HONOURABLE SRI JUSTICE R. SUBHASH REDDY AND HONOURABLE SRI JUSTICE A. SHANKAR NARAYANA CIVIL MISCELLANEOUS APPEAL No.880 OF 2003 JUDGMENT: (Per Hon’ble Sri Justice A. Shankar Narayana) The instant appeal is preferred under Section 19 of the Hindu Marriage Act, 1955 (for short, “the Act”) 1984 by the petitioner in O.P. No.374 of 2001, on the file of Judge, Family Court, City Civil Court, Secunderabad, aggrieved of the order dated 23-12-2000, by which, the Family Court has dismissed the application filed by her under Section 13(1)(i-a) of the Act seeking dissolution of marriage solemnized on 15-04-1990 on the ground of cruelty.
2. The facts that are relevant for disposal of the instant appeal are that the marriage between the appellant (wife) and the respondent (husband) was solemnized on 15-04-1990 in Pingali Venkatarami Reddy Hall, Hyderabad. Out of their wedlock, two daughters were born. Since the respondent was possessing Master’s Degree in Business Management, but unemployed, the grandfather of the appellant encouraged him to start some business activity and as advised, he ventured to construct an apartment by name ‘Madhuri Apartments’ at Tarnaka.
He earned profit of Rs.8,00,000/- and invested the same in the company run by his sister and brother-in-law called ‘Srinidhi Rubber and Plastic Industry’, and the said amount was frozen. When the said amount of Rs.8,00,000/- was frozen, the respondent was again compelled to depend on the appellant’s mother and grand parents, and during that time, the respondent sold 2 acres of land out of 75 acres situated at Visannapeta and Muddulaparva villages in Krishna District. Even, the respondent pledged the gold articles to an extent of 100 sovereigns given to the appellant by her mother and maternal grand parents which was subsequently auctioned by the Prudential Cooperative Bank, Chikkadpally Branch, as the debts stood un-discharged. The appellant also claims that the respondent made her to sell a costly site admeasuring 285 square yards situated at Vanasthalipuram, and the sale consideration of Rs.2,35,000/- was misappropriated by the respondent for his personal pleasures for which recovery of money she reserves her right to initiate proceedings at an appropriate time, as the said plot was her “Streedhana” property. The respondent on 09-10-1999 pressurized her to bring Rs.1,00,000/- from her mother. Since she did not yield to his pressure, he physically assaulted and abused her, and he never bothered to provide anything to the family. She states that the respondent used to abuse and harass her in the presence of their daughter, Sree Teja.
3. The appellant also alleges that when she fell down from the two-wheeler, she went into coma due to internal haemorrhage, in Medwin Hospital. The respondent did not render any financial assistance. Her mother and grandparents met the medical expenses. She states, the respondent instead of treating them with love and affection, intensified the demand for money, and, on 12- 09-2000, he assaulted her and attempted to strangulate her to death. Since she was frightened and apprehended danger to her life in the hands of the respondent, she shifted her residence to her mother’s house on the same day and has been staying with her mother. Therefore, she sought the relief of dissolution of marriage against the respondent by granting decree of divorce.
4. Respondent resisted the request by filing a counter. He has admitted taking place of marriage and birth of two daughters out of their wedlock. But, he specifically denied starting business activity, earning profit of Rs.8,00,000/- and investing the same in the business activity of his sister and brother-in-law and the same being frozen in that business, selling away Acs.2-00 of land out of Acs.75-00 situated at Vissannapet and Mudulappalva villages in Krishna District, mortgaging the gold ornaments, to an extent of 100 sovereigns and taking the entire sale consideration of Rs.2,35,000/-, on alienation of the lands situated at Vissannapet and Mudulappalva villages, and misappropriating the same. He states that the appellant deliberately neglected him and deserted him by taking away her clothes, articles, certificates along with children without his consent, with a mala fide intention, to defame his family. He specifically denied the vices attributed to him by the appellant. He admits that the appellant worked as teacher in Abyudaya School, Rockwood School, Diamond Jubilee School and according to him, she is working as a teacher and drawing a salary of Rs.10,000/- per month. He specifically denied abusing, assaulting her and attempting to strangulate the appellant to death on 12-09-2000 as alleged by her. He states that both their daughters viz., Sri Teja and Sahithi were studying in St. Anthony School, Himayath Nagar, Hyderabad, and he alone was sending the school fee and other expenses to the children. He states that encouraged by her grand father, she was treating him with utter disregard. He states that he has already suffered which cannot be compensated by any means and the attempts made by him to bring the appellant back to his society to lead happy marital life proved unsuccessful.
