IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINETH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SMT. JUSTICE T. MEENA KUMARI A N D THE HON'BLE SRI JUSTICE G.V. SEETHAPATHY C.M.A.NO. 2 0 8 8 OF 2003. Between : Dr. Mahender, s/o Sri S. Prakash, Aged about 50 years, Occupation: Medical Practitioner, R/o. H.No. 1-2-381, Gangan Mahal, Hyderabad. … Appellant Versus Smt. Lalitha, w/o. Dr. Mahender, Aged about 45 years, Occupation: Teacher, R/o. Amaravathi Camp & Taluk, Amaravathi, Maharashtra State. ..... Respondent Counsel for the Appellant : M/s. S. Vani & K. Sridevi ( Counsel for the Respondent: None Appeared THE HON'BLE SMT. JUSTICE T. MEENA KUMARI A N D THE HON'BLE SRI JUSTICE G.V. SEETHAPATHY C.M.A.No. 2 0 8 8 OF 2003 J U D G M E N T : (Per the Hon’ble Sri Justice G.V. Seethapathy) This Civil Miscellaneous Appeal is directed against the order dated 10-3-2003 passed in OP.No. 726 of 1999 by the learned Judge, Family Court, Hyderabad, dismissing the petition filed by the appellant- petitioner under section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 claiming decree of divorce against the respondent. 2. For the sake of convenience, the parties to this appeal would hereinafter be referred to as they are arrayed in OP.No.726 of 1999. 3. Heard the learned counsel for the appellant-petitioner and none appeared for the respondent. 4. The marriage of the appellant-petitioner with the respondent took place on 24-10-1980 at Amaravathi and a female child was born out of wedlock on 23-12-1981. It is stated that subsequently differences arose between the parties two years after the birth of female child. It is stated that due to quarrelling attitude of the respondent with the appellant-petitioner on trivial issues, the respondent deserted him in October 1984. Thereafter, the appellant-petitioner got issued a legal notice on 27-6-1988 to the respondent informing his intention to have a divorce with the respondent. The respondent got issued a reply notice on 01-8-1988 making all false allegations. Thereafter, the appellant-petitioner filed OP.No. 51 of 1989 before the Court of IV-Additional Judge, City Civil Court, Hyderabad, on the ground of desertion. On merits the said petition was dismissed. The appellant-petitioner filed CMA.No.3536 of 2000 before this Court and subsequently withdrew the same. It is stated that the appellant went abroad for further studies and after his return he filed the present OP.No. 726 of 1999 again seeking divorce on the same ground of desertion. The respondent opposed the same. Before the trial court, the appellant was examined as PW.1 and Exs.P1 to P9 were marked and the respondent examined herself as RW.1 and no documents were marked. On appreciation of oral and documentary evidence placed on record, the learned Judge, Family Court dismissed the said OP on the ground that desertion is not made out and the learned Judge also observed that the earlier OP.No.51 of 1989 operates as resjudicata and the said order has become final. Aggrieved by the same, the appellant-petitioner (husband) filed the present appeal. 5. As personal notice on the respondent could not be served and the appellant-petitioner sought leave of this court to order substitute service by way of paper publication in any local News paper having its circulation in Amaravathi camp and taluk, Maharashtra. On 12-08-2009 while allowing CMA.MP.No. 1509 of 2009 in CMA.No.2088 of 2003 this Court directed the appellant-petitioner to serve notice to the respondent by way of paper publication in any local News paper having its circulation in Amaravathi camp and taluk, Maharashtra on the ground that the respondent is evading receipt of summons and further directed to file proof of service with the Registry on or before 08-09-2009, in default, CMA.No. 2088 of 2003 stands dismissed. For compliance, the matter is posted to 08-9-2009. Accordingly, the appellant got published the same in “Times of India” English daily News paper. 6. As seen from the evidence on record, except making allegations that on 23-12-1981 a female child was born to the appellant-petitioner and that the respondent left his company in October 1984 and that he issued a legal notice on 27-6-1988 to the respondent, there is no material on record to show that the respondent in fact deserted the appellant-petitioner. There is absolutely nothing on record to show that the appellant-petitioner made any efforts to reunite with the respondent. On the other hand, the evidence of PW.1 go to show that the appellant himself left abroad for higher studies and he returned after ten years i.e., in 1994. It is obvious that the appellant- petitioner did not make any efforts to have reunion with the respondent. Instead the appellant-petitioner went abroad for higher studies and returned back after ten years, during which period he never made any sort of efforts to have reunion with the respondent. It is a clear case of desertion on the part of the appellant than by the respondent. The allegation of the appellant- petitioner that the respondent deserted him remains totally unsubstantiated by any cogent evidence. The learned Judge, Family Court, Hyderabad, has therefore, rightly refused to grant divorce on the grounds alleged by the appellant-petitioner. Further the earlier order and decretal order dated 23- 12-1998 passed in OP.No. 51 of 1989 filed by the appellant-petitioner operates as res judicata as the said order has become final and the present application is also filed on the same ground of desertion. In our considered view, the impugned order passed by the learned Judge, Family Court, Hyderabad does not call for any interference, as the same does not suffer from any illegality or irregularity. 7. The learned counsel for the appellant-petitioner relied upon a decision of the Hon’ble Supreme Court in GEETA JAGDISH MANGTANI V/s. JAGDISH MANGTANI [1], wherein it has been held that since wife left the matrimonial home on 02-6-1993 and did not come back, absence of desire on her part to honour the matrimonial obligation was clear and the conduct indicated total abandonment of marriage and could not be justified on the ground that she had more earnings than her husband alone as a reasonable cause to desert. The Hon’ble Supreme Court held that there are no grounds for interference. 8. The above decision does not apply to the present facts on hand because there is nothing on record to show that the respondent-wife has deserted the appellant-petitioner (husband). It is not the case where desertion on the part of the respondent-wife is proved. The allegation made by the appellant-petitioner that the respondent-wife deserted him is found to be false by the trial court and there are no grounds to interfere with the said finding of the trial court. 9. Under the above circumstances, in our considered opinion, there appears no infirmity in the order impugned, and the reasons recorded by the learned trial Judge for refusing to grant a decree of divorce for dissolving the marriage between the appellant and respondent are germane, rational and adequate. Accordingly we dismiss the appeal, confirming the order passed by the learned trial Judge in all respects. In the circumstances, there shall be no order as to costs. _____________________________ JUSTICE T. MEENA KUMARI _____________________________ JUSTICE G.V. SEETHAPATHY 09-09-2009. I s L [1] ) SCJ 2005, Vol.7 – Page-17