THE HON'BLE Sr.JUSTICE L.NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE M.S.K.JAISWAL C.M.A.No.2488 of 2001 and batch 19-12-2013 V.Kameswar Rao .Appellant Smt.
Umadevi.Respondent Counsel for appellant : Ms.G.Sudha Counsel for respondent : HEAD NOTE: ?.CASES REFERRED : 1) (2005) 7 SCC3532) (2006) 4 SCC558THE HON'BLE Sr.JUSTICE L.
NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE M.S.K.JAISWAL C.M.A.No.2488 of 2001 & Tr.A.S.No.120 of 2010 The Civil Miscellaneous Appeal and the Transferred Appeal Suit are between the same parties.
Hence, they are disposed of, through this common judgment.
For the sake of convenience, the parties are referred to, as arrayed in the CMA.
The appellant is the husband of the respondent.
Their marriage took place on 19.02.1984 at Yellendu, and it was also consummated.
They lived together for a short period.
The appellant filed O.P.No.224 of 1997 in the Family Court, Secunderabad, under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 (for short 'the Act').against the respondent, for divorce.
He pleaded that hardly within 10 days from the date of marriage, the respondent deserted him, and inspite of his repeated efforts, she did not come back.
He stated that the respondent was quarrelsome in nature, and was in the habit of insulting him in various methods.
A detailed account of the nature of relations between them was furnished.
He ultimately pleaded that the respondent has deserted him from 1988 onwards, and that various acts and omissions on her part constitute cruelty.
The respondent opposed the O.P., by filing counter.
She stated that from the inception of the marriage, the appellant was not interested in leading the matrimonial life with her.
She stated that the appellant was in the habit of participating in dramas, and though she did not object to them, he used to come late in the night and never evinced any interest in leading the marital life.
She contended that the appellant was living in the house of his sister and brother-in-law, who incidentally was his paternal uncle.
She alleged that not only the appellant, but also his family members were harassing her, with a view to arrange for a marriage between the appellant and the daughter of his maternal uncle.
She further stated that having driven her from the matrimonial home, the appellant issued telegrams to her father, with a warning that unless the appellant writes a letter, she should not be taken to the place where he is residing.
It was alleged that the appellant was accustomed to Homosexuality and he neglected her.
Ultimately, she pleaded that she is willing to live with the appellant, despite various inconveniences felt by her, and prayed for dismissal of the OP.
Through its order, dated 20.07.2001, the trial Court dismissed the O.P.C.M.A.No.2488 of 2001 is filed against the same.
The respondent filed O.S.No.86 of 1999 in the Court of Additional Senior Civil Judge (FTC).Kothagudem, against the appellant, for return of dowry of Rs.3,68,400/- with interest.
It was pleaded that at the time of marriage, the parents of the respondent have presented cash and gold ornaments, and hardly within few days from the date of marriage, she has been deserted by the appellant.
A detailed account of the nature of relations that existed between the parties was furnished, and ultimately, she prayed for a decree.
The appellant opposed the suit, by denying the allegations in the suit.
The suit was dismissed through judgment, dated 09.06.2009.
A.S.No.158 of 2009 was preferred by the respondent in the Court of V Additional District Judge, Kothagudem, against the judgment and decree in the suit.
As per the ordeRs.dated 25.01.2010, in C.M.A.No.2488 of 2001, the said appeal was transferred to this Court and numbered as Tr.A.S.No.120 of 2010.
Ms.G.Sudha, learned counsel for the appellant, submits that the appellant has proved the grounds of cruelty and desertion through cogent evidence, and the findings recorded by the trial Court cannot be sustained in law.
She submits that the appellant shifted his residence to another place, on being insisted by the respondent, and still, she left the home.
She further submits that efforts were made by the appellant himself, and through well-wishers and relations, to bring back the respondent, but the same did not fructify.
Learned counsel submits that the filing of frivolous petitions by the respondent against the appellant and her family members and making false and baseless allegations, would by itself constitute cruelty.
She placed reliance upon the judgments of the Supreme Court in Durga Prasanna Tripathy v.
Arundhati Tripathy1 and Naveen Kohli v.
Neelu Kohli2.
Learned counsel for the respondent, on the other hand, submits that it is the appellant who can be said to be guilty of desertion and cruelty against the respondent, if one goes by the evidence on record.
He submits that though the appellant made several allegations in his lengthy petition, none of them were proved, and the trial Court has rightly dismissed the O.P.He contends that the fact that the appellant issued one telegram in the year 1984 (Ex.B.1) to the father of the respondent, insisting that the respondent should not be sent to him, till he addressed a letter and another telegram in the year 1986 (Ex.B.2).with a warning that if the respondent proceeds to the house of the appellant, she has to face dire consequences, would clinchingly establish that it is the appellant that has driven away and deserted the respondent and caused cruelty to her.
He further submits that several facts such as that the daughter of maternal uncle of the appellant, who was fairly aged, remained unmarried, and that she and her parents used to ill-treat the respondent, would clearly constitute the grounds of cruelty on the part of the appellant.
Arguments were also advanced by both the counsel, in relation to Tr.A.S.No.120 of 2010.
May be on account of the fact that the appellant did not evince proper interest, the C.M.A.remained on the board of this Court for 12 yeaRs.In the O.P.filed by the appellant, the trial Court framed only one point for consideration, viz., ".Whether the marriage between the appellant and the respondent can be dissolved?.
".
On behalf of the appellant, PWs.1 to 3 were examined and Exs.A.1 to A.13 were filed.
On behalf of the respondent, RWs.1 to 4 were examined and Exs.B.1 to B.12 were filed.
The O.P.was dismissed.
