whether filing of report with the police by the appellant for the offence punishable under Section 498-A IPC against the husband and his close relations and even, the maintenance case against the husband, would by themselves suffice to grant decree of divorce? = We are, therefore, of the opinion that granting of divorce by the Court below on the mere ground that the appellant filed criminal case against the respondent and others under Section 498-A IPC and the maintenance case in M.C. No.49 of 2003, is unjustified. = Smt. Katada Baby @ Kollati Baby.. Appellant Katadi Sri Venkata Satya Raja Sekhar .. Respondent = 2014 (March. Part ) http://judis.nic.in/judis_andhra/filename=11080

whether filing of report with the police by the
appellant for the offence punishable under Section
498-A IPC against the husband and his close relations and even, the maintenance
case against the husband, would by themselves suffice to grant decree of

divorce? =
We are, therefore, of the opinion that granting of divorce by the
Court below on the mere ground that the appellant filed criminal case against
the respondent and others under Section 498-A IPC and the maintenance case in 
M.C. No.49 of 2003, is unjustified.  
Further, we opine that though, no cogent
and convincing evidence is adduced by the respondent to prove the ground of
cruelty and despite withholding the best evidence through the disinterested
persons, still, basing on the interested evidence of PWs.1 and 2, who are no
other than the son and father, granting divorce on the ground of cruelty, is
contrary to the well established principles of law.
2014 (March. Part ) http://judis.nic.in/judis_andhra/filename=11080

HON'BLE SRI JUSTICE R.SUBHASH REDDY AND HON'BLE SRI JUSTICE A.SHANKAR NARAYANA                  

 CIVIL MISCELLANEIOUS APPEAL No.1361 OF 2004      

24-03-2014

Smt. Katada Baby @ Kollati Baby.. Appellant

Katadi Sri Venkata Satya Raja Sekhar .. Respondent

Counsel for the Appellant :Sri K. Sarva Bhouma Rao

Counsel for Respondent:Sri Y. Sudhakar

<GIST:
     
>HEAD NOTE:  

?CASES REFERRED:    

1. 2000 (1) ALD 697 (DB)
2. 2013 (5) ALD 230 (DB) (date of judgment 10-06-2013)
3. 2013 (4) ALD 416 (DB) (date of judgment 25-03-2013),
4. 2013 (4) ALD 680 (DB) (date of judgment 25.6.2013)


HON'BLE SRI JUSTICE R. SUBHASH REDDY      

AND

HON'BLE SRI JUSTICE A. SHANKAR NARAYANA        

CIVIL MISCELLANEIOUS APPEAL No.1361 OF 2004      


JUDGMENT: (Per Hon'ble Sri Justice A. Shankar Narayana)

        Granting decree of divorce by dissolving the marital tie between the
parties herein driven the appellant - wife to approach this Court, by preferring
the instant appeal, challenging the order dated
25-03-2004 in Original Petition No.178 of 2002 on the file of the Additional
Senior Civil Judge, Rajahmundry.

        2.  The marriage between the appellant - wife, Katada Baby alias Kollati
Baby and respondent - husband, Katada Sri Venkata Satya Rajasekhar was
solemnized on 19-12-1997 at the house of appellant's parents at L.B. Cherla
village of Narsapuram Mandal, as per Hindu rites and customs.  The marriage
between the parties was duly consumated.  The appellant joined the respondent at
Rajahmundry at her in-laws house.

i)  The respondent, who approached the Court below, pleaded that the appellant
right from the date of marriage, started ill-treating him and insulting him in
the presence of his family members and, thus, subjected to humiliation.
According to him, the appellant gave birth to a female child on 04-11-1999 at
Narsapuram.  She got the job in the month of September, 1998, whereas he secured
the job in the month of January, 2002.

ii) He states that she was not inclined to join his conjugal society which made
him to undergo great mental agony and she did not allow him to see the child.
He states that the matter was mediated through the elders R. Adinarayana, A.B.
Rao and some others, but the appellant and her parents did not heed to the
advice of the elders.  He was, therefore, constrained to issue a legal notice on
08-07-2002 which stood unanswered.  So, he moved the Court below seeking decree
of divorce on the grounds of desertion and cruelty under Sections 13(1)(i-a) and
(i-b) of the Hindu Marriage Act, 1955.