5. Before the Family Court, the appellant besides examining herself as PW.1, examined her grand father Koneru Venkata Subbarao and V. Bhavani, her close relation, as PWs.2 and 3 respectively, and exhibited Exs.P-1 to P-10 to substantiate her case. Respondent examined himself as RW.1, but he has not examined any others and not exhibited any documents.
6. The Family Court, on appreciation of evidence both, oral and documentary, has recorded a finding that the appellant has not established that the respondent has caused cruelty. The Family Court found that the evidence through PWs.2 and 3 was interested as they are related to the appellant, and, therefore, their evidence does not inspire confidence, more particularly, when none of the daughters of the parties were examined as a witness since the appellant’s consistent case has been that the alleged assault and abuse of the respondent were in the presence of their daughters, and, therefore, the best evidence since not placed before the Court, adverse inference has to be invariably drawn, and thereby, discarded the evidence of PWs.2 and 3. The Family Court also discarded documentary evidence through Exs.P-1 to P-10, on the premise that mere discharge of debts by the appellant, which were contracted by the respondent, does not amount to cruelty for granting divorce. The Family Court also found that the alleged demand for payment of Rs.1,00,000/- made by the respondent is not proved and so also the alleged addiction to consumption of liquor and other vices attributed to the respondent as not proved. The Family Court referring to the decisions of the Hon’ble Apex Court i n Parveen Mehta v. Inderjit Mehta
[2]
[1]
, G.V.N.
Kameswara Rao v. G. Jabilli , and a decision of the Division Bench of this Court in Dr. Lokeshwari v. Dr.
[3]
Srinivasa Rao , relied on by the appellant, found that since they differ in fact-situation, they are of any assistance to prove the appellant’s case.
7. The Family Court finally, observing that if the divorce is granted, the fate of the minor children will be at stake, as they cannot get proper love and affection from the appellant and since it is not a case where the marital tie is irretrievably broken and, still, there is a chance of re- union, holding that the appellant failed to establish that the respondent treated her cruelly by strangulating and abusing her in filthy language, dismissed the petition.
8. Impugning the said order, appellant preferred the instant appeal, contending in the grounds, that the Family Court did not properly appreciate the evidence on record as to the strangulation attempted by the respondent on 12-09-2000, despite the fact that evidence of PW.3, eyewitness to the incident, clearly establishing the attempt made by the respondent to strangulate her to death and the reasonable apprehension that there is threat to her life at the hands of the respondent and that it was impossible for her to stay together.
She also avers that the Family Court went wrong in assuming that the incident on 12-09-2000 did not take place as she failed to give police complaint. According to her, the Family Court did not properly appreciate the documentary evidence through Exs.P-8 and P-10, which clearly reflects that the respondent has taken the gold ornaments and kept them in the bank/money lenders and obtained cash and misused the same without spending anything on the family.
The Family Court also went wrong in viewing the conduct of the respondent that he never bothered to lookafter the family by extending financial support even when the appellant was on death bed, and also for betterment of the children since the date she was staying away from 12-09- 2000 and was sitting idle and failed to give any reasons for staying away from the appellant. It is also her submission that the Family Court ought to have observed that the defence of the respondent is not at all supported by any evidence, and, as such, ought to have presumed, obviously, against the respondent and dissolved the marriage between them by granting decree of divorce.
