Sriram Mahadev vs Sriram Yadabai

P.L.N. Sharma, J.—Husband filed this appeal questioning the judgment of the III Addl. Judge, City Civil Court, Secunderabad dismissing his application filed seeking dissolution of the marriage by a decree of divorce on the ground of desertion u/s 13(1)(ib) of the Hindu Marriage Act, for short "The Act".

For convenience sake, the parties will be referred in this appeal as they are arrayed in the lower Court.

Originally, O.P. No. 172 of 1985 was filed by the petitioner seeking restitution of conjugal rights u/s 9 of "The Act" alleging that the marriage between the petitioner and the respondent was solemnised on 26.4.1984 at Secunderabad and they lived together in a portion of the house belonging to the respondent''s father taken on a monthly rent of Rs. 350/-. They lived happily for a period of three months, during which time the behaviour of the respondent''s father became unbearable. He used to boss over the petitioner and teat him brutally and, therefore, he was compelled to leave the rented house belonging to his father-in-law and began living with his father. Both the parents of the petitioner and the respondent are residents of Secunderabad. Therefore, the petitioner issued a notice dated 5.1.1985, Ex. A. 1 calling upon the respondent to live with him to which a reply notice was issued by the wife, Ex. A.2 making certain unfounded allegations, but ultimately stating that she would come and live with the petitioner after the child is born as she was in the family way. Respondent gave birth to a female child on 25.2.1985. But she never came to live with him. Again, the petitioner issued notice dated 17.5.1985, Ex. A.3 to the respondent calling upon her to come and live with him in the first floor portion of the premises bearing No. 3-4-125 taken on rent by him which was ready for occupation. The said notice was received by the respondent, but there was no reply. The respondent failed to come and join the petitioner and, therefore, present O.P. was filed.

A counter was filed by the respondent-wife admitting the marriage and the birth of the female child and also the fact of living in a rented house belonging to her father for a period of three months. She denied all the other allegations. She stated that because of the custom prevailing in their community that the couple should live for one year outside, the petitioner took respondent''s father''s house on rent for a sum of Rs. 300/- per month and not Rs. 350/- as alleged in the petition. It is alleged in the counter that after they lived together for about three months, at the. instance of the petitioner''s father, the petitioner separated himself and the allegations made against her father are all false. She further stated that on 11.6.1984, the petitioner and his father connived and conspired and took away the entire gold jewellery belonging to her (which was given to her by her parents) on the pretext that the same is required for partition. But the same were not returned. She alleged that she was taken to the house of the petitioner, where she stayed for some days and thereafter since the petitioner did not provide any medical care to her, she had to go to her parents house. Issuance of legal notice calling upon her to come and join him when she was in a family way itself amounts to cruelty. She further alleged that the petitioner was interested in her salary only and compelled her to open joint savings bank account and to deposit a sum of Rs. 4,000/- out of which an amount of Rs. 3,100/- was withdrawn by the petitioner without her knowledge. After the female child was born on 25.2.1985, the petitioner never visited her and never attended the cradle ceremony which was performed on 17.3.1985. She further stated that the petitioner had no affection for the respondent. Subsequently, she issued a legal notice to the petitioner and filed a criminal case in C.C. No. 248 of 1985 on the file of XI Metropolitan Magistrate, Secunderabad. Thereafter, a Panchayat was arranged by the petitioner''s father on 26.5.1985 in which the petitioner as a condition for taking her stipulated that the respondent should resign her job in Railways and she should not question regarding gold jewellery and the dowry amount and that the parents of the respondent shall not visit her neither the respondent should visit them. The respondent stated that she is ready to join the petitioner, but not on the conditions stipulated by the petitioner.

When the matter was taken up for trial, after PW 1, as well as RW 1 were examined to some extent, during the course of reconciliation proceedings before the learned Judge they agreed to give a trial to sustain the marriage by residing together for a period of 15 days from 20.1.1988 to 8.2.1988 and in fact they lived together in the portion taken by the petitioner between the said period. But it is the admitted case of both the parties that they never resumed cohabitation and ultimately, the respondent left to her parents house on 8.2.1988. However, there is a divergence in the case of the respective parties regarding the reason for not having cohabitation and also for the respondent leaving the house on 8.2.1988 which will be referred to and considered later.

After the wife left the matrimonial house on 8.2.1988, the petitioner filed I.A. No. 198 of 1988 on 29.2.1988 seeking amendment of the original petition by substituting the original prayer by the relief of dissolution of marriage by a decree of divorce on the ground of desertion. A counter was also filed by the respondent opposing the said application for amendment.

Learned Judge allowed the application for amendment. Petitioner filed the amended OP which substituted the original prayer of restitution of conjugal rights by the amended prayer seeking divorce with the necessary allegations supporting the relief.

