Decided on November 14,1983

OM WATI Appellant
KISHAN CHAND Respondents


Avadh Behari, J. - (1.)Om Wati, appellant, was married to the respondent, Kishan Chand, on 28.2.76. A female child was born to them. The child lived for about 2 years and then died on 10.9.79. On 1.9.80 the wife brought a petition for divorce against the husband on two grounds. (1) Desertion and (2) Cruelty. Mr. K.S. Gupta, Add. District Judge tried this petition. He came to the conclusion that the parties were living apart since Feb. 79. On this finding he found that 2 years period had not elapsed and therefore a case for desertion had been not made out. On cruelty he found that there was no sufficient evidence to establish that ground. So he dismissed the petition on 3.4.81. This was the first litigation between the parties.
(2.)On 22.5.81 the wife brought the present petition. This petition is founded only on the ground of desertion. This time the wife has not pleaded any cruelty. The learned Additional District Judge dismissed the petition on 14.7.82. From the decree of dismissal the wife appeals to this court.
(3.)The Judge has found as a fact that the parties are living separately since Feb. 1979. That was the finding in the first petition by Shri K.S. Gupta, A.D.J. The same is the finding by Mr. M.A. Khan, ADJ who has tied the second petition. But the learned judge has held that the petitioner has not proved animus deserendi and mere separation is not enough to prove her case of desertion He was of the view that the wife has not been able to establish that the husband intended to bring cohabitation permanently to an end. So he refused the decree of divorce to her.

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