9. Heard Sri B. Nalin Kumar, learned counsel for the appellant, and Sri Chetluru Sreenivas, learned counsel for the respondent, and perused the material on record.
10. Learned counsel for the appellant submits that even in the presence of convincing evidence on record through PWs.1 to 3 as to the attempt made by the respondent to kill the appellant by strangulation, discharge of debts contracted by the respondent as evidenced through Exs.P-1 to P-10, the conduct of the respondent though explicit that he never bothered to take care of the family and on the other hand, he assaulted and abused the appellant continuously by demanding to get Rs.1,00,000/- from her parents house, which compelled her to leave the company of the respondent along with the children and to stay with her parents, still, the trial Court, somehow, took a different view and rejected the request. Learned counsel also placed reliance on the decisions of the Hon’ble Apex Court in Vajresh Venkatray Anvekar v.
[4]
State of Karnataka , Vishwanath Agrawal v. Sarla
[5]
Vishwanath Agrawal , V. Bhagat v. D. Bhagat
[6] [7]
(MRS) and Suman Kapur v. Sudhir Kapur .
11. On the other hand, learned counsel for the respondent supported the reasoning assigned by the trial Court in rejecting the request besides contending that the child of the parties viz., Sree Teja is not examined though, the appellant specifically mentioned in the petition that the assault and abuses at her by the respondent, under the influence of liquor, were in her presence and the evidence of PW.3 cannot be accepted and acted upon for the reason that she is not a direct witness to the alleged acts of cruelty as can be seen from the assertions she made in the chief examination itself. He has placed reliance on the decision of a Division Bench of this Court in Akula Devi
[8]
Padmaja v. Akula Veera Venkata Satyanarayana .
12. The appellant is mainly resting on the constant assault and abuses at her by addiction to vices by the respondent even going to the extent of attempting to strangulate her to death. As PW.1, she has asserted in chief examination, the attempt to strangulate her and the demand made by the respondent for getting Rs.1,00,000/- and pledging the gold items and selling away the immovable properties and compelling her to sell the plot situated at Vissannapet and appropriating the sale proceeds for himself, in the direction of proving the acts of cruelty. In her cross-examination, she answers that she did not report or inform the police about strangulation in the presence of the children, her aunt, which incident said to have been taken place on 12-09-2000. She admits that she shifted her belongings from the matrimonial house without the consent of the respondent. Exs.P-1 to P-10 are exhibited on her behalf. They do prove the respondent contracting loans by pledging gold articles and discharge of loans by the appellant, but would it by itself constitute any cruelty meted out to her, is the question that requires advertence.
13. PW.2 supported PW.1 on that aspect of the case, but there is nothing in his evidence to show that the respondent spent that amount for leading a wayward life. The evidence of PW.2 is of hearsay nature since he asserts in his chief-examination that he learnt from reliable sources that the respondent is addicted to liquor and under the influence of liquor, he used to beat the appellant miserably.
PW.2 being the maternal grandfather of the appellant, ought to have elaborated by revealing the reliable source from which he learnt the said fact. In the absence of further details therefor, the evidence of PW.2 is of any consequence. So, the acts of cruelty attributed to the respondent said to have meted out to the appellant, suffer from want of cogent and convincing evidence.
14. Concerning the demand said to have made by the respondent to get Rs.1,00,000/- from the parents of the appellant, again nothing is to be found in the evidence of PW.2. In regard to the incident relating to attempt to strangulate the appellant by the respondent said to have taken place on 12-09-2000; again the evidence of PW.2 is of hearsay nature. Adverting to the evidence of PW.3, who is no other than the sister-in-law of PW.2, she filed her affidavit in chief examination on 27-09-2002, but strangely, she did not subject herself for cross- examination. Therefore, the evidence of PW.3 in her chief-examination affidavit cannot be taken into consideration. The trial Court ought to have recorded eschewing the evidence of PW.3 when she did not turn up for cross-examination by the respondent. Under these circumstances, we are of the view, that the examination of elder daughter of the parties viz., Sree Teja, as a witness, is of vital significance and her non-examination, certainly, gives rise to an inference adverse to the case of the appellant as regards the acts of cruelty alleged by her. In that view of the matter, the observation of the trial Court, that non-examination of children of the parties and examination of the interested witnesses would not amount to establishing the allegation that the respondent treated the appellant cruelly by abusing her in filthy language cannot be faulted.
