THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN AND THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
C.M.A.No. 330 OF 2004
JUDGMENT: (per Hon'ble Sri Justice M.Satyanarayana Murthy) The unsuccessful petitioner in O.P.No. 46 of 2002 on the file of the Court of Senior Civil Judge, Nandigama (for short, 'the trial Court'), preferred this appeal challenging the decree and order dated 31-10-2003. The parties for reference of convenience are ranked as in O.P.No. 46 of 2002 throughout the judgment.
2. The petitioner filed a petition under Section 13 (1) (ia) (ib) of Hindu Marriage Act, 1955 (for brevity, 'the Act of 1955'), seeking divorce alleging that marriage between the petitioner and the respondent took place at Vijayawada Police Station as per Hindu rites and caste customs. By the time of marriage, the respondent was pregnant of second month. After marriage, they set up family at Alluru Village i.e. at the house of the parents of the respondent. During stay of the petitioner at Alluru Village, the parents of the respondent and the respondent used to harass the petitioner and he was ill- treated by them. The respondent did not cooperate with the petitioner to lead marital life. Thus, she harassed the petitioner mentally. Finally, the petitioner was necked out by the respondent and her parents on 12-04-2000. Since then, the petitioner is living separately.
It is further alleged that the respondent filed a criminal case in Veerulapadu Police Station and harassed him mentally. Thereupon, the petitioner got issued a legal notice on 17-04-2002 calling upon the respondent to join him to lead marital life. Receipt of the same was acknowledged but no reply was issued. Hence, the petitioner sought for a decree of divorce.
3. The respondent filed counter denying material allegations while admitting marital relationship between them and child born to them. She further contended that the petitioner addicted to vices and treated her cruelly. She also mentioned the specific incidence of cruel treatment i.e. beating her at the instigation of his parents, brother and sister demanding Rs.1,00,000/- as dowry. About a year back, the petitioner, his brother and sister beat the respondent and necked her out from their house as the respondent expressed her inability to meet the illegal demand of payment of dowry. Thereupon, she made a complaint to police and, later, on investigation, registered a case against them which is pending before the Judicial Magistrate of I Class, Nandigama. Thus, there is a justifiable cause for her separate living and that she never treated the petitioner cruelly and prayed to dismiss the petition.
4. During the course of enquiry, on behalf of the petitioner, P.Ws.1 to 3 were examined. On behalf of the respondent, R.Ws.1 to 3 were examined. No documents were marked by either of the parties.
5. Upon hearing argument of both the counsel, the trial Court dismissed the petition on the ground that the petitioner failed to substantiate his contentions raised in the petition by adducing satisfactory and cogent evidence.
6. The petitioner, being aggrieved by the decree and order passed in O.P.No. 46 of 2002 dated 31-10-2003, preferred the present appeal on various grounds.
7. Learned counsel appearing for the petitioner mainly contended that denial of sexual intercourse with the petitioner by the respondent amounts to mental cruelty and placed reliance on the judgment of A p e x Court in
[1]
Manisha Tyagi Vs. Deepak Kumar . It is further contended that the respondent did not join the petitioner despite legal notice and living separately for a period of more than two years immediately preceding the presentation of the petition which amounts to desertion but the trial Court did not consider the evidence on record in proper perspective, committed an error and the petitioner prayed to allow the appeal, setting aside the dismissal order, granting a decree of divorce dissolving the marriage between the petitioner and the respondent.
8. Learned counsel appearing for the respondent argued totally in support of the findings recorded by the trial Court.
9. Considering rival contentions, perusing the order and decree passed by the trial Court, oral evidence and material available on record, the points that arise for consideration are:
(1) Whether the respondent treated the petitioner cruelly which creates a reasonable apprehension in the mind of the petitioner that it is harmful or endangerous to him to live with the respondent?
(2) Whether the respondent deserted the petitioner without any reasonable cause, if so, is the petitioner entitled to a decree of divorce dissolving the marriage between the petitioner and the respondent?