The respondent-wife filed additional counter.

In the OP as substituted by the amendment in IA No. 197 of 1988 dated 3.3.1988, the petitioner stated that the respondent had no intention to live with him in his house and discharge her marital duties and that she had no intention to resume cohabitation and that there was desertion for a continuous period of more than three years by the date of filing of amended OP. Therefore, he is entitled to a decree of divorce. Petitioner says that during the period from 20.1.1988 to 8.2.1988, the respondent did not allow him to have cohabitation with her and on the other hand, she was nagging and sleeping separately and not willing to discharge her marital duties. On 8.2.1988 she alongwith her father came to his house and took away all her belongings expressing that she would not return to matrimonial house.

In the additional counter filed to the amended OP, the respondent stated that during the enquiry her Counsel and herself voluntarily agreed to join him and accordingly she joined him on 28.1.1988 and stayed upto 8.2.1988. Everyday, the petitioner used to harass her and pressing her for withdrawal of criminal case and maintenance case which are pending against him. The petitioner in fact did not allow her even to touch him and whenever she came very near to him, he was saying that she was not fit to be his wife and that she was harassed by the petitioner, his father, his brother by name Ramakrishna, sister-in-law etc., for withdrawal of the cases filed by her under the Dowry Prohibition Act. She ultimately stated that she is still interested in the marital life with the petitioner, provided the petitioner changes his attitude an does not black-mail her in future and take her back with good mind.

After the amended OP as well as counters were filed, the petitioner as well as respondent were recalled and examined in chief as well as cross examined. Neither party examined any other witness except themselves as PW 1 and RW1. On behalf of the petitioner Exs. A. 1 to A. 3 were marked. Ex. A. 1 is the legal notice dated 5.1.1985 issued by him to the respondent. Reply notice issued on behalf of the respondent to Ex.A. 1 is marked as Ex. A.2. Again the legal notice issued on behalf of the petitioner on 17.5.1985 was marked as Ex. A. 3. On behalf of the respondent no document was marked.

On a consideration of the entire material placed before the learned Judge, the learned Judge dismissed the application holding that there was no desertion on the part of the respondent as alleged by the petitioner for a continuous period of not less than two years preceding the application for amendment filed on 29.2.1985.

Assailing the said judgment, the present appeal has been preferred by the petitioner-husband as aforesaid.

At the out-set, Mr. V.Venkataramana, learned Counsel appearing on behalf of the respondent-wife raised a preliminary objection as to the maintainability of the appeal itself as well OP in the lower Court. His contention was that the" marriage between the parties was solemnised on 26.4.1984 and that the OP was filed for restitution of conjugal rights on 21.6.1985 i.e., within a period of about one year and two months. The application for amendment was though filed on 29.2.88 seeking the relief of divorce on the ground of desertion and allowed on 3.3.1988, the amendment of relates back to the date of OP i.e., 21.6.1985. If that is so, the ingredients of Section 13(1)(ib) of "The Act" are not satisfied as there was no desertion of the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the original petition. Therefore, the OP is liable to be rejected in limine and as a consequence, this appeal is also liable to be dismissed. In support of his contention, the learned Counsel relied upon a judgment of a learned Single Judge of this Court reported in Vidya Kumar v. Subbash Reddy, 1984(2) AWR 426.

On the other hand, Mr. T. Veerabhadrayya, learned Counsel appearing for the petitioner-husband contended that the principle that the amendment relates back to the date of the petition is not an invariable one and that in the present case, having regard to the peculiar facts and in the circumstances, the amendment will not relate back to the date of OP and it should be treated as one filed on 29.2.1988 only. He relies upon the averment made by the petitioner in his affidavit filed on 29.2.1988 only. He relies upon the averment made by the petitioner in his affidavit filed in support of the application that instead of filing a fresh OP, he is seeking the relief by way of amendment. By virtue of the application for amendment, original prayer was completely substituted and it must be treated as an application filed on that date i.e., 29.2.1988 and if it is so treated, the requirement of the provision of "The Act", viz., that there should be desertion for a continuous period of not less than two years immediately preceding the presentation of the application is satisfied and, therefore, the application is not liable to be dismissed in limine and that there was no substance in the objection raised on behalf of the respondent-wife.

Normally, amendments to the plaint or application relate to the date of suit or application. However, the learned Counsel for the petitioner husband, Mr. T. Veerabhadrayya, in support of his argument relied upon certain decisions to show that the principle that the amendment relates back to the date of application is not an invariable one.

Now the question for determination is as to whether the OP as amended is deemed to have been filed on the date of filing of the original petition for restitution of conjugal rights (21.6.1985) or should be treated as one filed on 29.2.1988, when the application for amendment was filed.

