Divorce - Hindu Marriage Act - Husband failed to prove cruelty of wife - mere filing of complaint under sec.498 A of I.P.C. - not amounts to cruelty - Lower court rightly dismissed the divorce op, no grounds to interfere = Dr. Kantilal G. Jain ..Appellant Dr. C. Sailaja ..Respondent = published in judis.nic.in/judis_andhra/filename=10318

Divorce - Hindu Marriage Act - Husband failed to prove cruelty of wife - mere filing of complaint under sec.498 A of I.P.C. - not amounts to cruelty - Lower court rightly dismissed the divorce op, no grounds to interfere =  
The mere filing of complaint under Section
498-A of I.P.C. cannot be treated as making unfounded allegations.  Acrimony
between the parties is clear and the evidence on record discloses that many
averments of the appellant are not true.  If every complaint filed under Section
498-A I.P.C is to be treated as an act of cruelty, the easiest way for a husband
to get divorce from his wife would be to cause harassment, leading to filing a
complaint under Section 498-A IPC and then to file an O.P under Section 13(1)
(ia) and (ib) of the Act, citing the filing of complaint as an act of cruelty.

THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE.S.V. BHATT                    

F.C.A.No.145 of 2013

 (Judgment of the Bench delivered by
 the Hon'ble Sri Justice L. Narasimha Reddy)

dated:13-09-2013

Dr. Kantilal G. Jain ..Appellant

Dr. C. Sailaja ..Respondent

Counsel for the appellant:  Smt. D. Vathsalendra

Counsel for the Respondent:  Sri Y. Rama Rao

<GIST:

>HEAD NOTE:  

?Cases referred
2013(3) ALD 11(SC)

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

AND

THE HON'BLE SRI JUSTICE S.V. BHATT    


F.C.A No.145 of  2013

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

        The appellant is the husband of the respondent.  Their marriage took place
in the year 1989 when both of them were studying M.B.B.S. Course, at Bangalore.
It is stated to be love marriage and that at a later point of time, a formal
marriage was performed on 20-05-1990 at Tirupati in the presence of the parents
of the respondent.  The marriage is said to have been registered, five years
thereafter, i.e., on 28-03-1995, when they have shifted their residence to
Hyderabad.  They were also blessed with two daughters.
       
        The appellant filed O.P.No.685 of 2006 before the Additional Family Court,
Hyderabad for divorce against the respondent, under Section 13(1)(ia) and (ib)
of the Hindu Marriage Act (for short 'the Act'). 
 He pleaded the grounds of
cruelty and desertion on the part of the respondent.  In the O.P., the appellant
pleaded that after the birth of the second daughter, the respondent insisted
that he should get his share in the property of his parents at Shimoga,
Karnataka State and when she did not agree for the establishment of a Diagnostic
Centre at Mangalore, he was compelled to come back to Hyderabad to practice 
medicine.   He has also stated that even after he started living in a rented
house at Himayathnagar, she did not allow him to visit his parents at Shimoga.
The respondent is said to have subjected him to harassment of various forms and
to ill-treat him.  It was also alleged that the respondent did not permit the
parents of the appellant to come to their house and if on any occasions they
visited Hyderabad, she created scenes.

        Another plea of the respondent was that in the year 2002, when he got
admission in a Post-Graduate course in C.D.R. Hospital, at Hyderabad, she has
virtually driven him out from the house, and when he stayed temporarily at the
Hospital, she came to that place and created an ugly scene, so much so, sought
to attack him physically.  The respondent and her father are said to have
insisted that the appellant should not shift his parents to Hyderabad and that
they have threatened to institute criminal cases in case, he does not act as per
their wish.  The respondent is also said to have harassed the appellant in
several ways, both when she went to Coimbatore, for higher studies, and after
coming back.  She is said to have insisted that he should maintain the Maternity
Nursing Home established by her mother.  It was also alleged that on account of
harassment and false representations made by the respondent, the appellant could
not complete the P.G. Course.  He made a detailed reference to the e-mails, or
derogatory messages said to have been sent by the respondent.
Reference was 
also made to the registration of Crime No.244 of 2006 in the Court of
XIII Additional Chief Metropolitan Magistrate, Hyderabad, in connection whereof,
himself and his family members were said to have been called to Police Station.
With these and other related allegations, the appellant prayed for a decree of
divorce.
       
