IMPORTANT POINT
Where stand of respondent wife throughout proceedings was that she was ready for cohabitation, divorce petition filed by appellant husband on ground of desertion was not decreed.

S.S. Shinde, J.—This Second Appeal is filed challenging the judgment and order of the Additional District & Sessions Judge, Sangamner, in R.C.A. No. 71 of 2003. Since the proceedings are arising out of matrimonial dispute, this Court by order dated 08.11.2011 appointed a Mediator under the provisions of section 89 of the C.P.C. Said Mediator upon hearing the parties and giving them opportunity, opined that the settlement between the parties does not appear to be possible.

2. Thereafter, this Court on 06.02.2012 issued notices to the parties informing them that the matter will be heard finally at the admission stage and accordingly the matter was taken up for hearing on 21.03.2012. The parties were given opportunity to file written notes of argument. Accordingly, learned Counsel for the appellant has placed on record notes of arguments accompanied with the judgment of the Supreme Court.

3. The appellant herein filed H.M.P. No. 59 of 2001 for divorce on the ground that since 1998 the respondent wife has deserted him and withdrawn from the society without any just and reasonable cause, so also she has neglected in performing her matrimonial ties.

4. The petition was opposed by the respondent/wife by filing the written statement. It was stated in the said written statement that the respondent/wife made sincere efforts for cohabitation but the petitioner refused for the same. Besides children, the petitioner had no desire to cohabit with her. The petitioner under intoxication used to ill-treat her and was demanding money. In spite of pacification, the petitioner did not listen and drove the respondent out of the house and since then she is staying at the mercy of her parents. Other details were also incorporated in the written statement.

5. Upon appreciating the rival contentions, learned Civil Judge, Senior Division, Sangamner, framed as many as four issues for its determination. The first issue that – Does petitioner prove that the respondent has deserted him without sufficient cause for a continuous period of two years, immediately preceding the presentation of the petition? has been answered in the affirmative. Other issues were also framed and ultimately by the judgment and order dated 16.08.2003, the concerned Court decreed the petition. The marriage between the parties was dissolved by decree of divorce. The petitioner was directed to pay Rs.100/per month as permanent maintenance to the respondent wife from the date of the order of the concerned Court till she survives or remarries.

6. Being aggrieved by the judgment and order of the Trial Court, the respondent herein preferred R.C.A. No. 71 of 2003 before the Additional District Judge, Sangamner, under section 28 of the Hindu Marriage Act, 1955. In said appeal, after hearing the parties and after taking on record the written statement of the appellant herein, the Lower Appellate Court framed as many as four points for its determination. First point i.e. Whether the husband has proved that the wife has deserted him within the meaning of Section 13 (1) (ib) of the Hindu Marriage Act, 1955, without reasonable cause or excuse? has been answered in the negative. Point No.2 – Whether the husband is entitled to a decree for divorce? has also been answered in the negative. The Lower Appellate Court has reversed the findings recorded by the Trial Court. Hence, this appeal is filed by the original petitioner/husband.

7. Learned Counsel appearing for the appellant submits that the respondent/wife without any reason or cause deserted the appellant in the year 1998. She left matrimonial house in the year 1998 and she did not turn up. Therefore, the appellant was constrained to issue notice to the respondent on 29.12.1999 for dissolution of marriage. It is submitted that the marriage between the appellant and respondent was solemnized in the year 1994. Out of their wedlock one son was born but unfortunately disabled. In the year 1998 the respondent wife was pregnant. She left he