We have already referred to the fact that original OP was filed seeking restitution of conjugal rights u/s 9 of "The Act". By virtue of the amendment which was ordered, the OP is now converted into one for dissolution of the marriage by a decree of divorce on the ground of desertion on the part of the wife. In Manindra Chandra Nandi Bahadur v. Rangalal Mondal, AIR 1918 Cal 443, the question arose whether the amendment relates back to the date of the suit or to the date of filing of the application for amendment or becomes operative from the date of the order allowing the application. In the said case, a suit was laid on 3rd March, 1911 for possession of certain lands. Subsequently, on 16th August, 1911 an application was made for amendment of the plaint and the same was allowed by an order, dated 29th August, 1911. For the purpose of determining the limitation, the question arose whether the suit should be treated as one filed, for all the plots including the plots included by way of amendment on 3.3.1911 or insofar as the amended plots included by the order of amendment as one filed on the date of order allowing amendment. While dealing with the said question, the learned judges stated as under:

"The question which arises as regards such lands is, when was the suit instituted as regards them. For the respondent it is contended that the suit was instituted as regards all the lands on 3rd March, 1911, when the plaint was received. It might be so if this were a case of amendment proper: but this is not so, because this is not a case of amendment properly so called, but a case of an addition of entirely new lands, and, therefore, as regards such new lands the suit which is taken to have been filed will date from the date when the claim was made in respect thereof, namely, on 16th August, 1911."

In the present case also, having regard to the nature of amendment sought for and allowed, we are of the opinion that it is not an amendment properly so called. In respect of the relief of decree of divorce, sought for and allowed by way of amendment the petition must be taken to have been filed on the date when the application for amendment was filed viz., 29.2.1988. If it is construed, it satisfies the requirements of Section 13(1)(ib) of "The Act", viz. the two years continuous period preceding the presentation of the application. Whether in fact there is desertion or not will be dealt with later.

The above mentioned case i.e. Manindra''s case, (supra) was referred to and followed in a judgment of Rajasthan High Court reported in The State of Rajasthan and Others Vs. Rao Dhir Singh and Others, . In the said case, the suit was instituted on 17.8.1957. The value of the National Savings Certificates which were delivered on 8.2.1957 was encashed by Badri Prasad on 13.2.1958 viz. subsequent to the filing of the suit. Naturally so relief could have been sought for in the suit which was filed earlier. An application for amendment of the plaint seeking relief against the said amount of Rs. 21,000/- was filed and it was allowed on 1.4.1960. The question arose whether the amendment of the plaint in respect of the said amount of Rs. 21,000/- relates back to the date of the suit. The learned Judges, following the judgment of the Calcutta High Court referred to supra, stated that the amended plaint relates back to the date on which the application for amendment was filed and not to the date of the filing of the original suit. This was on the basis that cause of action for the said amount of Rs. 21,000/- arose subsequent to the filing of the original suit.

In Ramachandran v. Lakshminarayana Swami, (1976) II MLJ 107, the judgment of the Calcutta High Court referred to (supra) was referred to and followed. In the said case, in the original plaint a relief of recovery was sought not only in respect of the building but also of movables viz., Pinto Oil checkus. But by way of amendment, Rotary Oil checkus (three in number) were sought to be substituted. The question arose before the learned Judge in this regard was whether the claim for Rotary Oil checkus made by way of amendment on 18.3.1970 is within the period of limitation. In considering the said question, the learned Judge held that as the Rotary Oil checkus were claimed by way of an application for amendment of the plaint onl8.3.1970, that claim is barred by limitation and further held that for the dispute in respect of Rotary Oil checkus (new property) claimed by way of amendment, the date of claim shall be taken to be the date on which the application for amendment was filed and not the date of suit.

Similar is the judgment in Indu Bhushan Chakravarty Vs. Hareram Narayan Deo and Others, . In the said case also, originally Schedule ''B'' consisted of the properties in three villages viz., Betiharia, Patnaiksole and Swargachira. By way of an application for amendment of ''B'' Schedule filed on 5.7.1962 and allowed by an order dated 26.7.1962, the properties in village Kokapara Narsingarh were added. The learned Judge held that so far as the properties that are added in ''B'' Schedule by way of amendment, the suit must be treated to have been filed on the date of application for amendment i.e., 5.7.1962.

In the present case, OP was filed on 21.6.1985 seeking restitution of conjugal rights u/s 9 of "The Act." During the said OP reconciliation was attempted by the learned Trial Judge. The parties agreed to give a chance for the marriage to subsist and agreed to live together from 20.1.1988 to 8.2.1988. But it is the admitted case of both the parties that they never had conjugal life and never lived as wife and husband during the said period. It is not necessary for the purpose of deciding this point at this stage to refer to the respective cases as to what has happened during the period and the reason for the wife going away to her parents house on 8.2.1988. The fact remains that the wife left to her parents house on 8.2.1988. An application for amendment was filed on 29.2.1988 by the husband seeking dissolution of the marriage by a decree of divorce on the ground of desertion. Divorce sought for is totally inconsistent with the original plea raised in the OP viz., restitution of conjugal rights. The application for amendment was allowed by the lower Court even though the amendment sought for is totally inconsistent. Amended OP was filed pursuant to the order of the Court dated 3.3.1988. Amended counter was also filed. Thereafter PW 1, the husband was re-called and examined and cross-examined with reference to the relief of divorce. Similarly, RW 1 was also recalled and examined with reference to the plea of divorce.

