THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No. 3039 of 2000 JUDGEMENT: (Per the Hon’ble Sri Justice V.Eswaraiah) The appellant is the petitioner in O.P.No. 45 of 1996 on the file of the Senior Civil Judge, Tirupathi. He filed the above O.P. under Section 13 (1) (ib) of the Hindu Marriage Act, 1955 seeking divorce on the ground that his wife/respondent deserted him. The said O.P. was dismissed by the order dt. 17.7.2000. Aggrieved by the same, the present appeal is filed. For the sake of convenience, the parties will be referred to as they are arrayed in the O.P. The case of the petitioner is that his marriage with the respondent took place on 21.6.1991 at Tirumala as per the Hindu rites and customs and they lived together in the house of the petitioner for about 10 days and during that period, he came to know that his wife is pregnant and when he asked her about the same, she admitted the said fact and that when the petitioner asked her to undergo abortion, she refused and left the matrimonial home in the month of July 1991 and started living with her parents at Ravillavaripalli village of Ramachandrapuram mandal, Chittoor District and that she gave birth to a female child on 10.3.1992 at the Government Hospital, Kammapalli. Further case of the petitioner is that the child was not born out of the wedlock and the respondent conceived even before the marriage and that the respondent deserted him since July, 1991 and therefore the said application is filed. The respondent filed a counter admitting her marriage with the petitioner and also giving birth to a female child. The other allegations that the child was not born out of the wedlock and that she became pregnant even before the marriage are denied. It is further stated that she has not deserted the petitioner and that after giving birth to a female child and as she has given birth to a female child, the petitioner and his parents started harassing her to bring more dowry in addition to the dowry which was already given at the time of marriage. It is further stated that the parents- in-law were quarrelling time and again and even though the village elders tried to intervene and mediate the matter, they have not stopped their demand for additional dowry and they wanted to get rid of the respondent so as to get 2nd marriage performed to the petitioner and keeping that object in view only, the petitioner made a serious allegation accusing that she became pregnant even before the marriage. In support of his case, the petitioner himself examined as Pw.1 and also examined one T.Munirathnam as Pw.2 and got marked Exs:A.1 and A.2. In support of her contention, the respondent herself examined as Rw.1 and also examined one V.Doraswamy Naidu as Rw.2. Exs:X.1 and X.2 are marked through Pw.2. The trial court, after appreciating the evidence available on record, dismissed the O.P. by the order dt. 17.7.2000. Aggrieved by the same, the present appeal is filed by the petitioner/husband. The point that arises for consideration is whether the petitioner was able to establish desertion by the respondent to grant a decree of divorce on the ground of desertion. Pw.1 (petitioner) stated in his evidence that his marriage with the respondent took place on 21.6.1991 at Tirumala and they lived together for about 10 days and during that period he suspected that she was pregnant and when he asked about the same, she admitted and when he insisted her to undergo abortion as she got the pregnancy through some body even before the marriage, she refused and left his house. He further stated that the respondent gave birth to a female child on 10.3.1992 in the Government Hospital, Kammapalli and that she has been residing with her parents from July 1991 and therefore he filed the said O.P. Pw.2 (Dr.Munirathnam) who is working as a Medical Officer at Primary Health Centre, Kammapalli stated in his evidence that the respondent gave birth to a child on 10.3.1992 at the Government Hospital, Kammapalli and the delivery was a normal delivery. Ex:X.1 is the birth register and Ex:X.2 is an entry in Ex:X.1. Rw.1 (respondent) stated in her evidence that at the time of her marriage with the petitioner, her parents gave cash of Rs. 75,000/- and 20 sovereigns of gold to the petitioner and that after the birth of a female child, the petitioner started demanding her to bring some more dowry from her parents on the ground that a female child was born to her and that one Doraswamy Naidu and Narayanaswamy Naidu mediated the dispute between them. She further stated that 11 months after the delivery, she went to the house of the petitioner but he did not allow her to enter the house and since then she and her daughter have been staying in her parents house and that her parents died three years back. She further stated that after the demise of her parents, again there was mediation but the petitioner did not allow her to join him and that she was pregnant as on the date of marriage is false and that petitioner himself disserted her on the ground that she did not bring more money. She admitted that she received the notice Ex:A.2 sent by the petitioner and the allegations made in the said notice are all false. She further stated that she gave a police complaint against the petitioner for demanding additional dowry and the police took the petitioner to the police station but she does not know what happened thereafter. Rw.2 (V.Doraswamy) who is the maternal uncle of the respondent stated in his evidence that he arranged the marriage between the petitioner and the respondent and at the time of marriage, a cash of Rs. 50,000/- and 3 or 4 sovereigns of gold were presented to the petitioner and he along with others attended the marriage. He further stated that the respondent had a premature delivery and that the allegation that she was pregnant at the time of marriage is false. He further stated that he and one Narayanaswamy Naidu mediated