Divorce - Hindu Marriage - sec.13(1)(i)(a) - Cruelty - mere living separably by husband is not a ground for divorce - Filing of Criminal case is not cruelty nor a ground for Divorce - Husband failed to prove the grounds for divorce - Lower court rightly dismissed the Divorce O.P. = V.Venkateshwarlu ..Appellant Smt.V.Mamatha....Respondent = Published in/Cited in / Reported in judis.nic.in/judis_andhra/filename=10628

Divorce - Hindu Marriage - sec.13(1)(i)(a) - Cruelty - mere living separably by husband is not a ground for divorce - Filing of Criminal case is not cruelty nor a ground for Divorce - Husband failed to prove the grounds for divorce - Lower court rightly dismissed the Divorce O.P. =
 The mere fact that one of the spouses is living separately cannot, by
itself, constitute cruelty. The filing of the criminal case by the respondent
and acquittal of the appellant therein, is being projected as an act of cruelty.
Indiscriminate institution of criminal proceedings by one of the spouses against
other, just with a view to harass, can be in a given case, treated as an act of
cruelty. 
However,  even instance of filing of a complaint under Section 498-A I.P.C. by a woman spouse, by itself, cannot be treated as an act of cruelty, notwithstanding the acquittal  of the accused therein. =

Solitary institution of a complaint by the respondent cannot be
constituted as an act of cruelty under Section 13 (i) (ia) of the Act.
The appellant has also pleaded certain other facts, which, according to him,
constitute cruelty.
 However, most of them are not in relation to him. For
instance, the respondent is said to have gone to Devarakonda and evicted the
father of the appellant from certain premises. 
A civil suit was filed in relation thereto. 
If the respondent has gone to her matrimonial home and if she
faced any harassment, it cannot be treated as an act of cruelty towards the
appellant. If one takes into account, the bodily injuries or inconveniences, if
any, suffered by the parties, the swing is in favour of the respondent. 
The
appellant did not plead any acts of assault against him on the part of the
respondent. 
The record, on the other hand, discloses that after two daughters
were born, the respondent suggested family planning operation to the respondent
and not heeding to her request, the appellant is said to have forced her to use
a devise, which resulted in appendicitis. 
Exs.R1 and R2 are the documents in
relation to the appendicitis operation and treatment thereof. Her plea that the
appellant did not even care to visit her when she was undergoing treatment in
the hospital, remains unrebutted. We are not at all convinced that the appellant
proved the ground pleaded by him.  Therefore, he is not entitled for the decree
of divorce.  The trial Court has analysed the matter on correct lines and from
proper perspective.
The appeal is accordingly dismissed. There shall be no order as to costs.
The miscellaneous petitions filed in this appeal shall also stand disposed of.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE
M.S.K.JAISWAL
       
F.C.A.No.65 of 2005

06-12-2013

V.Venkateshwarlu ..Appellant

Smt.V.Mamatha....Respondent  

Counsel for the Appellant :party in peprson

Counsel for Respondent:Sri G.Madhusudhan Reddy  

<Gist:

>Head Note:

?Cases Referred:
1.1(2011)DM 480
2.2005(6)ALT 565


JUDGMENT: (per the Hon'ble Sri Justice L.Narasimha Reddy)

