JUDGMENT :

K. Lakshman, J.

Heard Sri J. Prabhakar, learned counsel for the Appellant in FCA No.92 of 2017 and Sri Medisetty Ajay Kumar, learned counsel for the Appellant in FCA No.67 of 2020, and Smt. D. Padmavathi, learned counsel for the Respondent in both the appeals.

2. The Appellant is the husband and the Respondent is the wife. The Appellant-husband preferred an appeal vide FCA No. 92 of 2017 aggrieved by the order and decree dated 05.08.2014 passed in FCOP No.110 of 2011 by the learned Judge, Family Court, Warangal, whereby the petition for restitution of conjugal rights filed by the Respondent-wife under Section 9 of the Act was allowed.

3. The Appellant-husband also preferred an appeal vide FCA No. 67 of 2020 aggrieved by the order and decree dated 31.12.2019 passed in FCOP No. 306 of 2014 by the learned Judge, Family Court- cum-III Additional District Judge, at Warangal, whereby the petition for dissolution of marriage on the grounds of cruelty and desertion filed by the Appellant-husband under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter, “the Act”), was dismissed.

4. The grounds which are common in both the petitions have been discussed hereunder. The Respondent-wife contends as follows:

i. Her marriage with the Appellant was performed on 02.05.2007.

ii. Her parents offered a sum of Rs. 7,20,000/- towards dowry besides household articles and a gold ring weighing one tula at the time of marriage.

iii. After marriage, the Appellant was working in Hyderabad and he was staying in hostel. He used to visit Shivunipalli where his family resides during weekends.

iv. She requested him to put up family at Hyderabad so that she can look after him well.

v. He used to pay substantial amounts to his parents from his salary.

vi. Her first pregnancy got aborted. When she was pregnant for the second time, doctors informed her that she was affected by jaundice. She was diagnosed with Megaloblastic Anaemia which occurred due to decrease of hemoglobin in the blood which is curable with medicines and by natural process over a period of time.

vii. On 16.10.2008, she gave birth to a dead baby due to shortage of fluids in the womb which is a common and known symptom in any pregnancy. Taking advantage of the same, mother of the Appellant created differences between them stating that she would not beget children in future and she cannot lead conjugal life with him. The Appellant believed his mother, and refused to take her to his company. The efforts made by her, her parents and mediators went futile. Thus, in the month of October 2008, he deserted her without any valid reason.

viii. He also filed O.P.No.28 of 2009 for grant of divorce with false allegations, which was withdrawn later. The Respondent filed a petition for restitution of conjugal rights, which was allowed. During subsistence of the said decree, the Appellant-husband again filed a petition vide FCOP No.306 of 2014 which cannot be entertained. The grounds sought in FCOP No.306 of 2014 were intentionally not sought by him in O.P.No.28 of 2009. The Appellant - husband cannot seek divorce when the decree for restitution of conjugal rights in her favour was subsisting.

ix. She went to her in-laws’ house at Shivunipalli Village in the month of May 2010 and was residing there only.

x. Both of them lived together till 13.10.2008. At the time of filing O.P.No.28 of 2009, the statutory period of two years of desertion was not completed and therefore the ground of desertion is not available to the petitioner. He never alleged any instance of alleged misbehavior and cruelty exerted against him by her.

xi. She has no intention of separating his mother from him but only to take care of his health and welfare, she asked him to put up residence in Hyderabad.

xii. She underwent an abortion not because of any incurable disease. Therefore, she filed the petition seeking restitution of conjugal rights.

5. With the said contentions, she sought to allow the petition filed for restitution o