Sec.13 of Hindu Marriage Act- Divorce =mere filing criminal case is not cruelty =unless the allegations are per se illegal and unlawful from the conduct is per se wild, bad and unlawful to make that itself constitutes act of cruelty; in other respects every conduct alleged that tantamounts to cruelty must be proved by preponderance of probabilities and even the giving of police report or filing of complaint or pursuing of the case under Section 498-A IPC and Sections 4 & 6 of D.P Act by wife against the husband or his family members per se do not constitute cruelty including from the result of acquittal therein; in the absence of showing and proving by the husband that the complaint filed or report given or pursuing of the case is aimed to harass and ill treat the husband that constitute mental cruelty. Equally mere allegations appearing wild or grave in the pleadings of the parties, if not proved does not constitute cruelty; in the absence of evidence showing the same are false or made with intend to ill-treat or harass; by disproving said allegations. ;continuous period of two years desertion = there must be a continuous period of two years desertion on the part of the other spouse to put an end to marital tie with an intention to live away and without any mind to join. Here that is totally lacking in the case as rightly concluded by the trial Court and suffice to hold that there is no factual foundation to establish desertion or construction desertion. ;husband cannot take advantage of his own faults= Having regard to the above as rightly concluded by the trial Court, the husband cannot take advantage of his own faults, for no fault of the wife in driving out her from the marital home and for the sake of record having filed restitution of conjugal rights with no mind and even wife expressed her willingness to join and even after the restitution of conjugal rights petition allowed, he did not execute much less served any notice to her to come and join and further even not allowed her to join and even case registered for the offence under Section 498-A IPC from his demands to part with the property having driven out when she tried to join by proceeding with her mother (RW.2) and PW.3 (that is proved from their evidence) he beat her and demanded to part with her property in his name to alienate and further when she was attending Court to give evidence she was way laid and beaten for which another case registered where he was convicted. Thus, there is neither desertion nor cruelty on the part of the wife, but for cruelty and desertion on the part of the husband. ;irretrievably broken down of marriage is not a ground for divorce.= It is needless to say that it is one of the contentions of the appellant/husband that after December, 1997, the parties are living separately and that is a ground for divorce. As held in the expressions supra, irretrievably broken down of marriage is not a ground for divorce. It is needless to say even the amendment proposed after Naveen Kohli (1 supra) and Samar Ghosh (7 supra) to make it a ground for divorce and that was even recommended by the law commission, it could not fructify in the Parliament. Accordingly, the point No.1 is answered.

THE HONBLE SRI JUSTICE R.SUBHASH REDDY And THE HONBLE DR. JUSTICE B.SIVA SANKARA RAO              

C.M.A. No.4575 OF 2004  

19-02-2015
       
Sri Anchuri Subbaraju, S/o.Gangaraju,Hindu, male, aged 36 years, employee,In
Naval Dock Yard (V), Employee No.19231, C.No.140, resident of
Rly.Q.No.58/A,Marripalem, Visakhapatnam....APPELLANTVERSUS      

Smt.Anchuri Sunitha, W/o.Subbaraju, Hindu, male, aged 29 years, House wife,
R/o.C/o.Kadiyala Lakshmi, D.No.3-1, Akkireddypalem, Visakhapatnam....RESPONDENT      

Counsel for Appellant: Smt.N.(P) Anjana Devi

Counsel for Respondent : Sri V.Ajay Kumar

<GIST:

>HEAD NOTE:  

? Cases referred
1.      (2006) 4 SCC 558
2.      AIR 1975 SC 1534
3.      1988 SCC (Cri) 60
4.      1950 (2) All ER 398 at P.403 h
5.      (1994) 1 SCC 337
6.      (2002) 2 SCC 73
7.      (2007) 4 SCC 511
8.      AIR 2011 SC 114 (1)
9.      AIR 2003 SC 2462
10.     (2014) 7 SCC 640
11.     2005 (2) SCC 22
12.     2009 (1) SCC 422
13.     2013 (5) SCC 226
14.     (1999) 3 SCC 620
15.     2014 (4) ALD 531 (DB)
16.     2013 (4) ALD 680
17.     2000 (1) ALD 697 (DB)
18.     2013 (5) ALD 230 (DB)
19.     2013 (4) ALD 416 (DB)
20.     2014 (1) ALD 719 (DB)
21.     2014 (2) ALD 437 (DB)
22.     2014 (2) ALD 360 DB
23.     AIR 1999 AP 1 (DB)
24.     1995 (3) ALD 195(DB)
25.     1992 ALT 631
26.     AIR 1982 P & H 60
27.     AIR 1957 SC 176
28.     AIR 1964 SC 40


THE HONBLE SRI JUSTICE R.SUBHASH REDDY        
And
THE HONBLE DR. JUSTICE B.SIVA SANKARA RAO        
C.M.A. No. 4575 OF 2004

JUDGMENT: (per Honble Dr. Justice B.Siva Sankara Rao)


      Aggrieved by the dismissal order dated 11.09.2003 passed in
O.P. No.396 of 2000 on the file of the Judge, Family Court,
Visakhapatnam, (for short, 'the trial Court'), the unsuccessful
petitioner preferred this appeal.
      2.        The brief facts of the case are as under:
      The petitioner/husband filed the O.P. No.396 of 2000 on the
file of the Judge, Family Court, Visakhapatnam, against the
respondent/wife for dissolution of their marriage dated 26.06.1997,
performed as per Hindu rites and customs at Godavari Kalayna
Mandapam of Simhachalam in Visakhapatnam, under Section 13 (1)  
(ia) and (ib) of the Hindu Marriage Act (for short the Act) on the
grounds of cruelty and desertion.

