ARYASOMAYAJULA VENKATA SUBBA RAO Vs. ARYASOMAYAJULA SURYA KUMARI

JUDGEMENT

(1.) This appeal Under Section 28 of the Hindu Marriage Act arises out of O. P. No. 76/73 on the file of Sub-Court, Rajahmundry. The appellant is the husband, who filed the said petition for a decree for judicial separation or for divorce under Sections 10 (1) (a) and 13 of the Hindu Marriage Act. The appellant alleged desertion as a ground for judicial separation or divorce. The respondent-wife resisted the application, inter alia, on the ground that the separation was brought about by consent of parties, evidenced by the agreement Ex. B-1 dated 15-12-1968, in and by which the appellant gave his consent for her separate living and that the appellant is not entitled either for judicial separation or for divorce. This plea of the respondent found favour with the trial Judge, who, accordingly dismissed the petition with costs.

(2.) The appellant who is now working as the Head of the Department of Chemistry, Government College, Palakol, married the respondent in February, 1947, when he was aged 17 years and the respondent was aged 9 years. Their marriage was consummated in about the year 1957. During the period 1957 to 1967, they lived together at Rajahmundry, where the appellant was working as an Assistant Lecturer in the Government College, Rajahmundry. Their married life was not happy and they were having differences between them. In about the year 1967, the respondent went away to live with her parents. During the period 1967 and 1968, some efforts were made to compose their differences, but those efforts have proved a failure. Due to the intervention of elders interested in both of them, the appellant and the respondent agreed to live separate and the appellant agreed to pay to the respondent a monthly a maintenance of Rs. 150.00. The terms of the agreement are evidenced by Ex. B-1 dated 15-12-1968. Ex. B-1 in its material terms, reads as follows:-

(3.) The question which arises for determination is whether the desertion alleged by the appellant has been made out. Both the appellant and the respondent have been living separate from about 1967. In agreeing to live separate in different houses, one having no other relationship with the other, both the parties have expressed their intention to bring cohabitation permanently to an end. The period of separation had been for more than the prescribed period under the Act. Both the parties have not let in any evidence as to what exactly were the circumstances prevailing prior to 1967, when the respondent felt it compulsive to leave the matrimonial home. In subscribing to the recitals in Ex. B-1, both the parties did not wish to lay the blame against either of them. One of the essential requisites of desertion is for the deserted spouse to allege and establish that the respondent has left the matrimonial home without the consent of the deserted spouse. A large body of case law has developed around the legal significance of desertion both in England and in India. The English Law as summarised in Halsburys Laws of England, 3rd Edition, Vol. 12 paragraphs 453 and 454 is: