The court emphasized that the factum of desertion can be established even if there is a brief period of living together, and relied on precedents to support this interpretation.

S. MURALIDHAR, J.

( 1 ) THIS appeal by the wife is directed against the judgment and order dated 28. 9. 1996 passed by the Additional District Judge Delhi in HMA No. 363 of 1990. By the impugned judgment the trial court dissolved the marriage between the parties both on the ground of desertion as well as on the ground of cruelty.

( 2 ) THE facts leading to the filing of this appeal are that the parties are married on 11. 12. 1986. In March 1987, while she was in the family way, the appellant left the matrimonial home and insisted that unless the respondent here set up a separate residence she would not come back to the matrimonial home. It is stated that the appellant returned in June 1987 when a separate kitchen was arranged by the respondent. Again in September 1987 the father of the appellant took the appellant to her parents' house for the delivery of the child. A male child was born on 24. 10. 1987. Thereafter, despite the persuasion of the respondent the appellant did not return to the matrimonial home. Even after the respondent got a kitchen and toilet constructed separately, the appellant did not return.

( 3 ) THE admitted position is that the parties approached the Delhi Legal aid Cell in August 1989 and made the following statements before the Secretary legal Aid:

Statement of deepak Sachdeva on S. A.

I am ready to keep my wife Smt. Anita Sachdeva with me and undertake to keep with me with respect, dignity and love. There will be no difficulty or any kind of harassment to her. I will maintain her and the child within my means.

Sd /-

Secretary

Sd /-

Deepak Sachdeva

7. 10. 89

Statement of Anita Sachdeva on S. A.

I have compromised with my husband and am ready to live with him. I also undertake to live with him with respect and love. There will be no quarrel in future between us now. I also undertake to perform all marital duties/obligations towards my husband.

Sd /-

Secretary

Sd /-

Anita Sachdeva

7. 10. 89

24. 10. 1989 Statement of Smt. Anita Sachdeva , w/o Deepak Sachdeva on S. A.

:

I do not want to go back to my matrimonial home to live with my husband Deepak Sachdeva and wish to seek divorce from him. Therefore, my reconciliation proceedings be withdrawn.

Sd /-

Secretary,

dlac

89.

( 4 ) THE case of the respondent before the trial court was that divorce should be granted both on the grounds of desertion as well as cruelty. As regards the ground of desertion the defence of the appellant before the trial court was that the mandatory two year separation period that was required was not existent in the present case and therefore the petition was not maintainable. In order to appreciate this contention a few dates may be relevant to be noticed.

( 5 ) AS already noticed the marriage was performed between the parties on 4. 12. 1986 and although the appellant left the matrimonial home initially in march 1987, she returned. Again she left the matrimonial home in September 1987. The divorce petition was filed on 7. 5. 1990. Computed from the date of separation being September 1987, the petition would have been within time. However, it is not denied that pursuant to the parties appearing before the Delhi Legal Aid cell, they lived together for about 17 days from 7. 10. 1989 to 23. 10. 1989. It is contended by the appellant that this living together for about 17 days constitutes a break in the two-year period and therefore the said two year period should be computed only from 24. 10. 1989 and not from September 1987.

( 6 ) ON the part of the respondent it is contended that the mere fact that the parties lived

24. 10. together for 17 days, does not obliterate the second limb of the ground of desertion that there should be no intention of the parties to cohabit. It is submitted that merely living together for 17 days would not break the two year period of separation. Secondly, it is contented that in any event in March 1992 the respondent here amended the petition for divorce on the ground of des