The main legal point established in the judgment is that in order to prove desertion under S.13(1)(b) of the Hindu Marriage Act, the factum of separation and the intention of bringing cohabitation permanently to an end must co-exist for a continuous period of not less than two years.

JUDGMENT :

Kauser Edappagath, J.

This appeal has been preferred by the husband against the dismissal of his original petition for dissolution of marriage on the ground of desertion.

2. The marriage between the appellant and the respondent was solemnized on 31/8/1991 (According to the respondent, the date of marriage is 29/8/1991) at Balal Sri Bhagavathi Kshethram, Hosdurg. Two children were born in the wedlock. Admittedly, they lived together as husband and wife only till 10/7/1996 and since then, they are living separately. After the marriage, the appellant and the respondent were residing at the house of the appellant. The respondent went to her house on 10/7/1996 for the delivery of the second child. Thereafter, she did not return to the house of the appellant. The appellant alleges that the respondent without any reasonable cause did not return to matrimonial home intentionally and thus, deserted him. On the other hand, the respondent alleges that she was treated with cruelty by the appellant while they were living together and further the appellant has contracted another marriage and living with the said lady. Thus, the respondent projects reasonable cause for her separate living. In the year 2002, the appellant preferred Original Petition for dissolution of marriage as OP No.88/2002 on the ground of desertion. The said original petition was dismissed holding that the respondent did not desert him. Thereafter, in the year 2008, the appellant preferred OP No.130/2008 for restitution of conjugal rights. The said petition was resisted by the respondent and, after trial, it was dismissed. It was thereafter that the present original petition has been filed for dissolution of marriage on the ground of desertion in the year 2014.

3. It is alleged in the original petition that the respondent left the company of the appellant without any reasonable cause since 10/7/1996. It is further alleged that, on so many occasions, the appellant approached the respondent and tried to bring her back to his house and he attempted to contact her over telephone but the respondent did not turn up. It is specifically alleged that, on 10/12/2013, the relatives of the appellant and mediators again approached the respondent and requested her to join him, but she expressed her unwillingness to come and reside with him and continue the marital relationship.

4. In the counter statement filed by the respondent, she specifically denied the ground of desertion canvassed by the appellant. It is contended that during the period when they resided together at the house of the appellant, she was treated with cruelty, both physically and mentally, by the appellant. It is further contended that the appellant took her to her house for delivery of the second child when she was seven months pregnant and thereafter the appellant never visited her to take her back. It is also contended that the appellant married another lady namely Sreeja and he is living with the said lady. According to the respondent, it was the appellant who deserted her and deliberately deprived her the company and cohabitation without any reasonable cause. She was constrained to live separately due to the ill-treatment and neglect by the appellant, added the respondent. The respondent sought for the dismissal of the petition.

5. The appellant gave evidence as PW1 and the respondent gave evidence as RW1. Ext.A1 was marked on the side of the appellant and Ext.B1 was marked on the side of the respondent. After trial, the court below found that the evidence on record shows that the respondent did not desert the appellant and accordingly the original petition was dismissed as per the impugned decree and judgment. Challenging the said decree and judgment, the appellant preferred this appeal.

6. Heard both sides and perused the records.

7. The appellant is now aged 57 years and the respondent is now aged 49 years. Admittedly, the parties are living separately for the last 25 years i.e., w.e.f. 10/7/1996. Both ha