As can be seen from the above, original prayer viz. restitution of conjugal rights u/s 9 of "The Act" has totally become irrelevant and obliterated. Original relief and the amended relief sought for by the husband are totally different and inconsistent claims. Therefore, on the facts and in the circumstances of the case, we are of the opinion that the amendment sought for and allowed seeking relief of dissolution of the marriage is not a case of amendment properly so-called, but it is an entirely new and independent plea raised by substituting the original plea and as regards that new plea, the OP must be deemed to have been filed on the date of filing of the application for amendment viz., 29.2.1988. Therefore, we are of the opinion that the principle that the amendment relates back to the date of filing of original OP viz., 21.6.1985 does not apply to the present case.

It must noted that the principle that every amendment relates back to the date of suit is not an invariable rule. In every case, when a person who was not originally impleaded, was impleaded as a party subsequently by way of an amendment or by way of an application under Order l, Rule l0 CPC, it is deemed that the suit was filed as against the party only on the date he or she was made a party for the purpose of limitation. In the present case also, for the purpose of computing the period of two years preceding the presentation of the application, it can be held that the amendment will not relate back to the date of filing of the original OP, but should be treated as one filed as on the date of filing of the application for amendment. It must be borne in mind that if the application for amendment was not allowed, the party could have filed an independent OP then itself.

Mr. Ventakaramana, learned Counsel appearing on behalf of the respondent-wife relied upon the judgment reported in Vidyakumar''s case (supra) and contended that if the amendment is allowed, their application for dissolution of the marriage should be considered to have been filed on 21.6.1985 and the marriage having been solemnised on 26.4.1984, the requirement of the period of two years between the date of filing of the petition and the date of marriage is not available and, therefore, the OP is liable to be dismissed in limine on that ground only. The decision relied upon by the learned Counsel appearing on behalf of the respondent-wife was rendered on a revision petition filed questioning the amendment itself. In the said case, the original OP was filed seeking restitution of conjugal rights u/s 9 of "the Act" as in the present case. Thereafter, an application for amendment under Order 6, Rule 17 CPC seeking relief of dissolution of marriage by a decree of divorce on the ground of desertion was filed. The said application was allowed by the Trial Court. Questioning the said order, a revision petition was preferred to the High Court. While disposing of the said revision petition, a learned Judge of this Court stated that even if the application for amendment is allowed, the requirement of two years period between the date of marriage and the date of filing of the application is not satisfied as the amendment relates back to the date of filing of the original application. It is to be noticed that in the said case the question whether such a relief should be deemed to have been sought for on the date of application for amendment or relates back to the date of original petition was not specifically put in issue or debated or canvassed. It was presumed and the learned Judge proceeded on the basis that the amendment application relates back to the date of original petition. Ultimately, the learned Judge allowed the revision petition and set aside the order of Trial Court allowing the application filed for amendment.

In the present case, the order allowing the application for amendment is not under challenge and it has become final. Even before us, no argument was advanced questioning the said order amending the OP converting it as one from restitution of conjugal rights to the one for dissolution of marriage by a decree of divorce. The decision of the learned Judge is based on the normal rule that the amendment relates back to the date of filing of the application or suit. We are of the opinion that the judgment cannot be treated as an authority for the purpose of deciding the point that where an application originally filed seeking restitution of conjugal rights is converted by way of amendment into one for divorce on the ground of desertion, the amendment relates back to the date of original petition. If it is treated as an authority for the proposition whenever a petition for restitution of conjugal rights is converted as one for divorce by way of an amendment, the amendment relates back to the date of the original petition for restitution of conjugal rights, we respectfully hold that the said judgment does not lay down the correct position in law. In this connection, we must also bear in mind that when the application for amendment was filed, no such plea was raised by the respondent-wife in the counter, she did not raise any plea that the amendment itself is not maintainable and that even if it is amendede, the amendment relates back to the date of OP and if so, it will not satisfy the requirement of continuous period of two years between the dates of marriage and the filing of the original petition. It is also pertinent to notice that the order amending the OP was never challenged before us and what is more no such argument was advanced at the time when the OP was disposed of. The parties obviously treated the OP as a fresh OP filed on the date of application for amendment. Accordingly, we reject the preliminary objection raised by the learned Counsel for the respondent-wife.

