The person who is at fault not entitled for Divorce = feudal mentality Demanding account for debts contracted prior to her marriage for her parent's sake and forcing her to discharge the loan after resignation and demanding transfer of her savings before marriage to transfer in the joint account and putting restrictions not to come home amounts to - the cruelty, if at all, was on the part of the appellant towards the respondent. She eagerly and respectably joined his company, but was driven out, on account of the greed and narrow-mindedness of the appellant. The sad part of the matter is that for each of his untenable acts, the appellant has taken shelter under the custom and religion. He did not possess the basic requirements of an ordinary living and he expected them to be fetched by his wife. It would not be difficult to imagine the attitude of such person. One cannot expect the life partner of such person to be satisfied, much less comfortable.

reported in/ published in http://judis.nic.in/judis_andhra/filename=9898

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND
THE HONBLE SRI JUSTICE B.N. RAO NALLA      

F.C.A.Nos.296 of 2010 and batch

29.04.2013    

Namuduri Srinivasa Sreeramachandra Murthy ... Appellant
(in both the appeals)
             
And

K.Radha ... Respondent
(in both the appeals)

Counsel for the appellant: Sri Pappu Srinivasa Rao

Counsel for the respondent: Sri B.Anjaneyulu

<Gist :

>Head Note :

?Citations:
Nil

F.C.A.Nos.296 and 299 of 2010

COMMON JUDGMENT : (Per LNR,J)    

        These two family Court appeals, under Section 19(1) of the Family Courts
Act, 1984 are between the same parties. Hence, they are disposed of through a
common judgment.

The appellant is the husband of the respondent. Their marriage took place on
12.04.2007 at Hyderabad. The respondent was  employed in ICICI Bank. It appears
that loan of about Rs.2 lakhs was raised by the family of the respondent from
the said Bank. At the threshold of the marriage itself, the appellant expressed
his displeasure about the employment of the respondent and the borrowing of the
loan to be repaid through deductions from her salary. The simmering differences
resulted in their living separately, within a short time.

The respondent filed O.P.No.96 of 2008 in the Court of the
II Additional Senior Civil Judge, at L.B. Nagar, R.R. District, under Section 9
of the Hindu Marriage Act, 1955    (for short 'the Act')
for a decree directing restitution of conjugal rights between her and the
appellant. The O.P. was transferred to the Family Court at L.B. Nagar, R.R.
District, and was renumbered as O.P.No.111 of 2008. Almost all the same point of
time, a petition, under Section 125 of Cr.P.C., was also filed by her for
maintenance. After receiving a notice in O.P.No.111 of 2008, the appellant filed
a counter opposing the same. It was pleaded that the fault is with the
respondent and that to cover up her lapses, she filed the O.P. for restitution
of conjugal rights. It is also stated that the nuptials were not performed after
the marriage.

Thereafter, extensive correspondence ensued between the parties. On his part,
the appellant filed O.P.No.167 of 2009 in the Family Court at L.B. Nagar, R.R.
District, under Section 13 (1) (ia) of the Act, against the respondent, for
divorce. He pleaded that the respondent suppressed the information as to her
being employed and raising of loan and that inspite of his request to resign the
job, she did not accede to his request. He has narrated the other events that
are said to have taken place, when the respondent joined him, soon after the
marriage at a flat and the one that occurred in his house at Amalapuram. He
stated that the respondent  is  adamant  and  not  cooperative  and  that  her

actions and omissions constitute cruelty.

The respondent filed a counter opposing the O.P. She made a detailed reference
to the correspondence that ensued between them and stated that the appellant and
his father prevented her from joining their family on one pretext or the other.
It was also urged that a petition for divorce was filed, as counter-blast for
the O.P. filed by her, under Section 9 of the Act.

Through common order, dated 19.10.2010, the trial Court dismissed O.P.No.167 of
2009 and decreed O.P.No.111 of 2008 with costs. Hence, these two appeals.

