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1. The Appellant in this appeal was the petitioner in the trial Court who had filed M.J, Petition No. 414 of 1982 against his wife , the present respondent for a decree for divorce. The grounds mentioned for divorce were two-fold :-

(a) Cruelty on the part of the respondent/wife. Evidenced by the various instances averred in the petition and deposed to in the evidence: and
(b) desertion for a period of nearly 15 years before and till the date of the petition.

2. The Respondent/Wife filed her written statement and denied the various allegations of cruelty levelled against her. She also denied desertion on her part and contended, implicitly, if not in so many words, that the petitioner was himself the sole cause of desertion which was the constructive desertion practiced by himself against the respondent by driving her out of the matrimonial home. Her defense amounts to this that it was the petitioner who was to be blamed for her departure from the matrimonial house, because it was he who made her leave the house.

The only question that therefore , remain is whether the petitioner has made good the case of desertion on the basis of the said notice dated 5-2-69 in which the respondent wife declared unequivocally her intention not to come back to the matrimonial.

12. The fact that such notice was given by the respondent-wife to the petitioner husband is an admitted fact. The notice itself is on record. The reply given thereto is alos in record. The notice no doubt states that the petitioner-husband and indulged in a conduct which compelled her to leave the matrimonial home.But the fact remains that she stated that because of that conduct she has taken a decision not to revert back to the matrimonial home. The petitioner has stepped into the witness box and has stated that the respondent had left the matrimonial home. The petitioner has stepped in to the witness box and has stated that the respondent had left the matrimonial home, without any justification . Hr has also cruelty. I am not inclined to pay any heed to that part of the evidence at all. To my mind , the petitioner's evidence relating to cruelty need not be even relating to desertion by his wife is conserved, it would have to be accepted unless there is a counter balancing evidence, In this connection, it is to be noted that the fact that the respondent wife has been living away from the matrimonial home for a period far exceeding 15 years, not only till the date of the petition but even till this date is not disputed at all. It is nobody's contention that after the judgment was delivered in the earlier petition., any attempt was made by the respondent-wife to go back to the matrimonial home. Mr.Nadkarni, the learned advocate for the respondent -wife contended that no attempt was made by the petitioner-husband to take her back , but even the learned advocate could not deny the fact that the respondent-wife had sent the notice dated 5-2-69 in which she had stated in no uncertain terms that she had no intention to go back to the matrimonial home. She has referred to some reasons why she was not prepared to come back. Had she established those reasons. The petition would have to be dismissed because in that case she would be deemed to have proved that this case. Far from being a case of desertion by the wife, was a case of constructive desertion by the husband himself because it was he who would be deemed to have driven her out of the matrimonial house. But the factual position in the present case relating to the evidence is that the respondent-wife has not as much as stepped of whatever character led by her in the present proceeding to prove the circumstance in which she left the matrimonial home.

13. Mr. Nadkarni wanted to rely upon the evidence of the wife in the earlier proceeding showing that no cruelty was indulged in by her. Such an attempt and approach is fruitless. In the first place you an not rely upon the evidence in the earlier proceeding, unless that evidence is made a part of the present proceeding in the second place. I am not accepting the petitioners evidence relating to ceualty at all, not because according to me his evidence is not reliable but because it is not open for him now to lead the evidence . But as mentioned above, so far as the plea of desertion is concerned, the very cause of action is different. He was entitled to lead evidence on that cause of action, he has led evidence on that cause of action and what we find is that there is no counter evidence led by the wife at all. In her notice dated 5-2-69 she had stated that there were certain reasons which compelled her to leave the matrimonial house, and she stated further that on that account she had made up her mind not to revert she desired not to come back is evidenced by the notice. It is evidenced also by the fact at least prima facie in that she has not returned to the matrimonial home at any time thereafter. But the fact that she had very good reason for doing so is something which has to be proved by evidence. There is nothing in the evidence of the husband which prove this/ there is nothing in his cross examination which proves this. There is no circumstance bought on record by the respondent/wife why she should not have returned to the matrimonial house. The question whether she had just cause to remain away from the matrimonial house. We not in issue in the earlier proceeding All that was examined in the earlier proceeding was as to whether she had an animus desserendi when she left home on 21/22nd May 1967. Whether she disclosed her animus deserendi by their Notice dated 6-2-69 was not examined in the earlier proceeding. In that connection, the husband has led evidence whatsoever. On the evidence led. The petitioner /husband is entitled to a decree for divorce on the ground of desertion. The plea of Mr. Nadkarni, the learned Advocate for the respondent, that it was not necessary for the respondent to lead evidence because the husband was not entitled to file the petition is a fruitless plea Significantly enough , this plea does not appear to have been taken in the lower Court. In any event, no issue is invited on the plea. The court can understand the position if this was a case where there was the evidence of word against word. If there was the word of the husband that the respondent wife has deserted him and if the wife had come to the Court to give evidence that she always wanted to come back to the matrimonial home. The position would have been entity different, But in the present case it is word of only husband . Beyond setting out her word protestation in the written statement, the respondent wife has done nothing to make good her plea of constructive desertion by the husband itself.