Husband has to prove allegation of desertion.

1. The respondent/husband filed O.P.No.48 of 1982 on the file of the learned VI Assistant Judge, City Civil Court, Madras, seeking a decree for divorce under Section 13(l)(i-a) and 13(l)(i-b) of the Hindu Marriage Act, 1955 as amended by Act 68 of 1976. According to the respondent, as stated in the petition, the marriage between the petitioner and the respondent took place on 12. 1976 at Nellore, Andhra Pradesh and they had been living together as husband and wife at No.99 Thyappa Mudali Street, G.T., Madras-1 till 20.3.1978, on which date the wife left the matrimonial home with the intention to desert the husband. A female child was born to the appellant through the respondent on 18. 1977. Ever since the date of marriage the wife did not want to live with the husband and she frequently went away to her parents house during the period of her living with him and she treated the husband with contempt and developed a dislike and aversion towards him. The petitioner has further stated in the petition, with respect to cruelty, that the respondent practiced mental cruelty on him on several occasions in 1977 and 1978 till 20.3.1978, during her stay with him, by systematically imputing adulterous and immoral conduct on the part of the petitioner. His further case was that the wife refused to have any sexual intercourse with the petitioner up to the date of desertion. As a result of such refusal to cohabit with the petitioner he had become a physical and nervous wreck and has also become unable to concentrate on his official work. On these basis, the respondent herein filed the petition for divorce.

2. The wife/appellant contested the petition by filing a counter stating that she had not deserted her husband as alleged by him on any day much less on 20.3.1978. She had no intention to desert her husband. According to the wife, she never treated her husband with contempt and developed a dislike or aversion towards him as alleged.

3. With respect to the ground of cruelty, it is the case of the wife that she has not been falsely accusing the husband. It is her further case that even though her husband had developed illicit intimacy with other women and was indulging in adulterous activities, she was keeping quiet and she never objected to his ways of living. She has also denied the averments regarding cruelty alleged by the husband.

4. The lower court accepted the case of the wife and rejected the case of the husband and thereby dismissed the petition. On appeal by the husband in C.M.A.No.123 of 1984, on the file of the learned IX Additional Judge, City Civil Court, Madras, the lower appellate court found that the wife had deserted the husband without any reasonable cause, on 20.3.1978, and for a continuous period of two years immediately preceding the presentation of the petition. He rejected the case of the husband with respect to the ground of cruelty. Aggrieved against the same, the wife has filed the above appeal.

5. It is not in dispute that the wife left the matrimonial home on 20.3.1978. The five essential factors which must be established under Section 13(1) (i-b) of the Hindu Marriage Act to succeed in the petition for divorce on the ground of desertion are as follows:-

.(a) the spouses must have parted or terminated all joint life;

.(b) the deserting spouse must have an intention to desert the other spouse;

.(c) the deserted spouse must not have agreed to the separation;

.(d) the desertion must have been without cause

.(e) this state of affairs must be continued for at least two years immediately preceding the presentation of the petition;

6. In T. Rangaswami v. TAravindammal, A.I.R.1957 Mad 243, while dealing with the scope of the said Section, Ramaswami, J.,has held as follows:- "In certain circumstances the deserting spouse may not be the person who actually leaves the matrimonial home. The actual parting may be due to the deserting spouse making continued joint life impossible and thus compelling th