10. In Re. Point No. 1:
The main ground urged by the petitioner for divorce is that the respondent did not cooperate to lead marital life, the respondent and her parents harassed the petitioner while he was staying with them at Alluru Village and finally he was necked out from the house on 12-04-2000. The specific overacts attributed to the respondent are limited i.e. ill-treatment of the petitioner and not extending cooperation to lead marital life. When a plea of cruelty is raised in a matrimonial case, the burden is always upon the petitioner to prove the acts or omissions of the respondent amounting to cruelty either physically or mentally. Here, as per the admissions made by P.W.1 in his cross-examination, the petitioner and the respondent had pre- marital sex; their marriage was performed at Police Station and by the date of marriage, the respondent was pregnant of second month. It shows that they cohabited even prior to the marriage. Now, the contention is that the respondent did not cooperate with the petitioner to lead marital life but the petitioner did not disclose as to how she did not cooperate to lead marital life anywhere in the petition or even in the evidence. For the first time, learned counsel for the petitioner during argument contended that refusal to cohabit with the petitioner amounts to cruelty but this fact was not pleaded in the petition and not testified by the petitioner in his evidence in clear terms. Basing on the bald allegations without disclosing the details of cruelty, it is difficult to hold that the respondent refused to cohabit with the petitioner. Therefore, the principle laid down in Manisha Tyagi Vs. Deepak Kumar (1st supra) cannot be applied straightaway.
11. Proof of refusal to cohabit with the petitioner by the respondent is difficult for the petitioner in normal course of events. If really such instance had taken place, he would have reported the same at least to the parents of the respondent in normal course of events but he did not report the same to the parents of the respondent and such conduct is against the natural conduct of a prudent man. Hence, basing on the self-serving testimony of P.W.1, it is difficult to hold that the respondent treated the petitioner cruelly.
[2]
12. In Naveen Kohli Vs. Neelu Kohli , the Apex Court defined the word 'cruelty' and held as follows:
"To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse can not be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions."
13. In Samar Ghosh Vs. Jaya Ghosh
[3]
, the Apex Court, while defining the word cruelty, laid down some instances of human behavior relevant for dealing with cases of mental cruelty and gave illustrative instances though not exhaustive, which are 14 in number. However, 9th illustration therein, which is relevant to the present case, is extracted hereunder:
"(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.”
14. The above illustration is applicable to the present case, since the allegation is only wear and tear in the family life. As per the law laid down by Apex Court in Naveen Kohli (2nd supra) and Samar Ghosh (3rd supra), the acts or omissions of spouse, which create a reasonable apprehension in the mind of the petitioner that it is harmful or endangerous, alone constitute cruelty. Mere non-cooperation of the respondent to lead marital life with the petitioner would not create any reasonable apprehension in mind that it is harmful or endangerous for him to live with the respondent. Therefore, strictly speaking, the attributions made against the respondent would not amount to cruelty either physical or mental.
15. The trial Court, after appreciation of entire evidence on record, rightly declined to grant decree on the ground of cruelty under Section 13 (1) (ia) of the Act of 1955 and we see no reason to interfere with the findings of the trial Court and, on the other hand, we are in concurrence with the findings of the trial Court while holding this point against the petitioner and in favour of the respondent.
16. In Re. Point No. 2:
The next ground urged by the petitioner before this Court is that the respondent left the company of the petitioner without any reasonable cause which amounts to desertion. As seen from the allegations made in the petition, the petitioner used to stay with the parents of the respondent obviously for different reasons. However, they allegedly ill-treated the petitioner and he was necked out from the house on 12-04-2000. Since then, he is living separately. If that fact is admitted, the petitioner himself is living separately and he did not take any steps to restore the family ties by filing a petitioner under Section 9 of the Act of 1955. Even according to the pleadings and evidence on record, the respondent never intended to put an end to the marital relationship permanently between the petitioner and the respondent and she had no intention at all. Therefore, such act of the respondent would not attract desertion as defined under explanation to Section 13 (1) (ib) of the Act of 1955, and, the petitioner failed to establish desertion attributed to the respondent and, apart from that, there is a reasonable cause for the respondent to live separately as she was subjected to harassment when she failed to meet the illegal demand of the petitioner for payment of dowry of Rs.1,00,000/-. In such a case, the reason assigned by the respondent for her living separately at her parents' house is reasonable cause and, thereby, we find no material to establish that the respondent deserted the petitioner without any reasonable cause for a period of more than two years.
17. On re-appraisal of entire evidence, we find no illegality warranting interference of this Court with the order of the trial Court. Hence, the finding of the trial Court is hereby confirmed holding this point in favour of the respondent and against the petitioner.
18. In view of our findings on point Nos. 1 and 2, we find that the appeal is devoid of merits and deserves to be dismissed.
19. In the result, the appeal is dismissed. Pending miscellaneous petitions in this appeal, if any, shall stand dismissed in consequence. No order as to costs.
RAMESH RANGANATHAN, J.
Date: 27-08-2014. M.SATYANARAYANA MURTHY, J.
JSK
[1] AIR 2010 SC 1042
[2] AIR 2006 SC 1675
[3] 2007 (4) ALD 11 (SC)