HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.3685 of 2002 Dt.17.2.2010 Between: Valiveti Venkata Srinivasa Rao .. Appellant And V.Anjanadevi .. Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.3685 of 2002 JUDGMENT: (Per Sri Justice V.Eswaraiah) Appellant herein is the petitioner, who filed O.P.No.225 of 1996 on the file of the Principal Senior Civil Judge, Narasaraopet, Guntur, under Section 13(1)(a)(b) of the Hindu Marriage Act seeking decree of divorce by dissolving the marriage between the petitioner and the respondent. The said O.P. was dismissed by order, dated 22.12.1998. Against the said order, the present appeal is filed. Learned counsel for the appellant submits that the court below erroneously dismissed the application without appreciating the oral evidence available on record. It is stated that as per the evidence adduced the respondent-wife alone deserted the company of the petitioner without any reason and the said desertion for a period of more than two years is entitled the petitioner for dissolution of marriage and to pass decree of divorce. Under Section 13(1)(i-a) of the Hindu Marriage Act the husband or the wife is entitled to seek divorce on the ground of cruelty or on the ground that the wife/husband deserted for a continuous period of not less than two years immediately preceding the presentation of the petition. The main ground on which the O.P filed is that the wife left the company of the husband for more than four years prior to filing of the O.P and therefore the appellant husband is entitled for dissolution of marriage by a decree of divorce. The parties are hereinafter referred to as they are arrayed in the O.P. It is the case of the petitioner that 6 ½ years prior to filing of the said O.P.No.225 of 1996 their marriage was performed as per Hindu rites and customs at Ongole and the marriage was consummated and the respondent wife joined the petitioner to lead marital life at Narasaraopet, Guntur District. It is stated that the respondent from the beginning has no liking towards the petitioner and she did not heed the words of the petitioner and she is a reckless woman. The respondent stayed for a period of two months and left to her parents’ house at Ongole without the knowledge and consent of the petitioner. The petitioner again went to Ongole and brought her to Narasaraopet to lead marital life. She stayed one and half months and again left to her parents’ house. Again the petitioner brought her back to Narasaraopet and she stayed for one or two months and left to her parents’ house without the knowledge and consent of the petitioner and did not come back to the house of the petitioner. The petitioner and elders went to Ongole to bring her back to Narasaraopet to lead marital life, but the respondent refused to come to join with the petitioner. The respondent herself voluntarily deserted the petitioner without any reason or cause and herself left the conjugal society of the petitioner and there is no chance to lead marital life between the petitioner and the respondent, as the respondent left the company of the petitioner 4 ½ years back. Therefore the said O.P. was filed. A counter affidavit was filed by the respondent denying all the allegations made in the O.P and it is stated that at the time of the marriage her parents gave Rs.15,000/- cash and five sovereigns of gold to the petitioner. The parents of the petitioner demanded T.V and Tape recorder and other household articles and the same were also given to them. About one year after the marriage, the petitioner was addicted to vices and he used to harass the respondent frequently at the instigation of his mother under one pretext or the other. The petitioner used to come in a drunken state and beat the respondent cruelly. The petitioner used to torture the respondent on silly reasons prompted by his mother and they used to demand the respondent to get additional dowry. It is stated that in the year 1991 the respondent came to her parents’ house to attend to her brother’s marriage the petitioner also attended the said marriage along with her mother. After the marriage, the respondent attempted to go along with them, but the petitioner and his mother refused to take her back since the petitioner and his mother are not satisfied with the dowry given by the parents of the respondent. They also expressed their dislike on the respondent even on mediation of elders. The requests of the respondent and their parents to take her back were not considered and the parents of the petitioner demanded Rs.2000/-, which was also given. In spite of that the petitioner and his mother did not change their attitude and the petitioner has not stopped his vices and is demanding them for additional dowry. It is the case of the respondent that in the month of July, 1991 the petitioner along with his mother necked out the respondent from his house demanding additional dowry. On 4.9.1996 the respondent went to Narasaraopet along with her father to join with the petitioner, but the petitioner and his mother did not allow her. But, on repeated requests of the father of the respondent, the petitioner allowed her into his house. At that time the father of the respondent expressed his inability to pay additional dowry demanded by him since they are in old age and having no funds for themselves. On 11.9.1996 the petitioner and his mother necked out the respondent from their house, as she has not brought the amounts to their satisfaction and threatened with dire consequences. Therefore, the respondent came to Ongole and is staying with her parents, as there were none to protect her. The mediation through one Tangirala Krishna Murthy, the father and brother of the respondent has become futile since the petitioner and his mother did not allow the respondent to lead marital life. It is stated that under those set of circumstances the respondent is forced to live in her parents’ house and there is no animosity on the part of the respondent to live away from the petitioner frequently. The alleged desertion is not an intentional one for a permanent separation and the petitioner is responsible for the alleged desertion and the animus probandi is on the part of the petitioner to prove that the respondent deserted the petitioner permanently without any justifiable reason and also with an intention to live separately. The petitioner was examined as P.W.1 and he has reiterated the petition contents