HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.2546 OF 2001 Dt.23.2.2010 Between: Mukthinoothalapati Venkateswari .. Appellant And Mukthinoothalapati Venkatarao .. Respondent HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.2546 OF 2001 JUDGMENT: (Per Sri Justice V.Eswaraiah) This appeal is filed against the order, dated 28.2.2001 in O.P.No.12 of 1998 on the file of the II Additional Senior Civil Judge, Kakinada. Respondent herein filed the said O.P. under Section 13(i-b) of the Hindu Marriage Act against the wife for divorce. Appellant herein is the wife. The said O.P. was allowed by the court below by order dated 28.2.2001 granting decree of divorce between both the parties dissolving their marriage. The parties hereinafter are referred to as they are arrayed in the O.P. It is the case of the petitioner that their marriage took place on 20.8.1989 at Pallipalem village of Kajuluru Mandal, East Godavari District as per Hindu rites and customs and after their marriage the respondent joined with the petitioner at Bapatla, Guntur District and both of them lived happily for about three months. Thereafter, differences arose and it is the case of the husband that the wife was not inclined to attend kitchen work and the mother of the petitioner alone was cooking and doing work in kitchen. It is stated that the mother of the petitioner and his wife used to quarrel now and then and the respondent was not able to live in the house peacefully and for silly things she used to threaten to commit suicide by pouring kerosene on her body and twice she poured kerosene on her body and attempted to commit suicide. It is the case of the petitioner that he gave telegrams to his in-laws. It is stated that the respondent left the company of the husband in the middle of December 1989, but she never returned back in spite of letters of request of the petitioner. It is stated that they lived separately for the past 5 ½ years. It is stated that after a period of more than 5 ½ years the respondent filed M.C.No.39 of 1996 claiming maintenance from the petitioner and the petitioner is also paying a sum of Rs.200/- per month towards maintenance. It is stated that if the respondent really interested to live with the petitioner she would not have deserted the petitioner for more than half a decade especially in the prime of her youthful life and having been vexed with the attitude of the respondent, the petitioner filed the said O.P. under Section 13 (i-b) of the Hindu Marriage Act (for short, the Act) seeking to grant decree for divorce dissolving the marriage between the petitioner and the respondent. Under Section 13(i-b) of the Act if the spouse deserts for a continuous period of not less than 2 years immediately preceding the presentation of the O.P., the petitioner is entitled to seek decree of divorce. The respondent filed counter affidavit denying all the material allegations in the petition including the right of the petitioner seeking divorce. She admitted that she had filed M.C.No.39 of 1996 under Section 125 Cr.P.C. She has not only denied all the allegations, but also alleged that her in-laws used to demand additional dowry and that the husband himself deserted her since 1989. The petitioner himself was examined as P.W.1. He deposed that he is working as Gang man in railways at Bapatla and his wife lived with him only for a period of three months at Bapatla and she is not inclined to prepare food and to attend household duties and his mother only used to attend for household works including preparation of food etc. It is also stated that she poured kerosene twice and threatened to commit suicide and he gave telegrams to her elder brother at Kakinada and her elder brother came to Bapatla and admonished the respondent and took her to Kakinada in 1989. Subsequently, the respondent did not come for marital life with the petitioner. It is stated that the petitioner wrote letters twice requesting the respondent to join him, but there was no response. It is stated that his wife never used to talk with him willingly and after December, 1989 the respondent never attempted to come back and on the other hand she filed a maintenance case in M.C.No.39 of 1996 on the file of the III Additional Judicial First Class Magistrate at Kakinada and the court ordered Rs.200/- per month towards maintenance and the petitioner is paying said maintenance amount every month as awarded by the court. It is stated that the respondent also gave evidence in the maintenance case stating that she is living separately from December, 1989. As his wife deserted from 1989, he filed the said O.P. In the cross examination it is stated that he has filed the order copy of the maintenance case wherein it was noted that both of them living separately from 1991. The suggestion that the mother of the petitioner used to harass his wife and used to demand more money as dowry was denied. The suggestion that he was not provided food and used to beat the respondent was also denied. It is stated that the mother and brother of the respondent taken her from the house without informing him. For a specific question whether he is ready and willing to take back his wife and look after her properly, it is stated that he is ready. P.W.2, the cousin brother of P.W.1 stated that the petitioner and respondent lived together only for two months and the wife left the company of the husband. It is stated that the mother and sister of the petitioner also used to reside in the said house. There is no such dispute between both the parties to give any police complaint or whatsoever. The suggestion that the mother and younger sister of the petitioner used to harass the respondent was denied. P.W.3 another cousin brother of P.W.1 deposed on 20.12.2000 that about ten years back the respondent left the company of P.W.1 and when P.W.1 asked the respondent to come and live with him, she refused to come. Against the said witnesses, the respondent herself was examined as R.W.1. She deposed that her marriage with P.W.1 took place about 12 years back and they lived together at