        3. Appellant denied the ill-treatment and the other related facts pleaded
by the respondent.  According to her, after she joined the respondent at
Kakinada on 18-08-1998, since she got Teacher's job at Parasavari Meraka of West
Godavari District, she joined in the job at that village, and the respondent
used to visit her and stay with her, and he also got job in the month of
January, 2002 at Katrenikona village and she had been residing at Kovvur. The
respondent along with his parents used to come to Kovvur, and on their demand, a
sum of Rs.50,000/- (Rupees fifty thousand only) given towards additional dowry.
That demand was made and they spent the amount for securing job to the
respondent.  Insatiated with the same, still, they subjected her to physical and
mental cruelty.

i)  She states that she gave a suitable reply to the legal notice got issued by
the respondent.  She claims that after the respondent got job, since, she
refused their demand for payment of additional dowry, they even, beat her
mercilessly and she was constrained to make a report which was registered in
Crime No.169 of 2002 under Section 498-A of IPC.  Claiming that she was inclined
to join the respondent and to continue marital life, she sought for dismissal of
the petition.

        4.  The Court below formulated the point for consideration thus:

"Whether the petitioner/husband is entitled to get decree of divorce against the
respondent/wife on the ground of desertion and cruelty as prayed for?"

        5.  During Inquiry, the respondent besides examining himself as PW.1 has
examined his father as PW.2 and got exhibited Exs.A-1 to A-7 to substantiate his
stand.  Whereas, the appellant examined herself as RW.1 and exhibited ten
documents as Exs.B-1 to B-10 to disprove the case of the respondent.

        6.  The Court below, on appraisal of evidence both, oral and documentary,
referring to the decisions relied on by the learned counsel for the respondent,
acceded to the request, mainly basing on a particular circumstance that being,
that after receipt of notice from the Court in the petition, the appellant
engaged a counsel and by seeking time to file counter, she filed a report with
the Police under
Section 498-A IPC against the respondent and others and, since, the filing of
that report as supported through the evidence of Exs.A-3 and A-4, which are
copies of remand report and bail order, amounted to cruelty and, thus, the
conduct of the appellant - wife amounted to causing mental cruelty.  The next
circumstance which weighed with the Court below to accede to the relief is that
the appellant except examining herself, has not attempted to examine anyone in
order to speak about the harassment meted out by her in the hands of respondent
and his parents, and even Exs.B-2 to B-10 do not reflect any such demands
alleged by the appellant as having been made by the respondent and his family to
get additional dowry.  The third circumstance which favoured the Court in
acceding to the relief sought for by the respondent is, filing of M.C. No.49 of
2003 by the appellant though, the appellant got job prior to the respondent
getting job.  Basing on these circumstances, the Court below observing that they
developed hatred against each other and that there is no possibility for re-
union between the parties, as the conduct of the appellant suggests separation
and not re-union and holding that the respondent established mental cruelty on
the part of the appellant and also the desertion, as the appellant deserted the
respondent voluntarily without any reasonable cause and living separately from
the respondent, answered the point in favour of the respondent, and
consequently, granted decree of divorce by dissolving the marriage between the
parties.

        7.  Aggrieved of the above order, the appellant - wife preferred the
instant appeal contending that the Court below did not properly appreciate the
pleadings and evidence on record, despite the fact that no pleading about any
specific instance of treating cruelly or a specific period of desertion, still,
arrived at a wrong conclusion. There is no pleading touching the filing of
criminal case and the alleged humiliation and loss of prestige to the respondent
by such criminal case, and the same was not introduced even by way of amendment.
The Court below, somehow, over-looked the fact that the evidence let in by the
respondent is only through himself and his father as PW.2 and, though, the
respondent has taken a stand that there was a mediation still, did not examine
any mediator.  The Court below even, failed to consider Ex.B-1 photograph and
Exs.B-2 to B-10, which were the letters written by the respondent showing the
continued relationship between them, which would falsify the case of the
respondent.

        8.  Heard Sri K. Sarva Bhouma Rao, learned counsel for
the appellant, and Sri Y. Sudhakar, learned counsel for the
respondent.

        9.  During the course of arguments, the learned counsel for the appellant
contends that no specific acts constituting cruelty have been mentioned in the
petition, and the allegations of appellant subjecting the respondent to insult
and humiliation are very vague and supported by any specific instances.  His
next submission is that mere filing of maintenance case and lodging report under
Section-498-A IPC is no ground to arrive at that they aided the respondent
proving cruelty.  Even, there is no evidence worth the name to establish the
desertion pleaded by the respondent.  He has also placed reliance on the
decisions of this Court.

        10.  The contention of the learned counsel for the respondent is that the
evidence let in by the respondent through PWs.1 and 2 and the documentary
evidence would clinchingly establish both the grounds of cruelty and desertion.
It is also his submission that law is
well-settled that filing of report and registering crime for the offence under
Section-498-A IPC is sufficient enough to entitle the respondent for grant of
decree of divorce on the ground of mental cruelty besides, in the instant case,
the appellant also filing maintenance case despite the fact that she was already
working as a teacher, which has to be considered that it was in the direction of
harassing the respondent.
He has also placed reliance on the decisions of this Court.