      3.        After contest, the trial Court dismissed the petition with
costs on 11.09.2003.  Impugning the same, he preferred the appeal
with contentions in the grounds of appeal as well as the oral
submissions made by the counsel for the appellant in support of it
that the dismissal decree and order of the lower Court are contrary
to law, weight of evidence and probabilities of the case; that the
Court below should have seen that the respondent/wife knowingfully
and willfully refused to join the petitioner/ husband even after
passing restitution of conjugal rights in O.P. No.450 of 1997 and she
also filed false complaint under Section 498-A IPC against him and
his parents on 24.10.1998 before V Town Police Station,
Visakhapatnam which was registered as Crime No.192 of 1998 and  
later from the charge sheet filed, numbered as CC No.180 of 1999
on the file of III Metropolitan Magistrate, Hyderabad, that was not
properly appreciated by the lower Court; that the lower Court should
have seen from the material that the respondent/wife has no mind
to lead marital life with him and that is the reason of her avoiding
him for one way or the other all through and her acts tantamount to
cruelty and desertion and hence to allow the appeal.

      4.        Whereas it is the contention of the learned counsel for
the respondent/wife in opposing the claim and in support of the
lower Courts dismissal decree and order that the petitioner/husband
did not come to court with clean hands and suppressed material
facts to take advantage of his own wrongs, that she is always ready
to join him and it is he, for her not obliging his demands to alienate
the property given to her by her mother, on one pretext or the
other, want to get rid of her and driven her out of his house and
falsely filed O.P for restitution of conjugal rights, that when she was
ready to join him the same was decreed and even thereafter when
she went to his house along with her mother (RW.2), mediator
(RW.3) she was beaten and not allowed to join reiterating the
demand for the property for which she was constrained to give a
complaint that was registered as crime No.192 of 1998 and covered
by CC No.180 of 1999 on the file of III Metropolitan Magistrate,
Visakhapatnam.  She contends that while the criminal case was
pending, when the respondent/ wife was attending the Court to give
evidence in the matter, the petitioner/ husband made assault and
threatened her not to give evidence against him and one
Simhachalam, for which she lodged a complaint covered by C.C
No.270 of 2000 on the file of the V Metropolitan Magistrate,
Visakhapatnam.  After due enquiry, the petitioner was found  guilty
for the offences under Sections 323, 341 and 506 IPC and was
released on admonition under Section 3 of the Probation of
Offenders Act, instead of sentencing him to jail; that what the Court
held under Section 498-A IPC in giving benefit of doubt is even
proved of the demands to alienate the property and when she along
with her mother and another mediator went to their house to join
back the husband, she was beaten, same does not constitute the
offence under Section 498-A IPC.  There was no observation that it
was a false complaint or intended to harass her husband and
thereby that cannot be taken advantage by him.  She further
contends that the suit for maintenance filed by her was for inability
to maintain and for she was not allowed to join him and the trial
Court, after considering all these facts, rightly dismissed the divorce
claim for no grounds on cruelty or desertion, and thus for this Court
while sitting in appeal there is nothing to interfere, hence to dismiss
the appeal.

      5.        Perused the material available on record including the
expressions referred by both sides in support of their rival
contentions.  The parties hereinafter are referred to as they are
arrayed before the trial Court for the sake of convenience in the
appeal.

      6.        Now the points for consideration are:
1.      Whether there are any grounds of desertion or
cruelty that entitles the appellant/ petitioner
husband to dissolve the marital tie with
respondent dated 26.06.1997; and if so, the
lower Courts dismissal decree and order is
unsustainable and requires interference by this
Court while sitting in appeal and if so, with what
observations?

2.      To what result?

POINT NO.1:
      7.        The undisputed facts are that the marriage of the
petitioner/husband was performed on 26.06.1997 with
respondent/wife at Godavari Kalyana Mandapam, Simhachalam,  
Visakhapatnam as per Hindu Rites and customs and they lived
happily after their marriage was consummated for few months.
There is also no dispute on the fact that the husband filed O.P
No.450 of 1997 for restitution of conjugal rights (covered by Ex.A1-
order) that was allowed on 30.06.1999 in directing the
respondent/wife to join the petitioner/husband.   Admittedly, he had
not been filed any execution petition much less addressed any
notice or any letter directing his wife to come and join.   It is also
not in dispute that the wife lodged a report under Section 498-A IPC
against the husband and his parents on 24.10.1998 that was
registered as crime No.192 of 1998 and after investigation the police
filed charge sheet and the same covered by CC No.180 of 1999, was
ended in acquittal after trial on 08.05.2000 vide Ex.A4 judgment.
To say that, Exs.A2 and A3 demand notices said to have sent to his
wife to come and join allegedly on 30.07.1999 and 30.12.1999,
there is no proof of sending the same to the respondent/ wife much
less any proof of service.   The other fact also not in dispute is that
in CC No.270 of 2000 on the file of the V Metropolitan Magistrate,
Visakhapatnam, after trial, on the report of the wife against the
husband, his father and his fathers friend one Simhachalam for the
offences punishable under Sections 323, 506 r/w 34 IPC, on trial the
same was ended in conviction and the petitioner/husband was
admonished and released for good conduct under the Probation of
Offenders Act.

