The court ruled that to establish desertion under the Hindu Marriage Act, the petitioner must prove both the factum of separation and the intent to permanently cease cohabitation, which was not demonstrated.

JUDGMENT :

B.R. Madhusudhan Rao, J.

1. This appeal is filed by the appellant-wife aggrieved by the order passed by the learned I Additional Family Court Judge, at Hyderabad, in O.P.No.161 of 2019, dated 30.01.2024.

2. Parties will be herein after referred to as appellant-wife and respondent-husband.

3.1. Respondent-husband has filed O.P. against his wife under Section 13 (1) (ia) & (ib) of Hindu Marriage Act, 1955 with a prayer to dissolve his marriage which took place on 04.05.1980 at Venkateswara Vignana Mandir, Guntur.

3.2. Respondent-husband stated in the petition that his wife started pressurizing him to resign the job at Rourkela and go to Madras, finally he convinced his wife and continued the marital life, they are blessed with a daughter by name Srividya in the year 1981. The appellant-wife was adamant and harassed the respondent-husband to shift the family to Madras. In the year 1984, they are blessed with a son by name Srinivas Pavan Kumar. In the year 1990, the respondent-husband resigned his job in Rourkela and moved to Madras. Thereafter, the appellant-wife again started harassing him to shift the family to Rourkela, ultimately the respondent-husband shifted the family to Rourkela and withdrawn his resignation with great difficulty. The appellant- wife started pressurizing the respondent-husband to secure a job abroad and with great efforts he secured a job in Muscat, Sultanate of Oman and left to Muscat in 1994. On 02.10.1995, he returned to Bombay. Finally, he shifted to Hyderabad, his father has secured a job for him in Apollo Hospital and he joined on 09.05.1998.

3.3. The appellant-wife has harassed the respondent-husband continuously and finally he filed OP.No.119 of 2002 at Guntur for grant of divorce on the ground of cruelty. On contest the O.P. came to be dismissed on 20.04.2005 and aggrieved by the same, the respondent-husband preferred CMA before the High Court of Andhra Pradesh vide CMA No.1170 of 2005 which came to be dismissed on 10.10.2012, then he approached the Supreme Court by filing Special Leave Petition No.14561 of 2013 which also came to be dismissed on 26.04.2013.

3.4. The parties are living separately from 17.09.1998 without conjugal life. Respondent-husband requested his wife to come and join him in the month of June, 2001 but she did not join the matrimonial life. The appellant-wife is not interested to join him and she withdrawn the society of the respondent-husband without fault on his side. Appellant-wife deserted him for the past twenty years and he prayed to grant divorce on the ground of cruelty and desertion.

4.1. Appellant-wife filed her counter denying the allegations leveled against her, she further contended that they belong to traditional Brahmin Community, the petition is not maintainable, as the previous OP.No.119 of 2002 was dismissed on merits. At the time of passing the order in OP.No.119 of 2002, dated 20.04.2005 she was ready to join the respondent-husband but he did not take steps for reunion and did not furnish his address or phone number. The respondent-husband himself left the family on 17.09.1998, from that date to till date, he did not send a single rupee to the appellant and to her children. On 17.09.1998, her daughter was studying First year and her son was studying VII class. The respondent-husband even did not attend the marriage of the daughter and discharge his responsibility as a father to the child, her father-in-law has helped her financially and she has cordial relationship with her mother-in-law till her demise.

4.2. The issues raised in the present petition were already decided by the District Court, High Court and the Supreme Court as such, the respondent-husband cannot raise the same issue. The respondent-husband is aged about 65 years and the appellant- wife is aged about 63 years and their two children are having children, parties are having five grand-children. The responde