In the suit filed by the respondent, the trial Court framed the following issues for consideration: 1) Whether the plaintiff is entitled for Rs.3,68,400/- from the defendant, as claimed in para 5 of the plaint?.
2) Whether the suit is barred by limitation?.
On behalf of the respondents, P.Ws.1 to 5 were examined and Exs.A.1 to 15 were filed.
The appellant deposed as D.W.1 in the suit and he filed Exs.B.1 to B.15.
The suit was, ultimately, dismissed.
The points, that arise for consideration before us, are: 1) Whether the appellant has proved the ground of cruelty and desertion on the part of the respondent?.
2) Whether the respondent established her claim for refund of Rs.3,68,400/-?.
It was for a short period, that the appellant and the respondent lived together, after the marriage.
They are living separately almost from the year 1984.
The appellant prayed for a decree of divorce, by pleading the grounds of cruelty and desertion.
The second ground can be taken up for discussion first.
The very fact that the parties are living separately almost for the past 2 1/2 decades, clinchingly establishes that there was desertion.
The whole controveRs.is as to who deserted whom.
In case the respondent left the house of the appellant without any excuse and did not come back, inspite of the efforts of the appellant, she can be certainly said to have deserted the appellant.
In the O.P., the appellant pleaded that inspite of his repeated efforts, the respondent did not come back to the matrimonial house.
In the cross- examination, he stated that he is not prepared to live with the respondent, on the ground that she defamed him before his friends, relatives, neighbours and officials.
The version of the respondent, on the other hand, is totally different.
She stated that though she has put up with all the inconvenience caused to her at the house of the appellant, he drove her out, and that he started living in the house of her brother-in-law and sister.
She made extensive reference to the fact that hectic efforts are made by the appellant and his sister and brother-in-law to arrange the marriage between the appellant and the daughter of his sister and the said woman, though of the age of the respondent, remained unmarried, by the time the O.P.was disposed of.
There would have been justification for the respondent to plead the ground of desertion, in case he got issued a notice requiring her to join him or has filed O.P., under Section 9 of the Act, irrespective of the result thereof.
He did not make any such efforts.
The evidence on record proves that he was very adamant and clear in his mind that the appellant should not come to his house, till he gives a signal.
He issued a telegram in the year 1984 marked as Ex.B.1 to the father of the respondent.
He directed that unless he addressed a letter, the father of the respondent should not bring her to the house of the appellant.
The respondent and her father were obviously waiting for the letter from the appellant.
Two years later, as a measure of renewal of his threat, the appellant got issued Ex.B.2 in the year 1986.
The tone and tenor of the telegram, this time, was harsher than the earlier one.
He not only insisted that the respondent should not come to his house, unless required to do so, but also threatened that she would face dire consequences, if she dares to come to his house.
When this is the attitude of the appellant, it is just un-understandable as to how it occurred to him or the advocate, who received instructions from him, to mention the ground of desertion in the O.P.The last word, in this context, is once again uttered by the respondent.
In her counter filed in the O.P., she stated that despite all the inconvenience and harassment caused to her, she is willing to join the company of the appellant.
Therefore, it clearly emerges that the appellant failed to prove the ground of desertion.
Now comes to the ground of cruelty.
In case the appellant and the respondent lived together and she was harassing him without there being any justification, the appellant could have proved the ground of cruelty.
The O.P.was filed in the year 1997.
By that time, there was no union between the appellant and the respondent for about 13 yeaRs.He did not mention any specific incident referable to the period during which, they lived together; that can be treated as an act of cruelty.
The filing of a complaint, under Section 498-A of IPC, is sought to be projected as an act of cruelty.
Reliance is placed upon the judgments of the Supreme Court.
Those were the cases, in which, it was established that apart from filing of a complaint, under Section 498-A of IPC, the concerned spouse acted with a mala fide intention, only with a view to cause harassment to her husband.
In the instant case, the cruelty, if at all, was meted out by the appellant to the respondent, Exs.B.1 and B.2 referred to above would have been sufficient to establish the ground of cruelty, if pleaded by the respondent against the appellant.
If an incorrect and wrongful plea can be treated as an act of cruelty, it is the appellant, who is guilty of that.
For instance, in the couRs.of arguments in the O.P., it was pleaded that the respondent was not willing to live with the appellant, by alleging that he has undergone hydrocil operation.
No such plea is found in the counter filed by the respondent, nor did she mention that in her deposition.
As a matter of fact, the appellant admitted in the cross-examination that he has undergone that operation, somewhere in the year 1969.
The evidence of other witnesses examined by the appellant or for that matter the respondent, is not much of help, in this regard.
The admissions of the appellant as P.W.1 are more than sufficient to deny him, the relief of divorce.
Further, it is evident from the record that the appellant has subjected the respondent to undue harassment and virtually spoiled her life.
We, therefore, hold that the appellant failed to establish the ground of cruelty.
We, accordingly, dismiss the Civil Miscellaneous Appeal, with costs of Rs.25,000/- (Rupees Twenty five thousand only) payable to the respondent, within two (2) months from today, and leaving it open to the respondent to claim maintenance against the appellant, if not already done.
We have gone through the entire record, pertaining to the suit.
There is hardly any evidence to substantiate the contention of the respondent that any amount was paid to the appellant at the time of marriage, or that any ornaments that were presented to the respondent by her parents, were retained by the appellant.
We, therefore, dismiss the Transferred Appeal Suit, without costs.
The Miscellaneous Petitions, if any, pending in the appeals shall stand disposed of.
______________________ L.
NARASIMHA REDDY, J.
________________ M.S.K.JAISWAL, J.
19th December, 2013