Learned counsel for the appellant submits that the trial Court erred in
recording findings to the effect that the respondent is not guilty of the acts
constituting cruelty. He submits that the respondent suppressed the information
about her being employed and obtaining of loan from the Bank and that she was
distrustful towards the appellant. He further submits that the very fact that
the respondent filed a maintenance case, under Section 125 of Cr.P.C., is
sufficient to conclude that she is interested more  in  money  than  sustaining
the matrimony. He contends that the respondent failed to join the matrimonial
home and left the place without there being any provocation. He submits that the
trial Court ought to have decreed O.P.No.167 of 2009 filed for divorce, once it
is found that there is no possibility for the parties to live together, and
ought to have dismissed O.P.No.111 of 2008 filed for restitution of conjugal
rights.

Learned counsel for the respondent, on the other hand, submits that the
averments made in the O.P. filed by the appellant are totally incorrect and that
even if they are taken into account, it cannot be said that they constitute the
acts of cruelty. He submits that the appellant has no regard for truth and he
went on twisting the facts, according to his wishes, be it as regards the
consummation of marriage, his failure to put up a residence in Hyderabad or the
events that have took place at Amalapuram. He submits that while the appellant
expressed his surprise about the information as to the respondent being employed
and the loan being borrowed, the letter addressed by his father makes it clear
that the employment and the loan were very much in their knowledge. He further
submits that the well reasoned order passed by the trial Court does not warrant
interference.
The trial Court clubbed the petition filed by the respondent, under Section 9 of
the Act, with the one filed by the appellant, under Section 13 (1) (ia) of the
Act. No points as such were framed, but the matter was discussed covering all
the aspects pleaded by the parties. The appellant deposed as P.W.1 and filed
Exs.P.1 to P.16. The respondent deposed as R.W.1 and filed Exs.B.1 to B.7. The
O.P. filed by the appellant for divorce was dismissed and the one filed by the
respondent for restitution of conjugal rights was allowed.

Now, the points that arise for consideration in these appeals are:

1) whether the appellant proved the cruelty on the part of the respondent
warranting dissolution of marriage between them? And

2) Whether the respondent is entitled for the relief of decree for restitution
of conjugal rights?

It is observed that the answer to the second point would depend upon the answer
to the first point.



POINT No.1:

Cruelty, on the part of one spouse to a marriage, is recognized as a ground for
grant of a decree for divorce against the other spouse. The Act does not define
as to what constitutes cruelty. In a catena of decisions, the Supreme Court and
the High Courts explained the purport of this clause. The gist thereof is that
cruelty, to constitute a ground for granting a decree for divorce, need not be
the one resulting in bodily injuries to the aggrieved spouse. It would be
sufficient, if through his or her acts, omissions and gestures one spouse has
caused mental agony, anguish and discomfort to the other, to the level of
rendering the cohabitation impossible. However, these aspects need be examined
from the point of view of an ordinary prudent person and not according to the
whims of one of the parties. Before the trial Court also, various judgments that
have bearing upon these aspects have been cited.

One of the principal causes pleaded by the appellant against the respondent as
constituting act of cruelty is that the respondent did not disclose the fact
that she was employed and that she had borrowed loan of about Rs.2 lakhs. This
was elaborated in para 8 of the O.P., as under:
"On the first day of their arrival at Amalapuram, when the petitioner and the
respondent were in the bed room, the petitioner, who learnt that the respondent
took loan from ICICI Bank, enquired the respondent about loan. The respondent
informed the petitioner that she contacted loan of Rs.2,00,000/- from ICICI Bank
as required by her father in February, 2007. She also informed that she is
discharging the loan by paying Rs.6,000/- monthly from out of her salary. This
news shocked the petitioner, as he was not informed about contacting the loan
before it was taken, though, by then, the Muhurtham for marriage was fixed and
there was obligation to obtain consent of the petitioner to take loan. He found
fault with the respondent for taking the loan without his concern behind his
back, after the settlement of marriage and fixing Muhurtham for marriage."