Medarametla village for a period of 15 days. Later they went to Bapatla and lived for a period of one year and during that period differences arose because there was a demand for dowry. The mother and sister of her husband used to demand for more money towards dowry. It is stated that she never threatened to commit suicide and she used to attend household duties like washing the clothes etc. It is stated that she has not left the house on her own, but her husband only thrown her samans and kicked her out from the house and therefore petitioner is not entitled for divorce. She deposed on 25.1.2001 stating that she is not doing well and she also taking treatment at Kakinada and if her health is set right she has no objection to go with her husband. In the cross examination it is stated that they are living separately from the last ten years. It is stated that in the notice given for maintenance she has not stated anything about demand of dowry and harassment from her husband, mother-in-law and adapadachu and she has also not given any report to the police for demand of such dowry and she has not written letters to the relatives of P.W.1. It is stated that she has not given notice to P.W.1 informing her ill-health and she is ready to come with him after the illness is set right. It is stated that she along with her mother, elder brother and sister went to the house of her husband, but they have not allowed her to enter into the house. It is stated that she is ready to go with P.W.1 if he is willing to take her. The suggestion that P.W.1 never demanded amount, kicked her out from the house and she left the house of P.W.1 was denied. R.W.2, sister of the respondent, has stated that the mother-in-law and sister-in-law of R.W.1 demanded for more money towards dowry. She admitted that no police complaint was given either with regard to the alleged harassment or demand of dowry. It is stated that the respondent is willing to join the husband. Apart from the oral evidence i.e., P.Ws.1 to 3 on behalf of the petitioner and R.Ws.1 and 2 on behalf of the respondent, a copy of maintenance case was filed as Ex.A-1. The maintenance case in M.C.No.39 of 1996 on the file of the III Additional Judicial First Class Magistrate, Kakinada, was filed by the respondent stating that the marriage took place on 20.8.1989 at Pallipalem village as per the Hindu rites and customs and immediately after the marriage she joined her husband at Bapatla and her husband was working as Railway Gang man in South Central Railways at Bapatla. She made certain allegations against her mother-in-law and sister-in-law with regard to harassment and also demanding of dowry. It is stated that she was sent to Pallipalem village in the year 1991, but her husband did not take her back and therefore she was entitled for maintenance. The only question that arises for consideration in this appeal is whether the wife left the company of the husband for a period of more two years immediately preceding the presentation of the said O.P. The O.P. was presented on 17.2.1998. The marriage took place in August 1989. The O.P was filed nine years after their marriage. Even according to the wife she was driven out of the house and they are living separately for the last ten years. Even according to R.W.2 also they lived together immediately after the marriage for a period of two years alone at Bapatla and thereafter disputes arose between them. No evidence has been adduced by either side with regard to their living together after 1991. Admittedly, they are living separately after two years of their marriage i.e., more than seven years prior to the date on which the O.P. was filed. The further question that arises for consideration is whether the husband deserted the wife or the wife deserted the husband. It is the case of the husband that the wife never used to attend household duties and she used to threaten to commit suicide and he gave two telegrams, which was also admitted by R.W.2, the sister of the respondent. R.W.2 also stated that when they received telegrams from P.W.1 they immediately went there, but they found nothing. When this Court wanted to counsel the parties, the learned counsel appearing for the appellant submits that there was no response for his letters and therefore he is not aware of the present situation. But, he only submits that the wife never deserted the husband and on the other hand the husband only deserted the wife. It is not in dispute that the husband and wife are living separately from 1991 and the maintenance case was filed by the wife in 1996 i.e., after 5 ½ years of their living separately. In the maintenance case also it was stated that she was sent to her village in 1991, but nothing has been stated in the maintenance case about her attempt to join him, but only made allegations with regard to harassment and demand of dowry by the in-laws and therefore she is seeking maintenance. With regard to the said allegations, admittedly she never made any complaint either to the police or she has not stated anything about the demand for additional dowry or the harassment caused by her mother-in-law and sister-in-law in the counter affidavit filed in the O.P. Therefore, from the evidence available on record we are of the opinion that the wife alone left the company of the husband and she never made any attempt to join him and after 5 ½ years she has filed maintenance case and getting the maintenance amount. Neither party has filed any application for restitution of conjugal rights. Therefore, we are of the view that the evidence available on record is sufficient to hold that the wife alone deserted the company of the husband for more than ten years. In that view of the matter and in view of the facts and circumstances of the case, we are convinced that the court below has rightly granted the decree of divorce. Therefore, we are not inclined to interfere with the said order of the court below. The appeal is accordingly dismissed. No order as to costs. _______________ V.ESWARAIAH, J. _________________ B.N.RAO NALLA, J. 23.2.2010 kpr