Now we have to decide as to whether the case of the husband that the wife deserted him is established on the material on record or not.

We have already referred to the respective cases of the parties in the foregoing paragraphs. In a nutshell, the case of the petitioner is that his father-in- law wanted to have complete control of not only the person of the petitioner, but also his family as well as his properties and that when he resisted the efforts of his father-in-law, his father-in-law treated him brutally and cruelly compelling him to leave the portion taken on rent by them belonging to his father-in-law.

On the other hand, the case of the wife is that right from the beginning, the petitioner was insisting that she should resign the job or give the entire salary to him and shall not question the amount paid towards dowry etc., and the jewellery alleged to have been taken by them and that neither her parents should visit nor she should visit them and that she should come and live with him in another portion taken by him.

When Ex. A.1 legal notice dated 5.1.1985 was issued by the petitioner calling upon her to come and live with him in the portion he has taken separately for themselves, she gave a lengthy reply. By then she was in a family was and in fact, a female child was born on 25.2.1985. She could have merely stated in the reply notice that she was in a family way in advanced stage of pregnancy and that she will come and join some time later after delivery. It is the duty of the wife to stay with the husband subject of course to the exigencies of employment and the inherent transfers which go with it. There is no such inhibition in the present case. Instead of giving simple reply, if she is really interested in living with the petitioner, she gave a very lengthy reply notice dated 10.1.1985. A reading of the reply notice clearly discloses the mind of the respondent. She does not seem to be more interested at all in the marital life with the petitioner. She seems to be more interested in demanding the amounts and threatening the petitioner-husband with dire consequences, including criminal proceedings, on his failure to comply with the demands.

At the outset in para 1 of the reply notice, instead of referring to their marital life and expressing her intention to live with the petitioner, she stated that on the date of betrothal ceremony itself a sum of Rs. 45,000/- was paid to the petitioners, father in the presence of elders and photos were also taken. It is further stated that according to Section 6 of the Dowry Prohibition Act, 1961, petitioner as well as his father are liable to return the said amount and also liable to criminal prosecution and called upon the petitioner as well as his father to pay back the said amount. The next aspect she mentioned in the notice was that since the date of marriage, the petitioner has not spent a single pie towards her maintenance and that even the house-hold expenses have to be borne by her apart from paying the rent for the premises. She made certain allegations against the petitioner that he has not even taken her to a lady doctor for consultation when she was having morning vomitings and that the petitioner''s father even refused to pay Rs. 50/- towards consultation fees of the doctor and she was compelled to spend that amount from her pocket. She further stated that a sum of Rs. 4,000/- was deposited by her in the joint Saving Bank account and the petitioner withdrew a sum of Rs. 400/- out of the said amount without her knowledge. On 2.8.1984, the petitioner demanded her to give him her entire salary and when she explained that she has paid the rent and met other expenses and therefore, the amount is not available, he got angry and took away the joint savings bank pass- book and withdrew Rs. 3,100/- and went away. She went to stating that against her wish, she was taken to some pictures and forced her to transfer her salary every month in his name. She further stated that he visited her office and created a scene there and he seems to have stated that he will divorce her if she doesn''t comply with his conditions. Thereafter, she stated that she is ready and willing to lead marital life within three months after delivery provided the petitioner and his father reimbursed the dowry amount of Rs. 45,000/- and also Rs. 3,100/- withdrawn by the petitioner from the joint savings bank account. She stated that the amount of Rs. 45,000/- should be paid under a valid receipt to her in the presence of her father, whose signature should be taken as a witness within a week from the date of receipt of the notice, failing which she will be constrained to take criminal proceedings against him.

To say the least, a person who is interested in family life and willing to lead marital life, will never give such a notice. The reply notice is nothing but a threat levelled against the husband as well as his father that she will launch criminal prosecution on his failure to comply with the demands and also stated that the husband is a person without any manners, politeness and commonsense. She clearly mentioned in the notice that she is ready and willing to lead the life with him subject to the condition that he pays the dowry amount taken by them and also reimburses the amount of Rs. 3,100/- withdrawn from the joint savings bank account. It is the case of the petitioner that the said amount of Rs. 4,000/- was deposited by him in the joint savings bank account.

Ex. A. 3 notice dated 17.1.1985 was issued by the petitioner-husband to the respondent-wife which refers to Ex. A. 2 denying the allegations of taking dowry amount as well as gold jewellery as alleged by the respondent. It was specifically stated in the said notice that the respondent is acting as a tool in the hands of her father and she is not caring at all or respecting the feelings and sentiments of the petitioner and called upon her to come and join at any time, meaning thereby not during the advanced stage of pregnancy.

