THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE G V SEETHAPATHY C.M.A. NO. 2528 OF 2001 JUDGMENT: (Per Sri Justice B Prakash Rao) Heard both sides. The appellant who is husband filed the present appeal inter-alia seeking to assail the order dismissing the application purported to have been filed under Section 13 of the Hindu Marriage Act, 1955 on the ground of desertion and cruelty as per the judgment and decree passed in O P No. 33 of 1997 dated 10.4.2001 on the file of the Principal Senior Civil Judge, Tirupati. The facts in brief which are necessary at this juncture are that the parties are married on 25.3.1993 and according to the appellant, immediately thereafter i.e., on 15.8.1993, the respondent-wife left the matrimonial house and since then staying away. The case of the appellant that there being no proper cause or justifiable reason for staying away, clearly amounts to desertion and having regard to the nature of the cruelty he has been put to, he is entitled to divorce. The respondent contested the case denying about the entire allegations as contended in the petition and according to her it is only due to the harassment by the father of the petitioner and his sister, she expressed her inability to stay together and that she has been further beaten and driven out of the house and in spite of the repeated requests, the appellant-husband did not met her, hence, she is justified for staying away. On these and other allegations as contended from the pleadings, the Court below framed the points for consideration and parties went into trial where the appellant examined himself as P W No.1, and also examined P W 2 to P W 5 and marked Ex.A1 to Ex.A18 and Ex.X.1. The respondent examined herself as RW.1 and examined R.W.2 and R.W.3. Considering the aforesaid evidence and material on record, the Court below did not find favour with the grounds shown by the appellant herein and dismissed the application, hence, the appeal. The only short ground on which the present appeal sought to rest is non consideration of the evidence. Further having regard to the fact that crucial material in Ex A1 to Ex.A8, the letters written by the respondent, which would have helped in establishing the appellant’s case but the same remained unconsidered, nor any valid reason is given to reject the same, hence, the matter requires reconsideration. The aforesaid submissions were repelled on behalf of the respondent. In view of the aforesaid submissions the point which arises for consideration is whether in the facts and circumstances, the matter requires re- examination from the angle of consideration of all the documents filed on behalf of the appellant. Shorn upon the details in the present case as put-forward by both the sides, the fact remains that the appellant is trying to rest his case primarily on documents in Ex A1 to Ex.A8. The Court below upon consideration of the same, did not sought to place reliance on the same on the ground that they are not proved, therefore sought to exclude from consideration, whereas the appellant contends that if an opportunity is given, the same can be proved and same constitutes a valid basis for coming to a right conclusion. Having regard to the same, this Court deems it fit that an opportunity should be given since the documents are rejected only on the ground that the same are not proved. Accordingly, the judgment and decree dated 10.4.2001 is set aside and the appeal is allowed and matter is remitted back to the Court below for afresh consideration in accordance with law after giving due opportunity to both sides. We make it clear that both the parties are at liberty to take all such further appropriate steps including adducing any further evidence and filing material in support of their respective cases. No costs. _______________ B PRAKASH RAO,J ________________ G V SEETHAPATHY,J DATE: 27.1.2010 TVK THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE G V SEETHAPATHY C.M.A. NO. 2528 OF 2001 DATE: 27.1.2010