THE HON'BLE SRI JUSTICE V.ESWARAIAH And THE HON'BLE SRI JUSTICE B.N. RAO NALLA C.M.A.No.2973 of 2002 JUDGMENT: The appellant is the husband of the respondent. O.P.No.123 of 1999 filed by the appellant under Section 13(1) (ib) of the Hindu Marrige Act, 1955 (for short ‘the Act’) seeking divorce on the ground of desertion, was dismissed by the Additional Senior Civil Judge, Eluru, by order dated 22.07.2002. Aggrieved by the same, the present appeal is filed by the husband. It is the case of the appellant that their marriage took place on 3.03.1990 at Lord Venkateswara Swamy Temple, Dwarakatirumala, and soon after the same was consummated. Out of their wedlock a male child, namely Vamsee was born on 16.01.1991 and a female child, namely, Vasavi was born on 22.8.1992. At the time of marriage, the parents of the respondent gave her Ac.1.20 cents towards paspukumkuma, and followed all other rituals. The appellant filed the present O.P. stating that in the year 1995 the respondent was given treatment for rheumatic pains. Though the treatment was continued up to March 1997, the respondent could not recover. While so, in March 1997, the father of the respondent came to his house and requested him to send the respondent to their house for change of climate, which may make her free from pains. Thereafter she did not come to her matrimonial house and join with him. Though the mediators and the appellant personally requested the respondent to come back and live with him, she did not return back. It is further stated that the father of the respondent insisted the appellant to settle at Dammapet. He expressed his willingness to live separately from his parents, if the respondent joins him. But the respondent and her parents refused for the said proposal. Since then the minor children are with him and that they are being educated by him. The respondent neither cared the welfare of the children nor visited and saw the children after March 1997. All his efforts to get her home have been failed and therefore the appellant issued legal notice under Exs.A.1 and A.2. After receiving the notices she filed M.C.No.5 of 1999. Therefore, he filed the above O.P., seeking divorce. The respondent filed counter. Except admitting the date of marriage and birth of children, all the allegations have been denied. She stated that after the delivery of female child, she was physically depressed. The parents of the appellant are employees, and there was nobody to help her in the house and she alone has to do all the household work. At the time of pregnancy also she could not find any time to eat properly and she was never given any care. As a result, post period pregnancy created physical problems for the respondent. Though the parents of the appellant are working in the Government hospital, no treatment was offered to her. When her condition was serious, she was admitted in the Government hospital and informed to her parents. Her father also incurred expenditure for her treatment. When she was taken by her father the appellant never visited her and enquired about her health condition. After her recovery, her parents dropped her at the house of the appellant at Chintalapudi, but the appellant and his parents refused her to stay at their home and dropped her back. Therefore, she was residing at her parent’s house. It is stated that the appellant himself neglected her and there was no other go for her except staying at her parent’s house. It is stated that after filing the maintenance case only the appellant filed the O.P. To substantiate his plea, the appellant himself was examined as PW.1. He also examined his father as PW.2 and the Sarpanch of the Village as PW.3 and marked Exs.A.1 and A.2. The respondent reported no evidence. The appellant as PW.1 stated that after their marriage, they lived happily up to 1997 for seven years. The respondent developed Rheumatic pains in the year 1995 and he got treated her till March 1997. On 30.03.1997, she went to her parent’s house and did not return back. He also approached her and asked her to come and join to him, but she did not join him stating that she would come back after her health condition is restored to the normal condition. As she failed to come even after one year he sent elders i.e., PW.3, one Madhava Reddy and Kasi for negotiations. But her father stated that the appellant must reside at her place only for which he is not inclined. Therefore, he got issued the legal notices. In his cross-examination, he admitted that himself and his parents are doing jobs and the respondent alone used to stay in the house. There were no disputes or misunderstandings between himself and his wife before separation. He does not know about the disease of rheumatic pains, but the respondent developed such disease since 1995. When she was taken to her parent’s house, he did not go to her at any time after she deserted him. But it is the case of the respondent through her cross- examination that due to the behavior of the appellant only she developed ill-health and she was taken by her father for treatment. Thereafter, the appellant never approached her, but got filed the above O.P. with a mala fide intention to have remarriage. PW.2, who is the father of the appellant, stated that the respondent left the appellant in 1996. When she got rheumatic pains, he informed the same to the father of the respondent and her father came and took her to his house. Thereafter, she did not join the appellant. PW.2 also personally went to the respondent house to get her back, but the parents of the respondent did not respond properly. Later he sent PW.3 and others for negotiations, but the respondent and their parents did not respond properly. It is stated that he has no objection if the respondent comes and joins the appellant, as she herself failed to join the appellant. Hence the O.P. was filed. But it was the case of the respondent through her cross- examination that she was neglected by the appellant and she was not provided with any treatment nor there were any negotiations through elders to take her to the appellant and she was suffering with serious rheumatic pains. At the request of the father of the appellant only she was taken by her father. PW.3 was the Sarpanch of the village at the relevant period. He stated that the respondent was residing with her parents since 1997 and he along with others went to the father of the respondent and conducted negotiations in 1998 to set right her matrimonial life and they advised to her to come and join. But she refused to follow their advise. Now the only question that arises for consideration is whether the respondent has deserted the appellant as alleged in the petition or not? As per the explanation to Section 13 (1) of the Act “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage. In the instant case, even according to the father of the appellant, on his informing to the father of the respondent that the respondent was suffering from rheumatic pains, the father of the respondent came and took her to his house, and thereafter, she did not join the appellant. Admittedly, though the appellant stated in his O.P that he also personally went to the respondent and requested her to join his conjugal society, he fairly admitted in his cross examination that he did not go to the house of the respondent’s father at anytime after she deserted. The appellant himself stated that on 30.03.1997 the respondent went to her parents house and did not come back. but he never stated that she went against his will and consent with an intention to desert him. Merely because she went to her parent’s house, it cannot be said that she went to her parent’s house with an intention to desert him and against his will and consent. PW.3 did not know anything about the disease of the respondent, but he stated that in 1998 he went along with PW.2 for negotiations, but the respondent did not agree. But it is the case of the respondent that she was neglected and not getting treatment properly. Admittedly, the appellant and his parents went to work, the respondent alone has to do all the house hold works at the house and she was not given proper care after the post pregnancy period, and therefore, she developed ill-health and rheumatic pains. Her father took her to his house and got her treated by incurring medical expenses. The appellant himself admitted that he personally never went to the house of the respondent’s father, to get respondent back. Therefore, it cannot be said that the respondent deserted the petitioner without reasonable cause and against the consent or wish of the appellant. In view of the same, we do not see any ground to interfere with the order of the Court below in dismissing O.P. The Civil Miscellaneous Appeal is accordingly dismissed. __________________ (V. ESWARAIAH, J.) ____________________ (B.N. RAO NALLA, J.) 12th April, 2010 Js.