in the evidence. But, he has refused about the receipt of Rs.15000/- and five sovereigns of gold at the time of marriage and also denied the receipt of T.V. and tape recorder and household articles after the marriage. The allegation that he was addicted to vices and frequently harassing the respondent was also denied. It is stated that he had no bad habits. The other allegations in the counter affidavit are also denied. But in the cross examination it is stated that after attending the marriage of his brother-in-law, the respondent did not come to lead marital life. The alleged demand of additional dowry was also denied. The other contentions made in the counter that the respondent came and joined him on 4.9.1996 and that they have necked out of their house on 11.9.1996 was also denied. It is also stated that the respondent rejected him, as she has no liking towards him. It is stated that the only ground asked by him for decree of divorce against the respondent is that the respondent is having dislike towards him and accordingly it is stated that even though the respondent wants to join the petitioner to lead the marital life, the petitioner is not going to receive her as his wife. P.W.2 is the mother of P.W.1, who states that the respondent resided with P.W.1 for about five months only that too with intervals and the respondent only deserted P.W.1 more than seven years back. P.W.1 and herself sent two mediators – P.W.3 and another requesting the respondent to join the petitioner, but the mediation failed as the respondent refused to join the petitioner. There was no mediation from the side of the respondent at any time. In the cross-examination it is stated by her that she does not know the reason why the respondent deserted P.W.1 and used to go to her parents’ house without informing P.W.1. It is stated that she did not attend the marriage of the brother of respondent, but P.W.1 alone attended the marriage. Because of old age she personally never approached the respondent, but she sent mediators for reconciliation. It is stated that she has no objection if the respondent joins the petitioner subject to the willingness of P.W.1. It is stated that neither she nor P.W.1 tortured and ill-treated the respondent to get money from her parents. P.W.3, the mediator, has stated in the chief examination that he mediated the affair to settle the same amicably and he along with Kotaiah and P.W.1 went to the house of the respondent at Ongole and when he requested her to join P.W.1, she refused stating that the marriage was performed against her will and P.W.1 is not in a position to maintain her. In the cross examination it is stated that he cannot say on which date or the year of mediation and he did not say in which ward the house of the respondent is situated. But it is stated that they are residing in a rented house near the Rangarayudu tank at Ongole. P.W.1 never told him the reason for estrangement between himself and the respondent and he does not know the name of the owner of the rented house of the respondent at Ongole. As against the said witnesses, the respondent was examined as R.W.1 and she reiterated the same that has been stated in the counter affidavit. But, in the cross examination it is stated by her that she stayed in the own house of P.W.1 after their marriage. Even in September, 1996 also they resided in the same house. It is stated that she did not give any notice to P.W.1 before filing M.C. at Ongole asking him to take her back. It is stated that one month after her elder brother’s marriage she joined P.W.1, but P.W.1 has been sending her during 1991 to 1996 frequently to her parents house demanding to get more money. The suggestion that she never lived with P.W.1 after 1991 was denied. R.W.2, the father of the respondent has stated that at the time of the marriage he gave Rs.15,000/- cash and five sovereigns of gold and he also gave black and white T.V (portable), ceiling fan, tape recorder etc., so as to enable her daughter to lead marital life and they led marital life happily for one year. Thereafter, the petitioner got addicted to bad vices and has been demanding the respondent to get more money and she also ill-treated by the petitioner. It is stated that the petitioner sent the respondent away from his house for the last time in September, 1996 demanding her to come back only with money. In the cross examination it is stated that he came to know that the petitioner sold away the house property recently and the said sale deed was marked as Ex.A-1. Heard the rival contentions of both the parties. The only question that arises for consideration is whether the respondent wife left the company of the petitioner husband voluntarily and whether the wife deserted the husband without any justification. It is the case of the petitioner that the respondent alone left the company of the husband without any reason whatsoever on the ground that she used to dislike the company of the petitioner, whereas it is the case of the respondent that mother of the petitioner only necked her out from the house time and again demanding more dowry. It is stated that the mother of the petitioner did not like the respondent and she used to demand additional dowry along with the petitioner. The fact remains that though there is no direct evidence with regard to the allegations made by the petitioner and the defence taken by the respondent, but the petitioner himself stated that even if the respondent comes and joins with him he is not going to take her back. Hence, we are of the view that the respondent could not have left the company of the petitioner on her own volition. It is the case of the respondent that she is always willing to join the company of the petitioner to lead marital life. Therefore, we are convinced that the trial court has rightly refused to grant divorce on the ground of desertion as the petitioner has failed to establish that the respondent wife alone deserted the company of the husband. In the aforesaid facts and circumstances of the case, we are of the opinion that the respondent has not voluntarily deserted the company of the petitioner and therefore the court below has rightly refused to grant divorce on the ground of desertion. We do not see any ground to interfere with the order of the court below. The appeal is accordingly dismissed. No order as to costs. _______________ V.ESWARAIAH, J. ________________ B.N.RAO NALLA, J. 17.2.2010 kpr