      8.        Now coming to decide whether there are any grounds
of cruelty or desertion on the part of the respondent/wife against
the petitioner/husband with no fault of him;  the contention of the
wife is that after marriage there were demands to meet the
additional dowry and her mother executed a document in her favour
and in favour of her sisters equally and the petitioner/husband
demanded her to part with the property of her to alienate or to
convey in his name which she did not oblige and it is therefrom the
petitioner/ husband started harassing her one way or the other and
wanted to get rid of her and necked her out.   Ex.A7 is the Xerox
copy of the agreement dated 11.06.1997 filed by the husband that
substantiates the said version of the respondent/wife of some
property was given to the respondent/ wife by her mother therein,
which is before 15 days before their marriage dated 26.06.1997.   It
is his contention that the so called demand is untrue and he never
demanded to convey the property in his name much less to alienate.
According to him, it is the respondent that left his company on
27.08.1997 claiming that she was carrying and later did not turn up
in spite of he made requests personally and through elders and
thereby, she deserted him and later filed false criminal cases to
harass that also constitutes cruelty and he is entitled to divorce.

      9.        Coming to the aspect of the alleged mental cruelty
suffered by the petitioner/husband in the hands of respondent/wife
including from her giving of report under Section 498-A IPC and the
case ended in acquittal concerned, it is important to note what
constitutes cruelty.   The Apex Court in Naveen Kohli vs Neelu
Kohli  at para No.35 categorically observed that:
        35. The petition for divorce was filed primarily
on the ground of cruelty.  It may be pertinent to note
that, prior to the 1976 Amendment in the Hindu
Marriage Act, 1955 cruelty was not a ground for
claiming divorce under the Hindu Marriage Act.   It
was only a ground for claiming judicial separation
under Section 10 of the Act.   By the 1976
Amendment, cruelty was made a ground for divorce
and the words which have been omitted from Section
10 are as to cause a reasonable apprehension in the
mind of the petitioner that it will be harmful or
injurious for the petitioner to live with the other
party.   Therefore, it is not necessary for a party
claiming divorce to prove that the cruel treatment is
of such a nature as to cause an apprehension  a
reasonable apprehension  that  it will be harmful or
injurious for him or her to live with the other party.

      10.       From this referring to earlier expression in
N.G.Dastane vs. S.Dastane at para No.30 observed as follows:

The enquiry has to be whether the conduct charged
as cruelty is of  such a character as to cause in the
mind of the petitioner a reasonable apprehension
that it will be harmful or injurious for him to live with
the respondent.

        11.     It is therefrom clear that though prior to 1976
Amendment of Hindu Marriage Act, 1955, cruelty is only made a
ground for judicial separation and not for divorce, later it was made
a ground for divorce and it also removed the rigour of the proof as
to reasonable apprehension in the mind of the petitioner that it
would be harmful or injurious to live with other party that is since
removed.   What is thus required to prove as held in Navin Kohli (1
supra) ultimately was, as laid down in Shobha Rani vs. Madhukar
Reddi  at para No.47 that:

The Cruelty has been used in Section 13 (1) (i-a) of
the Act in the context of human conduct or behaviour
in relation to or in respect of matrimonial duties or
obligations.  It is a course of conduct of one which is
adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional.   If it
is physical, it is a question of fact and degree.   If it is
mental, the enquiry must begin as to the nature of
the cruel treatment and then as to the impact of such
treatment on the mind of the spouse.   Whether it is
caused reasonable apprehension that it would be
harmful or injurious to live with the other, ultimately,
is a matter of inference to be drawn by taking into
account the nature of the conduct and its effect on
the complaining spouse.   There may, however, be
cases where the conduct complained of itself is bad
enough and per se unlawful or illegal.   Then the
impact or the injurious effect on the other spouse
need not be enquired into or considered.   In such
cases, the cruelty will be established if the conduct
ifself is proved or admitted.


      12.       It is therefrom observed that if the conduct and
allegations are such an extent showing by enough and per se
unlawful or illegal if that conduct or allegations proved that
constitutes mental cruelty.   It is to say unlawful or illegal and bad
conduct per se constitutes cruelty and that was the act of cruelty
must be proved as every conduct and every allegation or accusation
does not tantamount to cruelty.   The expression also cautioned the
consideration of the words mental cruelty to grant or refusal of relief
on determination of facts of each case for no definition under the
Hindu Marriage Act and for no uniform principle for all cases to lay
down

      13        But to keep in mind that of Lord Denning L.J in
Kaslefsky vs Kaslefsky
If the door of cruelty were opened too wide, we
should soon find ourselves granting divorce for
incompatibility of temperment.  This is an easy path
to tread, especially in undefended cases.  The
temptation must be resisted lest we slip into a state
of affairs where the institution of marriage itself is
imperilled.

