Hindu marriage Act sec.13(1) (ia) - mere obtaining restitution of conjugal rights is not a ground for Divorce , when wife not complied with it - Best piece of Evidence of Children about the cruel attitude of father is enough for not granting the Divorce to the Husband against the wife - New tendency of husbands in obtaining restitution of conjugal rights and keeping clam for considerable period and finally filing divorce petition - is to be discourgeable - Husband failed to prove cruelty - Lower court wrongly placed reliance on Restitution of conjugal rights - hence set aside - Appeal was allowed = V.Alivelu Mangas Devi V,Venkata Laskshmi Narasimha Palla Rao = published in judis.nic.in/judis_andhra/filename=10629

Hindu marriage Act sec.13(1) (ia) - mere obtaining restitution of conjugal rights is not a ground for Divorce , when wife not complied with it - Best piece of Evidence of Children about the cruel attitude of father is enough for not granting the Divorce to the Husband against the wife - New tendency of husbands in obtaining restitution of conjugal rights and keeping clam for considerable period and finally filing divorce petition - is to be discourgeable - Husband failed to prove cruelty - Lower court wrongly placed reliance on Restitution of conjugal rights - hence set aside - Appeal was allowed = 
This is a rare case in which, a grown up child of the spouses deposed as a
witness in the divorce proceedings.  R.W.2, the daughter of the parties herein,
narrated her experience vis--vis the quarrel between the parties.  
She stated
that in 1997, the respondent has driven away the appellant and the children and
he did not even permit them to take away the clothes with them.  She has also
stated that the respondent has neglected to maintain them throughout. 
There cannot be any better evidence than this.  
The tone and tenor of the cross-examination of this witness on behalf of the respondent, 
if at all, would
disclose his lack of regard for family system or values. No responsible father
would subject his daughter to such mean level of cross-examination.
The trial Court was mostly impressed by the fact that though there
exists a decree for restitution of conjugal rights, the appellant did not join
the respondent.  However, it did not take into account, the plan according to
which the respondent was acting and hiding the real intention by filing certain
proceedings.

Of late, a tendency has developed, wherein an otherwise comfortably situated
male spouse creates a ground for female spouse to leave the matrimonial house,
permits that situation to remain for years together and then cites the same as a
ground for divorce.  A time has come for the Courts to be cautious in examining
such grounds and to discourage these practices, lest the institution of marriage
is made fragile.  It must also be remembered that whatever be the opinion of
individuals towards the institution of marriage, in the ultimate analysis, it is
that which keeps the society in proper form. The society would be bereft of any
civilization worth its name, without a respectable institution of marriage.

        Hence, we allow the appeal, set aside the decree passed by the trial Court
and award costs of Rs.10,000/- (ten thousand only) payable directly to the
appellant by the respondent.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL                

C.M.A.No.752 of 2013

28-11-2013

V.Alivelu Mangas Devi

V,Venkata Laskshmi Narasimha Palla Rao  

!Counsel for the AppellantSri Subba Rao

Counsel for Respondent: Sri A.K.Kishore Reddy


<Gist

>Head Note:

?Cases Referred;

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


The marriage between the appellant and the respondent took place on 16.04.1983
and they were also blessed with two children.  The respondent was initially
employed in Armed Forces and worked at various places.  After retirement from
the Army, he secured employment in Customs and Central Excise Department and was    
posted at Visakhapatnam. In the year 1997, the appellant is said to have left
Visakhapatnam for Kakinada, where her parents were residing, on account of
harassment and             ill-treatment caused by the respondent.

        The respondent filed O.P.No.200 of 2011 in the Court of the III Additional
Senior Civil Judge, Kakinada under Section 13 (1a) of the Hindu Marriage Act
(for short 'the Act') for divorce.  He pleaded that through her acts and
omissions, the appellant caused cruelty to him and that the same constituted a
ground for divorce. He stated that after leaving his company in 1997, the
appellant filed M.C.No.71 of 2005 in the Court of the IV Additional Judicial
First Class Magistrate, Kakinada, which was transferred to the Court of the V
Additional Judicial First Class Magistrate, Kakinada and renumbered as
M.C.No.140 of 2008 and that it was allowed on 10.12.2008 awarding a sum of
Rs.2000/- per month as maintenance.  He further stated that with a view to
procure the presence of the appellant, he filed O.P.No.34 of 2009 under Section
9 of the Act and though a decree was passed on 28.07.2010 in that O.P., the
appellant did not join him.

