THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Miscellaneous Appeal No.2778 of 2003 Date:04th February, 2010 Between: K.Shankar …Appellant and Smt.K.Nagamani …Respondent *** THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Miscellaneous Appeal No.2778 of 2003 JUDGMENT (PER HON’BLE SRI JUSTICE B.SESHASAYANA REDDY) Aggrieved by the order dated 23.06.2003 passed in O.P.No.167 of 2001 on the file of the Family Court, Secunderabad, the appellant/husband filed this Civil Miscellaneous Appeal under Section 28 of the Hindu Marriage Act, 1955 (for short, ‘the Act’). 2. a) The appellant and the respondent are husband and wife. They got married in 1967. They lived together till 1989. They were blessed with two daughters. They got performed the marriages of their daughters. It is the version of the appellant/husband that the respondent/wife left his company on 02.09.1989 and thereafter, she did not return home. He filed O.P.No.393 of 1996 for dissolution of the marriage. The said O.P. came to be disposed of by granting decree of judicial separation under Section 13-A of the Act on 02.12.1998. Thereafter, the appellant/husband filed O.P.No.167 of 2001 for dissolution of the marriage under Section 13(1)(ia)(ib) of the Act. According to the appellant/husband, the respondent/wife deserted him on 02.09.1989 and his efforts to secure her back to matrimonial home proved futile. b) The respondent/wife resisted the application by filing counter. It is the version of the respondent/wife that the appellant/husband married another woman and begot children through her and therefore, there is no obligation on her part to stay with him. She also pleaded in the counter that she attempted to join the appellant/husband, but the appellant/husband refused to permit her to join with him. c) On behalf of the appellant/husband, he got himself examined as PW.1 and whereas the respondent/wife got herself examined as RW.1. No documents were marked on either side. d) The learned Judge of the Family Court, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the appellant/husband is a defaulting party having remarried another woman even before the marital tie between the husband and the wife is snapped and therefore, the appellant/husband is not entitled for the relief sought for. With the above finding, the learned Judge of the Family Court dismissed the O.P. filed by the appellant/husband, by order dated 23.06.2003. Hence, this C.M.A. by the appellant/husband. 3. Heard learned counsel appearing for the appellant/husband and perused the material brought on record. 4. Learned counsel appearing for the appellant/husband submits that the respondent/wife left the company of the appellant/husband in the year 1989 and thereafter, the respondent/wife refused to join with the appellant/husband and therefore, the appellant/husband is entitled to seek for dissolution of the marriage under Section 13(1)(ia)(ib) of the Act. 5. Section 13 of the Act reads as hereunder: “13. Divorce.-- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— [(i) has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] (ii) has ceased to be a Hindu by conversion to another religion; or [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.- In this clause,- (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment; or] (iv) has been suffering from a virulent and incurable from of leprosy; or (v) has been suffering from venereal disease in a communicable from; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive. [Explanation.- In this sub-section, the expression "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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] (1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,- (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or] (iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, (78 of 1956) or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974), (or under the corresponding Section 488 of the Code of Criminal Procedure, 1898), (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation.- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976] (68 of 1976 .) ” 6. The appellant/husband filed the O.P. for dissolution of the marriage on two grounds. Firstly, on desertion and secondly, on cruelty. The appellant/husband while being examined as PW.1 did not speak of any instances of cruelty. The trial Court did not discuss anything on this aspect because the appellant/husband did not adduce any evidence to substantiate the plea of cruelty. The other ground is desertion. The appellant/husband while being examined as PW.1 admits of his remarriage and the second wife begetting children. Even before the marital relationship between the parties is not snapped, the appellant/husband has taken the company of some other woman, in which case, there is no obligation on the part of the respondent/wife to join with the appellant/husband. Since the appellant/husband is a defaulting party, he cannot be permitted to take advantage of his own default and plead desertion as a ground for dissolution of the marriage. The trial Court considered the material brought on record in right perspective and proceeded to dismiss the application filed by the appellant/husband. In that view of the matter, we do not see any valid ground to interfere with the order impugned in this C.M.A. 7. Accordingly, the C.M.A. fails and it is hereby dismissed. No costs. ________________ B.PRAKASH RAO, J. ______________________ B.SESHASAYANA REDDY, J. Date:04th February, 2010. CS THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Miscellaneous Appeal No.2778 of 2003 (Judgment of the Division Bench delivered by Hon’ble Sri Justice B.Seshasayana Reddy) Date:04th February, 2010