( 1 ) THE appellant Prafulla kumar is hereby assailing correctness, propriety and legality of the judgment and decree which has been passed by the Additional Judge to the Court of District Judge, Indore in the matter of Hindu Marriage Case No. 1/91 by which the learned Judge dismissed the matrimonial petition filed by the appellant for claiming divorce from his wife Sarla.

( 2 ) FEW facts need to be stated for the purpose of unfolding the matter. The parties to this appeal married with each other on 4. 6. 85 at Indore and lived together till 20. 4. 87 when they separed from each other. Since 20. 4. 87 both of them are residing seperately. On 20. 4. 87 the wife, Smt. Sarla visited the house of the appellant alongwith her mother and took away all her belongings and the articles termed as Stridhan including marriage gifts. Receipt P. 1 and P. 2 were executed in that context.

( 3 ) THEY have a son bom out of said wedlock who is now about 10 years old as informed by both the counsel appearing for the parties.

( 4 ) BEFORE presenting matrimonial petition the wife had filed a petition for restitution of conjugal rights in view of provisions of section 9 of Hindu Marriage Act, 1955 (hereinafter referred to as Hindu Marriage Act for convenience ). The said matrimonial petition filed by the respondent Sarla came to be dismissed on 5/10/88 on default. No application was preferred by Sarla in the court for its restoration. The said order of dismissal for default was also not challenged by resorting to other provisions of law. After that petition, sarla did not file any matrimonial petition for restitution of conjugal rights.

( 5 ) THE appellant examined himself, however, the wife Sarla examinge Ghanshyamdas agrawal, Hiralal Jain, herself in support of her case. Learned trial Judge after assessing the evidence in the light of evidence adduced held that the appellant did not prove that the wife sarla had deserted him for more than two years. In view of that he dismissed the matrimonial petition filed by the present appellant claiming for the decree of divorce in his favour and against the respondent, Sarla.

( 6 ) LEARNED counsel appearing for both the parties, made a reference to the evidence on record as well as documents filed.

( 7 ) IT has been an admitted fact that on 20th April 87 the respondent Sarla and her mother had gone to the house of father of the appellant Prafulla Kumar and had taken away all the articles which were given to respondent sarla in the marriage by her parents or by others as marriage gifts and in that context documents Ex. P. 1 and P. 2 were executed. There is no dispute that from 20th April, 87 there has not been any re-union between appellant and respondent. It is also undisputed that both the appellant and respondent have a child be gotten out of this wed-lock whose name at present is "samkeet" and whose age is about 10 years. It is also undisputed that said Samkeet is residing with respondent Sarla.

( 8 ) THE appellant had filed the matrimonial petition for getting decree of divorce against the respondent for dissolving their marriage in view of provisions of Section 13 (1) (ib) alleging that respondent Sarla had deserted appellant Prafulla Kumar for a continuous period not less than two years immediately preceding the presentation of the petition. The respondent had contended in her written statement that at the relevant time/ the appellant was serving at Indore and he wanted to stay at Indore seperately and, therefore, he had sent respondent and her mother to Ujjain to his parents house for the purpose of bringing those articles which respondent and her mother took away from the parents of appellant as indicated by Ex. P. 1 and P. 2. The respondent had contended that she was willing to cohabitate with the appellant however, the appellant did not want her to cohabitate with him and, therefore, he refused the association. An attempt has been made to contend that on 23th April, 87 respondent Sa