When we come to the evidence, the petitioner spoke to his case as PW 1. He stated that he left the house because his father-in-law treated him very badly. He denied the allegation made by the respondent that he has not given any medical care. He specifically, stated that he took her to the Doctor on two or three occasions. He also stated that he did not see the female child immediately, after the birth as his-in-laws never gave any information to them. Subsequently, his parents attended the cradle ceremony. As he was not invited he did not go. He also stated that her will take her to his house directly from the Court and will not be in a position to go to the house of her parents. Thus was what has happened during the reconciliation proceedings before the learned Judge. He specifically stated that he never put any conditions, to take her viz., that she should resign the job or pay her salary every month if she continues in the job and she should not ask for return of jewellery or for return of dowry amount and that she should not visit her parents etc. A suggestion was put to him that he wants to divorce her so as he marry the cousin sister of his eldest sister-in-law. After the amendment, he was recalled and examined in chief and cross-examined. He reiterated, what has been happened between the period from20.1.1988 to 8.2.1988, during which period they were asked to stay together in the reconciliation proceedings, to give a trial to make the marriage stand. He stated that during the period even though he made efforts to have cohabitation, she resisted and did not allow him to have cohabitation with her and that every day she used to get up from the bed at about 6.30 a.m. and she used to go away alongwith the child to her parents house in Seetaphalimandi at about 7.15 a.m. and used to come back only after 7.30 p.m. and that during that period, she was making him to transfer all the mulgies in her name and also to deposit an amount of Rs. 50,000/- as security for good behaviour. On 5.2.1988, the concerned police brought a warrant of attachment from the Criminal Court for the realisation of the amount granted as maintenance in MC No. 14 of 1986. Thereafter on 8.2.1988, she left the house finally with all her Samans.

Respondent who got herself examined as RW1 stated, after reiterating her allegations with regard to dowry amount and taking away of gold jewellery and withdrawal of Rs. 3,100/- from out of Rs. 4,000/- from the joint savings bank account and the conditions made by the petitioner, that her father convened Panchayat on 26.5.1985 at his house which was attended by the petitioner as well as herself. There were three elders on the petitioner''s side also during which proceedings, he stipulated conditions referred to above. She added one more condition in the evidence viz., that she should pull on without asking for any domestic servant. For those conditions, she did not agree. Of course, she stated that she is willing to go and live with the petitioner if he does not impose any conditions and if he comes to her parents house and assure her that he will treat her well. She also spoke to the events between 20.1.1988 to 6.2.1988. She stated that inspite of her efforts, the petitioner did not have cohabitation and that she stayed in the house of the petitioner till the night of 26.1.1983 when her parents came to the house of the petitioner and invited them to come for the marriage of her younger sister. On 26.1.1988, she went to her parents house for attending the marriage of her younger sister. But, the petitioner did not attend the same. She came back on 1.2.1988 and stayed in the house of petitioner till 8.2.1988. Since the petitioner did not evince any interest, whatsoever to lead a married life but insisting that she should withdraw all the criminal cases pending against him, for which course she did not agree and on 8.2.1988, he went away to visit Bairavaswamy temple in Kamareddy and he came back to the city on 8.2.1988 and attended the Court straight. She also stated that during the said period from 20.1.1988 and 8.2.1988, petitioner, petitioner''s father, sister-in-law and his second brother by name Ramakrishna were compelling and forcing her to withdraw all the cases filed by her against them. She clearly stated that she is prepared to go and live with the petitioner if the petitioner changes his attitude towards her. She specifically stated that in July, 1984 she had sexual intercourse with the petitioner and thereafter there was no sexual intercourse between them. She also stated that on 11.6.1984 when the jewellery was taken by the petitioner and his father her father was not present. A duplicate copy of Dharmakatta chit was given by the petitioner to her. When she was confronted with the Dharmakatta chit dated 11.6.1984 alleged to be containing the handwriting of her father, she stated that she cannot identity, the handwriting of her own father.

She admitted in her cross-examination that she filed maintenance case in MC No. 14 of 1986 on behalf of the child against the petitioner in May, 1986 and the same was allowed and that she applied for a warrant to the Criminal Court for attachment and that she punished that matter only after 8.2.1988 in fact she admitted that the attachment was effected on 5.2.1988 during the reconciliation proceedings. She also stated that during the course of reconciliation proceedings. She stipulated a condition that the petitioner should come to her parents'' house and take her, which was agreed to by the husband at the instance of the Advocate. She specifically admitted in the cross-examination that after the birth of the female child on 25.2.1985, she did not make any attempt to join the petitioner.

