G. RADHAKRISHNA RAO, J.

( 1 ) THE marriage between the petitioner and the respondent took place in the year 1970. Differences arose in the year 1980 and some compromise was effected by the mediators and it was reduced into writing. The petitioner, who is the husband, filed an application for a declaration that the marriage between him and the respondent was null and void and alternatively for divorce under Ss. 11 and 13 of the Hindu Marriage Act on the following grounds :

( 2 ) THE first ground is that the respondent i. e. , the wife was married to one Karnati Rama Rao, her maternal uncle, that marriage was not dissolved and the same was subsisting on the date of his marriage with the respondent and thus his marriage with the respondent is void under S. 11 of the Hindu Marriage Act.

( 3 ) THE second ground is desertion and cruelty. The husband s case is that the wife is frequently leaving his house after taking the entire salary from him and was not returning and sending that amount to her parents use and was not giving him food properly. These two grounds cannot go together.

( 4 ) THE wife denied the allegations made in the petition. The fact that the marriage took place between them in the year 1970 and they lived together as wife and husband is not in dispute. The fact that the elders convened a panchayat and compromised the matter in the year 1980 and the same was reduced into writing and marked as Exs. A-11, A-12, and X-l, are not in dispute. The fact that subsequent to that compromise both of them lived together. Desertion according to the husband is from November, 1981 is not denied. This petition was filed in 1982. To sustain the plea of desertion a continuous period of two years of separation between the spouses is necessary before presentation of the petition for divorce. The previous periods before present separation wherein desertion took place" cannot enure to the benefit of any party. The continuous period of separate living is a must to entertain the ground of desertion. So the plea of desertion raised by the husband cannot be sustained.

( 5 ) COMING to the second plea viz. , cruelty the husband stated that the wife was not providing food to him properly and was taking away his salary and spending it for her parents. Even on his own saying, the wife was frequently, visiting her parents house since their marriage. When that fact was not complained to the elders during panchayat, the husband cannot be permitted now to raise such a ground. The lower Court rightly rejected the plea of cruelty.

( 6 ) MR. C. V. N. Sastry, learned counsel for the petitioner contended that the first marriage has been proved on the basis of probabilities of the documentary evidence that has been adduced by the husband and that the husband discharged the burden of proving the earlier marriage and the burden is shifted to the wife to adduce the rebuttal evidence. In the matrimonial cases we have to consider the evidence with great care and caution as it affects the rights of the parties, unlike in civil matters. The catena of decisions relied upon by Mr. Sastry has no application o this case. Each case has to be decided on its own merits. In the case of matrimonial matter the theory of proving facts beyond reasonable doubt cannot be applied. But it must be on a reasonable and sound appreciation of evidence, coupled with the statutory provisions.

( 7 ) MR. Sastry argued that solemnization of the marriage between the parties was not proved. What is solemnization. Solemnization of marriage can be done only in accordance with the custom and the ceremonies that have been followed in the caste to which the parties belong. Number of decisions were cited by Mr. Sastry in support of his contention. The Supreme Court held in Priya Bala v. Suresh Chandra, AIR 1971 SC 1153 : 1971 Cri LJ 939 that as the second marriage has been proved by adducing evidence there is a solemnization of the second marriage as per the Hindu rites and custom. Following the

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