K SIDDEGOWDA Vs. PARVATHAMMA

JUDGEMENT

(1.) This is an appeal by a husband whose application for a decree of judicial separation was refused by the Civil Judge. That decree was sought on two grounds : The first was that the wife was in adultery. The second was that she had deserted the husband for a continuos period of not less than two years immediately preceding the presentation of the petition.

(2.) The disgraceful allegation that the wife was in adultery was abandoned by the husband in the Court below. He gave no evidence about it. Mr. Raghavendra Rao has therefore very rightly restricted his submission to the case constructed on the plea that there was desertion on the part of the wife.

(3.) It is common ground that for a period of four years preceding the presentation of the application by the husband the two spouses were living separately. It is also not disputed that what actuated the wife to live separately from her husband was that her husband had another wife living and that wife was the first wife. It was urged before the Civil Judge that although the fact that the husband had another wife living, clothed the second wife with the right to live separately from her husband under Section 187(2)(d) of the Hindu Adoptions and Maintenance Act, the second wife who commenced to live separately in the exercise of that right had nevertheless deserted her husband within the meaning of Section 10(1)(a) of the Hindu Marriage Act. That contention which was repelled by the Civil Judge was reiterated before us by Mr. Raghavendra Rao. Now under section 10(1)(a) of the Hindu Marriage Act, the spouse who has deserted the petitioner for a continuos period of not less than two years immediately preceding the presentation of the petition, cannot resist an application for a decree for judicial separation. The expression "desertion" means, according to the Explanation, occurring in section 10(1), desertion without reasonable cause and without the consent or against the wish of the deserted spouse and includes willful neglect of the deserted spouse. The argument maintained by Mr. Raghavendra Rao was that since the respondent who is the second wife commenced separate residence without the consent of the appellant and against his wish, there was desertion within the meaning of section 10(1)(a) of the Hindu Marriage Act.