unnecessary quarrels with the petitioner and repeated her behaviour to go to her parents’ house even without informing him. No children were born to them. The petitioner could bear the respondent with the fond hope that she may mend her behaviour and lead happy marital life with the petitioner. In the month of March, 1992 while he was away on duty, the respondent without informing him having locked the house went to her parents house. Immediately, the petitioner along with the owner of the house, Anne Prasad went to the respondent’s parents house at Penumuli and asked her to come along with him, but she gave the key of the house and declared that she would not join the petitioner. Her parents also supported her and stated that she would not join him. Subsequently also he requested her to come and join him for which she flatly refused to do so without assigning any valid and cogent reasons. The petitioner also sent mediators – P.W.2, Challgundla Bhaskara Rao and other village elders to the respondent requesting her to rejoin him, but she refused to join. Thus, it is the case of the petitioner that the respondent deserted the petitioner in March, 1992 without any justifiable cause. Counter has been filed by the respondent denying all the averments made in the O.P., seeking divorce and it is stated that at the time of the marriage her parents gave Rs.50,000/- cash towards pasupukumkuma and household articles like T.V., Mixi, Gas connection etc. But the petitioner addicted to vices and spend money lavishly and demanded to bring additional amount from her parents and her parents having six daughters and one son expressed their inability to give amount and in the month of March, 1992 the petitioner himself with the help of his mother and brother necked out the respondent and his parents also ill-treated her on the ground that no children were born to her and they have also proposed to remarry the petitioner after sending her to her parents house. It is stated that she always ready and willing to lead marital life and the petitioner himself neglected her. The petitioner himself was examined as P.W.1 and the mediator was examined as P.W.2 and no documents were marked. On behalf of the respondent, the respondent was examined as R.W.1 and the village elder was examined as R.W.2. A letter, dated 3.8.1993, written by a common relative of both the parties was marked as Ex.B-1 and an anonymous letter written to the father of the respondent threatening to give divorce was marked as Ex.B-2. The learned Principal Senior Civil Judge, Guntur, after considering the point whether the marriage of the petitioner, which was performed on 13.6.1983 with the respondent, is liable to be dissolved under Section 13 (1)(i-b) of the Act, dismissed the O.P. by order, dated 5.10.1998. Heard both the learned counsel. The only point that arises for consideration in this appeal is whether the petitioner was able to establish desertion that his wife deserted him without any reasonable cause and without his consent and against his wish. The only allegation made in the O.P. is that she used to pick up quarrel with the parents of the petitioner and go to her parents’ house at Penumuli village. As there was inconvenience for the petitioner to go Mangalagiri where he got job, he has shifted his residence from Penumuli to Pedavadlapudi in February, 1986 and both of them lived together happily for a period of six years. It is stated that only in 1992 she left voluntarily by locking the house and immediately he went to her parents house along with the owner of the house, namely, Anne Prasad and she gave the keys only, but refused to join the petitioner and the mediation through P.W.2 and others was also failed. Therefore, it is the case of the petitioner that the respondent deserted the petitioner without any justifiable cause. On the other hand, it is the case of the respondent that she was necked out in March, 1992 as her parents having six daughters and one son expressed their inability to meet the additional demand of dowry. The petitioner in the evidence stated that the respondent used to demand many luxurious items, but he could not meet her demand and she used to quarrel unnecessarily with his parents and the same attitude continued even after shifting of his house. The so-called demand of the respondent with regard to luxurious items is not made as an averment in the petition and it is only stated that she voluntarily left without any reason and she refused to join the petitioner. P.W.2, the distant relative of the petitioner and elderly person of the village stated that there were disputes among the parents of the respondent and in fact he gave evidence in the maintenance case in favour of the petitioner and that he never mediated. Admittedly, P.W.2 is not residing in Penumuli village and in fact he was residing at Guntur from 1979 to 1981 and thereafter shifted to Pedavadlapudi for looking after his rice mill business.. He stated that he did not know the owner of the house of the petitioner. During the years 1995 and 1996 he was residing in Enturu for doing rice mill business. He being the relative does not know the real reason that why the respondent left the company of the petitioner. The only averment made in the petition was that she left without informing him. The petitioner never examined the owner of the house. The reason narrated by P.W.2 is that disputes arose between them with regard to the purchase of gold ornaments, as the petitioner was