        The appellant opposed O.P.No.200 of 2011 by filing a counter.  She stated
that in the year 1997, the respondent beat her and has driven away her and their
children, and finding no other place to go, she went to the house of her parents
near Kakinada and that the children were brought up by her parents.  She stated
that O.P.No.34 of 2009 was filed by the respondent, just for the sake of it, and
even during those proceedings, she expressed her willingness to join him.

        Through its order, dated 27.06.2013, the trial Court allowed O.P.No.200 of
2011 and granted decree for divorce. The same is challenged in this appeal.

        Sri Subba Rao, learned counsel for the appellant, submits that the trial
Court did not appreciate the evidence on record properly and had erroneously
passed the decree for divorce.  He contends that even if the grounds pleaded by
the respondent are taken as true, at the most, they constitute desertion and
there was absolutely no basis for the trial Court to come to the conclusion that
the ground of cruelty is proved. He submits that none other than the daughter of
the parties herein deposed as R.W.1 and categorically stated that herself, her
mother and her brother, had to leave Visakhapatnam from the house of the
respondent on account of the physical assault by him.  He submits that whatever
may have been the intention of the respondent in filing O.P.No.34 of 2009
pretending to be inclined to join the appellant, his true colors came out when
he categorically stated in his cross-examination that he is not at all willing
to live with her.

        Sri A.K.Kishore Reddy, learned counsel for the respondent, on the other
hand, submits that the very fact that the appellant left the respondent way back
in the year 1997 and despite repeated efforts made by his client, she did not
come back, discloses that the harassment of very high magnitude was caused to
the respondent.  He submits that even after the decree was passed in O.P.No.34
of 2009 and notice was issued, the appellant did not join the respondent.  He
submits that the trial Court has properly appreciated the oral and documentary
evidence and arrived at the conclusion that the ground of cruelty was proved;
and that there do not exist any grounds to interfere with the same.

        The fact that the parties herein were married and they were also blessed
with two children is not in dispute.  Till the year 1997, there were no disputes
whatever between the parties and they were living happily at various places.
The starting point for the dispute between the parties is the alleged harassment
caused by the respondent to the appellant forcing her to leave
Visakhapatnam to her parents house.

        In the O.P. filed by the respondent for divorce on the ground of cruelty,
the trial Court framed only one point for its consideration, namely "whether the
respondent is entitled to the decree for divorce, as prayed for?"

        On behalf of the respondent, R.Ws.1 to 3 were examined and Exs.P1 to P6
were filed.  On behalf of the appellant, R.Ws.1 to 3 were examined and no
documentary evidence was adduced.  The trial Court decreed the suit.

        The point that arises for consideration before us is as to whether the
respondent proved the ground of cruelty against the appellant?

        The Act recognizes cruelty as one of the grounds for dissolution of a
marriage.  To constitute a ground for dissolution, cruelty need not be the one
manifested through any external injuries or physical assault.  If one of the
spouses caused mental agony or continued harassment to the other, through his or
her acts and omissions beyond a point of tolerance, the Court can certainly
grant divorce.  However, the evidence must be consistent and the satisfaction of
the Court in this regard, must be absolute.  Benefit of doubt, if any, in this
behalf, must result, in sustaining the marriage.

        The fact that the appellant and her children left the house of the
respondent is not in dispute.  While the respondent pleaded that the appellant
left the house abruptly and without any justification, the appellant pleaded
that she was forced to go out on account of the fact that the respondent has
ill-treated and had beaten her.

        The first development that has taken place ever since the parties started
living separately from 1997; was the filing of M.C.No.140 of 2008 by the
appellant.  During that one decade, the respondent did not take any steps to get
the wife and children back.  After contest by the parties, the Court of the V
Additional Judicial First Class Magistrate, Kakinada passed an order on
10.12.2008, granting maintenance at the rate of Rs.2000/- per month to the
appellant. It needs to be noted that the Court, which granted the maintenance,
has to be satisfied, at least, in the limited context of the M.C. before it;
that the person against whom the maintenance is ordered, neglected to maintain
the petitioner therein.  In the instant case also, a finding was recorded to the
effect that the respondent neglected to maintain the appellant and accordingly,
granted maintenance.  The said finding became final.

