High Court · 2010

Order

[Per GVS, J] This appeal is directed against the order dated 30.11.1999 in OP No.37 of 1996 on the file of the Senior Civil Judge, Ananthapur, wherein, the said application filed by the respondent herein seeking grant of divorce under Section 13 of the Hindu Marriage Act, was allowed, dissolving the marriage of the respondent with the appellant.

2. Heard the learned counsel for the appellant and the respondent. Perused the records.

3. The respondent herein [husband] filed OP No.37 of 1996 for divorce against the appellant herein [wife] seeking dissolution of marriage between them on the ground of desertion and cruelty. It is not disputed that the marriage took place in the year 1991 as per Hindu rites and customs at the house of the appellant herein at Bandlapalli Pappur village and after the marriage, wife joined the husband at his village Kandukuru and both of them lived happily for some time. The respondent alleges that the wife was more attached to her parents and was under the influence of her father and brother and was insisting upon the husband to get divided from his parents and shift to B.Pappur village and live together in her parent’s house, for which the husband refused. It is further alleged that ever since the appellant/wife has been harassing the respondent/husband and was frequently going away to her parent’s house without informing the husband and returning at her will. It is further alleged that the appellant’s brother Gopal Reddy and her father, who was Ex-village Munsif were influencing the police and making the respondent and his people to attend the police station frequently, making false allegations that they are demanding additional dowry. It is further alleged by the respondent that in September 1992, the appellant quarreled with him and went away to her parents house and ever since, she has been staying there and when the respondent went to bring the wife back, her brother and father assaulted the respondent and drove him away. Two weeks later, two police constables came to Kandukuru and took the respondent to Ananthapur Taluq police station and warned him. In May 1994, wife filed criminal complaint in Itikalapalli Police station against the respondent and his mother alleging torture and harassment and a case in Cr.No.26 of 1994 was registered against him for the offences under Sections 498- A, 347, 387, 307 read with 511 of IPC and the same was committed to the Court of Sessions in SC No.84 of 1995. As the appellant deserted the respondent without any justifiable cause and was staying with her parents since September 1992 i.e., for more than two years, the petition is filed for grant of divorce.

4. The appellant/wife filed counter, denying the allegations and contending that ever since the marriage, the respondent was only aiming at the property of her parents and not satisfied with the dowry of Rs.50,000/- and 20 tulas of gold given at the time of marriage, he was pestering the appellant to bring more money and gold from here parents. The appellant’s parents being poor would not meet the unjust demands of the respondent. A panchayat was held on two occasions as the appellant was subjected to continued harassment over the demand for additional dowry. The appellant joined the respondent and lived with him for some time, but the ill treatment and harassment continued unabated. Again she was driven out of the house and a panchayat was held for second time, which again resulted in re-union. She would further contend that as the harassment increased, she apprehended danger to her life. Three days prior to 19.05.1994, the respondent and his mother wrongfully confined the appellant and attempted to take her signatures on white papers. When she refused to sign, the respondent and his mother hatched up a plan to do away with her life and confined her in the house for two days on 17.05.1994 and 18.05.1994 without giving food. Some how the appellant managed to inform her father through K.Marenna about the wrongful confinement. On 19.05.1994 appellant’s father came and took her to Itikilappali PS, where she gave a complaint to them. The appellant has not willfully withdrawn from the company of the respondent and she never severed her marital connection with him. She is ready and willing to rejoin the respondent. She never deserted him. It is only the respondent’s cruel attitude and adamant behaviour that was responsible for the estrangement. The petition is filed as a counter blast to the Sessions Case with a view to get rid of the appellant and to contract second marriage.

