Divorce sec. 13 (1)(ia) of Hindu Marriage Act - mere Living separately is not ground nor be considered as Cruelty - Cruelty has to be plead and proved by the petitioner alone not by the respondent - Trial court wrongly decreed the O.P. dissolving the marriage by throwing burden on the wife to disprove cruelty - In reconciliation proceeding, husband refused to take the wife back despite of her willingness to join - Hence the high court allowed the appeal and dismissed the divorce O.P. = Smt.K.Girija @Rani ...Appellant K.Ratnakar ..Respondent = Published in judis.nic.in/judis_andhra/filename=10188

Divorce sec. 13 (1)(ia) of Hindu Marriage Act - mere Living separately is not ground nor be considered as Cruelty - Cruelty has to be plead and proved by the petitioner alone not by the respondent - Trial court wrongly decreed the O.P. dissolving the marriage by throwing burden on the wife to disprove cruelty - In reconciliation proceeding, husband refused to take the wife back despite of her willingness to join - Hence the high court allowed the appeal and dismissed the divorce O.P. =
 It is well established that the cruelty in matters of this nature need
not be the one that must result in bodily injury.  If, by acts and omissions, a
person makes the life of his or her spouse miserable for a prolonged period, the
ground of cruelty can certainly be taken as proved.
Though the respondent made an attempt to establish
that there was cruelty on the part of the appellant, it is belied from the very
fact that the small difference of opinion, after birth of the first child, stood
neutralized with their joining and living together and giving birth to a second
child.
 Before it passes a decree for divorce, that too, on the ground of
cruelty, the Court must be fully convinced about the allegations and conclusion
must be arrived at on the basis of clinching evidence.  If one looks at the
order passed by the trial Court, hardly any basis found for its conclusion.  On
the one hand, the trial Court went on examining the pleadings of the appellant
herein, who figured as   respondent in the O.P., as though the burden to
disprove the allegation rested upon her.  Added to that, the fact that the
parties are living separately from 23-06-1999 was taken as a ground to infer the
existence of cruelty. The concluding portion of the order, which lead to the
finding, reads as under:
         "The oral evidence adduced by the petitioner clearly establishes the
claim of the petitioner that the respondent treated him with cruelty. The
various incidents brought out in the evidence would show that the relationship
between the parties is irretrievably broken.  Because of the hostile attitude of
the respondent, the petitioner was subjected to serious mental agony.  Hence,
the petitioner is entitled to decree for dissolution of marriage under Section
13 (1) (ia) of the Hindu Marriage Act."
           We are afraid, such findings can constitute the basis to dissolve the
marriage.  Howsoever willing the respondent may be to get rid of the appellant
for his own reasons, he cannot wish away the sacred institution of marriage at
his whims.
         This Court made an attempt to bring about settlement between the
parties. Though the appellant has expressed her readiness to join the
matrimonial home, the respondent was reluctant without stating any specific
reason.
           The appeal is therefore allowed with costs and the order passed by
the trial Court is set aside.
The miscellaneous petition filed in this appeal shall also stand disposed of.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY and THE HON'BLE SRI JUSTICE K.G.SHANKAR            
C.M.A. No.681 of 2004

dated:12-03-2013

Smt.K.Girija @Rani  ...Appellant

K.Ratnakar  ..Respondent

COUNSEL FOR APPELLANT: Sri.V.Ravi Kiran Rao      

COUNSEL FOR RESPONDENT:sri.D.Bhaskar Reddy        

<Gist:

>Head Note:

