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2013 DIGILAW 1070 (AP)

P. Jayaram v. P. Sudha Laxmi

2013-11-26

L.NARASIMHA REDDY, M.S.K.JAISWAL

body2013
Judgment : L. Narasimha Reddy, J. 1. The marriage between the appellant and the respondent took place on 30-11-2002 and they are also blessed with a child in the year 2004. Thereafter, the parties are living separately. While according to the appellant, the respondent left his house at the time of delivery of child and did not turn up, the version of the respondent is that the appellant deserted her and did not take her back in spite of repeated requests. 2. Alleging that the respondent resorted to acts of desertion and cruelty, the appellant filed O.P. No.91 of 2006 in the Court of Senior Civil Judge, Sanga Reddy. He pleaded that soon after the marriage, the respondent started harassing him to put up a separate residence in spite of the fact that he is the only son to his old parents, who are suffering from various ailments and that though a separate residence was established, the respondent did not turn up. He pleaded that the acts of the respondent have also caused untold agony to his parents. Ultimately, he pleaded for decree of divorce. 3. The respondent filed a counter opposing the O.P. She pleaded that at the time of marriage, quite a considerable amount was given in cash and valuable articles were also presented that included two kilograms of silver articles. She pleaded that the appellant insisted that soon after the delivery of their child, she should come back despite the promise of her parents that as soon as her health becomes stable and customary functions are over, she would be sent. Reference was also made to the correspondence that ensued in this regard. She pleaded that the elder sister of the petitioner is the root cause for the disturbances in the family and unable to bear the harassment, separate residence was put up. She stated that when the appellant did not evince interest to take her to the matrimonial home, she filed a maintenance case and despite the order passed therein, the appellant did not pay the amount. She further pleaded that unable to bear the harassment, she filed a complaint, which was taken on file before the concerned Court, for the offence punishable under Section 498-A IPC. 4. The trial Court dismissed the O.P. through order dated 30-06-2010. Aggrieved by that, the appellant preferred this appeal. 5. She further pleaded that unable to bear the harassment, she filed a complaint, which was taken on file before the concerned Court, for the offence punishable under Section 498-A IPC. 4. The trial Court dismissed the O.P. through order dated 30-06-2010. Aggrieved by that, the appellant preferred this appeal. 5. Sri U.V.S. Laur, learned counsel for the appellant, submits that eversince the performance of the marriage, the respondent was reluctant and she was living with the appellant, almost under compulsion. He contends that being the only son to his parents, the appellant was under the obligation to look after them, but on account of the insistence by the respondent, he had to put up a separate residence. Learned counsel further submits that though the respondent went to her parents’ house in Adilabad for delivery, she did not come back in spite of repeated efforts. He contends that the respondent filed a complaint under Section 498-A IPC with false and frivolous allegations and the same ended in acquittal. According to him, filing of such cases would also amount to an act of cruelty. He submits that the trial Court did not properly appreciate the oral and documentary evidence particularly that of the counsellor, who made an attempt to bring about reconciliation. 6. Sri Bommanayuni Appa Rao, learned counsel for the respondent, on the other hand, submits that the appellant and his sister were harassing the respondent from the inception of the marriage itself. He submits that even in respect of a customary practice in the community, where the nuptials are arranged on the 16th day of the marriage, the appellant made a big issue of it causing humiliation to the respondent and her family. He submits that after the respondent went to her parents’ house for delivery, the appellant did not evince any interest despite the fact that the father of the respondent informed the appellant that she would be sent as soon as her health stabilises. He contends that neither the ground of cruelty nor of desertion is proved and that if the parties are living separately, it is only on account of the highhandedness and indifference on the part of the appellant. 7. The trial Court framed only one point for its consideration viz., whether the appellant herein is entitled for dissolution of his marriage against the respondent on the ground of cruelty and desertion. 8. 7. The trial Court framed only one point for its consideration viz., whether the appellant herein is entitled for dissolution of his marriage against the respondent on the ground of cruelty and desertion. 8. The appellant adduced the evidence of PWs.1 to 4 and he filed Exs.A-1 to A-8. On behalf of the respondents, RWs.1 and 2 were examined. 9. Two grounds are pleaded by the appellant as the basis for seeking divorce against his wife, the respondent herein. 