IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE B.N.RAO NALLA C.M.A.No.430 of 2002 Between: Smt. K.Suryakumri, W/o.Sadasiva Rao, Hindu, Aged 42 Years, Assistant Professor of Urology, Government General Hospital, Guntur. - - - Appellant/Respondent. AND Sri. K.B.Sadasiva Rao, S/o.Late Veerabadraiah, Aged about 45 years, MD DGO, Maternity Unit, Queen Elizebeth Hospital, Gates head, U.K. - - - Respondent/Petitioner. The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.430 of 2002 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) The Appellant is the wife of the Respondent, both of them are doctors. The Respondent filed H.M.O.P.46 of 1997 on the file of the learned Principal Senior Civil Judge, Guntur, seeking divorce under Section 13 (1) (ib) of the Hindu Marriage Act, 1955 (for brevity ‘the Act’), on the ground that his wife deserted him. The O.P. 46 of 1997 was allowed by the Order dated 19-01-2002 against which the Appellant/wife filed this Appeal. 2. For the sake of convenience, the parties herein are referred to as they are arrayed in the lower Court. 3. The case of the petitioner/husband is that he married the respondent on 10-08-1985 at Annavaram as per the Hindu rites and customs and thereafter the marriage was consummated and they lived happily at Visakhapatnam. Afterwards, the petitioner was transferred to Guntur, and the respondent stayed with him for few months. Thereafter, the respondent was posted as Medical Officer in Primary Health Centre at Sangam Jagarlamudi, and from that time onwards, she began to show disfavour towards him and she did not care him or his words, or his advice and she behaved as if she is an independent woman without respecting the marital obligations between them and she had insulted him on many times, due to which he suffered mental agony as she was not co- operating with him. When the respondent was working as Medical Officer at Sangam Jagarlamudi, she did not care to come to Guntur to live with the petitioner where he was working. The petitioner thought that wise counsel would prevail upon her, he himself used to go to Sangam Jagarlamudi but she did not show any respect towards him and matrimonial obligations and she expressed her intention not to have any matrimonial obligations as a wife towards him. Thus, he has suffered despair and mental agony due to her conduct. From the date of her appointment as Medical Officer at Sangam Jagarlamudi, she began to show disrespect towards the petitioner. Afterwards, the respondent went to Osmania University, Hyderabad, for pursuing her further studies i.e. M.Ch., in Urology from 1987-1989, during that time, the petitioner used to go to Hyderabad and meet her as a life partner but she expressed her intention to bring cohabitation to an end permanently. Though she refused to have any kind of contact with the petitioner, he waited with utmost patience that she would perform marital obligations towards him as a wife but it was not materialized. The respondent was transferred and posted as Medical Officer at Tripuranthakam, there also she behaved like that towards the petitioner without meeting him and without there being any change in her behaviour. When the petitioner insisted and told her that it was not good on her part to behave like that she used to lock him in a room and did not allow him to go out and caused much annoyance. While the petitioner used to stay in the Men’s Hostel, Government Medical College, Guntur, there also he requested her to live with him, but she refused to live with him. Afterwards he took a house and requested her to come and live with him while she was working at Guntur, but she did not care for the request and expressed her intention to put an end to cohabitation permanently, which happened in the year 1991. From that time, there is no connection in between them as husband and wife. Even while he was going to U.K. for further studies, he tried to convince her to lead marital life, but she rejected his plea. Ultimately, the petitioner left for U.K. on 25-04-1991. It is stated that when he was undertaking further studies at Maternity Unit at Princess Margarette Hospital, Swindon, he telephoned her asking to come and live with him but she refused his proposal expressing her unwillingness to join him. When the petitioner returned to India on his personal work on 10-12- 1993, he met the respondent at the Clinical Center, Guntur, informed her that he would take her to U.K. but she expressed her desire not to have any connection with him as his wife and therefore, it is the case of the petitioner that the respondent herself deserted him since 1990 expressing her desire to put an end to the matrimonial relationship between them. It is stated that all his attempts to convince the respondent to lead the conjugal life with him have become futile and therefore, the said O.P. is filed seeking dissolution of marriage between them. 4. The respondent/wife filed a counter denying all the allegations stating that the whole story is created by the petitioner to get rid of her with a view to obtain the divorce, and she has denied each and every sentence. It is stated that they lived happily till the last date of departure of the petitioner from India to U.K.. When the petitioner went to the foreign countries without obtaining any leave, his reinstatement into the job at Guntur is doubtful, and as he could not get any job in the foreign countries, he requested her to secure Rs.3,00,000/- from her parents to put up a private practice either at Guntur or at Vijayawada. The said amount was arranged as requested by the petitioner, and he used to