The appellant is the husband of the respondent.
Their marriage was performed on
16.08.1998 at Secunderabad and out of the wedlock, they had two female children.
The appellant filed O.P.No.353 of 2002 in the Family Court, Hyderabad for
divorce against the respondent by pleading grounds of cruelty under Section 13
(i) (ia) of the Hindu Marriage Act (for short 'the Act').
 He pleaded that ever
since the marriage, the respondent was harassing him on trivial issues and in
fact, left the matrimonial house on 25.05.2000.
Thereafter, she is said to have
returned, but again left the home on 21.09.2000.
He alleged that the respondent
used to insist on putting a separate residence from the parents of the appellant
and in spite of his best efforts, there was no change in her attitude.
It was
stated that though he got issued a legal notice, dated 28.04.2002, requiring the
respondent to join him, she did not accede to the request and on the other hand,
had initiated false criminal proceedings.
The O.P. was opposed by the respondent. She pleaded that at the time of
marriage, dowry of Rs.3,00,000/- was given to the appellant apart from household
articles and gold items.
It was alleged that she was beaten and ill-treated by
the appellant. She stated that on several occasions, compromise was effected,
but the cruel attitude of the appellant did not change. She stated that she
underwent operation on 10.01.2002 for appendicitis, which, according to her, was
caused on account of the highhanded acts on the part of the appellant, and that
he did not even care to see her when she was in hospital. She pleaded that
unable to bear the harassment caused to her, she had to approach the Police
under the relevant provisions of law.
Through its order, dated 15.10.2004, the trial Court dismissed the O.P. Hence,
this appeal.
The appellant argued in person. Apart from reiterating the contents of the
petition, he stated that the acts and omissions on the part of the respondent
constitute cruelty. Placing reliance upon certain precedents, he argued that the
very fact that both of them are living separately for the past several years and
that he was acquitted in the criminal case filed by the respondent is sufficient
to hold that a case is made out for divorce. He contends that every effort was
made by him to live with the respondent, but the latter harassed him. The
appellant submits that the respondent created problems not only to him, but also
to his parents, at Deverakonda. The respondent is also said to have illegally
occupied certain properties with the help of anti-social elements. He submits
that the trial Court ought to have granted the decree for divorce.
Learned counsel for the respondent, on the other hand, submits that it was the
appellant, who subjected the respondent to cruelty ever since the marriage and
in the interest of the children, the respondent was bearing all that. He submits
that the trial Court has analysed not only the oral and documentary evidence,
but also had the opportunity to interact with the parties and refused the relief
of divorce. He submits that if the parties herein are living separately, the
appellant is squarely responsible for the same.
It appears that the O.P. was initially filed under Section 10 of the Act and
later on, the relief referable to Section 13 (i) (ia) of the Act was claimed.
The trial Court framed only one point for its consideration, namely "Whether the
appellant is entitled to the decree for divorce
On behalf of the appellant, P.Ws.1 to 5 were examined and Exs.P1 to P25 were
marked. On behalf of the respondent, R.Ws.1 and 2 were examined and Exs.R1 to R3  
were filed. The O.P. was dismissed.
The point that arises for consideration before us is as to "whether the
appellant made out a case for divorce against his wife, the respondent"
The marriage took place in the year 1998 and it appears that discard between the
parties became acute by the year 2000. The respondent is said to have left the
house of the appellant more than once and the appellant got issued a notice,
dated 28.04.2002, marked as Ex.P4. From the said notice, it is evident that the
appellant wanted the respondent to join his company. That was followed by two
more legal notices. In the meanwhile, the respondent instituted proceedings
under Section 498-A I.P.C. resulting in C.C.No.106 of 2003 on the file of the
Judicial First Class Magistrate, Devarakonda. Almost, simultaneously a suit was
filed by the father of the appellant against the respondent in relation to some
immovable property in Nalgonda District.
In case the grievance of the appellant is about the respondent leaving the
matrimonial house, he ought to have pleaded the ground of desertion. The fact
that such a ground was not pleaded mean that he did not have any grievance about
the respondent living separately; reasons therefor, apart.
The ground of cruelty needs to be proved with reference to specific acts and
omissions.
The mere fact that one of the spouses is living separately cannot, by
itself, constitute cruelty. The filing of the criminal case by the respondent
and acquittal of the appellant therein, is being projected as an act of cruelty.
Indiscriminate institution of criminal proceedings by one of the spouses against
other, just with a view to harass, can be in a given case, treated as an act of
cruelty. 
However,  even instance of filing of a complaint under Section 498-A I.P.C. by a woman spouse, by itself, cannot be treated as an act of cruelty, notwithstanding the acquittal  of the accused therein. 
If that is so, the
easiest way for male spouse to get rid of his wife would be to harass her,
leading to filing of a complaint under Section 498-A I.P.C. and citing the same
as an act of cruelty in an O.P. for divorce. That was never the intention of the
Parliament when it enacted Section 498-A I.P.C. and other related provisions.
The emphasis was to protect the woman spouse, than to create an avenue or
opportunity for the male spouse to seek divorce solely on the basis of
institution of such proceedings.
Reliance is placed upon the judgments of the Delhi High Court in Seema Vs.
Alkesh Chaudary1 and of this Court in Gajjala Shankar Vs. Anuradha2.
The facts of those cases are substantially different from those of the present
case. Solitary institution of a complaint by the respondent cannot be
constituted as an act of cruelty under Section 13 (i) (ia) of the Act.
The appellant has also pleaded certain other facts, which, according to him,
constitute cruelty.
 However, most of them are not in relation to him. For
instance, the respondent is said to have gone to Devarakonda and evicted the
father of the appellant from certain premises. 
A civil suit was filed in relation thereto. 
If the respondent has gone to her matrimonial home and if she
faced any harassment, it cannot be treated as an act of cruelty towards the
appellant. If one takes into account, the bodily injuries or inconveniences, if
any, suffered by the parties, the swing is in favour of the respondent. 
The
appellant did not plead any acts of assault against him on the part of the
respondent. 
The record, on the other hand, discloses that after two daughters
were born, the respondent suggested family planning operation to the respondent
and not heeding to her request, the appellant is said to have forced her to use
a devise, which resulted in appendicitis. 
Exs.R1 and R2 are the documents in
relation to the appendicitis operation and treatment thereof. Her plea that the
appellant did not even care to visit her when she was undergoing treatment in
the hospital, remains unrebutted. We are not at all convinced that the appellant
proved the ground pleaded by him.  Therefore, he is not entitled for the decree
of divorce.  The trial Court has analysed the matter on correct lines and from
proper perspective.
The appeal is accordingly dismissed. There shall be no order as to costs.
The miscellaneous petitions filed in this appeal shall also stand disposed of.
______________________  
L. NARASIMHA REDDY,J    
______________________  
M.S.K.JAISWAL,J  
Dt:06.12.2013

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