      14.       In V.Bhagat vs. D.Bhagat , the Apex Court held at
para No.16 is as follows:
16.    Mental cruelty in Section 13 (1) (ia) can
broadly be defined as that conduct which inflicts
upon the other party such mental pain and suffering
as would make it not possible for that party to live
with the other.   In other words, mental cruelty must
be of such a nature that the parties cannot
reasonably be expected to live together.   The
situation must be such that the wronged party
cannot reasonably be asked to put up with such
conduct and continue to live with the other party.   It
is not necessary to prove that the mental cruelty is
such as to cause injury to the health of the
petitioner.   While arriving at such conclusion, regard
must be had to the social status, educational level of
the parties, the society they move in, the possibility
or otherwise of the parties ever living together in
case they are already living apart and all other
relevant facts and circumstances which is neither
possible nor desirable to set out exhaustively.   What
is cruelty in one case may not amount to cruelty in
another case.   It is a matter to be determined in
each case having regard to the facts and
circumstances of that case.   If it is a case of
accusations and allegations, regard must also be had
to the context in which they were made.

         15.    Thus, proved from Bhagat (5 supra) and Shobha
Rani (3 supra) concluded with approval in Naveen Kohli (1 supra)
but for the allegations per se unlawful or illegal and the conduct per
se bad or unlawful to constitute cruelty once that is proved; in so far
as other allegations and counter allegations of conduct concerned,
whether it is accusation or allegation as the case may be per se not
proved even that is proved and regard must also be had to the
context in which they were made without simply acting on it.

      16.       Even in Savithri Pandey vs. Prem Chandra
Pandey , it was observed that whether an act constitutes cruelty or
not, the Court must keep in mind that to distinguish the same from
ordinary way and deter family life, as it cannot be said on the basis
of sensitivity or the veracity but for to adjudge on the basis of the
course of conduct which would in general be dangerous to the
spouse with the other spouse or not possible to live together.

      17.       It was in the said expression Naveen Kohli (1 supra)
referring to Bhagat (5 supra) held that irretrievable break down of
marriage even not a ground for divorce, it cannot be ignored from
consideration in appreciation of the evidence as to there is a cruelty
or not therefrom also for long separation between the parties and
no possibility of reunion.

      18.       In Naveen Kohli (1 supra), the Apex Court therefrom
laid down broad guidelines of what constitutes cruelty.  By noticing
with approval of the guidelines in Naveen Kohli (1 surpa) and the
three judges bench expression of the Apex Court in Samar Ghosh
vs Jaya Ghosh  held at para No.101 as under:
   101. No uniform standard can ever be laid
down for guidance, yet we deem it appropriate to
enumerate some instances of human behaviour
which may be relevant in dealing with the cases of
mental cruelty.   The instances indicated in the
succeeding paragraphs are only illustrative and not
exhaustive.

(i)     On consideration of complete matrimonial
life of the parties, acute mental pain, agony
and suffering as would not make possible
for the parties to live with each other could
come within the broad parameters of mental
cruelty.
(ii)    On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that
the wronged party cannot reasonably be
asked to put up with such conduct and
continue to live with other party.
(iii)   Mere coldness or lack of affection cannot
amount to cruelty, frequent rudeness of
language, petulance of manner, indifference
and neglect may reach such a degree that it
makes the married life for the other spouse
absolutely intolerable.
(iv)    Mental cruelty is a state of mind.   The
feeling of deep anguish, disappointment,
frustration in one spouse caused by the
conduct of other for a long time may lead to
mental cruelty.
(v)     A sustained course of abusive and
humiliating treatment calculated to torture,
discommode or render miserable life of the
spouse.
(vi)    Sustained unjustifiable conduct and
behaviour of one spouse actually affecting
physical and mental health of the other
spouse.  The treatment complained of and
the resultant danger or apprehension must
be very grave, substantial and weighty.
(vii)   Sustained reprehensible conduct, studied
neglect, indifference or total departure from
the normal standard of conjugal kindness
causing injury to mental health or deriving
sadistic pleasure can also amount to mental
cruelty.
(viii)  The conduct must be much more than  
jealously, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and
emotional upset may not be a ground for
grant of divorce on the ground of mental
cruelty.
(ix)    Mere trivial irritations, quarrels, normal
wear and tear of the married life which
happens in day-to-day life would not be
adequate for grant of divorce on the ground
of mental cruelty.
(x)     The married life should be reviewed as a
whole and a few isolated instances over a
period of years will not amount to cruelty.
The ill conduct must be persistent for a
fairly lengthy period, where the relationship
has deteriorated to an extent that because
of the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to
live with the other party any longer, may
amount to mental cruelty.
(xi)    If a husband submits himself for an
operation of sterilisation without medical
reasons and without the consent or
knowledge of his wife and similarly, if the
wife undergoes vasectomy or abortion
without medical reason or without the
consent or knowledge of her husband, such
an act of the spouse may lead to mental
cruelty.
(xii)   Unilateral decision of refusal to have
intercourse for considerable period without
there being any physical incapability or valid
reason may amount to mental cruelty.
(xiii)  Unilateral decision of either husband or wife
after marriage not to have child from the
marriagemay amount to cruelty.
(xiv)   Where there has been a long period of
continuous separation, it may fairly be
concluded that the matrimonial bond is
beyond repair.   The marriage becomes a
fiction though supported by a legal tie.   By
refusing to sever that tie, the law in such
cases, does not serve the sanctity of
marriage; on the contrary, it shows scant
regard for the feelings and emotions of the
parties.   In such like situations, it may lead
to mental cruelty.

