HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.1652 OF 2001 Dt.3.3.2010 Between: Yaddala @ Ongole Jayamma ..Appellant And Yaddala Thirupalu ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.1652 OF 2001 JUDGMENT: (Per Sri Justice B.N.Rao Nalla) This appeal is directed against the order dated 7.2.2000 in H.M.O.P.No.23 of 1998 on the file of the Principal Senior Civil Judge, Gudur, whereby and whereunder the O.P. filed by the respondent herein seeking divorce under Section 13(1)(i-b) of the Hindu Marriage Act was allowed and a decree of divorce dissolving his marriage with respondent was granted. Aggrieved by the same, the respondent wife filed the present appeal. For the sake of convenience, the parties in this appeal will be referred to as they are arrayed in the O.P. The facts, in brief, are that the marriage between the petitioner and the respondent took place on 1.11.1985 as per Hindu rites and customs at Kaluvoy village of Nellore District. The marriage was consummated and they lived happily for two months. It is averred that the respondent wife was not looking after the petitioner’s mother and she demanded to shift the family to her parents’ place and that the petitioner husband is not agreeing for the same. Thereupon, the respondent wife left the matrimonial home without informing the petitioner and started living with her parents in the same village. In spite of sending mediators to her by the petitioner husband, the respondent wife could not mend her mentality and, in fact, from January, 1986 onwards she started living away from the petitioner by deserting him. In view of her continuous desertion, it seems that the respondent is not willing to lead a marital life with the petitioner and therefore he is constrained to file the O.P. for dissolution of marriage by grant of divorce. The respondent wife in her counter has denied the petition averments and alleged that the mother of the petitioner had eloped with one Gangoti Chinnaiah son of Polaiah of Kaluvoy and they went to Bangalore when the petitioner was just six months old and thereafter his father married another woman and thereafter petitioner was brought up by his grand parents. It is stated that from the date of their marriage the petitioner and respondent lived in a separate portion of the premises of her parents and even at the time of filing of the O.P they were living together in such a separate portion provided by her parents. At this juncture, the mother of the petitioner came back to the village and started staying with one Kommala Penchalaiah in the same village and that a year prior to filing of the petition she poisoned the ears of the petitioner with an evil idea of arranging another marriage to him though the respondent and the petitioner are living together happily. In those circumstances, the respondent insisted and tried to prevail over the petitioner to shift to the house site allotted by the Government with an intention to avoid the evil intention of her mother-in-law and in case he is not willing to do so, she requested him to join her at her parents place apprehending danger to her life at the hands of his mother. She contended that her stay with her parents did not constitute desertion at all and that the petitioner has filed the O.P. at the instigation of his mother. To prove the averments in the petition, the petitioner got himself examined as P.W.1 and he has reiterated what all has been stated in the O.P. He admitted that the respondent Jayamma is his paternal aunt’s daughter. However, he denied that his mother influenced him in being harsh towards his wife. P.Ws.2 and 3 were examined to prove that the respondent deserted the petitioner and she was living separately at her parents’ house. However, they admitted in their evidence that they are not residents of Kaluvoy village and they are residents of neighbouring village. Both of them supported the case of the petitioner husband that the respondent was living separately from him. The respondent got herself examined as R.W.1 and she has narrated what she has stated in her counter and further stated that the petitioner used to be close to his mother and as his mother is being sore about the respondent, having no other go, she went and started residing with her parents. The suggestion that she was to be blamed for not taking care of her mother-in-law in order to set right her own family life was denied. She further denied that she was living away from the petitioner two months after the marriage. R.Ws.2 and 3 have spoken as to the relations inter se between the petitioner and the respondent vis-à- vis their relations including parents on either side. R.W.2 has denied the suggestion that the petitioner and the respondent were not residing in the house of respondent’s father. He displayed his ignorance as to what happened prior to one year to filing of the petition. R.W.3 has spoken as to the marriage between the petitioner and the respondent. He too displayed his ignorance as to what happened one year prior to filing of the petition. In his cross-examination, R.W.3 admitted that he is resident of the same colony in the village. He also spoke as to the incidents leading to the parents of the petitioner leaving the village. However, R.W.3 denied the suggestion that the petitioner had never resided in the house of his father-in-law and that the respondent demanded the petitioner to live with her in her parents’ house. He also denied another suggestion that the petitioner and the respondent were living separately since two months after their marriage. The only question that arises for consideration in this appeal is whether the respondent wife had deserted the petitioner husband for a continuous period of not less than two years immediately preceding the presentation of the petition. The fact remains that no documentary evidence is adduced on either side to prove the fact that the respondent wife had, in fact, deserted her husband and was staying away from him separately for more than two years immediately prior to filing of the divorce O.P in order to attract the provisions under Section 13(1)(i-b) of the Hindu marriage Act (for short, the Act). Even otherwise both the parties being interrelated and also being residents of the same locality in the same village could have sorted out their differences, if any. Nothing prevented the petitioner husband in visiting his wife even when she is stated to be residing at her parents’ house. He ought to have taken the lead, but he failed to do so. Further, the petitioner husband has failed to bring on record that he has taken steps to get his wife back either by sending letters or notice or taking recourse seeking restitution of conjugal rights against his wife. So far as the evidence of P.Ws.2 and 3 is concerned, they are stated to be non-locals and they are residents of the neighbouring village and their evidence is also not specific and not inspiring confidence to believe the case of the petitioner husband. On the other hand, the respondent wife also does not seem to have taken any such steps as her husband failed to do so. Being a married woman, the respondent ought to have realized her responsibilities and ought to have taken steps to come closer to her husband in order to set right her marital life. Both the petitioner and the respondent appeared to be innocent and ignorant of their duties and responsibilities so far as their married life is concerned. Having regard to the evidence of R.W.1 is concerned; it seems that the petitioner is being influenced by his mother in his personal and family life. His mother never behaved properly nor did she take any steps in order to set right the married life of her own son. She was also, as per the evidence of the witnesses, not on the right track so far as her marital life is concerned and to a great extent she has to be blamed for the strained relations between the petitioner and the respondent. The cumulative effect of the averments of both sides as well as the oral evidence brought on record with the social way of a community living in the background of petitioner’s family appears to be the root cause of the strained relationship between the petitioner husband and the respondent wife. Moreover, the evidence brought on record is absolutely insufficient to come to a decision that the respondent wife is to be blamed and she deserted her husband voluntarily on her own volition without any reason two years prior to the filing of the divorce petition attracting the provisions under Section 13(1)(i-b) of the Act. In view of the aforesaid facts and circumstances of the case and in the light of the evidence brought on record, it cannot be said that the petitioner succeeded in his attempt to establish the fact that the respondent wife deserted him for no reason and was living separately from him continuously for a period of two years prior to filing of the petition. Therefore, it cannot be said that the ingredients of Section 13(1) (i-b) of the Act are made out for grant of decree of divorce dissolving the marriage between the parties. As such, we are of the view that the trial court went wrong in granting decree of divorce by dissolving the marriage between the petitioner husband and the respondent wife and the same is liable to be set aside. Accordingly, we set aside the order impugned. The C.M.A. is accordingly allowed and consequently the O.P. filed by the petitioner husband stands dismissed. No order as to costs. _______________ V.ESWARAIAH, J. ________________ B.N.RAO NALLA, J. 3.3.2010 kpr