        The respondent filed a counter in the O.P., opposing the same.  The
averments as to the marriage, registration thereof, birth of children are not
disputed.  She denied the allegation as to her demand for share in the property
at Shimoga.  According to her,
a diagnostic centre was established at Shimoga in the year 1997 and the same has
resulted in the loss to the tune of Rs.40 to 50 lakhs.  She alleged that the
appellant insisted on her to bring the money to defray the losses.  She has also
stated that when they were staying at Mangalore, the brother of the appellant
used to come to that place from Sagar, and pick up quarrels even on trivial
issues.  She alleged that after the birth of the second daughter, the appellant
and his family members demanded a sum of Rs.15 lakhs and harassed her and the  
family members, mercilessly.  The details of the higher studies undertaken by
her and respondent were also furnished. She stated that at one point of time,
the appellant has become wild and hardly hit upon her nose, resulting fracture
injury as well as bruise to the shoulder. In addition to denying the
allegations, she has also presented certain instances of alleged harassment to
her by the appellant.
       
        Through its order dated 21-09-2011, the trial Court dismissed the O.P.
Hence, this appeal under Section 19 of the Family Courts Act, 1984.
       
        Smt. D. Vathsalendra, learned counsel for the appellant submits that
though it is a love marriage between the parties, they lived together just for
about seven years, and thereafter, the respondent subjected the appellant to
harassment of different forms.  She contends that the trouble started when the
respondent insisted that the appellant must get his share in the joint family
property at their native place, and on that pretext, she has
ill-treated, not only the appellant, but also his family members.  According to
her, the respondent did not evince any interest to see the parents of the
appellant at their native place, nor did she permit the relations of the
appellant to visit their house.  She further submitted that the respondent has
virtually thrown the appellant from their house with all the articles and that
he had to seek shelter at a Hospital.   According to her, certain anonymous 
letters were fabricated by the respondent, damaging the study of the P.G. Course
by the appellant and that the same has resulted in his disqualification.
        
        Learned counsel for the appellant further submits that the institution of
criminal case against the appellant and his family members has taken the
harassment to the pinnacle.  She submits that the facts pleaded by the appellant
and the evidence adduced by him are sufficient to hold that the grounds of
desertion and cruelty are proved and the trial Court ought to have granted the
decree.  She has placed reliance upon several precedents.
       
        Sri Y. Rama Rao, learned counsel for the respondent, on the other hand,
submits that none of the facts pleaded by the appellant in his O.P., are true
and they were not established.
He submits that each and every plea raised by the appellant was found to be not
correct.  He contends that the respondent never demanded that the appellant must
get his share in the joint family property.  According to him, the respondent
and her parents met the entire expenditure for the maintenance of the parties
herein, and their children.  He submits that the very fact that the appellant
and the respondent lived for considerable time at Mangalore, and have stayed on
number of occasions at their native place at Sagar, proves that the contention
that she did not visit the native place of the appellant is not correct.

        Learned counsel further submits that whenever the parents of the appellant
visited Hyderabad, the respondent used to treat them with utmost respect and
even the knee replacement operation for the mother of the appellant was
conducted by the father of the respondent.  He contends that the allegation as
to the driving away of the appellant, by the respondent was not at all proved.
As regards the allegation as to cruelty, learned counsel submits that in fact,
is it is appellant who has resorted to acts of cruelty by causing serious injury
to the nose and shoulder of the respondent, and that the same is clear from the
evidence on record.  He contends that the mere institution of a criminal case,
that too when there existed valid basis, does not constitute an act of cruelty.
       
        The appellant and the respondent got married when they were studying
M.B.B.S at Bangalore.  The O.P for divorce was filed 16 years after their
marriage, alleging grounds of desertion and cruelty.  On the basis of the
pleadings before it, the trial Court framed only one point for its
consideration, viz.,
       
        Whether the respondent has deserted the appellant and   committed any
cruelty towards him.

        The appellant examined PWs 1 to 5 and filed Exs.P-1 to P-24.  On behalf of
the respondent, RWs 1 to 3 were examined and Exs.R-1 to R-28 were filed.  A
certificate dated 30-06-2011 is taken on record as Ex.X-1.  The O.P. was
dismissed.
       
        In view of the extensive arguments advanced in the appeal, the points that
arise for consideration are, whether
a) the appellant has proved the grounds of desertion; and
b) whether he is proved the ground of cruelty as against the respondent.