      19.       It is there from held in Samar Ghosh (7 supra) that
taking into consideration of the afore mentioned factors along with
important circumstances that the parties are admittedly living
separately for more than sixteen-and a half years (since 27.08.1990)
the irresistible conclusion would be that matrimonial bond has been
ruptured beyond repair because of the mental cruelty caused by the
respondent and entire substantum of marriage has already
disappeared, hence granted decree of divorce on facts.  Now the
above principle say long living separately is also one of the factors
regarding marriage break down to be kept in mind.

      20.       Referring to the expressions of Samar Ghosh (7
supra) and Naveen Kohli (1 supra) in the later expression of the
Apex Court in Gurubux Singh Vs. Harminder Kaur , it was held
that

   No conduct can be dubbed as cruelty in all
circumstances and it is for the petitioner complaining
of cruelty against the respondent to make out
specific case that a particular conduct may amount to
cruelty in one case but the same conduct necessarily
may not amount to cruelty due to change on various
factors in a different set of circumstances.  Therefore
it is essential for the appellant who claims relief to
prove that a particular part of conduct or behaviour
resulted in cruelty.  It cannot be assumed that
particular conduct will under all circumstances
amount to cruelty, vis-a-vis, the other party.  No
prior assumptions can be made in such matters.   The
aggrieved party has to make a specific case that the
conduct of which exception is taken, amounts to
cruelty.

      21.       Needless to say even a single act of violence which is of
grievous and inexcusable nature satisfies the test of cruelty.
However, in deciding whether in a particular case, the cruelty
complained constitutes a ground of divorce, the marital life should
be assessed as a whole and a few isolated instances over certain
period will not amount to cruelty.  It is also observed that for the
acts of cruelty complained by subsequent act of the complainant
party tantamounts to condonation that cannot be made a ground to
seek the relief.

      22.       So far as the allegations in the counter or reply whether
tantamounts to cruelty or not concerned, it is categorically observed
that mere allegations per se do not constitute cruelty in the absence
of any evidence in this regard of such allegations constitute cruelty
to decide by Court by framing any issue or point for consideration
and without that such an allegation cannot be taken as a basis for
granting divorce.

      23.       In this regard, the Apex Court in Gurubux singh (8
supra) by distinguishing the earlier expression in Vijaykumar
Ramchandra Bhate vs. Neela Vijaykumar Bhate , held that all
the allegations made in the written statement or the allegations
specified in the course of cross examination by itself does not
tantamount to cruelty though it was held as cruelty in the earlier
expression.

      24.       In the later expression of the Apex Court in Malathi
Ravi, M.D vs. B.V.Ravi, M.D  regarding cruelty, it was observed
that the false and vexatious criminal proceedings, by the wife
against her husband and his family members also, under Section
498-A, 506 r/w 34 IPC where the facts show it is after the husband
filed divorce case, wife intentionally filed that criminal case, that has
to be taken into consideration in deciding such false and vexatious
criminal proceedings constitutes mental cruelty.   On facts, it was
held that constitutes mental cruelty for the reason that after
returning the letters of the husband with no response, the wife all of
a sudden joined the husband having coming with her relative who is
working in Police Department and with no time the wife lodged
criminal complaint regarding dowry against husband and his parents
and cause them arrested by influencing the police for the offences
under Sections 498-A, 506 r/w 34 IPC and Sections 3  & 4 of  Dowry
Prohibition Act and the husband was sent to jail, till grant of bail
though his family members could avail but not himself the benefit of
anticipatory bail which are resulted after dismissal of the divorce
application of the husband from which he vexed with her conduct
and filed the appeal with delay condonation and the delay
condonation thereby allowed. Ultimately, it was held that those acts
constitute cruelty or not to decide the Court can also take into
consideration the subsequent conduct and subsequent events from
the undisputed material and for that placed reliance on the earlier
expressions in A.Jayachandra vs Aneel Kaur , Suman Kapur
vs. Sudhir Kapur .

      25.       In the other recent expression of the Apex Court dated
19.11.2014 in Civil Appeal No.1213 of 2006 between K.Srinivas vs
K.Sunitha, for entitlement of divorce by husband on the ground of
cruelty from the Criminal proceedings, it was observed that the
Criminal complaint filed by the wife against the husband and several
family members under Section 498-A IPC and Sections 3 & 4 of
Dowry Prohibition Act, Section 307 (3), 384, 148 r/w 34 IPC on the
facts show the filing of the false criminal case and the expression of
the Apex Court in K.Srinivas Rao vs D.A.Deepa  was considered
and held as delivered a well reasoned judgment; therefrom
observed that it is now beyond doubt that, if a false criminal
complaint is lodged by either spouse, it would invariably and
undoubtedly constitute mental cruelty such as would make entitle
other spouse to get divorce.

      26.       Coming to K.Srinivasa Rao (13 supra) where it was
also held that a false complaint or false criminal proceedings and
indecent and defamatory statements made in the complaint or
criminal proceedings and wife not satisfied with the acquittal
judgment of the trial court of all other family members, pursued the
matter by filing revision seeking for their conviction and also against
the husband alleging insufficiency of sentence.  Her pursuing the
higher forms despite acquittal clearly speaks the same singly and
cumulatively amount to mental cruelty warranting grant of divorce.
It was also observed that making indecent and defamatory
allegations against the spouse or his or her relations in the pleadings
filed or presented a false complaint or issuing notice or news items
which may have adverse impact on the job or business prospects of
other spouse are the illustrative cases of mental cruelty which would
warrant grant of divorce.

