JUDGMENT
G. Radhakrishna Rao, J.
1. This appeal arises out of the orderpassed on 30.10.1989 by the Additional Chief Judge-cum-Second Additional Special Judge for SPE and ACB cases, City Civil Court, Hyderabad, in Original Petition No. 199 of 1988.
2. The said petition was filed for dissolution of marriage under Section 27(l)(b) of the Special Marriage Act by the petitioner-husband stating that he was married to the respondent on 17.4.1974 under the Special Marriage Act at Visakhapatnam vide Ex. A-1 certificate; that they lived together as husband and wife at Hyderabad till October, 1985; that thereafter differences arose between them as the respondent was devoting her entire time in the activities of the service association as its President while she was working as a Clerk in the Andhra Pradesh State Financial Corporation and that she neglected and deserted him since October, 1985. It is stated further that he issued a notice to her on 17,2.1988 to which she replied with false allegations.
3. Respondent resisted the petition saying that, they were living as husband and wife at Hyderabad till July, 1985 when the petitioner was promoted and posted to Anakpur Branch of Andhra Bank in Nizamabad District, while she was working at Hyderabad; that the petitioner wanted to construct a house and asked her to stay back at Hyderabad to attend to the construction work and was paying visits to Hyderabad till October, 1987 and thereafter as he wanted her to get money for construction of the house from her father, which she could not fulfil, he stopped coming to her place and filed this petition. It is her case that she never neglected or deserted him at any point of time.
4. Parties have got examined themselves as P.W. 1 and R.W. 1 and filed Exs. A-l to A-4 and Exs. B-l to B-8. The Court below, holding that the petitioner failed to prove the necessary ingredients for divorce under Section 27 (l)(b) of the Special Marriage Act, dismissed the application, and the same is questioned in the present appeal.
5. Indisputably it is the petitioner who has to prove desertion by the respondent for a continuous period of two years preceding the date of presentation of the petition. That apart, desertion shall be construed with reference to peculiar circumstances of each case. Desertion does not generally imply only a separate residence and separate living. There must also be a positive determination to put an end to marital relationship and cohabitation and in the absence of such factor, there can be no desertion within the meaning of the said provision. Considering the entire material on record, the Court below found that the respondent and the petitioner were living amicably at Kukatpally while both of them were working at Hyderabad, and even after the husband to got to Ankapur in July, 1985, he used to come and visit the wife who continued to stay at Kukatpalli for which telephone and gas connection were also obtained as they planned to construct a house for which purpose the husband asked her to stay back at Hyderabad besides her being employed there and that she also obtained blue print of the sanctioned plan for the house, dated 20.3.1986. It was also observed that the only change was the husband’s transfer to Ankapur on promotion, for which the wife could not in any way be blamed. The learned Judge consequently held, and rightly in our opinion, that there was no desertion on the part of the wife and, therefore, the application for dissolution of marriage should fail. After hearing the Counsel at length, and on a careful examination of the evidence on record and other circumstances, we are not inclined to deviate from the findings given by the Court below. Appeal is, therefore, dismissed.
6. Learned Counsel for the petitioner filed C.M.P. No. 4276 of 1993, in this appeal, seeking amendment of the original petition, to the effect that the petitioner came to know on 10.2.1993 that the respondent was already married to one N. Madhava Rao on 1.5,1971 at Vijayawada, and on that ground to declare the marriage as nullity. We are not inclined to entertain the request. It is no doubt well settled that where the first marriage is valid and subsisting, second marriage shall be a nullity. But, cause of action for such relief is different and the evidence and proof shall also have to be let
in independently. Therefore, amendment of such nature, that too at this stage, which if allowed would alter the very nature of the case under a different cause of action, cannot be allowed. C.M.P. is, therefore, dismissed. However, it is open for the petitioner to take steps independently on that issue.