        11.  The points that arise for consideration are:

        i)  Whether the respondent made out a case for grant of
                           divorce?
ii)  Whether the order challenged can be sustained?

        12.  The grounds on which the respondent claimed the relief of divorce
are; firstly, cruelty under Section 13(1) (i-a), and second, desertion under
Section 13(1)(i-b) of the Act.  It is needless to mention that to establish
cruelty; strict proof in accordance with evidentiary rule is absolutely
indispensable.

        13.  In the direction of substantiating the plea of cruelty raised by the
respondent, it is according to him, that right from the marriage day, perhaps
from day one onwards, the appellant started treating him harshly and insulting
him in the presence of his parents and family members by abusing him in filthy
language and scolding him, and for ten days she stayed him and demanded him to
stay at L.B. Cherla expressing that she was not interested to join him at
Rajahmundry at her in-laws house.  The next circumstance he quotes is that when
the appellant gave birth to a female child on 04-11-1999, at Narsapuram even,
that fact was not communicated to him.  The third, that though, mediation is
convened still, she did not heed to the request and advice of the elders, and
the last, that she did not even answer the legal notice got issued by him dated
08-07-2002.

14.  At the outset, we would like to observe that the respondent ought to have
amended his petition and ought to have introduced the factum of filing complaint
under section 498-A I.P.C. and the maintenance case, as it is well settled
principle that no evidence can be permitted to be let in without there being a
plea therefor and even if let in should not look in to.

        15.  Ex.B-1 is a photograph with negative showing the presence of
appellant and respondent along with their daughter.  Their common case is that,
the female child was born on 04-11-1999.  The very fact that they were together,
as seen from Ex.B-1, would completely condemn the stand of the respondent that
right from the marriage day onwards which indicates that from day one, the
appellant was treating him harshly and showing disrespect to him by abusing him
in filthy language and scolding him in the presence of his family members.
Even, it completely falsifies the stand of the respondent that the factum of
birth of female child was not communicated to him and the further fact that the
appellant never allowed him to see the child also gets totally falsified. These
pleas put-forth in the petition when found to be false in the presence of Ex.B-
1, any amount of assertions made by PWs.1 and 2, who are no other than the
respondent and his father, is of any consequence and would not assist the
respondent in establishing the plea of cruelty set up by him.  Even, the
circumstance that his legal notice dated 08-07-2002, stood unanswered is no
ground at all to draw any adverse inference in a case of this nature, where
breaking of marital tie is involved, as the evidence required to break the
marital tie is subject to strict proof through the evidence on record.

        16.  Now turning to the submission of learned counsel for the appellant,
we are of the view, that there is substance in the submission made by the
learned counsel for the appellant that these allegations touching cruelty
averred in the petition and asserted by PWs.1 and 2, have to be construed as
vague allegations, as no specific instances at all, have been projected in the
petition.  We would also like to mention that, though, the respondent has
specifically averred that they have placed the matter before the elders, R.
Adinarayana, A.B. Rao and others, but the appellant or her parents did not heed
the requests and advise, still, the respondent has not chosen to examine none of
the said elders, despite mentioning the names of the elders, and no reasons are
forthcoming as to their non-examination by the respondent, as one of the
witnesses on their behalf to prove the alleged mediation.  Certainly, the said
circumstance cannot be sidelined as it constitutes a vital circumstance from
which an inference adverse to the stand taken by the respondent as to the
alleged acts constituting cruelty has to be invariably drawn.

        17.  Now, the question is, whether filing of report with the police by the
appellant for the offence punishable under Section
498-A IPC against the husband and his close relations and even, the maintenance
case against the husband, would by themselves suffice to grant decree of
divorce?

        i)  The decision relied on by the learned counsel in Anagalla Padmalath v.
A. Sudarshan Rao1, this Court while considering the circumstance of wife filing
a petition under Section 498-A IPC and also under Section 125 Cr.P.C. on facts
therein, opined that the said circumstance indicated that the wife has decided
to abondon the matrimonial home permanently and thereby held that the husband
has proved the ground of desertion and in that view of the matter, held that it
was unnecessary to go into the question as to whether the appellant has treated
the respondent with cruelty but not on mere circumstance of filing the complaint
under section u/s 498-A I.P.C.  Thus, this Court in the said decision, has not
viewed the fact of wife filing petitions under Section 498-A IPC and also the
petition under section 125 Cr.P.C. by itself amounting to cruelty, warranting
grant of decree of divorce.  Therefore, this decision would not aid the
respondent.