stay in her parents house both at Tenali and Guntur where her father was working. There is no any iota of truth in the statements with regard to the entire petition. She stated that they lead happy marital life except his worrying mentality at times for money. It is stated that she never expressed her intention to put a full stop to the matrimonial obligations or cohabitation which he has repeatedly spelled in his petition. It is stated that she always showed the respect and had love and affection towards him and there was no any intention to put an end to cohabitation or matrimonial life and she never deserted him. When the petitioner was departing to U.K. for pursuing higher studies, she has taken his luggage to the bus stand and gave send off to him under the exchange of good cheers. Prior to his leaving India also, the petitioner has demanded Rs.2,00,000/- from her parents to pay to his sister who was said to have been starting a Sago factory. When her parents expressed their inability, the petitioner demanded and pressurized her to sell away her car which was purchased by her under finance. The respondent denied the allegations that when she got the job and transferred to Sangam Jagarlamudi, she developed misbehavior and disrespect against him and that she wanted to be an independent woman without respecting the matrimonial obligations. It is stated that both of them have loved each other and developed good friendship and they lead happy marital life, but the petitioner described her making several averments as if she is a cruel and disobedient woman. It is stated that the petitioner is a greedy person and when she failed to fulfill his demands, he has resorted to file the said O.P. with false allegations. She stated that she never expressed any intention to put any type of full stop for her marital life or cohabitation at any point of time and when he came to Guntur, they lived together happily and when she expressed her intention to go with him, he stated that she could not secure any permanent job as she was working as Assistant Professor in Guntur. The petitioner could not secure any job so as to enable her to leave her job at Guntur and join him in U.K. Later, she got promotion as Head of the Department. It is stated that the position of the petitioner is not secure in abroad and in fact it is her case that she is always ready and willing to lead happy marital life with him and therefore, the question of expressing disinterest for cohabitation does not arise. Till the last day of his movement from Guntur to U.K., he was with her at her parents’ house. She stated that there was no separation between them and the petitioner wants to take undue advantage of his own lapses mischievously. He himself deserted the respondent and initiated the litigation. It is stated that while she was working at Tripuranthakam, she used to go on every Saturday night to Guntur to attend the petitioner who was staying in her parents’ house and similarly when she was at Hyderabad he used to come to Hyderabad and they used to go to hotel and lead happy marital life. Therefore, it is incorrect to say that she never entertained him and lived with him happily. The petitioner got issued a notice dated 29-12-1993, for which she got issued a reply dated 14-01-1994 explaining the falsity and untenability of his contentions stating that she did not take any steps for the criminal action against the petitioner under Section 498-A of IPC with a view to keep good relationship and with the fond hope that the time would get a change in the petitioner’s attitude. She is affectionate towards the petitioner with utmost love and she is ready and willing to join the petitioner and lead happy marital life with the petitioner.. 5. During trial, the petitioner himself examined as PW.1, and examined his friend as PW.2, his brother-in-law as PW.3 and his student as PW.4 on his behalf. On behalf of the respondent, she herself examined as RW.1. No documentary evidence is adduced on either side. 6. PW.1 stated that his marriage with the respondent took place on 10-08- 1985, which was later registered at Visakhapatnam on 21-08-1985 and their marriage is a love marriage. The respondent belongs to “Kamma” community whereas he belongs to ‘Kalavanthula’ community. The respondent is a divorced wife and she had no issues through her first husband. At the time of marriage, the petitioner was working as Assistant Professor, Gynecology in Government King George Hospital, Visakhapatnam and the respondent was working as Medical Officer, Rural Family Health Centre, Visakhapatnam, and later the petitioner was transferred to Government General Hospital, Guntur. Soon after, the respondent was also transferred to Primary Health Centre, Sangam Jagarlamudi, Guntur and they set up their family in the house of his father-in-law at Tenali and from then onwards, the respondent started quarrelling with him without any reason and also started denying marital conjugal pleasures. She came only once to his parents house at Kakinada. The petitioner stayed along with the respondent in her parents’ house for about 9 or 10 months. Both of them were transferred to Guntur in the year 1986 and his father-in-law was also transferred to Guntur and therefore the petitioner shifted his residence to Guntur along with the Respondent. While so, the respondent got a seat at Hyderabad for pursuing super specialties in Neurology and while she was staying at Hyderabad he used to go now and then and used to stay in a Hotel and she never came to the hotel room in spite of his persuasions. The respondent used to persuade him to