1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.163 OF 2010. Baburao S/o Gopalrao Suryawanshi ... Appellant. Versus Sow. Kaveri W/o Baburao Suryawanshi. ... Respondent. ... Mr.R.R.Suryawanshi, advocate for the appellant. Mr.Sachin Deshmukh, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 04.10.2010. PER COURT 1. The appellant is the husband of the Respondent. The petition filed by the appellant for divorce on the ground of cruelty and desertion has been dismissed by the trial Court as well as the appellate Court. Mr.Suryawanshi, 2 learned counsel for the appellant contended that since 1994, the Respondent was living separate and as such the appellant had filed the petition for restitution of conjugal rights. In the year 1997, the Respondent filed an affidavit stating that he is ready to cohabit with the appellant. In view of the said affidavit, the appellant withdrew the proceedings. The Respondent stayed with the appellant only for a period of four (4) months and thereafter again she was residing separately. The present proceedings for divorce were filed in the year 1998. Mr.Suryawanshi, learned counsel states that there was desertion since 1994 to 1997 which is for a period of more than two (2) years and as such on that ground is entitled for decree of divorce. According to him, even the cruelty at the hands of the Respondent has been proved. 2. With the assistance of the learned counsels for the respective parties, I have gone through the judgments delivered by both the Courts. It is a fact that in the year 1997 in the proceedings U/s 9 of the Hindu Marriage Act, 3 the Respondent had given an affidavit that she is ready to cohabit with the present appellant. Pursuant thereto, the appellant withdrew the proceedings and the Respondent stayed with the appellant for four months only. As such the present proceedings are filed in the year 1998. Though there may be desertion from 1994 till the date of filing of petition U/s 9 of the Hindu Marriage Act but the said act of desertion was condoned in the year 1997 when the appellant cohabited with the Respondent for four (4) months. As such period of desertion from 1994 till the date of filing of the petition U/s 9 can not be considered. The present petition is filed in the year 1998 and even a period of one year has not lapsed when the appellant and Respondent resided separately. As such the ground of desertion is not available to the appellant. The next ground contended was of cruelty. Both the Courts on appreciation of evidence have come to the conclusion that the petitioner could not prove cruelty on the part of the Respondent. They have discussed the evidence regarding the act of taking signature of the Respondent on blank 4 paper. 3. In light of the said concurrent findings of facts, no case for interference is made out. The Second Appeal as such is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/sa163.10