        ii) The learned counsel has relied on yet another decision of this Court
in Ganti Srinivas v. G. Vasantha2, wherein the husband preferred appeal
challenging the refusal order to grant decree of divorce in a petition filed by
him on the ground of cruelty.  A Division Bench of this Court observing that "in
the recent past, the Hon'ble Supreme Court took the view that the filing of
criminal cases, by a wife, against the husband and his family members, would, by
itself, constitute cruelty, particularly, when it ends up in acquittal" affirmed
the order of the trial Court, allowing the appeal.  However, this Court in an
earlier decision in Lakshmi Chaitanya v. B. Sharat Chandra3 wherein the
appellant - wife challenged the decree of divorce granted by the trial Court on
the ground of cruelty under Section 13(1)(i-a) of the Act, while considering the
effect of filing of complaint by wife under Section 498-A IPC. whether amounts
to cruelty by itself, referring to the fact-situation observed that the case on
hand was a typical one where the learned Family Court which concentrated only
upon the evidence of respondent in a petition filed for divorce and the contents
of the counter, and there was not even a remote reference to the evidence of the
only witness i.e., PW.1, and even in the order, no discussion as to what was the
evidence, which, the respondent - husband has adduced, to substantiate his plea
of cruelty only rested,  his conclusions on the factum of filing of a complaint
under Section 498-A IPC. Thus, finding fault with the approach of family Court
observing that the effort of the Family Court should be, to ensure that the
institution of marriage is strengthened and nurtured, and to the extent possible
the spouses are made to live together, than to grant divorce, just for the
asking of it, allowed the appeal.

        iii) Even subsequent to the decision in Ganti Srinivas's Case (Supra 2),
this Court in Akuladevi Padmaja v. Akula Veera Venkata Satyanarayana4 found
fault with the approach of the trial Court, in granting divorce by merely
stating that filing of complaint under Section 498-A IPC amounted to mental
cruelty without basing on evidence, as unjustified and contrary to settled
principles of law, set aside the impugned order and decree passed therein.


        18.  We are, therefore, of the opinion that granting of divorce by the
Court below on the mere ground that the appellant filed criminal case against
the respondent and others under Section 498-A IPC and the maintenance case in 
M.C. No.49 of 2003, is unjustified.  Further, we opine that though, no cogent
and convincing evidence is adduced by the respondent to prove the ground of
cruelty and despite withholding the best evidence through the disinterested
persons, still, basing on the interested evidence of PWs.1 and 2, who are no
other than the son and father, granting divorce on the ground of cruelty, is
contrary to the well established principles of law.


        19.  What remains now is, whether the decree of divorce granted by the
Court below can be sustained, at least, on the ground of desertion.  At the cost
of repetition, we deem it appropriate to refer to the evidence on record again
contextually.  The respondent's stand has been that from the day one there was
no cordiality between them, mainly, due to the arrogant behavior of the
appellant by which he claims that he was subjected to harassment in the hands of
the appellant, as mentioned in the above, including the alleged refusal of the
appellant to allow the respondent to see the child.  We have already observed in
the above, that Ex.B-1 would belie that stand. Besides, the respondent is not
specific as to on what date, or from which day, the appellant voluntarily
withdrawn herself from the society of the respondent to reckon statutory period
for sustaining the ground of desertion alleged by the respondent.  Even Exs.B2
to B10, which are the in-land letters addressed by the respondent to the
appellant from 12-10-1998 to 16-12-1999 covering a period of more than one year,
since, in unambiguous terms, establish the cordiality between them and exchange
of visits and in the face of such strong constant communication and
correspondence between them accounting for cordial relations between them
further strengthened by Ex.B1 positive and negative photograph, we are of the
considered view, that the respondent failed to establish even the ground of
desertion, and thereby disentitle him for grant of decree of divorce.


        20.  We, thus, conclude that the respondent failed to establish none of
these two grounds, either cruelty or desertion, and consequently, we are
constrained to set aside the decree and decretal order passed by the Court below
by allowing the appeal.

     
21.  In the result, the appeal is allowed.  The decree of divorce granted by the
Court below dissolving the marriage between the parties in original petition
No.178 of 2002, stands set aside.
 The parties are directed to bear their own costs.


        22.  As a sequel, miscellaneous applications, if any, pending in this
appeal, shall stand closed.

_______________________  
R. SUBHASH REDDY, J  
_____________________  
A. SHANKAR NARAYANA, J    
March ______2014.

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