accept illegal gratifications in the hospital from the patients to start a private practice and earn more but he did not care for it. During the year 1986 and 1987, she expressed her desire to put an end to her marital life but she never stated that she would give divorce to him and she is not inclined to give divorce to him because of her reputation as she was already a divorced wife. After completion of her post graduation course, she was posted to Primary Health Centre, Tripuranthakam of Ongole District. While working there also she used to go to Guntur to her father’s house where he was staying at the weekends but she never came to his room to retire to lead conjugal life and from 1986 there was no conjugal relationship between him and the respondent. On one occasion, there was a dispute among themselves with regard to non earning of money in private practice and in that night she put him in a room and bolted from inside and manhandled him. After the said incident, he came out of the house and went to the men’s hostel, GGH, Guntur, and stayed there along with his friends. After going to U.K. he tried to contact the respondent by letters asking her to apply for VISA as she got already a passport to go to U.K. and stay there with him but there was no response. It is stated that had the respondent went to U.K. she could have secured a decent job. He started earning from 1982 onwards and his income is sufficient to lead a decent life as he has no dependants. He returned to India in the year 1993 and met the respondent at her Clinic Centre in Guntur and asked her to live with him but she refused. He states that the respondent is not inclined to continue the marital relationship and she never wrote any reply letters. It is stated that when the petitioner was transferred to Guntur in 1986 he maintained a joint account in the Bank of India, Visakhapatnam but, he never deposited any amount in that account nor withdrawn. The said account was opened only for securing locker. Both of them used to stay at the parents house of the Respondent at Tenali. He filed the O.P. in April, 1994, he did not remember how many days he stayed in India. He stayed about three or four weeks in India. The respondent is not co-operating for the marital and conjugal life with him. He never obstructed the respondent for going to Hyderabad for higher studies. She used to stay in the nursing hostel attached to Osmania General Hospital and the hospital authorities did not allow male persons to stay there. Whenever he used to go to the hostel and call the respondent, she used to come out and they used to sit on the benches and chat there. He used to stay in her parents house at Tenali as well as at Guntur. He never tried to study super specialty courses. There were only three cities in the entire Andhra Pradesh offering M.Ch. Urology course and the respondent got one seat among the three by obtaining leave for studying M.Ch. Urology course. Very occasionally the respondent used to come to Tenali and Guntur and stay with him in her parent’s house. The respondent lost her only brother in the year 1989 while he was studying Engineering course at Bangalore. At that time, he also went to Bombay to get a Cancer Surgery Training course for six months. The respondent completed her M.Ch. course in the year 1989. They used to stay in the parents house of the respondent for a couple of months in Guntur till she got posting at Tripuranthakam in Ongole District in the year 1989. They used to reside in the same roof but not in the same room. For the specific question whether the petitioner persuaded the respondent for his satisfaction of sexual zeal, he stated that he never forced her and he never made any complaint about her attitude to her parents. It is stated that the parent’s house of the Respondent is a Government quarter. He was locked by the respondent in Guntur in her parent’s house. It is stated that it was not locked but bolted from outside but again stated that she came to the room and bolted the door from the inside. He used to come India from U.K. every year from 1991 onwards and he used to live in her parents house and he also used to stay in the men’s hostel, G.G.H. Guntur. He never took any room on rent in his name, but he used to stay with his colleagues for about 8 to 10 months. He met the respondent when he returned to India in 1993 but there is no evidence to show that he met her in India during 1993. To a suggestion that she used to be co-operative and used to live with love and affection with him and she never refused to stay with him or expressed any intention to discontinue from the marital life, the petitioner stated that she wanted to accompany him to U.K. in the year 1993 by losing her job if she gets a job in U.K. It is stated that even if she comes to U.K., he could not have secured a job to her as Indian degrees are not recognized by U.K. He is leading single life without marrying anybody else and he did not make any attempt to reconcile through mediators. He has no permanent abode in India and because the respondent always refused to live with him, he has not chosen to live with her whenever he visited India. It is stated that the respondent never wanted to lose his association. 