        It is rather unfortunate that the appellant and the respondent who had so
much of liking for each other, and married, even by denying their parents, could
not put up with each other, after they lived for about more than one and half
decade.  The record discloses that before her marriage with the appellant, the
respondent was married to another, but was divorced.  Though the marriage
between the parties herein is said to have taken place in 1989, the appellant
did not reveal the same to his parents for quite a considerable time.  Another
peculiarity is that nearly seven months after the informal love marriage, a
marriage with all rituals was performed on 20-06-1990 and registration thereof
was made in the year 1995.  The parties lived together, they are blessed with
two daughters in the year 1993 and 1995 respectively.
       
        The appellant alleged that the respondent started harassing him from 1997
onwards by insisting on getting a share in the joint family property and that
she used to either dislike or ill-treat his parents and relatives.
       
        First, it needs to be seen as to whether the appellant has proved the
ground of desertion.  Normally, the ground of this nature is pleaded when one of
the spouses leaves the company of the other, without any justification or is
driven out highhandedly by the other spouse.  In the instant case, the appellant
and the respondent were living at Hyderabad from 1997 onwards.  It appears,
before that, the appellant made an endeavour to open a diagnostic centre at
Bangalore, and that did not fructify.  The case of desertion attributed to the
respondent is that she has thrown away the appellant from the home.
       
        It is important to mention that the parents of the respondent are reputed
medical practitioners.  While her father is an Orthopaedician, her mother was
running a Maternity Hospital at Hyderabad, and in fact, the appellant worked in
that hospital before he shifted to Mangalore.  Deposing as PW-1, the appellant
stated that in the year 2002, on one occasion, the respondent abused him and
necked out him from the house by packing all his belongings in a carton and
sending them to the reception of C.D.R. Hospital, where he was pursuing higher
studies.  He repeated the same in his chief-examination. However, it has come in
the evidence that they started living together thereafter. Therefore, the
alleged act of driving him out becomes relevant.
       
        The second act pleaded by him, as constituting the desertion is that,
before proceeding to Coimbatore, for higher studies in August, 2004, the
respondent asked him to arrange for a separate residence. From then onwards, the
appellant is said to be residing in Working Mens' Hostel.  He has also stated
that after the respondent returned from Coimbatore, he made an attempt to
convince her to join the matrimonial home.  The reply, according to him, was
that he must come and live in the house of the respondent and manage the
maternity nursing home established by her mother and that the condition was not
acceptable to him. Even if these averments are taken as true, they cannot
constitute desertion.  It is only when the respondent refused to join him and
expressed disinclination to live with him, that acts of desertion can be
inferred.  The fact that the appellant lived separately when the respondent was
undergoing studies at Coimbatore, or that she insisted him to help them in
running a nursing home cannot be treated as acts of desertion, or of cruelty.
He was not required to commit any illegality.  If he was not inclined to look
after the nursing home, he could have convinced the respondent about his. We
therefore find that the appellant failed to prove the ground of desertion.
       
        Now comes the plea as to cruelty.
       
        That there existed disharmony between the parties is abundantly clear from
the tone and tenor of the pleadings and the evidence on record.  However, mere
lack of harmony between the spouses does not lead to inference of cruelty.  As
PW-1, the appellant narrated the sequence of events in his life with the
respondent.  PW-2 is his father and PW-3 is his brother.  It elicited from them
that the knee replacement operation of the mother of the appellant was conducted
by the father of the respondent,
at their own hospital.  Though the appellant made an attempt to plead that the
charges were collected, the respondent pleads that the vouchers were filled on
the request of the appellant for obtaining medical reimbursement.  The
allegation that the respondent did not permit the parents and other relations of
the appellant to visit their house is equally belied from the admission of the
appellant as well as the other witnesses.  It was elicited that the couple
visited Sagar and lived there for some time.  No instances of the respondent
objecting to the visit by the parents or relations of the appellant were cited.
       
        PW-4 is a Doctor by profession.  He is not only acquainted with the
parties, but also the parents of the respondent, but if one looks at his
evidence, it hardly commands any respect or trustworthiness.  He was  treated as
an elderly person by both the parties.  However, his evidence does not befit his
stature, nor does it reflect neutrality.  Even according to him, the appellant
was introduced to him by the respondent and he arranged for the employment of
the appellant.  The following was elicited from him in the cross-examination:
       
        "...I met petitioner in 2001 when he come to CDR hospital along with his
wife Dr Sailaja as he wanted to work with me and she introduced him.
Accordingly he was appointed for some time he worked honorary and there after he
was paid ..."