This event influenced the appellant to such an extent that he is not ready to
live with the respondent, unless she resigns the job and clears the loan. In his
letter, dated 26.07.2007, addressed to the respondent, which was marked as
Ex.B.2, the appellant stated:
"It is sufficient if you live with me and lead marital life. I expect you to clear all debts and resign the job immediately and come to my house and live with me happily. I do not want my wife to strain from   morning 8.00 a.m. to night 8.00 p.m. I hope, you understand my feelings and cooperate with me and return to my house discharging the debts and resigning the job, as early as
possible."

To the same effect are the contents of other letters.
  In his deposition as the
sole witness on his side, he stated "The respondent did not resign the job. So,
I did not take her".

Firstly, the conduct of the appellant, in this behalf, cannot be countenanced.
It is un-understandable as to how he can impose a condition that the respondent
can join him, only after she resigns the job and clears the loan obtained by
her. It is only the feudal mentality that can produce such ideas.

It is quite possible to plead that more than the money and other aspects, the
appellant was concerned about the information given to him as to the avocation
of the respondent. He pleaded as though he was informed that the respondent was
not employed and that she has no obligations to discharge. In a given case, an
individual, who is sensitive enough, feels cheated, if the information given to
him about his prospective wife was found to be incorrect. However, the fallacy
of the argument or the case of the appellant is evident from the letter written
by his
father to the respondent. Ex.B.1 is a letter, dated 28.09.2007, running into 11
fully typed pages, addressed by the father of the appellant to the respondent.
The letter inter alia reads:


"At the time of "PELLICHOOPULU" my boy, my sister, my daughter and her husband  
alone were present, besides your parents. 
You were wearing Punjabi dress. 
After
seeing you, I informed your father that you have to wear sarees and sit
separately during menses and that ours is an orthodox family and that, if
necessary, the job has to be resigned. 
Your father informed that you are an
obedient girl and you agree for whatever is asked to be done and there is no
difficulty in that regard. 
At the time of "PELLICHOOPULU", your maternal uncle
and his wife, paternal aunt and his husband  or the only sister and her husband
or any of your paternal uncles were not present. 
Your father represented that
you have been employed since many years and you have got cash balance in your
account, besides drawing monthly salary of Rs.20,000/- and 
that he is not a dependant on you. 
On the other hand, he said that he himself is maintaining you
and all your earnings are being saved by you till then. 
All these factors made
my boy to agree to marry you, besides you are liked by him."

Apart from that, in his cross-examination, the appellant stated
"I am aware prior to the marriage that the respondent is an employee".

The extent of importance given by the appellant and  his  father  to money is
evident from the following sentence in Ex.B.1:
"I asked your father to perform the marriage at Amalapuram. But, having
consulted his relations, he told that he has to face difficulty to perform marriage at Amalapuram and, as such, persuaded me to agree for performing marriage at Hyderabad. 
He told that he
would pay Rs.1,75,000/- towards to and fro expenses, lanchanams, silver plate,
silver tumbler, pattutapitalu and suits to be given to the boy etc. 
Taking into
consideration the fact that your father is an old man and utter stranger to
Amalapuram, I agreed for performing the marriage at Hyderabad, accepting the
offer of your father. Your father also told that after marriage, the account standing in your name will be converted into joint account of yourself and my boy."

The suspicious and inquisitive nature of the father of the appellant is evident
from the following passage from Ex.B.1:

"Since my boy suspected that besides the loan from ICICI Bank, there are some
other liabilities like loan from P.F. etc.
He required you to furnish the
information regarding P.F. account and account for the salary after marriage.
The account given by you shows that though you are alone with parents and your
parents are maintaining you as stated by him, you spent money lavishly and
exorbitantly which a reasonable and prudent person is not expected to spend. 
My
boy is also fearing whether he can live happily with a person like you who is
habituated to spend money lavishly and exorbitantly."