5. During enquiry, PWs.1 to 3 were examined on behalf of the husband and no documents were marked on his side. RWs.1 to 4 were examined on behalf of the wife and Exs.R.1 to R.6 were marked. On a consideration of the material on record, the learned Senior Civil Judge, held that filing of the criminal complaint by the wife against the husband, which led to prosecution of the husband and his mother in SC No.84 of 1995, amounts to cruelty and the wife is also guilty of desertion as she has been staying away from the husband for more than two years prior to filing of the petition. On the said ground, the

marriage was dissolved by decree of divorce. Aggrieved by the same, the wife filed the present appeal.

6. It is not disputed that the marriage of the appellant with the respondent took place in 1991 and after the marriage, the appellant joined the respondent at his house in Kandukuru village. According to the appellant, at the time of marriage, her parents gave dowry of Rs.50,000/- besides 20 tulas of gold jewellery. The wife alleges that the respondent has been demanding additional dowry of Rs.50,000/- and as her parents were unable to meet the said demand, she was subjected to harassment and ill-treatment. The evidence on record would show that there has been panchayat in that regard on more than one occasion, as a result of which wife re-joined the husband. She alleges that the harassment and ill treatment, however, continued unabated and it went to the extent of confining her wrongfully in a room for two days on 17.05.1994 and

18.05.1994 without providing food and she some how managed to send word to her father through one K. Mareppa, who was examined as RW.4 and her father came on 19.05.1994 whereupon, she gave complaint to the police, which was registered as Cr.No.26 of 1994. It is not disputed that after investigation, police filed a charge sheet against the respondent and his mother and they were prosecuted in SC No.84 of 1995 for the offences under Sections 498-A, 347, 387, 307 read with 511 of IPC and it resulted in conviction. K. Mareppa, RW.4 testified that he found the appellant in her in-laws house in distress and she informed him that her husband was trying to obtain signatures on blank white papers with an intention to marry another woman and was torturing her and also requested him to convey the message to her parents at B.Pappur and accordingly he informed the same to the parents of the appellant. RW.4 is an independent witness and his testimony is not discredited and there is absolutely no reason to disbelieve the same. The trial Court erred in rejecting the evidence of RW.4 simply on the ground that he does not belong to the same village. It is in the evidence of RW.4 that Kandukuru is his in-laws place and so he went there. The testimony of RW.4 corroborates the version of RW.1-appellant herein and her father RW.2 regarding the circumstances, which led to giving complaint to Itikilapalli PS, which ultimately resulted in conviction of the respondent and his mother in SC No.84 of 1995.

7. The trial Court proceeded on the premise that filing of the criminal complaint by the appellant, which led to prosecution of the husband and his mother itself constituted an act of cruelty. It is to be noted that after due investigation police have in fact filed charge sheet against the respondent and the prosecution ended in conviction. When the wife is subjected to harassment or ill treatment over demand for additional dowry or is subjected to any cruelty endangering her life, she is certainly entitled under law to approach the police or the Court in pursuit of legal remedies available under law. The conduct of wife, a victim of harassment or cruelty in the hands of the husband and in- laws in seeking redressal of her grievance by taking recourse to legal remedies available under law can under no circumstances be construed as an act of cruelty. By giving complaint to the police or seeking any other legal remedy available under law the wife is only exercising her right to ventilate her grievance and seeking remedy in accordance with law. If such a conduct is construed as amounting to an act of cruelty, it leads to illogical situation, as no victim placed in the position of the appellant herein would ever be able to seek a legal remedy for redressal of her grievance without at the same time jeopardizing the matrimonial relationship. It is not as though the complaint given by the appellant was found to be false or frivolous. Not only a prima-facie case was made out warranting filing of charge sheet, but the prosecution before a Court of law also ended in conviction, which circumstance probabalises the genuineness of the version of the appellant. Even if the conviction is set aside, in the appeal it makes no difference.

