Section 13 (1) (ia) (ib) of Hindu Marriage Act, 1955 (for short 'the Act') seeking divorce against the respondent, was dismissed.= A Husband who is at fault can not claim divorce = The evidence of PW.1 goes to prove that the respondent was living alone with her child in the rented house for more than two months and as there is nobody to look after/or maintain her, she left for her parents' place. In this view of the matter, it can be said that when the petitioner was out of matrimonial home for a period of more than two months and was not maintaining the respondent and their child, circumstances compelled her to go to her parents' place. Further, it is observed that the petitioner never visited his in law's house to bring the respondent and her child. On the other hand, it is the case of the respondent that she is always behaved in most harmonious and respectful manner with the petitioner and still she is looking towards him with love and affection. Therefore, it cannot be said that the respondent deserted the petitioner, on the contrary, it can be said that the petitioner deserted the respondent.

published in http://judis.nic.in/judis_andhra/filename=9685

THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE B.N. RAO NALLA              

C.M.A. No.406 OF 2004

04.03.2013    

Sri Erram Sharath Babu alias Sharath Reddy s/o. Madhusudhan Reddy  

Smt. Erram Anitha w/o. Sharath Babu

Counsel for the Appellant: Mr. D.Bhaskar Reddy

Counsel for Respondent: Mr. T.Ramulu

<GIST:

>HEAD NOTE:  

Referred Cases:
(2005) 2 SCC 22

JUDGMENT: (per Hon'ble Sri Justice B.N. Rao Nalla)

This Civil Miscellaneous Appeal is filed assailing the order dated 24.07.2003 in
O.P. No.22 of 1999 on the file of the Court of  Senior Civil Judge, Karimnagar,
whereby and whereunder the petition filed by the petitioner under
Section 13 (1)
(ia) (ib) of Hindu Marriage Act, 1955 (for short 'the Act') seeking divorce
against the respondent, was dismissed.

2.   The appellant herein is the petitioner - husband and the respondent herein
is the respondent - wife in the O.P.  For the sake of convenience, the parties
hereinafter referred to as they arrayed in the O.P.

3.      The brief averments of the petition are that the marriage of the
petitioner and the respondent was solemnised on 06.05.1992 as per their caste
customs and Hindu rites at Huzurabad and they lived happily till the birth of
male child on 06.11.1993.  Thereafter, the respondent started quarrelling with
the petitioner on each and every trivial matter in the presence of his parents.
The respondent even started quarrelling with her parents-in-law.  Unable to bear
the attitude of the respondent, the parents of the petitioner asked the
petitioner and the respondent to shift their residence to some other place.  So,
the petitioner and the respondent started living separately away from the
parents of the petitioner from 01.06.1996 at Mankammathota, Karimnagar, in a
rented house.  Even then, the respondent did not change her attitude and she
used to scold the petitioner in filthy language and beat him.  The petitioner
informed his parents as well as his parents- in -law about the cruelty of the
respondent. They advised the respondent to change her behaviour and to live
amicably, but she did not mend her behaviour.  On 16.09.1996, the respondent
scolded the petitioner in filthy language in the presence of the owner of the
house and told the petitioner that she would never lead her marital life with
him as his wife and asked him to leave the house.  Being unable to bear with the
behaviour of the respondent, the petitioner started living separately from her.
He started living with one of his friends V. Ram Mohan.  Thereafter, the
respondent left the matrimonial home with all gold and silver ornaments worth
about Rs.1,50,000/- without intimating the petitioner and thereafter, the
respondent deserted the petitioner without any reasonable cause.

