VADRANEM TIRUPATHI RAO Vs. VADRANEM SRIKRISHNAMMA

JUDGEMENT

(1.) This is an appeal from the judgment and decree in O.P. No. 23 of 1958 on the file of the Subordinate Judge, Bapatla. The petitioner is the appellant.

(2.) The appellant filed O.P. No. 23 of 1958 under sections 10 and 13 of the Hindu Marriage Act for divorce or alternatively for judicial separation alleging that his wife, the ist respondent, has been living in adultery with the 2nd respondent and had also deserted him for long over the statutory period before the institution of the petition by him. The 1st respondent filed counter denying that she was living in adultery with the and respondent or that she deserted her husband. She pleaded that she and her husband have been living separately since the year 1954 by mutual consent. Before the petition was actually taken up for trial, the appellant gave up the plea that his wife has been living in adultery with the 2nd respondent and confined himself to the alternative relief of judicial separation. The learned Subordinate Judge accepted the 1st respondent's contention that the spouses have been living separately by mutual consent since the year 1954 on the strength of the documentary evidence adduced in the case and accordingly dismissed the petition. Hence this appeal.

(3.) The respondents have remained ex parte in this appeal. A perusal of Exhibit A-1 and B-1, which came into existence in 1958 and whose genuineness is not questioned by the learned Counsel for the appellant, clearly shows that the appellant and his wife have been living apart from each other by mutual consent since the year 1954. Desertion necessarily implies absence of agreement between vhe parties to reside scpatately. When the documents referred to above show that it is by mutual agreement that the spouses have been living separately since 1954, the appellant cannot be heard to say that he was deserted by his wife without any lawful excuse. The learned trial Judge was therefore perfectly correct in his conclusion that the petition for judicial separation is not maintainable in law.