the dispute three months after the delivery between the parties but the petitioner did not take back the respondent to his matrimonial house and demanded more dowry. He further stated that the parents of both the parties did not attend the marriage and there were no good terms between them even prior to the marriage. If the respondent deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition for dissolution of the marriage, the petitioner is entitled for the relief sought for. The case in the O.P. and the evidence of Pw.1 is that the respondent was pregnant even as on the date of marriage and she became pregnant through somebody and when he asked the respondent to undergo abortion, she refused and against his will she gave birth to a female child. The marriage between the petitioner and respondent took place on 21.6.1991 and the female child was born on 10.3.1992 i.e. 8 months 21 days after the marriage. The contention of the petitioner is that for a normal delivery minimum 265 days is required whereas the respondent gave birth to a female child after 264 days only and that after giving birth to a female child, she did not come back to the matrimonial house and she was living with her parents. On the other hand, it is the version of the respondent that she made several attempts to join the petitioner but he did not allow her to join him. The O.P. was filed in the year 1996 i.e. four years after the birth of female child to the respondent. For the first time, the petitioner made an allegation that the respondent was pregnant at the time of marriage itself. Admittedly, the petitioner and the respondents are close relatives and they have married against the will of their parents and therefore it cannot be said that they are strangers and that the respondent got pregnancy through somebody other than the petitioner. Therefore there is no justification on the part of the petitioner to make such a baseless allegation against the petitioner, for the first time four years after giving birth to a female child. On the other hand, it is the version of the respondent that she gave birth to a female child and after the birth of female child, the petitioner and his parents demanded additional dowry and that for not giving such dowry they have not allowed her to join the matrimonial house. In the facts and circumstances of the case and in view of the evidence of the parties, we are of the opinion that the court below rightly disbelieved the evidence of both the parties and concluded that there is no legal desertion on the part of the respondent and the petitioner was not able to establish the desertion on the part of the respondent. The learned Counsel for the appellant relied on a decision in the case of Rishikesh Sharma vs. Saroj Sharma[1] wherein it was held that as the parties were living separately for quiet a long time some permanent alimony may be paid to the respondent. The facts of the case are that the petition filed by the respondent for dissolution of the marriage on the ground of mental cruelty and desertion was dismissed. Against the dismissal order, an appeal was filed before the High Court and the High Court also dismissed the appeal. As against the order of the High Court, the husband filed an appeal before the Supreme Court. The Supreme Court having regard to the fact that there are several cases between the parties and in view of the allegation that the husband has already got married with another lady and is living with her, it is not possible for them to live together and in those circumstances, the Apex Court was of the view that dissolution of the marriage is only the solution and accordingly lump sum amount was ordered to be paid to the wife. Another decision relied on by the appellant is in the case of Sujata Uday Patil vs. Uday Madhukar Patil[2] . This is a case where a divorce petition was filed on the ground of cruelty and in that case also, the Supreme Court having found that there was no scope to save the marriage and to maintain a proper atmosphere at home for brining up their offspring, a lump sum was directed to be paid in settlement of pending criminal cases. Another decision relied on by the appellant is in the case of Satish Sitole vs. Smt. Ganga[3] wherein the Supreme Court in exercise of powers under Article 142 of the Constitution of India directed for the dissolution of the marriage subject to payment of lumpsum amount of Rs. 2,00,000/- by way of permanent alimony. Another decision relied on by the appellant is in the case of Durga Prasanna Tripathy vs. Arundhati Tripathy[4] wherein also the Supreme Court granted a lump sum amount while granting a decree of dissolution of the marriage. It is to be observed that in the peculiar facts and circumstances of those cases, the Apex Court granted a lump sum amount that was to be paid by way of permanent alimony. But in the instant case, the ground pleaded is desertion. It is alleged that the respondent was pregnant at the time of marriage itself and the appellant insisted her to undergo abortion but she refused for the same and gave birth to a female child and she did not join the matrimonial house. As already stated above the allegation about the pregnancy at the time of marriage was made four years after giving birth to a female child and therefore the contention of the respondent cannot be sustained. Consequently, the impugned order dt. 17.7.2000 in O.P.No. 45 of 1996 on the file of the Senior Civil Judge, Tirupathi is sustained. For the foregoing reasons, we do not see any merits in the appeal and the same is dismissed. There shall be no order as to costs. __________________ V.ESWARAIAH,J __________________ B.N.RAO NALLA,J 23-02-2010. Krb. THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No. 3039 of 2000 DT. 23.02.2010 [1] 2007 (1) ALT 1 SC [2] 2007 (1) Decisions Today (SC) 114. [3] 2008 (1) Decisions Today (SC) 381. [4] 2005 (1) Decisions Today (SC) 760.