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8. Thus, the submission of learned counsel for the appellant is that the respondent was bound to sue for divorce on the ground of constructive desertion, at least, when he preferred the first divorce petition under Section 13(1)(ia) of the Act, being HMA No.637/2014, since the said ground was available to him.

9. Learned counsel for the appellant also draws our attention to the way in which the respondent pleaded the cause of action in the divorce petition in question filed under Section 13(1)(ib) of the Act, to submit that the respondent/ husband had pleaded that the cause of action for filing the divorce petition on the ground of desertion arose on account of constructive desertion by the appellant/ wife. The relevant paragraph pleaded by the respondent in the said divorce petition reads as follows:

12. In the divorce petition that we are concerned with, the respondent has pleaded actual desertion on and from 14.06.2014. The divorce petition in question has been preferred by pleading that the desertion started with effect from 14.06.2014, continued for the period of over two years continuously as on the date of filing of the divorce petition. Merely because in the earlier divorce petition, being HMA No.637/2014, the respondent pleaded constructive desertion from 2011, that does not preclude the respondent/ husband from pursuing his claim for divorce on grounds of actual desertion from 14.06.2014 continuously. At the highest, what the appellant may urge before the Family Court - in defence to the present divorce petition under Section 13(1)(ib), is that the respondent cannot seek to establish constructive desertion - alleged by him from 2011 onwards, since the cause of action for filing petition for divorce on the ground of desertion, premised upon constructive desertion, was available to him when he preferred the first divorce petition being HMA No.637/2014. However, the cause of action which has arisen in favour of the respondent - on his pleading of actual desertion from 14.06.2014 continuously, was not available to him when he preferred HMA No.637/2014, since that petition was preferred in September 2014 itself, i.e. hardly three months after actual desertion allegedly commenced. The cause of action premised on actual desertion, which allegedly started on 14.06.2014, matured only after a period of two years of continuous actual desertion, i.e. in the year 2016. The divorce petition in question being HMA No.980/2016 was preferred on or about 01.12.2016.

13. We cannot accept the submission of learned counsel for the appellant that merely because the ground of constructive desertion was available to the respondent when he preferred his divorce petition being HMA No.637/2014, he was bound to plead constructive desertion and also seek the relief of divorce on the said ground under Section 13(1)(ib) of the Act. Though the respondent may have pleaded constructive desertion when he preferred HMA No.637/2014, he may have chosen not to press for the relief of divorce on the ground of constructive desertion on account of the inherent challenge in establishing the same. It is not that the appellant is conceding to such alleged constructive desertion. The respondent was, therefore, entitled to await for the cause of action premised on actual desertion to mature and thereafter prefer his second divorce petition under Section 13(1)(ib) of the Act, which he did by preferring HMA No.980/2016.

18. The cause of action in favour of the respondent to seek divorce on account of constructive desertion is not the same as the cause of action premised upon his case of actual desertion. Actual desertion has been pleaded by the respondent from 14.06.2014 onwards and not before that. Constructive desertion on the other hand, was pleaded from the year 2011 till the commencement of the actual desertion, which is 14.06.2014. Both these causes of action are different and distinct and they accrued at different periods of time. Therefore, Order II Rule 2(3) was not attracted in the facts of this case.