This is all the evidence on record, apart from the notices exchanged between the parties Exs. A. 1 to A. 3. This evidence read with the allegations made in Ex. A. 2 notice and the dates and events, to our mind, indicate that the wife has no intention to resume cohabitation and lead family with the petitioner. We have already referred to the allegations made in Ex. A. 2 notice. In the evidence, the respondent clearly stated that she has not made any attempt after the birth of the female child on 25.2.1985 to join the petitioner inspite of Ex. A. 3 notice. She goes on making allegations against the petitioner that he agreed to take her and lead family life with her subject to certain conditions the first one being that she should resign the job or in case she continues in the job she should give entire salary to him. This condition is only stated to be rejected. It is in the evidence of RW 1 herself that she has been in Railways right from 1982. The petitioner knows about the same and they got married. The allegation that the petitioner was insisting on that she should resign the job as a condition precedent to live with her is not all probable and in fact it is unnatural. If really that was the intention of the petitioner, he would have stated that as a condition for marrying her. It is clear from the evidence on record that the marriage between them is a love marriage and the petitioner also has got mulgies towards his share in the partition. It is not a case of petitioner not having any property or money. The conditions are alleged to have been imposed in the Panchayat by the petitioner. I,t is significant to notice that none of the Panchayatdars have been examined to speak to the conditions imposed by the petitioner or about the Panchayat it is in fact strange to see that even the father of the respondent was not examined. We are left with oath against oath. Having regard to the facts and in the circumstances, we are of the view that the conditions stated to have been imposed by the petitioner with regard to resigning the job or in the alternative to pay entire salary to him is not acceptable and it is not probable at all.

The other condition that is alleged is that the respondent should never insist on the return of the gold jewellery and the dowry amount. If they are staying together, the question of return of gold jewellery and the dowry amount does not arise even assuming that dowry amount was paid and gold jewellery was taken away by them. Likewise, the condition that she should not visit her parents and they should not visit her. The case that the petitioner insisted on this condition for living with the wife do not appear to be reasonable or probable. In fact, when we come to the evidence, there is an improvement by adding one more condition. RW 1 in her evidence added one more condition, viz., that she should pull on without asking for any domestic servant. There is no evidence to prove the case of the respondent that her father arranged Panchayat and that these conditions were stipulated by the petitioner in that Panchayat. It is also necessary to notice here the dates and events which are fairly admitted and established by the record.

Marriage was solemnized on 26.4.1984 and they got separated in July, 1984 and that they never had any cohabitation thereafter EX. A. 1 notice was issued on 5.1.1985 by the petitioner calling upon the respondent to come and join him. Ex. A. 2 reply notice was issued by the respondent on 10.1.1985. Thereafter, petitioner issued Ex. A. 3 notice on 17.1.1985. On 25.1.1985 itself, the respondent gave complaint to the police under the Dowry Prohibition Act and also under the provisions of Criminal Procedure Code on the ground that he has withdrawn her money to the extent of Rs. 3,100/- from the joint savings bank account. The case was registered as CC No. 230 of 1986. On 25.2.1985 a female child was born. Present OP was filed by the petitioner on 21.6.1985. Respondent filed counter on 3.3.1986. On 13.5.1986 itself she filed MC No. 14 of 1986 u/s 125 of Criminal Procedure Code seeking maintenance to the female child which was allowed on 30.8.1986 fixing a sum of Rs. 400/- per month towards maintenance of the child. Charges were framed in CC No. 230 of 1986 u/s 6 of the Dowry Prohibition Act on 22.9.1986. In the meanwhile, OP was taken up for trial and on 4.11.1986, petitioner was examined-in-chief. A revision petition was filed against the order granting maintenance in MC No. 14 of 1986, which was dismissed on 5.2.1987. On 21.3.1987 petitioner and his father were convicted in CC No. 230 of 1986 and they were also directed to pay back a sum of Rs. 45,000/- being the dowry amounting alongwith another sum of Rs. 60,000/-. During cross-examination on 31.8.1987 and 26.10.1987, conciliation proceedings were taken up by the learned Judge and as a result they were asked to live together to give a trial for the marriage between 20.1.1988 to 8.2.1988. We have already seen from the evidence of RW 1 that they stayed together till 26.1.1988, but they never had any cohabitation and they never lived as husband and wife. She left the house to attend the marriage of her younger sister on 26.1.1988 and came back in the evening of 1.2.1988 and stayed upto 6.2.1988 when the petitioner left to visit Bairavaswamy temple at Kamareddy. Petitioner came back to the city on 8.2.1988 and attended the Court. Therefore, they lived together only from 20.1.1988 to 26.1.1988 and from 1.2.1988 to 5.2.1988. We have already dealt with the respective cases as to what has happened during the said period. The most significant event that has happened was that a warrant of attachment brought and effected on 5.2.1988 at the instance of the respondent for executing the order of maintenance passed in MC No. 14 of 1986. In our view, if the respondent was really interested in sustaining the marriage and interested in living with the petitioner as wife in the true spirit, she would not have brought the attachment, during and period in which she was asked to give a trial to sustain the marriage in the reconciliation proceedings i.e., on 5.2.1988. She could have waited till the period is over. This event of warrant of attachment which was effected on 5.2.1988 goes a long way to be little the case of the respondent and supports the case of the petitioner. The conditions mentioned by her in Ex. A. 2 reply notice as well as in her evidence for living with the petitioner also indicates the mind of the respondent, the condition being that the entire amount of Rs. 45,000/- should be returned to her and gold jewellery must be returned and an amount of Rs. 3,100/- withdrawn from the joint savings bank account should also be returned to her and that the petitioner should deposit a sum of Rs. 50,000/ - as security for her. These important dates and events and the evidence on record, to our mind, clearly indicate that the respondent has no genuine and real interest to lead marital life with the petitioner and indicates that she wants to put an end permanently to cohabitation. It is clear that she is really to tool in the hands of her father and thereby made her marital life a mess. It is unfortunate that her father is responsible for the situation in which they are in.

