THE HON'BLE Sr.JUSTICE L.
NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE M.S.K.JAISWAL C.M.A.No.752 of 2013 28-11-2013 V.Alivelu Mangas Devi V,Venkata Laskshmi Narasimha Palla Rao !Counsel for the AppellantSr.Subba Rao Counsel for Respondent: Sr.A.K.Kishore Reddy : ?.Cases Referred; JUDGMENT
: (per the Hon'ble Sr.Justice L.Narasimha Reddy) The marriage between the appellant and the respondent took place on 16.04.1983 and they were also blessed with two children.
The respondent was initially employed in Armed Forces and worked at various places.
After retirement from the Army, he secured employment in Customs and Central Excise Department and was posted at Visakhapatnam.
In the year 1997, the appellant is said to have left Visakhapatnam for Kakinada, where her parents were residing, on account of harassment and ill-treatment caused by the respondent.
The respondent filed O.P.No.200 of 2011 in the Court of the III Additional Senior Civil Judge, Kakinada under Section 13 (1a) of the Hindu Marriage Act (for short 'the Act') for divorce.
He pleaded that through her acts and omissions, the appellant caused cruelty to him and that the same constituted a ground for divorce.
He stated that after leaving his company in 1997, the appellant filed M.C.No.71 of 2005 in the Court of the IV Additional Judicial FiRs.Class Magistrate, Kakinada, which was transferred to the Court of the V Additional Judicial FiRs.Class Magistrate, Kakinada and renumbered as M.C.No.140 of 2008 and that it was allowed on 10.12.2008 awarding a sum of Rs.2000/- per month as maintenance.
He further stated that with a view to procure the presence of the appellant, he filed O.P.No.34 of 2009 under Section 9 of the Act and though a decree was passed on 28.07.2010 in that O.P., the appellant did not join him.
The appellant opposed O.P.No.200 of 2011 by filing a counter.
She stated that in the year 1997, the respondent beat her and has driven away her and their children, and finding no other place to go, she went to the house of her parents near Kakinada and that the children were brought up by her parents.
She stated that O.P.No.34 of 2009 was filed by the respondent, just for the sake of it, and even during those proceedings, she expressed her willingness to join him.
Through its order, dated 27.06.2013, the trial Court allowed O.P.No.200 of 2011 and granted decree for divorce.
The same is challenged in this appeal.
Sr.Subba Rao, learned counsel for the appellant, submits that the trial Court did not appreciate the evidence on record properly and had erroneously passed the decree for divorce.
He contends that even if the grounds pleaded by the respondent are taken as true, at the most, they constitute desertion and there was absolutely no basis for the trial Court to come to the conclusion that the ground of cruelty is proved.
He submits that none other than the daughter of the parties herein deposed as R.W.1 and categorically stated that herself, her mother and her brother, had to leave Visakhapatnam from the house of the respondent on account of the physical assault by him.
He submits that whatever may have been the intention of the respondent in filing O.P.No.34 of 2009 pretending to be inclined to join the appellant, his true colors came out when he categorically stated in his cross-examination that he is not at all willing to live with her.
Sr.A.K.Kishore Reddy, learned counsel for the respondent, on the other hand, submits that the very fact that the appellant left the respondent way back in the year 1997 and despite repeated efforts made by his client, she did not come back, discloses that the harassment of very high magnitude was caused to the respondent.
He submits that even after the decree was passed in O.P.No.34 of 2009 and notice was issued, the appellant did not join the respondent.
He submits that the trial Court has properly appreciated the oral and documentary evidence and arrived at the conclusion that the ground of cruelty was proved; and that there do not exist any grounds to interfere with the same.
The fact that the parties herein were married and they were also blessed with two children is not in dispute.
Till the year 1997, there were no disputes whatever between the parties and they were living happily at various places.
The starting point for the dispute between the parties is the alleged harassment caused by the respondent to the appellant forcing her to leave Visakhapatnam to her parents house.
In the O.P.filed by the respondent for divorce on the ground of cruelty, the trial Court framed only one point for its consideration, namely ".whether the respondent is entitled to the decree for divorce, as prayed for?.".
On behalf of the respondent, R.Ws.1 to 3 were examined and Exs.P1 to P6 were filed.
On behalf of the appellant, R.Ws.1 to 3 were examined and no documentary evidence was adduced.
The trial Court decreed the suit.
The point that arises for consideration before us is as to whether the respondent proved the ground of cruelty against the appellant?.
The Act recognizes cruelty as one of the grounds for dissolution of a marriage.
To constitute a ground for dissolution, cruelty need not be the one manifested through any external injuries or physical assault.
If one of the spouses caused mental agony or continued harassment to the other, through his or her acts and omissions beyond a point of tolerance, the Court can certainly grant divorce.