?CITATION

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

        The appellant is the wife of the respondent.  Their marriage took place on
01-12-1995 at Mamidipally Village, Armoor Mandal, Nizamabad District.  The
respondent is employed as a Teacher in Government School.  Out of their wedlock,
they were blessed with two sons.
The respondent filed O.P.No.54 of 2000 in the Court of the Senior Civil Judge,
Nizamabad against the petitioner for divorce under Section 13(1) (ia) of the
Hindu Marriage Act, 1955.  He pleaded that ever since their marriage, the
appellant has been picking up quarrels with him and his parents without there
being any provocation.  He alleged that after the appellant went to her parents'
house for delivery of the first child, she did not turn up for quite a
considerable time and it is only on giving an assurance that they would live
separately in a rented house, that she came and joined him.  It was his case
that on one occasion, the appellant picked up quarrel with him and caused
physical injuries.  A complaint is said to have been made to the local police
station.  Another allegation of the respondent was that the appellant abused him
and other devotees of Ayyappa, when a Pooja was being performed in his house.
The appellant is alleged to have damaged the bicycle of the respondent, when he
visited his parents' house and that she suspected illicit relation between the
respondent and another woman.  With these and other allegations, the respondent
prayed for decree for divorce stating that the acts and omissions on the part of
the appellant constitute cruelty.
        The appellant filed a counter in the O.P.  Apart from denying the
allegations made against her, she stated that the respondent harassed her on
several occasions and that her parents and relations had to intervene to
convince him.  She states that the OP was filed only with a view to get
rid of her, and the marriage with false allegations.  
The trial Court allowed the O.P., through order dated, 27-12-2003.  Hence this
appeal.
        Sri V.Ravi Kiran Rao, learned counsel for the appellant, submits that
there was hardly any evidence on record to establish that the appellant is
guilty of acts of cruelty towards the respondent.  He submits that except making
some vague and general allegations, the respondent did not prove anything and
the evidence of PWs.2 and 3 is hardly any use.   He contends that even if the
allegations in the O.P. were to have been taken on their face value, they did
not constitute a ground to terminate the marriage. He submits that lack of
disharmony is evident from the fact that the couple had two children.  He
contends that the evidence of Pws.2 and 3 is totally unbelievable and on certain
aspects, they stated something more than what the respondent as P.W.1 has
stated.
        Sri D.Bhaskar Reddy, learned counsel for the respondent, on the other
hand, submits that the conduct of the appellant has been such that hardly there
was any harmony between the couple and left with no alternative, his client has
filed the O.P.  He submits that the trial Court took into account, the
consistent versions of P.Ws.1 to 3 and the finding recorded by the trial Court
does not warrant interference.  He further submits that the conduct of the
respondent, subsequent to the disposal of the O.P., be it when she filed a
complaint under Section 498-A IPC or other cases, would fortify the findings
recorded by the trial Court.
        The only ground pleaded by the respondent for dissolution of marriage
between himself and the appellant was one of cruelty.  The trial Court framed
only one point for its consideration, namely 'whether the appellant herein
treated the respondent with cruelty'. On behalf of the respondent, P.Ws.1 to 3
were examined and Ex.A-1 and A-2 were filed. On behalf of the appellant, RWs.1
to 3 were examined and no documentary evidence was adduced.  
        Cruelty on the part of a spouse, if proved, constitutes a ground for the
other, to seek dissolution of marriage.  However, the finding must be based on
believable and cogent evidence.  Normally, the plea of cruelty in the context of
an Indian Marriage is raised by the woman spouse.  In the instant case, the
respondent, who is not only well-educated, but also functioning as a Teacher in
a Government School, filed the O.P. pleading that the appellant treated him with
cruelty.  It is well established that the cruelty in matters of this nature need
not be the one that must result in bodily injury.  If, by acts and omissions, a
person makes the life of his or her spouse miserable for a prolonged period, the
ground of cruelty can certainly be taken as proved.
           In the instant case, even as per the narrative of the respondent,
himself and the appellant lived together for quite some time, so much so, within
one and half years, they were blessed with a child.  Small ramblings in a
family, particularly when a girl from one family joins another, cannot be
treated as acts of cruelty.  Though the respondent made an attempt to establish
that there was cruelty on the part of the appellant, it is belied from the very
fact that the small difference of opinion, after birth of the first child, stood
neutralized with their joining and living together and giving birth to a second
child.
                The respondent pleaded that on one occasion, the appellant
attacked him and caused physical injuries.  Hardly, there is any evidence in
this regard.  Except himself, no other witness has supported it.  Though a
mention was made to a complaint said to have been  submitted in the police
station, neither a case was registered nor any substantial development has taken
place in that.  The evidence of P.Ws.2 and 3 is totally unbelievable.  For
instance, P.W.3, who is said to be living opposite to the house of the
respondent, stated many things, which did not take place at that location.
Added to that, while the allegation of the respondent was that the appellant had
damaged his cycle, P.W.3 went to the extent of saying that the appellant had
picked up a boulder and has thrown it on the bicycle.
            Before it passes a decree for divorce, that too, on the ground of
cruelty, the Court must be fully convinced about the allegations and conclusion
must be arrived at on the basis of clinching evidence.  If one looks at the
order passed by the trial Court, hardly any basis found for its conclusion.  On
the one hand, the trial Court went on examining the pleadings of the appellant
herein, who figured as   respondent in the O.P., as though the burden to
disprove the allegation rested upon her.  Added to that, the fact that the
parties are living separately from 23-06-1999 was taken as a ground to infer the
existence of cruelty. The concluding portion of the order, which lead to the
finding, reads as under:
         "The oral evidence adduced by the petitioner clearly establishes the
claim of the petitioner that the respondent treated him with cruelty. The
various incidents brought out in the evidence would show that the relationship
between the parties is irretrievably broken.  Because of the hostile attitude of
the respondent, the petitioner was subjected to serious mental agony.  Hence,
the petitioner is entitled to decree for dissolution of marriage under Section
13 (1) (ia) of the Hindu Marriage Act."
           We are afraid, such findings can constitute the basis to dissolve the
marriage.  Howsoever willing the respondent may be to get rid of the appellant
for his own reasons, he cannot wish away the sacred institution of marriage at
his whims.
         This Court made an attempt to bring about settlement between the
parties. Though the appellant has expressed her readiness to join the
matrimonial home, the respondent was reluctant without stating any specific
reason.
           The appeal is therefore allowed with costs and the order passed by
the trial Court is set aside.
The miscellaneous petition filed in this appeal shall also stand disposed of.
______________________  
L. NARASIMHA REDDY,J    

___________________  
K.G.SHANKAR,J  
Dt:12.03.2013

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