8. In ‘Chiranjeevi vs. Lavanya[1]’, a Division Bench of this Court held as follows: “Much arguments have been advanced by the learned counsel appearing for the appellant-husband that the acquittal of the appellant-husband and his parents in a criminal case on a full fledged trial is an incident which constitutes cruelty on the part of the respondent-wife who initiated criminal proceedings. We have gone through the judgment, which has been marked as Ex.B.6. The criminal case ended in acquittal on the ground that the prosecution failed to prove the case against the accused beyond all reasonable doubt. The acquittal of the case is not on the ground of no evidence. It is settled law that nature of evidence required in a criminal case is of different standards and the same standards and proof is not required in civil proceedings. Therefore, mere acquittal of the appellant-husband and his parents in criminal case cannot be treated as instance which goes in favour of the appellant-accused to substantiate the plea of cruelty, on which a decree of divorce has been sought for.”

9. In the present case, the respondent and her mother were in fact convicted by the trial Court, which circumstance prima-facie supports the version of the appellant that she was subjected to harassment and ill treatment.

10. Learned counsel for the respondent relied upon a decision in ‘Gajala Shankar vs. Anuradha[2]’, wherein the Division Bench of this Court granted divorce setting aside the order of the trial Court on the ground of cruelty. In the above case, wife filed CC No.80 of 1992 against the husband, his parents and sister for the offence under Section 498-A IPC, which ended in acquittal. This Court while observing that ‘in normal course, mere filing a case for the offence under Section 498-A IPC by itself may not be a ground sufficient to hold that the said act amounts to cruelty, however, held that the evidence on record especially, the testimony of PWs.1 to 4 therein established that the husband was subjected to mental cruelty by the wife and coupled with the fact that her filing case for the offence under Section 498-A IPC and petition under Section 125 Cr.P.C. demonstrates that she was not willing to join the husband, as they were living separately for 13 years.

11. The above decision, which was rendered on the facts and circumstances of the above case, does not help the respondent’s contention, in the present case, wherein it is found on evidence that she was subjected to harassment and ill treatment by the husband and his parents over a demand for additional dowry and therefore, she had to leave the matrimonial home and take shelter in her parents house and subsequently, there has been re-union pursuant to mediation even in 1994 and it was only for a little over two years before filing of the application that there was estrangement between the spouses.

12. Learned counsel for the respondent relied upon the decision in ‘V. Bhagat vs. Mrs. D. Bhagat[3]’ wherein the Apex Court granted divorce on the petition filed by the husband on the ground of adultery on the part of the wife. The husband therein was practicing Advocate and the wife was the Vice-President in a public sector corporation. While denying the allegation of adultery, wife made a counter allegation that the husband and all members of his family were lunatics and streak of insanity ran through his entire family. It was held that such an allegation amounted to mental cruelty. While holding that the allegations leveled by the husband against the wife was not proved and vindicating the honour and character of the wife, the apex Court dissolved the marriage on the ground that the conduct of the wife branding the husband and all members of his family as lunatics amounted to mental cruelty. While exploring what constitutes ‘mental cruelty’ within the meaning of Section 13(1)(ia) of the Act, the Apex Court held that ‘mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party’. It was further held that ‘what is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case’.

13. The above decision, which was rendered in the peculiar facts and circumstances of the said case, is not applicable to the factual matrix available in the present case. In fact, the Apex Court also observed that ‘the unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the Court finds it in the interest of both the parties’.

14. The case of the respondent is that ever since the marriage, the appellant was frequently going to her parents house without informing him, as she was more attached to her parents and that she has been insisting and demanding the respondent to get divide from his parents and migrate to her village B.Pappuru and as the respondent was not agreeing for the same, she was subjecting him to mental harassment and ultimately she went away to her parents house in September 1992 and never came back. The alleged acts of appellant/wife in frequently going to her parents house, even if true, do not amount to mental cruelty that can afford a valid ground for divorce.

15. In ‘A.Jayachandra vs. Aneel Kaur[4]’ the apex Court while dealing with the concept of cruelty 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 cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. 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. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.” It was further held as follows: “The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings land the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the divorce petition. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weight the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure it as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case keeping in view the physical and mental conditions of the parties, their character and social status. A too technical land hypersensitive approach would be counterproductive to the instruction of marriage”.