10. The point that arises for consideration before us is as to “whether the appellant has proved the grounds of cruelty and desertion?” POINT: 11. The acts of cruelty alleged by the appellant against the respondent are not specific. It is on the basis of vague and general allegations he felt that there exists the ground of cruelty. Even in the absence of such specific acts, a party, in a given case, can establish cruelty. The test is whether the cumulative effect of acts and omissions on the part of the spouses created a sense of humiliation, insecurity and harassment in the other spouse. Therefore, the matter needs to be examined from that angle. 12. The appellant pleaded that the respondent did not extend cooperation even for conducting nuptials. Another facet of his allegations is that the respondent insisted on putting up a separate residence. Lastly he cites the filing C.C. No.522 of 2008 as an act constituting the cruelty. That the marriage was consummated between the parties, is not in dispute. The haste or impatience on the part of the appellant was only about the time that took place between the nuptial ceremony and the marriage. The respondent pleaded that according to the customs in their community, it is only on the 16th day, that such arrangement is made. The appellant is not at all contradicting it, and one just cannot understand the mind set of the appellant. 13. Coming to the question of insistence of establishment of a separate family, it is the specific case of the respondent that the sister of the appellant, who is residing with her parents and brother, is root cause for harassment. The appellant is not at all contradicting it, and one just cannot understand the mind set of the appellant. 13. Coming to the question of insistence of establishment of a separate family, it is the specific case of the respondent that the sister of the appellant, who is residing with her parents and brother, is root cause for harassment. The very fact that such a separate residence was put up that too in the proximity of the parents’ house of the appellant, demonstrates that the appellant was also convinced that it is not at all congenial for them to live in the house of his parents. There is nothing on record, which discloses that the respondent had ever exhibited any disrespect towards the parents of the appellant. The specific plea raised by the respondent that the sister of the appellant was harassing her, remains unexplained. 14. It is no doubt true that in certain cases, the Hon’ble Supreme Court took the view that filing of complaint under Section 498-A IPC with patently false allegations would, by itself, constitute an act of cruelty. Much, however, depends upon the persistence with which such matters are pursued. In the instant case, the record discloses that the appellant do not evince any interest to bring his wife and the new born baby to his house, that too, in spite of the written and oral requests made by the respondent and her family members. Under those circumstances, any person in the place of respondent would certainly submit a complaint under Section 498-A IPC. It is a different matter that the criminal case ended in acquittal, as is true with 95% of such cases. Unless it is proved by the appellant that the very filing of the complaint was motivated and aimed at harassing the family, it cannot be treated as a basis, constituting cruelty. 15. We, therefore, do not find that the respondent has exhibited cruelty towards the appellant and the finding of the trial Court does not warrant interference. 16. Coming to the ground of desertion, a party to a marriage can certainly seek divorce on the ground of desertion, if she or he demonstrates that the other spouse left the company without any justification. 16. Coming to the ground of desertion, a party to a marriage can certainly seek divorce on the ground of desertion, if she or he demonstrates that the other spouse left the company without any justification. Basic requirement in such cases is that the one who complains of desertion must demonstrate that he or she was willing to live with the other spouse and that the latter living separately on account of his or her disinclination. In the instant case even according to the appellant, the respondent went to her parents’ house in the year 2005 for delivery and there is nothing on record to disclose that he made an attempt to bring her back. It is customary in the families to which the parties belong that the father of the child and his family must bring the mother and the child to the matrimonial home. That did not occur. When the appellant made a half-hearted attempt, the father of the respondent promptly addressed a letter expressing the view that the respondent would be sent on completion of fifth month from delivery. No attempt was made by the appellant thereafter. His remaining quiet appears to be only with a view to create a ground for desertion. 17. We find that if the respondent is living separately from the appellant together with the minor child, it is squarely on account of the gross negligence or disinclination on the part of the appellant to live with the respondent. Due to lack of love and affection on the part of the appellant towards the respondent or their child, not only he did not care to bring them to his house, but also refused to pay the maintenance that was awarded by the trial Court. The appellant miserably failed to prove the ground of desertion also. The point is, accordingly, answered against the appellant and in favour of the respondent. 18. The appeal is, accordingly, dismissed with costs of Rs.10,000/- (Rupees ten thousand only) payable to the respondent by the appellant. The Miscellaneous Applications filed in this appeal shall stand disposed of.