      27.       For that conclusion, the Apex Court referred the earlier
expressions in Samar Ghosh (7 supra) Naveen Kohli (1 supra),
Vijaykumar (9 supra), Bhagat (5 supra)  and also considered the
factum of husband and wife having living separately for more than
10 years with unbridgeable distance between them created from the
outcome of false accusations and prosecuting the criminal
proceedings and pursuing them vehemently to say the marriage is
broken down irretrievably that can be considered as one of the
circumstance in appreciation of the facts and other aspects whether
constitutes cruelty or not.
      28.       In S.Hanumantha Rao vs. S.Ramani  the Apex
Court held that wifes parents seeking help of the police in bringing
about reconciliation between estranged spouses per se does not
constitute mental cruelty or said complaint under Section 498-A IPC
even registered for the reconciliation efforts made and there is no
evidence of the wifes relatives and wife, against the husband and
his relatives harassed through police, even the panic husband and
his family members obtain anticipatory bail or regular bail, that
cannot constitute mental cruelty.

      29.       This Court in Katada Baby @ Kollati Baby vs.
Katada Sri Venkata Satya Raja Sekhar  held that the factum of
lodging complaint under Section 498-A IPC or filing of suit or claim
for maintenance by wife against the husband cannot be considered
as mental cruelty to make out as a ground for divorce and for that
conclusion also referred the expressions in Akuladevi Padmaja vs
Akula Veera Venkata Satyanarayana  Anagalla Padmalath  
Vs A.Sudarshan Rao  Ganti Srinivas vs. G.Vasantha ,
Lakshmi Chaitanya vs. B.Sharat Chandra , and other
expressions.  It was also held that without proof of the allegations
are false and untrue and made to harass, mere pursuing legal
remedy or filing of complaint or criminal case under Section 498-A
IPC not a ground for dissolving the marriage on the claim of cruelty.

      36.       In Vytla Alivelu Manga Devi vs. Vytla Venkata
Lakshmi Narasimha Palla Rao  it was also held that giving of
report or filing of complaint under Section 498-A IPC would not per
se constitute cruelty. It was held that the defence before the Court
seeking divorce on the ground of cruelty must be consistent to the
satisfaction of the Court and any benefit of doubt in acquittal of the
accused husband and his family members in a criminal case must
not result in suspending of marriage; as the legal provision availed
by wife against husband after she was driven out from the
matrimonial home with harassment or dowry demand would not per
se constitute a ground for cruelty.   It is only where a complaint is
given with false allegations and with a mind to harass the husband
and the same when proved, constitutes cruelty.

      31.       Further in V.Venkateshwarlu vs. Mamatha  in this
regard held that, even filing of complaint under Section 498-A IPC
by wife itself cannot be treated as act of cruelty, notwithstanding
acquittal of accused therein and the intention of the Parliament in
enacting Section 498-A IPC and other related provisions, was to
protect woman spouse, than to create avenue or opportunity for
male spouse to seek divorce solely on basis of institution of such
proceedings.   Unless such a ground of cruelty not proved as
outcome to harass and with false allegations mere filing of a report
or complaint does not tantamount to cruelty and the allegations
cannot be considered per se false and malafide.  Further in another
expression of this Court in P.Jayaram vs P.Sudha Laxmi  also, in
this regard it was held that the wife insisted for separate residence
which made the husband to take the residence near to his parents
house by itself, is not a ground to constitute cruelty on the party of
husband so also giving of report and filing of complaint under
Section 498-A IPC and sections 4 & 6 of Dowry Prohibition Act in the
absence of proof by husband that the very filing of complaint or
giving or report was motivated and aimed to harass him and his
family members, in holding the husband is not entitled on that
ground for divorce by claiming as cruelty.

      32.       Further a Division bench of this Court in N.K.Somani
vs.P.Somani   observed referring to several expressions that it is
essential for the petitioner who claims relief to prove that a
particular part of conduct or behaviour resulted in cruelty.   It is
observed that without such proof, no prior assumptions to be made,
nor it can be assumed that a particular conduct in a set of
circumstances amount to cruelty; as particular conduct may amount
to cruelty for one case may not necessarily amount to cruelty in
another case, due to change of various factors and in different set of
circumstances.   Thus, judgments of Courts are not to be construed
as statues.  A decision ordinarily is a decision on the case before the
Court, while the principle underlying the decision could only be
binding as the precedent in a case which comes up subsequently by
ascertaining the true principle laid down in that previous decision.

      33.       It was also observed in N.K.Somani (23 supra)
differing to the earlier expression of this Court in Jayakrishna
Panigrahi vs. Surekha Panigrahi of the allegations made in the
written statement not proved, will amount to cruelty is not correct.
It is to say such allegations are to be proved as wild, baseless, false
or the like as per Section 3 of the Indian Evidence Act, which defines
proved, not proved and disproved.   As per which, a fact is said to
be not proved, when it is neither proved nor disproved and as such
unless the allegations are disproved which is akin to say false, wild
or baseless to make a ground of that tantamount to cruelty, mere
allegations not proved which may be true or may not be true cannot
be taken as wild or baseless or false to say those constitute mental
cruelty.  For that conclusion this Court in N.K.Somani (23 supra)
placed reliance on the proposition, laid down in the earlier
expression of this Court in Lalitha Kumari vs. K.Ram Prasada
Rao  that followed a division bench expression of the Punjab &
Haryana High Court in Paras Ram vs. Kamlesh  and in
concluding that in order to succeed that the allegations made in the
pleadings by the opposite party to constitute cruelty, those
allegations must be disproved by showing false or wild or baseless
and there from constitute the mental cruelty; as unless truth or
falsity of such allegations establish one way or other, no legal
consequences can flow therefrom for the purpose of deciding cruelty
or not under Section 13 (1) (ia) of Hindu Marriage Act.

