Desertion under Hindu Marriage Act necessitates intentional abandonment without reasonable cause, established through a fact of separation and the intent to permanently cease cohabitation.

JUDGMENT :

RAVI NATH TILHARI, J :

Heard Sri G. Ram Gopal, learned Counsel for the appellant (husband) Sri Siva Nagarjuna, learned Counsel, representing Sri T.V.S. Prabhakara Rao, learned Counsel for the respondent is present.

2. This appeal under Section 28 of the HINDU MARRIAGE ACT , 1955 (for short, "the H.M. Act") has been filed by the wife challenging the decree of divorce dated 18.06.2007, passed in OP No.47 of 2005 on the file of Court of Senior Civil Judge, Amalapuram, (in short, the Trial Court) filed by the husband. O.P., was filed under Section 13(1)(ib) of the H.M. Act on the ground of desertion.

3. Henceforth, parties shall be referred as arrayed in O.P.

4. The case of the petitioner (husband) in O.P., was that the marriage with the respondent was solemnised on 16.11.1996 at Munipalli Village of Uppalaguptam Mandal as per the Hindu Rites and Customs. The marriage was consummated. Parties lived together for about one month but thereafter they could not live happily as the differences arose. They started living separately since 1st Quarter of the year and as a result the wife returned to her parents deserting the petitioner. The mediation by the elders and well-wishers failed. There was no family life between the petitioner and the respondent. There was also no possibility of reunion to lead marital life. The petition for divorce was filed on such averments stating willful desertion by the wife and also no child born to them.

5. The wife filed counter denying the material allegations made in the petition and submitted that there was no ground to grant divorce. She pleaded that previously also the husband filed a divorce petition which was dismissed. She submitted that the same constituted res judicata. She also pleaded that the marriage was not consummated due to impotency of the husband. The demand of dowry by the husband was also pleaded.

6. The learned Trial Court framed the following points for consideration :

"Whether the petitioner is entitled for decree of divorce as prayed for against the respondent?"

7. In the evidence, the petitioner examined himself as PW1. The respondent examined herself as RW1. No documents were marked on behalf of the parties.

8. The learned Trial Court recorded that the previous petition for divorce was dismissed for default. No issues were framed. No evidence was adduced. That did not operate as res judicata. The learned Trial Court recorded that both the parties were living separately for the last about 10 to 11 years, as on the date of the judgment. The Trial Court further recorded that even on the evidence of the petitioner-husband, the marriage was not consummated, for which both the parties were putting blame on each other. No efforts were made to join. So, under the circumstances, the Trial Court held that it was a fit case to grant divorce. The divorce was granted and the marriage was dissolved by judgment and decree dated 18.06.2007.

9. Learned Counsel for the appellant submitted the only ground that, without considering the ground of desertion as contemplated under Section 13(1)(ib) of H.M. Act and recording a positive finding on desertion, the divorce decree could not be granted.

10. Learned Counsel for the respondent did not advance any argument. He submitted that the respondent took the bundle from him long back.

11. We have considered the submissions of the learned Counsel for the appellant, the case of the respondent as raised before the learned Trial Court, and perused the material on record.

12. The following points arise for our consideration and determination :

(i) Whether the desertion was proved so as to grant the decree of divorce?

(ii) Whether the judgment of the learned Trial Court deserves to be maintained or set