15. The decision in Vajresh Venkatray Anvekar’s Case (Supra 4), was rendered in the context of offences punishable under Sections 306 and 498-A of the Indian Penal Code, 1860 and Section 3 of Protection of Women from Domestic Violence Act, 2005, wherein the Hon’ble Apex Court dealt with the impact of assault that will have on women will depend on circumstances of each case and Court cannot fix any fixed rule.
16. In Vishwanath Agrawal’s Case (Supra 5), the Hon’ble Apex Court observed that in a matrimonial dispute, it would be inappropriate to expect the outsiders to come and depose, and that the family members and sometimes the relatives, friends and neighbours are the most natural witnesses and veracity of their testimony is to be tested on objective parameters and not to be thrown overboard on the ground that witnesses are related to either spouse. In the instant case, it is not on the ground that PWs.2 and 3, since related to PW.1, their testimony is construed as interested, but on the ground that the evidence of PW.2 is of hearsay nature and he was never the direct witness to any of the acts of cruelty alleged by the appellant and PW.3’s evidence, certainly, requires to be excluded for the reasons aforementioned by us and also in view of the non-examination of Sree Teja, the daughter of the parties.
17. I n V. Bhagat’s Case (Supra 6), the Hon’ble Apex Court was dealing with mental cruelty in the context of explaining the meaning of the word “cruelty” occurring in sub-clause (i-a) of Clause (1) of Section 13 of the Act. But in the instant case, we are of the opinion that the evidence placed by the appellant is not cogent and convincing in proving the acts of cruelty amounting to either physical assault or mental cruelty, and, therefore, is of any assistance in advancing the case of the appellant.
18. The decision in Suman Kapur’s Case (Supra 7) also would not render any assistance for the reason that the set of facts and the circumstances occurring therein are not alike in the instant case.
19. On behalf of the respondent, he alone was examined as RW.1 and no documents were marked. One of the grounds raised in the instant appeal is that the trial Court overlooked the fact that the defence of the respondent is not at all supported by any evidence, and, as such, ought to have presumed adversely against the respondent. Though, such a ground is urged, since the appellant has approached the Court seeking the relief of dissolution of marriage by grant of decree of divorce, the entire onus rests on her to prove the acts constituting cruelty for obtaining such a relief by adducing cogent and acceptable evidence and, certainly, the respondent cannot be asked to shoulder the onus, unless the evidence let in by the appellant is cogent and convincing shifting the onus to the respondent to prove his stand. In the said context, respondent placed reliance on a decision of this Court in Akula Devi Padmaja’s Case (Supra 8) for the proposition that the person, who pleads the grounds, must prove them to the satisfaction of the Court and a self-serving statement would hardly be of any use.
20. Since we find that legally acceptable evidence is wanting to substantiate the case of the appellant in the direction of proving the acts constituting cruelty, as discussed above, we are of the considered opinion that the appeal is devoid of merit.
21. Therefore, the Civil Miscellaneous Appeal is dismissed upholding the order impugned in this appeal. There shall be no order as to costs.
22. As a sequel thereto, Miscellaneous Applications, if any, pending in this appeal stand disposed of.
R. SUBHASH REDDY, J A. SHANKAR NARAYANA, J April 25, 2014.
PV
[1] 2002(5) ALD 6 (SC)
[2] AIR 2002 SC 576
[3] AIR 2000 AP 451
[4] (2013) 3 SCC 462
[5] (2012) 7 SCC 288
[6] (1994) 1 SCC 337
[7] (2009) 1 SCC 422
[8] 2014 (1) ALT 161 (D.B.)