        It is only after an order in M.C.No.140 of 2008 was passed, that the
respondent moved in the matter and filed O.P.No.34 of 2009 under Section 9 of
the Act.  Virtually there was no opposition from the appellant.  Her case was
that the respondent has driven her from the house and she was always willing to
join him.  The O.P. was decreed on 28.07.2010.  Hardly any efforts were made by
the respondent to take the appellant back.

        In the cross-examination of the respondent as P.W.1, it was elicited that
he did not go personally to the appellant after the decree in O.P.No.34 of 2009.
That only shows that there was absolutely no inclination on his part to live
with the appellant.

        Assuming that there was some hesitation on the part of the respondent in
initiating a proposal to live together by going personally to the appellant, at
least, when the appellant expressed her willingness to live with the respondent,
there should have proper response, in case there existed any sincerity on the
part of the respondent to sustain the marriage.   In the cross-examination, a
specific question was put as to whether he is willing to live with the
appellant.  The gist of the question and answer thereto was commented by the
trial Court, as under:

        "To a suggestion asking P.W.1 whether he is ready to receive the
respondent, as she was willing to join him for which P.W.1 says that he has
apprehension and belief that the respondent would further harass him mentally
and physically if he receives her and further adds that he lost already 19 years
of life by way of struggling and now he does not want to suffer himself any
more."

This was in August, 2012, whereas the decree in O.P.No.34 of 2009 was just two
years earlier thereto. It is not that any serious or irretrievable developments
have taken place between these two events.  Except the factum of the appellant
leaving Visakhapatnam in 1997, the respondent did not plead any other acts
referable to the appellant.

 There are precedents, though rare, which are to the effect that giving of the
complaints under Section 498-A I.P.C. with false allegations and acquittal of
the accused therein would, by itself, constitute a ground of cruelty.  Those,
however, are cases, in which, the motive to harass the other spouse is proved
beyond any doubt. Such is not the case here.  The complaint was made by the
appellant against her husband, only after she and her children were driven out.

        This is a rare case in which, a grown up child of the spouses deposed as a
witness in the divorce proceedings.  R.W.2, the daughter of the parties herein,
narrated her experience vis--vis the quarrel between the parties.  
She stated
that in 1997, the respondent has driven away the appellant and the children and
he did not even permit them to take away the clothes with them.  She has also
stated that the respondent has neglected to maintain them throughout. 
There cannot be any better evidence than this.  
The tone and tenor of the cross-examination of this witness on behalf of the respondent, 
if at all, would
disclose his lack of regard for family system or values. No responsible father
would subject his daughter to such mean level of cross-examination.

        We clearly find that the respondent miserably failed to prove the ground
of cruelty.
The trial Court was mostly impressed by the fact that though there
exists a decree for restitution of conjugal rights, the appellant did not join
the respondent.  However, it did not take into account, the plan according to
which the respondent was acting and hiding the real intention by filing certain
proceedings.

Of late, a tendency has developed, wherein an otherwise comfortably situated
male spouse creates a ground for female spouse to leave the matrimonial house,
permits that situation to remain for years together and then cites the same as a
ground for divorce.  A time has come for the Courts to be cautious in examining
such grounds and to discourage these practices, lest the institution of marriage
is made fragile.  It must also be remembered that whatever be the opinion of
individuals towards the institution of marriage, in the ultimate analysis, it is
that which keeps the society in proper form. The society would be bereft of any
civilization worth its name, without a respectable institution of marriage.

        Hence, we allow the appeal, set aside the decree passed by the trial Court
and award costs of Rs.10,000/- (ten thousand only) payable directly to the
appellant by the respondent.

        The miscellaneous petitions filed in this appeal shall also stand disposed
of.
       
______________________  
L. NARASIMHA REDDY,J    
___________________  
M.S.K.JAISWAL,J  
Dt:28.11.2013

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