      34.       Having regard to the above propositions referred supra;
unless the allegations are per se illegal and unlawful from the
conduct is per se wild, bad and unlawful to make that itself
constitutes act of cruelty;  in other respects every conduct alleged
that tantamounts to cruelty must be proved by preponderance of
probabilities and even the giving of police report or filing of
complaint or pursuing of the case under Section 498-A IPC and
Sections 4 & 6 of D.P Act by wife against the husband or his family
members per se do not constitute cruelty including from the result
of acquittal therein; in the absence of showing and proving by the
husband that the complaint filed or report given or pursuing of the
case is aimed to harass and ill treat the husband that constitute
mental cruelty.  Equally mere allegations appearing wild or grave in
the pleadings of the parties, if not proved does not constitute
cruelty; in the absence of evidence showing the same are false or
made with intend to ill-treat or harass; by disproving said
allegations.

      35.       From the above propositions coming to the facts on
hand, it is the evidence of the respondent/wife that for not
conveying the property as demanded by the petitioner/husband i.e.,
covered by Ex.A7 agreement dated 11.06.1997, he started ill
treatment and sent her out of the house.   It is her further evidence
that even later her mother and another mediator made efforts for
her joining the petitioner, he did not allow.   Undisputedly, before
the O.P No.450 of 1998 filed by him for restitution of conjugal
rights, he did not issue any notice demanding his wife to join him.
The said O.P for restitution of conjugal rights was admittedly
decreed on 30.06.1999 vide Ex.A1.   It is important to note that the
report given by the wife under Section 498-A IPC against the
husband and his parents was dated 24.10.1998 in Crime No.192 of
1998 covered by CC No.180 of 1999.   It is during pendency of the
said crime, the restitution of conjugal rights case was decreed.  The
petitioner/husband undisputedly not filed any execution petition for
restitution of conjugal rights demanding his wife to join. He did not
even issued any notice asking her to join him. The so called
registered post letters on 30.07.1999 and 30.12.1999 allegedly sent
by him covered by Exs.A2 and A3, there is no proof.   The
respondent/ wife also disputed about sending letters and receiving
by her.  Even then, he did not file any proof, for the reasons best
known to him.  The so called mediator PW.2 evidence shows that he
was set up by him to depose to his tunes as if he is a mediator went
to the house of respondent to demand her to join the
petitioner/husband and as if she refused.   In there is any truth, that
important fact must find place in Ex.A2 which was within one month
from the date of Ex.A1 restitution of conjugal rights decree, leave
about Ex.A3 dated 30.12.1999.   The trial Court there from observed
that these two letters are created and manipulated and thereby
could not file any proof of service.   Now when he filed O.P for
restitution of conjugal rights, obtained the decree, did not even
choose to execute, but for filed O.P for divorce on the ground of
desertion and cruelty.   It was not even sought a ground of despite
restitution of conjugal rights decree, for no any reasonable or just
cause, she refused to join him under Section 13 ((1) (ia) clause (ii)
of the Act.

      36.       Ex.A4judgment in CC No.180 of 1999 also speaks the
factum supported by Ex.A7agreement, property conveyed by  
mother of respondent/ wife and the evidence of RWs.1 to 3 is that
the petitioner/husband demanded to part with the property and
convey in his name or to alienate.    Further, Ex.A4 certified copy of
judgment in CC No.180 of 1999 under Section 498-A IPC speaks that
the allegation is when the respondent/wife, her mother and another
said to have gone to his house to join the petitioner/husband by
respondent/wife, she was beaten, they were not allowed, she was
necked out and with the demand to part with the property.

      37.       What the lower Court observed rightly from reading of
Ex.A4 judgment was that, the observation in the acquittal judgment
was not because of the allegation was not proved, but such
averment does not constitute the offence under Section 498-A IPC.
The wife did not pursue the case further to say the filing of said
case constitutes cruelty to make it a ground for divorce even as a
subsequent event from the result of the acquittal judgment dated
08.05.2000,  after filing of the divorce O.P. No.396 of 2000.  Further
pursuing a legal remedy does not per se constitute cruelty, unless it
is shown out come of spite and ill will and the object behind is with
some oblique motive.   Coming to the other facts covered by Ex.A5
in CC No.270 of 2000 that was undisputedly ended in conviction on
31.03.2001 and the accused was released under Section 3(1) of the
Probation of Offenders Act by admonishing him and he did not even
choose to prefer appeal or revision impugning the same. It is
observed therein that while the respondent/ wife was going to Court
to give evidence in Section 498-A IPC case, the petitioner/ husband,
his father, another by name Simhachalam assaulted her and she
was beaten, for which she lodged complaint, that was covered by
C.C No.270 of 2000 on the file of the V Metropolitan Magistrate,
Visakhapatnam, as such that no way constitutes an act of cruelty on
the part of the wife against the husband but vice-versa.