4.      The brief averments of the counter filed by the respondent are as follows:
          That the allegation of the petitioner that the respondent did not heed
to the advice of her in- laws and that she quarrelled with them is false; that
the respondent came from a civilized and respectable family; that her father
paid a sum of Rs.2,00,000/- and also gold and silver ornaments worth Rs.70,000/-
during and after the marriage on the demand of the petitioner; that thereafter,
when they shifted to the rented house, the petitioner started demanding fridge,
household furniture worth Rs.50,000/- and the same are provided by the parents
of the respondent; that the petitioner used to visit matrimonial home
occasionally while keeping the respondent and her son alone for a long period in
the rented house; that the petitioner used to address the respondent in
unbearable, inhuman and filthy language; that petitioner expressed his intention
of performing second marriage in order to get attractive dowry as the petitioner
is Engineer; that the respondent always behaved in most harmonious and
respectful manner with the petitioner and she is still looking towards him with
love and affection; that the respondent denied the allegation of the petitioner
that she scolded the petitioner in front of the house owner; that the petitioner
at the instance of Ram Mohan, and his parents used to behave in harsh manner
towards the respondent; that the petitioner voluntarily left the matrimonial
home and started living away from her and  as such, the question  of the
respondent deserting the petitioner would not arise; that the petitioner is in
possession of entire ornaments and that the parents of the respondent have
provided all required facilities and amenities including the gas connection,
fridge, cooler, fans and grinder along with required utensils to the petitioner
in the rented house; that when the respondent was forced to vacate the rented
house, the parents of the petitioner shifted all the articles to their house at
Karimnagar; that the petitioner by nature is adamant and his parents are greedy
for additional dowry from the respondent's side; that the parents of the
respondent gave Rs.1,00,000/- in cash to the petitioner and the same was kept in
fixed deposit with the post office at Karimnagar in the joint name of the
petitioner and the respondent; that the petitioner demanded the respondent to
put her signature on the withdrawal form of fixed deposit amount after the birth
of their son and he took her signature to withdraw that amount; that  the
petitioner along with his parents demanded additional dowry and in that regard a
criminal case is also registered against them and that the respondent never
deserted the petitioner, on the contrary,  it is the petitioner who deserted the
respondent.

5.      Based on the pleading of both sides, the trial Court framed the following
points for consideration.
               i.  Whether the respondent had deserted the petitioner?
                 ii. Whether the respondent had meted out cruelty to the
                     petitioner?
                 iii. Whether the petitioner is entitled for grant of divorce?


6.      The petitioner was examined as PW.1 apart from examining PWs 2 to 4,
however, no documents were marked, whereas the respondent was examined as RW.1    
apart from examining RWs 2 and 3, and Exs. B.1 to B.5 were marked.

7.      The trial Court taking into consideration the material made available on
record and after hearing both sides, dismissed the O.P. holding that the
petitioner failed to prove that the respondent deserted him and that she also
meted out cruelty to him, and as such, the petitioner is not entitled to seek
divorce.  Aggrieved thereby, the petitioner preferred this C.M.A.

8.       Heard the learned counsel on either side and perused the material made
available on record.

9.      The learned counsel for the petitioner contended that the trial Court
failed to appreciate the evidence in proper perspective.
The learned counsel
contended that the trial Court ought to have appreciated the evidence of PWs 1
to 4 in right perspective and ought to have seen that if respondent-wife is
really interested to lead her married life with the petitioner, she should have
filed a petition under Section 9 of the Act for restitution of conjugal rights.

The learned counsel contended that the trial Court failed to notice that the
petitioner tried his best to get back the respondent by sending PWs 3 and 4 as
mediators, but in vain.  The learned counsel lastly contended that the trial
Court failed to appreciate the evidence of  the petitioner as PW.1 with regard
to desertion and cruelty meted out to the petitioner by the respondent.

10.     On the other hand, the learned counsel for the respondent submitted that
the petitioner failed to show sufficient reasons which would attract the
ingredients of Section 13(1) (ia) (ib) of the Act.
Further, the trial Court has
given cogent and convincing reasons to come to the just conclusion.
Therefore,
the impugned order needs no interference at the hands of this Court.
               
11.     Having regard to the submissions made on either side and the facts and
circumstances of the case, the point that arises for consideration is whether
there are any grounds for allowing the appeal?

12.      It is the case of the petitioner that the marriage between him and the
respondent was solemnised on 06.05.1992 as per caste customs and Hindu rites and
the same is consummated and they are blessed with a male child.
 After
marriage, the petitioner and the respondent used to stay along with the parents
of the petitioner till May, 1996.
Thereafter, the petitioner and the respondent
shifted to Mankammathota and started living in a rented house.  
The allegation
of the petitioner is that during the stay at his parents' place, the respondent
used to quarrel with him and his parents on every trivial issue and scold them,
and 
even after shifting to the rented house, the respondent did not mend her
ways 
and 
used to scold him in filthy language and beat him on trivial issues.
It is also alleged that 
when he asked respondent to wash the face of their
child, she became furious and scolded him in filthy language in the presence of
the owner of the house 
and
 asked him to leave the house as she would not lead marital life with him, 
thereafter, the petitioner left the house and started living with his friend, V.Ram Mohan, 
and 
after some time, the respondent left the house along with her son.