Further, it is also to be noticed that a person who is interested or has genuine desire to live as wife and continue the marital life with the husband will not, even before the birth of the child, issue reply notice, Ex. A.2 with such allegations, which are already referred to. In any event she would not have filed a complaint before the police under the Dowry Prohibition Act, which was registered as CC No. 230 of 1986, even before the birth of the child on 25.1.1985. It is clear from the record that apart from the criminal cases one under the Dowry Prohibition Act and the other for maintenance u/s 125 of Criminal Procedure Code, she filed a suit in OS No. 311 of 1988 for partition against the petitioner on behalf of the female child. Father of the respondent filed a suit in OS No. 1623 of 1988 for recovery of a sum of Rs. 25,000/- towards damages for malicious prosecution having regard to the complaint made by the respondent which was thrown out.

For constituting desertion, four essential conditions must exist two on the part of the deserted spouse i.e., accused of desertion and two on the part of deserted spouse viz., factum of separation and the intention to bring cohabitation permanently to an end. Factum of separation is clearly established in the case right from the end of July, 1984. The respondent herself stated that they never had any cohabitation from July, 1984. The mere fact that they lived together under one roof from 20.1.1988 to 26.1.1988 and from 1.2.1988 to 5.2.1988 will not amount to living together with all the implication of marital life. It is well settled that two persons may be living under the very roof, but it will not amount to living together unless they live together as man and wife without an intention to put an end permanently to cohabitation. (Vide Smt. Sureshta Devi Vs. Om Prakash, . These are all inferences from proved facts. The period during which they were under the very same roof, pursuant to the reconciliation proceedings, will not interrupt, stop or obstruct the running of the period of desertion having regard to the facts and in the circumstances of this case. The second ingredient of intention to bring the cohabitation permanently to an end is also clear from the facts and circumstances of the case on the part of the respondent. Obviously, the respondent agreed to live under the very roof with the husband as per the wishes of the Court during reconciliation proceedings and certainly not with a view to resume cohabitation or resume the matrimonial life with all its implications.

So far as the deserted spouse is concerned viz., the petitioner-husband, there is total absence of his consent for the wife to continue to live in her parents house and we are of the opinion that his conduct never indicated any consent on his part of the wife to withdraw from his society. For all the reasons, we are of the opinion that the facts and the circumstances of the case irresistably lead to the inference that all the four essential conditions to constitute desertion are satisfied in the present case and the respondent is guilty of desertion as pleaded by the petitioner.

Mr. V. Venkataramana, learned Counsel appearing for the respondent contended that the petitioner has taken away the gold jewellery forcibly and that itself constitutes cruelty towards wife and therefore, the petitioner is not entitled to any relief having regard to the provisions of Section 23(1) of "The Act". We are not inclined to accept this contention having regard to our conclusion mentioned above. We have grave doubts with regard to the case set up by the respondents with regard to taking away of the jewellery and also payment of dowry amount. Apart from this aspect, there are other clinching circumstances which established the desertion on the part of the wife. Learned Counsel also contended that subsequent events should not be taken note of and even if they are taken note of they will not constitute cruelty. It is well settled by a catena of decisions that subsequent events can be taken note of (Vide Pasupuleti Venkateswarlu Vs. The Motor and General Traders, ; Ramesh Kumar Vs. Kesho Ram, ; Hasmat Rai v. Raghunath Prasad, AIR 1991 SC 1711; and Kanchanapalli Lalithakumari Vs. Kanchanapalli Ramaprasada Rao, . Instead of driving the parties to a separate application and to avoid multiplicity of proceedings, subsequent events can be taken note of for giving relief.

For all the reasons mentioned above, the appeal is allowed and the judgment and decree of the lower Court are set aside and the marriage between the parties is dissolved by a decree of divorce as prayed for in OP No. 172 of 1985. No order as to costs.