      38.       No doubt, the wife filed maintenance case covered by
O.S No.82 of 2000 on the file of the Judge, Family Court,
Visakhapatnam with averments that while she was going to join her
husband, she was not allowed and she was beaten and necked her  
out, despite the decree for restitution of conjugal rights and she was
unable to maintain herself and hence to grant maintenance.  The
maintenance case no way constitute either cruelty or desertion on
the part of the wife from such a claim. Besides PW.1s evidence, one
P.Appa Rao, PW.2, deposed that in August, 1999 himself and
Varahalu went to the parents house of the respondent and
requested to send the respondent to the house of PW.1 but they
refused to send her.   Any credence can be given to said version of
PW.2 that in August, 1999, the respondent was demanded to join,
but she did not oblige; there is no whisper in this regard, if true to
find place in the alleged notice (A-3) dated 30.12.1999.  He is an
introduced and interested witness and moreover no such pleading
was there even in the petition for divorce in this regard.   Thus,
there is only self serving testimony of him and the introduced and
uncredible witness PW.2 with reference to Exs.A1 to A7 discussed
supra of which the Ex.A4, Ex.A5 and Ex.A7 substantiate the defence
of the respondent/ wife, besides respondent/wife, her mother, and
mediator i.e., K.Seetharatnam (RW.3)  also deposed in support of
the same.  It is there from the trial Court concluded that the
petitioner/husband cannot take advantage of his own fault to get rid
of the marriage tie with the respondent and for her no fault and
even though she is ready and willing to join him which he did not
allow.  He did not come to court with clean hands.  The said
conclusion of trial Court is as referred supra on factual aspects is
correct and supported by reasons to hold that there is no cruelty.

      39.       Now coming to the contention of otherwise, there is a
desertion on the part of the wife for his entitlement to the decree of
divorce, in this regard it is important to note, as observed in para
No.53 of the three judges Bench expression of the Supreme Court in
Naveen Kohli (1 supra) referring to the earlier expression in
Savitri Pandey (6 supra) at page 82 which referred the earlier
expressions of the Apex Court in Bipin Chander Jaisinghbhai
Shah vs. Prabhawati  that was followed and reiterated in
Lachman Utamchand Kirpalani vs. Meena , that:
Following the decision in Bipin Chander case this
Court again reiterated the legal position in Lachman
Utamchand Kripalani v. Meena by holding that in its
essence desertion means the intentional permanent
forsaking and abandonment of one spouse by the
other without that others consent, and without
reasonable cause.   For the offence of desertion so far
as the deserting spouse is concerned, two essential
conditions must be there (1) the factum of
separation, and (2) the intention to bring
cohabitation permanently to an end (animus
deserendi).  Similarly two elements are essential so
far as the deserted spouse is concerned: (1) the
absence of consent, and (2) absence of conduct
giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention
aforesaid.   For holding desertion as proved the
inference may be drawn from certain facts which
may not in another case be capable of leading to the
same inference; that is to say the facts have to be
viewed as to the purpose which is revealed by those
acts or by conduct and expression of intention, both
anterior and subsequent to the actual acts of
separation.

      40.       The later expression of the Apex Court in Malathi
Ravi, M.D (10 supra) reiterated the above principle by referring the
above expressions holding that there must be a continuous period of
two years desertion on the part of the other spouse to put an end to
marital tie with an intention to live away and without any mind to
join. Here that is totally lacking in the case as rightly concluded by
the trial Court and suffice to hold that there is no factual foundation
to establish desertion or construction desertion.

        41.     Having regard to the above as rightly concluded by the
trial Court, the husband cannot take advantage of his own faults, for
no fault of the wife in driving out her from the marital home and for
the sake of record having filed restitution of conjugal rights with no
mind and even wife expressed her willingness to join and even after
the restitution of conjugal rights petition allowed, he did not execute
much less served any notice to her to come and join and further
even not allowed her to join and even case registered for the
offence under Section 498-A IPC from his demands to part with the
property having driven out when she tried to join by proceeding with
her mother (RW.2) and PW.3 (that is proved from their evidence) he
beat her and demanded to part with her property in his name to
alienate and further when she was attending Court to give evidence
she was way laid and beaten for which another case registered
where he was convicted.  Thus, there is neither desertion nor cruelty
on the part of the wife, but for cruelty and desertion on the part of
the husband.

      42.       In view of the above, there is no illegality or irregularity
or impropriety in appreciation of the evidence and to the conclusions
and findings arrived by the lower Court, for this Court while sitting in
appeal to interfere.

      43.       It is needless to say that it is one of the contentions of
the appellant/husband that after December, 1997, the parties are
living separately and that is a ground for divorce.  As held in the
expressions supra, irretrievably broken down of marriage is not a
ground for divorce.  It is needless to say even the amendment
proposed after Naveen Kohli  (1 supra) and Samar Ghosh (7
supra) to make it a ground for divorce and that was even
recommended by the law commission, it could not fructify in the
Parliament.   Accordingly, the point No.1 is answered.

Point No.2:

   44.  In the result, the appeal is dismissed.  No costs.

      45.       Consequently, miscellaneous petitions pending if any in
this appeal shall stand closed.

___________________  
R.SUBHASH REDDY, J    
____________________  
B.SIVA SANKARA RAO,J    
Date:19.02.2015

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