16. The evidence on record would establish that there was panchayat on more than one occasion, which resulted in reunion of the husband and wife and even in 1994 also, they were living together prior to her giving complaint to the police. The version of the respondent that there has been estrangement between the parties in September 1992 is not supported by the evidence on record. It cannot for a moment be believed that simply because husband refused to accede to the request of the wife to get separated from the his parents, the wife would leave matrimonial home once and for all breaking the matrimonial tie and give a complaint to the police alleging cruelty. Except making a vague allegation that the appellant/wife went away to her parents house because respondent refused to migrate B.Pappuru, the petition filed by the respondent or evidence adduced by him do not establish any strong grounds to show that the wife wantonly and deliberately went away with an intention to desert the husband and accordingly left the matrimonial home. The approach of the trial Court in holding that the divorce can be granted on the ground of desertion because wife has been living separately from the husband for more than two years prior to filing of the application is erroneous. There may be several reasons for estrangement between the wife and husband. It is necessary to explore as to the cause of the said estrangement and as to the circumstances, which necessitated the wife to live away from the husband. Mere staying away of the wife for a period of more than two years does not ipso facto enable the husband to seek divorce on the ground of desertion.

17. The evidence on record establish that the appellant/wife had to leave matrimonial home on account of the harassment and ill treatment over the demand for additional dowry and also in view of her apprehension of danger to her life. When that is so, there was every justification for the wife to stay away from the matrimonial home and the wife cannot be accused of desertion. The evidence on record does not establish the plea of respondent/husband appellant/wife left matrimonial home without any justifiable cause and therefore, it amounted to desertion.

18. The learned Senior Civil Judge while following the decision of the Division Bench of this Court in ‘S.Vijayalakshmi vs. S. Bheem Reddy’ [1998(2) ALT 338 (DB) held that the marriage between the parties is irretrievably broken down and the wounds cannot be healed and there is no other option except to grant divorce.

19. In a recent decision in ‘Dutt Sharma vs. Manju Sharma[5]’, the apex Court held that ‘irretrievable breakdown of marriage is not a ground for grant of divorce’. It was further held that ‘if we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant.’

20. In the above case also the husband sought divorce on the ground of cruelty but it turned out to be a case where wife was subjected to cruelty and was sent out of the matrimonial home. The husband sought dissolution of the marriage on the ground of irretrievable breakdown, as there was estrangement since 1993. The apex Court did not find force in the said submission, as the grant of divorce on the ground of irretrievable breakdown is not contemplated under Section 13 of the Act.

21. In view of the above recent pronouncement of the Supreme Court, the impugned order of the learned Senior Civil Judge granting divorce on the ground of irretrievable breakdown of the marriage is not sustainable. In the facts and circumstances, it is held that the respondent/husband has not established the ground of cruelty or desertion alleged by him so as to enable the Court to grant the relief of dissolution of marriage by decree of divorce. The marriage is also not liable to be dissolved on the ground of irretrievable breakdown, which is not a ground contemplated under Section 13 of the Act.

22. The impugned order dated 30.11.1999 passed by the learned Senior Civil Judge, dissolving the marriage between the appellant and respondent is, therefore, held liable to be set aside and is accordingly set aside. Consequently, OP No.37 of1996 filed by the respondent herein, stands dismissed.

23. In the result, the appeal is allowed. There shall be no order as to costs. ____________________ B.PRAKASH RAO, J ______________________ G.V.SEETHAPATHY, J Date: 19 .02.2010 [1] AIR 2006 AP 269 (DB) [2] 2005 (6) ALD 430 (DB) [3] AIR 194 SC 710 [4] (2005) 2 SCC 22 [5] 2009 (3) ALT 12 (SC)