The respondent was driven to such a miserable situation that she has decided to
resign the job, unable to bear the harassment of the appellant and his father.
Ultimately, she submitted the resignation.
However, it is the appellant and his father that requested the respondent not to
resign the job.
In Ex.B.1, the father of the appellant stated:

"He wrote the first letter that he will take you after resigning the job and
discharging the loan. Later, having reconsidered the matter, he informed you not
to resign the job with the hope that he can control you and prevent you from
contacting loans, while living with him. When I was appraised about your
intention to resign, I informed you that you should not resign and apply for
leave. But you stated that you resigned and later it was converted into leave. I
informed your father also to persuade to withdraw the resignation, if really
given. He told that he persuaded the Managing Director, who is his friend, and
the resignation letter was withdrawn."

From the above, it is clear that the version of the appellant that he did not
want his wife i.e., the respondent to undergo any strain, on account of her
employment, is nothing but false.
The fact of the matter is that he was after
the money or income of the respondent.

Another reason pleaded by the appellant was that the nuptials were  not
performed.  The  O.P.  filed by the respondent
was earlier in point of time. She stated that the marriage was performed on
12.04.2007 and that the nuptials were held in the house of her parents at Huda
Complex on 26.04.2007. Any respectable woman will feel shy to give such
information to others. However, under compulsion, she had to disclose that in
her O.P.
The appellant, however, stated that the nuptials were not performed at
all.
His deposition in the cross-examination on this aspect reads:

"It is true, the ceremony was arranged at Hyderabad.
 But, it was not performed.
On that date, I was deprived of cohabitation.
It is false to suggest, on that
date, ceremony was performed and I participated.
On that date, my sisters are present. 
But, there is no consummation.
I have not informed the non-consummation
of marriage to anybody.
I could not take my wife with me, as she was not sent. I
have not requested my in-laws to send my wife with me."

If, in fact, the nuptials were not conducted or performed, any person would
share that information at least with his parents or the kith and kin.
Just as he
was not truthful in his statement  about  the  employment  of  the  respondent,
he stated falsehood on this aspect also.

The record discloses that the appellant had sent the respondent from his house,
soon after the marriage, on the ground that she did not bring utensils and other
cooking material.

Even in the O.P. filed by him, he did not make any secret of
this. Para 6 of the O.P. reads:

"Later, the respondent and her parents came to the building of the petitioner in
Sahara and the respondent refused to reside in the said building of the
petitioner on the pretext that there are no utensils and cooking vessels, gas
stove and other house hold articles necessary for family and that the building
is located in an interior place without bus facility for the respondent to
attend her office.
It is not out of place to mention that amongst Hindu
families, it is customary to send household articles necessary to set up family
along with the newly married girl by her parents when she joins her husband for
the first time. 
The respondent did not carry with her any household articles or
her parents sent. Under the circumstances, she returned back to her parents'
house.
The parties did not live together after marriage on account of
indifferent, stubborn and no cooperative attitude of the respondent and her
refusal for cohabitation."

The facts, which are borne out by record, would demonstrate that
the cruelty, if
at all, was on the part of the appellant towards the respondent. She eagerly and
respectably joined his company,  but  was   driven   out,  on   account  of  the greed and narrow-mindedness of the appellant. The sad part of the matter is that
for each of his untenable acts, the appellant has taken shelter under the custom and religion. 
He did not possess the basic requirements of an ordinary living
and he expected them to be fetched by his wife. 
It would not be difficult to imagine the attitude of such person. 
One cannot expect the life partner of such person to be satisfied, much less comfortable. 
There are absolutely no merits in
the O.P. filed by the appellant and he miserably failed to prove the acts of
cruelty on the part of the respondent. Point No.1 is, accordingly, answered.

POINT No.2:

As observed at the threshold itself, once Point No.1 is answered against the
appellant, the inevitable consequence is that Point No.2 deserves to be answered
in favour of the respondent.

For the foregoing reasons, both the appeals are dismissed. There shall be no
order as to costs.



        The Miscellaneous Petitions filed in the appeals shall stand disposed of.

_____________________  
L. NARASIMHA REDDY, J.  
_____________________  
B.N. RAO NALLA, J.
29th April, 2013

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