"...I knew both Dr.C.V. Rathnam and Dr. Padmavathi the parents of the
Respondent.  Dr.C.V. Rathnam was humble, Police, gentle polite character..."
       
        ...According to me they had their different of opinions with their
families from both sides which resulted in a serious rift which I could not
patch up.  I pached it up several times but it fell up several times...
        ...Whenever the father-in-law of the respondent, that is father of the
petitioner visiting Hyderabad he was staying with petitioner and respondent.  I
met him only once there.  I have seen the carton with clothes of Kanthi in the
reception of our Hospital and the reception people told me that the servant maid
of Dr.Kanthi Lal Jain and Dr.Sailaja has brought and left them...
        ...Since Kanthi Lal Jain could not go back to his house and stayed in the
hospital I assumed that he is thrown out of the house, as he (Petitioner) told
me that he was thrown out."
       
        The most objectionable statement on his part was this,

        ...I feel that even if there is no interference from any one, it is not
possible for them to live together and only option is dissolution of marriage"
       
        This does not at all befit a family friend of reputed couple of Doctors
and of an elderly person.  Either he was trying to exhibit his heat and hatred
towards the family or was unduly siding with the appellant.
       
        The evidence of PW-5 is not at all helpful to the appellant.
On the other hand, it disproves his case.  The main purport of the evidence of
this witness is that it is on account of certain complaints against the
appellant, that he could not get through the DNB Artho exams.  He stated that
there is a serious matrimonial dispute between the appellant and the respondent,
but expressed the view that they can live happily, if outsiders interference is
not there.
He was truthful to a larger extent and said,

        "...I am aware of the injuries of the Respondent has suffered in past 8
years.  I know only one injury of her nose.  She herself informed about the
injury.  She told me that she had gone to the room of the petitioner, they had
an argument and he had hit her, he also bit her on the shoulder.  She informed
me about this on phone.  Thereafter I went to her place saw the wounds on her
nose, shoulder.  I had enquired with petitioner about the injuries.  He told me
that she came to his room picked up argument, threw all the articles in the room
helter skelter, and kicked him in the scrotam and in order to protect himself he
had hit her.  There after I enquired with her and she had informed me that she
gone to Apollo hospital got treated and has diagnosed for nasal bone fracture.
I did not inquire with petitioner whether he has visited respondent or not after
the incident took place as to her welfare after the injuries.  To my awareness
it is correct to say that petitioner has not got the Respondent treated for this
injuries..."
       
        When PW-5 has categorically stated that the appellant did not even get the
injury of his wife, the respondent, treated, no court can infer an act of
cruelty on the part of the respondent.  The possibility, if at all, can be
otherwise.
       
        Learned counsel for the appellant placed reliance upon the judgment of the
Supreme Court in K. Srinivas Rao v. D.A. Deepa1,
in support of the contention that, if unfounded allegations are made against one
spouse by the other and prosecution is launched, that itself can constitute a
ground of cruelty.

        In the instant case, the appellant failed to prove that unfounded
allegations are made against him.  The mere filing of complaint under Section
498-A of I.P.C. cannot be treated as making unfounded allegations.  Acrimony
between the parties is clear and the evidence on record discloses that many
averments of the appellant are not true.  If every complaint filed under Section
498-A I.P.C is to be treated as an act of cruelty, the easiest way for a husband
to get divorce from his wife would be to cause harassment, leading to filing a
complaint under Section 498-A IPC and then to file an O.P under Section 13(1)
(ia) and (ib) of the Act, citing the filing of complaint as an act of cruelty.
Other citations relied upon by the learned counsel for the appellant are
distinguishable on facts.
        Extensive reference is made to the documentary evidence of the respective
parties, or the truth or otherwise of the levy of hospital charges for the knee
replacement of the mother of the appellant. All those factors pale into
insignificance, once this Court finds that the appellant failed to prove the
grounds of cruelty.
We hope and expect that at least in the interest of the children, who are grown
up and desperately need the parental cover, the parties would dissolve their
differences.
               
        The appeal is accordingly dismissed.  The miscellaneous petitions filed in
this appeal shall also stand disposed of.

There shall be no order as to costs.

_______________________  
L. NARASIMHA REDDY, J    
______________________  
S.V.BHATT, J
Dt.13-09-2013 

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