13.         On the other hand,  it is the case of the of the respondent  that
she never quarrelled with her in -laws or with the petitioner as she came from a
civilized and respectable family.  
The parents of the petitioner are greedy for additional dowry.  
The father of the respondent paid a sum of Rs.2,00,000/-,
gold and silver ornaments worth Rs.70,000/- during and after the marriage on
demand of the petitioner.   
At the time of staying in the rented house, the
petitioner demanded to bring fridge, household furniture worth Rs.50,000/- and
the same are provided by the parents of the respondent.  
The petitioner has
expressed his intention to go for second marriage in order to get attractive
dowry.  
The respondent is always behaved in most harmonious and respectful 
manner with the petitioner and still she is looking towards him with love and
affection.

14.     In this background, it is expedient to discuss the evidence brought on
record to come to a just conclusion.

15.     The petitioner was examined as PW.1.
 PW.1 deposed that he left the
rented house due to quarrel with the respondent on 16.09.1996 and
after two
months, the owner of the house came to his college, where he was working, and
asked him to pay the rents and
when PW.1 told the owner that the respondent was
residing in the house, the owner informed the petitioner that the respondent
left the house.
The evidence of PW.1 goes to prove that the respondent was
living alone with her child in the rented house for more than two months and as
there is nobody to look after/or maintain her, she left for her parents' place.
In this view of the matter, it can be said that when the petitioner was out of
matrimonial home for a period of more than two months and was not maintaining
the respondent and their child, circumstances compelled her to go to her
parents' place.  
Further, it is observed that the petitioner never visited his in law's house to bring the respondent and her child.  
On the other hand, it is
the case of the respondent that she is always behaved in most harmonious and
respectful manner with the petitioner and still she is looking towards him with
love and affection.  
Therefore, it cannot be said that the respondent deserted
the petitioner, on the contrary, it can be said that the petitioner deserted the
respondent.

16.     In so far as the allegation of the petitioner that the respondent meted
out cruelty to him is concerned, it is the evidence of the petitioner that there
were petty disputes between him and the respondent before shifting to the rented
house and after shifting to the rented house, when he instructed the respondent
to take their son for calls of nature outside, the respondent abused him in
filthy language and asked him to leave the house, whereas it is averred in the
petition that when he instructed the respondent to wash the face of their son,
she became angry and scolded him in filthy language in the presence of the owner
of the house.  So there is inconsistency with regard to nature of work he instructed to do by the respondent.
It is the evidence of PW.1 that the
incident occurred only between himself and the respondent and there were no direct witnesses to the incident to prove the cruelty.  
But the petitioner
averred in the0 petition that on the date of incident, the respondent became
angry and scolded him in filthy language in the presence of the owner of the
house.  So there is inconsistency in the case of the petitioner.
 Further, the
petitioner in his evidence stated that the incident was witnessed by the landlord Brahmachary and three others.  
In the petition, the petitioner averred
that only his landlord Brahmachary witnessed the incident. Again there is inconsistency in the case of the petitioner.   
It is pertinent to note that on behalf of the respondent, landlord Brahmachary, who is said to have witnessed the incident, was examined in chief as RW.2.  
This circumstance certainly outweighs the case of the petitioner.

17.     The decision relied on by the learned counsel for the petitioner in A.
Jayachandra v. Aneel Kaur,1 is not at all applicable to the facts of the case on
hand since the petitioner failed to prove either mental cruelty or physical cruelty.

18.     Having regard to the facts and circumstances of the case and in the light
of the above discussion, we are of the opinion that the petitioner (Appellant)
utterly failed to prove his case, and as such, the impugned order dated
24.07.2003 in O.P. No.22 of 1999 passed by the Senior Civil Judge, Karimnagar,
does not suffer from any error or irregularity warranting interference from this
Court.

19.     In the result, Civil Miscellaneous Appeal is dismissed.  There shall be no
order as to costs.
__________________  
V. ESWARAIAH, J  
___________________  
B.N. RAO NALLA, J  
Date:04.03.2013