7. PW.2 is the close friend of the petitioner and he stated that he worked as Assistant Professor in G.G.H. Guntur from 1988 to 1997 and when the petitioner was residing in the Government quarters of the parents of the respondent in 1990, he went to see him, the petitioner came to him with lungi and banyan without chappals and stated that his wife attempted to strangulate him but he escaped from her house. It is stated that the petitioner is a sincere, honest and hard working doctor and he never interested in private practice. Thereafter, the petitioner has changed his residence to the house surgeons quarter, G.G.H. Guntur, and on the next day of the incident in the month of July, 1991, the petitioner left for U.K. for pursuing higher studies i.e. M.R.C.O.G. After the said incident, he has no knowledge about the marital relationship between the petitioner and the respondent and he never bothered to know about their marital relations. He never verified about the relationship of the petitioner and respondent thereafter. PW.2 stated that he gave evidence only on the request of the petitioner. 8. PW.3 is the brother-in-law of the petitioner who married the elder sister of the petitioner and he supported the case of the petitioner. It was stated that there was a mediation to convince the respondent to join the petitioner but the respondent did not join the petitioner. It is stated that he never pressurized the respondent to bring Rs.2,00,000/- from her parents house for investing in Sago factory owned by the wife of PW.3. He knows about the issuance of notice by the petitioner to the respondent through an advocate of Kakinada who is no other than his maternal uncle in the year 1993 or 1994. 9. PW.4 is the student of the petitioner and he stated that in the year 1991 the respondent was staying at her parents house in Guntur,. The petitioner informed him that he is not happy at his father-in-law’s house, therefore, he came and joined in the P.G. Hostel, Guntur. During the stay of the petitioner in the hostel, the respondent did not visit him. Later, the petitioner left for abroad. 10. The respondent herself examined as RW.1 and stated that she lived with her husband and she denied all the allegations made in the petition. It is stated that till the petitioner left for U.K., he used to reside in her parents house and while he was going to U.K. he never asked her to join him. She accompanied him to the bus stand along with the luggage and she has given send off to him and that there were no disputes between them. The petitioner represented her that he is going to U.K. for further studies i.e. for doing M.R.C.O.G. and by that time he has not secured any job in U.K. and has just applied leave and went away later, the Government rejected his application and as such his services were also terminated by the Government. She requested the petitioner not to leave Government job and not to go to U.K. for pursuing higher studies. Her parents gave Rs.50,000/- to the petitioner and she also gave some amounts to the petitioner while he was going to U.K. The petitioner demanded her for an amount of Rs.2,00,000/- for establishing a sago factory by his sister. As the respondent’s parents did not pay the said amount, he asked her to sell her car but she was not inclined to sell the car as she purchased the same by taking loan and then PW.3 and the sister of PW.1 spoiled the mind of PW.1. She never intended to put up full stop to their conjugal life at any point of time. She got promotion after the petitioner went to U.K. as Professor of Urology. In fact the petitioner used to insist her to put up a private nursing home after giving up the job and she has also agreed for his advice. After their marriage, he never tried to put up separate residence from his in-laws house till he left for U.K. Her first marriage which is an arranged one was held in the year 1981 and the same was dissolved in the year 1983. When she used to work either at Jagarlamudi or at Tripuranthakam, she always used to live in the company of the petitioner at the weekends, that too, at her parents residence where the petitioner had lived through out till he went to U.K. While she was doing M.Ch. in Urology, as and when the petitioner used to come to Hyderabad, she used to live with him in a hotel. There was cordial relationship between her parents and the family members of the petitioner and they always used to treat him with love and affection. She herself send him with good cheers while he was going to U.K. 11. Except the oral evidence, no documentary evidence is adduced by either of the parties. The O.P. is filed for divorce on the ground of desertion alone. 12. The marriage between the petitioner and the respondent is a love marriage. The petitioner is a native of Kakinada whereas the respondent is a native of Tenali and Guntur. After their marriage at Annavaram on 10-08- 1985, the marriage was consummated and they lived happily together. When both of them were transferred to Guntur district, they started living at Guntur District in the parent’s house of the respondent some time at Tenali and thereafter at Guntur. 13. The question that arises for consideration is, whether the respondent deserted the petitioner without any reason, as explained in Section 13 of the Hindu Marriage Act, 1955? 14. The cumulative evidence goes to show that both of them used to live in the parents house of the respondent initially at Tenali and thereafter at Guntur. When the respondent got seat in M.Ch., Urology (post graduate course), the petitioner never objected for her further studies. According to the petitioner, while he was living in the hotel, the respondent never used to come to the hotel. But, according to the respondent, it is stated that she used to join the petitioner in the hotel as and when he came to Hyderabad. It is the specific evidence of the respondent that while she was working at Sangam Jagarlamudi, every week, she used to go to Guntur and spend with the petitioner. So also