However, the evidence must be consistent and the satisfaction of the Court in this regard, must be absolute.
Benefit of doubt, if any, in this behalf, must result, in sustaining the marriage.
The fact that the appellant and her children left the house of the respondent is not in dispute.
While the respondent pleaded that the appellant left the house abruptly and without any justification, the appellant pleaded that she was forced to go out on account of the fact that the respondent has ill-treated and had beaten her.
The fiRs.development that has taken place ever since the parties started living separately from 1997; was the filing of M.C.No.140 of 2008 by the appellant.
During that one decade, the respondent did not take any steps to get the wife and children back.
After contest by the parties, the Court of the V Additional Judicial FiRs.Class Magistrate, Kakinada passed an order on 10.12.2008, granting maintenance at the rate of Rs.2000/- per month to the appellant.
It needs to be noted that the Court, which granted the maintenance, has to be satisfied, at least, in the limited context of the M.C.before it; that the person against whom the maintenance is ordered, neglected to maintain the petitioner therein.
In the instant case also, a finding was recorded to the effect that the respondent neglected to maintain the appellant and accordingly, granted maintenance.
The said finding became final.
It is only after an order in M.C.No.140 of 2008 was passed, that the respondent moved in the matter and filed O.P.No.34 of 2009 under Section 9 of the Act.
Virtually there was no opposition from the appellant.
Her case was that the respondent has driven her from the house and she was always willing to join him.
The O.P.was decreed on 28.07.2010.
Hardly any efforts were made by the respondent to take the appellant back.
In the cross-examination of the respondent as P.W.1, it was elicited that he did not go personally to the appellant after the decree in O.P.No.34 of 2009.
That only shows that there was absolutely no inclination on his part to live with the appellant.
Assuming that there was some hesitation on the part of the respondent in initiating a proposal to live together by going personally to the appellant, at least, when the appellant expressed her willingness to live with the respondent, there should have proper response, in case there existed any sincerity on the part of the respondent to sustain the marriage.
In the cross-examination, a specific question was put as to whether he is willing to live with the appellant.
The gist of the question and answer thereto was commented by the trial Court, as under: ".To a suggestion asking P.W.1 whether he is ready to receive the respondent, as she was willing to join him for which P.W.1 says that he has apprehension and belief that the respondent would further harass him mentally and physically if he receives her and further adds that he lost already 19 years of life by way of struggling and now he does not want to suffer himself any more.".
This was in August, 2012, whereas the decree in O.P.No.34 of 2009 was just two years earlier thereto.
It is not that any serious or irretrievable developments have taken place between these two events.
Except the factum of the appellant leaving Visakhapatnam in 1997, the respondent did not plead any other acts referable to the appellant.
There are precedents, though rare, which are to the effect that giving of the complaints under Section 498-A I.P.C.with false allegations and acquittal of the accused therein would, by itself, constitute a ground of cruelty.
Those, however, are cases, in which, the motive to harass the other spouse is proved beyond any doubt.
Such is not the case here.
The complaint was made by the appellant against her husband, only after she and her children were driven out.
This is a rare case in which, a grown up child of the spouses deposed as a witness in the divorce proceedings.
R.W.2, the daughter of the parties herein, narrated her experience vis--vis the quarrel between the parties.
She stated that in 1997, the respondent has driven away the appellant and the children and he did not even permit them to take away the clothes with them.
She has also stated that the respondent has neglected to maintain them throughout.
There cannot be any better evidence than this.
The tone and tenor of the cross- examination of this witness on behalf of the respondent, if at all, would disclose his lack of regard for family system or values.
No responsible father would subject his daughter to such mean level of cross-examination.
We clearly find that the respondent miserably failed to prove the ground of cruelty.
The trial Court was mostly impressed by the fact that though there exists a decree for restitution of conjugal rights, the appellant did not join the respondent.
However, it did not take into account, the plan according to which the respondent was acting and hiding the real intention by filing certain proceedings.
Of late, a tendency has developed, wherein an otherwise comfortably situated male spouse creates a ground for female spouse to leave the matrimonial house, permits that situation to remain for years together and then cites the same as a ground for divorce.
A time has come for the Courts to be cautious in examining such grounds and to discourage these practices, lest the institution of marriage is made fragile.
It must also be remembered that whatever be the opinion of individuals towards the institution of marriage, in the ultimate analysis, it is that which keeps the society in proper form.
The society would be bereft of any civilization worth its name, without a respectable institution of marriage.
Hence, we allow the appeal, set aside the decree passed by the trial Court and award costs of Rs.10,000/- (ten thousand only) payable directly to the appellant by the respondent.
The miscellaneous petitions filed in this appeal shall also stand disposed of.
______________________ L.
NARASIMHA REDDY,J ___________________ M.S.K.JAISWAL,J Dt:28.11.2013