THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.1438 of 2001 ORDER: (per the Hon’ble Sri Justice V. Eswaraiah) The appellant is the husband, who filed O.P.No.17 of 1998 on the file of the Senior Civil Judge, Kavali, Nellore District, for dissolution of the marriage between himself and his wife, the respondent herein. The said O.P. was dismissed by order, dated 27-01-1999, against which, the present appeal is filed by the husband. The parties are, hereinafter, referred to as they are arrayed in the O.P. It is the case of the petitioner in the O.P. that the marriage between himself and the respondent-wife was solemnized on 24-11-1993. After the marriage, the respondent joined with the petitioner and lived together for sometime. It is stated that the respondent used to go to her grandmother’s house at Kavali without informing him or his parents and used to weep and demand now and then expressing desire to go to her parent’s house, otherwise, she would commit suicide. Accordingly, the petitioner took the respondent to her parents’ house at Mangalagiri and left there. Thereafter, the respondent did not join the petitioner. But, on the other hand, the respondent alone filed a complaint before the Superintendent of Police, Nellore, on 17-05-1994 alleging that the petitioner is harassing her for more dowry. On enquiry, the said complaint was found false. It is stated that he never demanded dowry from the respondent. But, on the other hand, it is stated that on 25-06-1994, the respondent’s father threatened the petitioner with dire consequences and the respondent has taken away the gold ornaments. Since then, the respondent is living with her parents. The petitioner got issued a registered legal notice, dated 30-01-1995, but the same was not served. Therefore, another registered notice, dated 09-02- 1995 was issued and the same was served, but the respondent has not given any reply. It is stated that prior to filing of the present O.P., the petitioner also filed O.P.No.18 of 1995 for restitution of conjugal rights and the same was decreed on 04-03-1996. After getting the said decree, legal notice, dated 11-04-1996, was also got issued to the respondent to join him at Kavali but the respondent did not turn up. On the other hand, the respondent filed criminal cases against the petitioner, and also maintenance case in M.C.No.29 of 1995 on the file of the Judicial Magistrate of First Class, Mangalalgiri, which was dismissed by order, dated 02-01-1998. It is further stated that the respondent intentionally deserted the petitioner and left his company. Though the petitioner has taken several steps by way of meditation and filing cases against the respondent, all his attempts to make the respondent to join him were failed. The respondent has not taken any steps to join the petitioner for restitution of conjugal rights and, therefore, after issuing the notice, the said O.P. was filed for dissolution of marriage. The appellant was examined himself as PW.1 and stated that after marriage on 24-11-1993 at Kavali as per the Hindu rights and customs, the respondent joined him and lived happily for a period of three months. Subsequently, the respondent used to go to her parents house frequently and the petitioner used to get her back. Whenever she used to come to the house of the petitioner, she used to stay four or five days and again she used to go back to her parents’ house. The father of the respondent filed a petition against the petitioner before the Superintendent of Police stating that he is harassing the respondent. The Superintendent of Police, after making enquiry, dismissed the said petition treating it as false. The petitioner gave notice to the respondent for securing her company. But, she failed to join him. The maintenance petition filed by the respondent was dismissed. The petition filed by him for restitution of conjugal rights in O.P.No.18 of 1995 was allowed. In spite of issuance of notice to the respondent, she failed to join him. Therefore, he is entitled to seek divorce. As the respondent was set ex-parte, there is no cross-examination. The court below dismissed the said O.P. on the ground that the desertion and cruelty have not been established. Heard the learned counsel appearing for the appellant-petitioner. In spite of substituted service, none appears for the respondent. The only question that arises for consideration is as to whether the petitioner is able to establish the grounds alleged by him under Section 13 (1) (ia) (ib) of the Hindu Marriage Act, 1955 i.e., cruelty and desertion. Insofar as the cruelty is concerned, it is alleged that the respondent used to go frequently to her parent’s house and she never used to come back and, therefore, the attitude and action of the respondent in not joining the petitioner for years together constitutes cruelty. Insofar as the desertion is concerned, no where in the petition the petitioner has stated when the respondent left his company, except stating that on 25-06-1994, the respondent’s parents stayed in the house of a driver at Mangalagiri, that the respondent’s father threatened the petitioner with dire consequences and the respondent has taken away the gold ornaments. No where it is stated when the respondent left the company but it is stated that the respondent is living with her parents by filing false cases and the fact remains that for the first time he has given legal notice on 30- 01-1995 that means the respondent left the company prior to 30-01- 1995. Whether the respondent left marital house or whether the petitioner driven her out of the house is not known. The petitioner alone examined himself as PW.1. There is no other evidence for corroborating his evidence. Even, there is no circumstantial evidence except his sole testimony. Even assuming that the sole testimony deposed by the petitioner is true and correct, the fact remains that he has not stated the date of desertion and the communication of the order in O.P.No.18 of 1995 relating to restitution of conjugal rights. Insofar as the cruelty is concerned, except stating that the respondent’s father gave complaint before the Superintendent of Police and the said complaint was enquired into and dismissed, no other averments have been made by him. Therefore, even assuming that the entire deposition is taken into account as true and correct, we are of the opinion that no grounds have been made out either with regard to desertion or cruelty. Therefore, we are of the opinion that the court below rightly dismissed the said application. As such, we do not see any merits in the appeal and the same is liable to be dismissed. Accordingly, the appeal is dismissed. There shall be no order as to costs. ________________ V.ESWARAIAH, J _________________ B.N.RAO NALLA, J Dated: 25-02-2010 Prv