L. NARASIMHA REDDY, J. :- The unsuccessful petitioner in H.M.O.P.No.90 of 1998 on the file of the Principal Senior Civil Judge, Nellore, filed this appeal under Section 28 of the Hindu Marriage Act, 1955 (for short the Act).

2. The marriage between the appellant and the respondent took place on 17.01.1991. The respondent is none other than the daughter of the maternal uncle of the appellant. They were blessed with a female child, on 19.10.1992. The appellant filed O.P.No.90 of 1998, against the respondent, for divorce, on three grounds. The first is that the respondent was suffering from the disease of epilepsy; the second is that she caused him cruelty and the third is that she deserted him, without any basis. He alleged that though the respondent is his close relation, her parents have suppressed the fact that she is suffering from epilepsy. He pleaded that due to recurrent attacks of epilepsy, his life is becoming miserable and there is no possibility of any improvement. As regards cruelty, it was alleged that the respondent used to threaten him to commit suicide, and at one point of time, she has consumed Baygon Spray. It was also alleged that the respondent never used to co-operate with him, and at every stage, she used to harass him, on one pretext or the other. So far as the allegation as to desertion is concerned, the appellant pleaded that the respondent left the matrimonial home in 1994, and thereafter, she did not come back, in spite of repeated efforts.

3. The respondent filed a counter, opposing the O.P. She pleaded that the factum of her suffering from epilepsy was very much known to the appellant and his parents and it is at the insistence of the appellant that her marriage was performed with him. She pleaded that the disease, which was existing during her childhood, was almost completely cured by the time of her marriage, but on account of the harassment caused to her by the appellant, it resurfaced occasionally. She has also denied the allegation as to cruelty, including the one of the alleged taking of Baygon Spray. On the allegation of desertion, the respondent stated that it is the appellant, who abruptly left for Visakhapatnam, without any intimation and remained there for three years, and left with no alternative, she had to live with her parents, together with the child.

4. The trial Court dismissed the O.P. through order, dated 05.11.2002, holding that none of the grounds pleaded by the appellant were proved. Hence, this appeal.

5. Sri K.Ananda Rao, learned counsel for the appellant, submits that though Section 5 of the Act was amended deleting epilepsy as a factor for invalidating marriage, it is permissible for the appellant to plead it, since the O.P. was filed before that amendment. He submits that the appellant is entitled for a decree, because there is no denial of the fact that the respondent is suffering from epilepsy. He contends that the ground of cruelty is also proved through oral and documentary evidence, and the threat of committing suicide on the part of the respondent does become relevant in this regard. Learned counsel further submits that in spite of the efforts made by his client, the respondent did not turn up, and thereby, the plea of desertion is also proved.

6. Sri M.Venkata Narayana, learned counsel for the respondent, on the other hand, submits that the appellant and his family were aware that the respondent was suffering from epilepsy during her childhood and knowing fully well about the medical background of the respondent, the appellant married her. He further submits that taking into account, the fact that epilepsy cannot be treated as an impediment for matrimonial life, Parliament caused amendment to Section 5 of the Act and that ground is not at all available to the appellant, at this stage. As regards grounds of cruelty and desertion, learned counsel submits that the evidence on record would establish that it is the appellant who is guilty of those two grounds and not