unable to meet her demand. It was only the information said to have been made by the petitioner. But it is not the case in the O.P. Therefore, obviously this is not the reason for her desertion. In fact, Ex.B-1 letter addressed by the well-wisher and a common relative of both the parties goes to show that the respondent revealed her difficulties put to her by the in-laws and all those things have been brought to the notice to the parents of the petitioner and both of them have to live with responsibility and he advised to forget the old things and go to Madras for the purpose of expert treatment to have children. On the other hand, the respondent has categorically stated in her deposition that after the marriage she joined the petitioner in her in-laws house in Penumuli village and their family is a joint family and they used to live along with the elder sister of her mother-in-law, namely, Guduru Annapurnamma and her husband was also staying with them in the said house. Her father-in-law died before the marriage and she could not have children even after three years of the marriage in spite of medical consultation. It is stated that the petitioner used to quarrel on several occasions demanding for additional dowry and her parents were not in a position to give additional dowry and they used to ill-treat her and the same was informed to one Balaramakrishana Choudary, who came to her house and the said Balaramakrishna Choudary wrote Ex.B-1 letter advising them to go to Madras and get them examined by efficient doctor for children and do not quarrel with each other. It is also stated that Ex.B-2 letter got written by unknown person threatening her to give divorce. It is stated that she was harassed and she only necked out by the petitioner. It is stated that there was some disputes with regard to criminal cases among her family members and the petitioner. It is stated that she never used to go to her parents’ house without informing the petitioner and all the averments made in the petition are denied. As the petitioner failed to take her back and filed the O.P. seeking divorce, then only she filed maintenance case, as she was unable to maintain herself. She also stated that no mediation took place to get her back to matrimonial house. She denied all the suggestions made by the petitioner in her cross-examination with regard to her leaving the house. R.W.2, the village elder is a known person to both the family states that he came to know that the petitioner alone sent her away and the father of the respondent has requested him to act as mediator before filing maintenance case and he along with M.Venkatrayya, Bedduluri Sambayya, Konduri Gantayya and K.Koteswara Rao went to the house of Challaguntla Bhaskararao of Vadlamudi and sent for the petitioner to his house. When he enquired the petitioner as to why he deserted the respondent, he first told that the respondent has no children and later told that if he has given Rs.25,000/- he would take back the respondent and then they returned back and informed the same to the father of the respondent at Penumuli. The father of the respondent told them that he has already gave cash of Rs.50,000/-, a watch and a gold ring and also household articles worth Rs.10,000/- at the time of marriage and unable to pay Rs.25,000/- as demanded by the petitioner. During the course of mediation, petitioner did not make any complaints or allegations except stating that she has no children. He also stated that the father of the respondent informed him that the respondent was necked out from the matrimonial house of the petitioner. The perusal of the oral evidence adduced by both the parties makes it clear that the pleadings of the petitioner in the O.P. are contrary to the evidence that has been deposed before the court and the evidence of P.W.2 does not inspire any confidence, as he is a relative of P.W.1. Whereas the evidence adduced by the respondent goes to show that she was necked out as her parents were unable to accept the demand of additional dowry and no children were born to her. Therefore, we are of the opinion that the petitioner was unable to establish that the respondent herself deserted him without any reasonable cause as alleged. On the other hand, the reason for deserting the respondent is that she is not having children and also not bringing additional dowry as demanded by him. Admittedly, the petitioner never addressed any letter asking her to join him and no notice has been issued except alleging that he sent mediation and he has not filed any application for restitution of conjugal rights. As the petitioner has failed to maintain the respondent, she has no other go except filing maintenance case. Though she made allegation that the petitioner is having relationship with one Laxmi, but nothing has been stated in the counter with regard to the said allegation. As the respondent is ready and willing to join the petitioner, it cannot be said that she has deserted the petitioner without any reasonable cause. Accordingly, the petitioner has failed to establish that the respondent deserted him without any reasonable cause. In the light of the aforesaid facts and circumstances of the case, we are of the opinion that the court below has rightly appreciated the evidence available on record and rightly dismissed the O.P. filed by the petitioner. The appeal is accordingly dismissed. No order as to costs. ________________ V.ESWARAIAH, J. ________________ B.N.RAO NALLA, J. 10.6.2010 kpr