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2013 DIGILAW 224 (AP)

Lakshmi Chaitanya v. B. Sharat Chandra

2013-03-25

K.G.SHANKAR, L.NARASIMHA REDDY

body2013
JUDGMENT L. NARASIMHA REDDY, J. The appellant is the wife of respondent. Their marriage took place on 25.8.2004 and they were blessed with a female child in July, 2005. The respondent filed OP No. 407 of 2008 in the Family Court, Ranga Reddy District at L.B. Nagar, for divorce against the appellant under Section 13(1)(ia) of the Hindu Marriage Act, 1955, (for short 'the Act'). He pleaded that ever since the marriage, the appellant was dreaming to go to United States of America, and after going there, she can sponsor her sister, and thereafter, settle down in United States. The respondent is said to have informed the appellant that the idea of sponsoring and settling in United States was too pre-mature. He stated that from a conversation, which took place between the appellant and her mother, while they were at Kodaikanal, he felt that the appellant was upset with something stated by his mother. It was also alleged that the appellant used to express her displeasure in remaining in the joint family and insisted for separate living. 2. The respondent has also pleaded that after the birth of a female child in the year 2005, the appellant joined him, but later on, he left for United States, on account of his employment. He alleged that when he came to India in January, 2006, the appellant did not join him, in spite of mediation. At one point of time, the appellant is said to have physically assaulted the mother of the respondent. The further allegation of the respondent is that even after he went to the house of the parents of the appellant, he was not permitted to talk to her, and they insisted that she would join him, if only he sets up a separate family and takes her to United States. Some other facts were also pleaded and ultimately, it is stated that the filing of some cases by the appellant against the respondent and his family members constitutes an act of cruelty. The respondent is said to have incurred expenditure of about Rs. 3,00,000/- in the process of defending himself in various proceedings and his repeated requests to the appellant to join him did not fructify. 3. The respondent is said to have incurred expenditure of about Rs. 3,00,000/- in the process of defending himself in various proceedings and his repeated requests to the appellant to join him did not fructify. 3. The appellant filed a counter, opposing the O.P. She stated that she was always prepared to live with the respondent and his family, but the respondent deliberately kept her in India and has always been insisting on her to reside in the house of his parents, in his absence. She pleaded that being the wife of the respondent, she had every right to insist on him, to take her to United States, where he was residing, and that the cases had to be filed, unable to bear the harassment meted out to her. 4. On her part, the appellant filed OP No. 831 of 2008, under Section 9 of the Act. She pleaded that the respondent refused to take her, though she was always ready and willing to join him. The respondent opposed that O.P., by stating that the appellant harassed him through various means and when the application for divorce is pending, the question of restitution of conjugal rights does not arise. Through a common order, dated 30.6.2011, the trial Court allowed OP No. 407 of 2008, and dismissed OP No. 831 of 2008. Hence, these two appeals. 5. Heard learned Counsel for the appellant and learned Counsel for the respondent. 6. The O.P. filed by the respondent under Section 13(1)(ia) of the Act and the one, filed by the appellant under Section 9 of the Act were heard together. However, the principal contest is the one, filed for divorce. The trial Court framed the relevant points, in terms of the relief’s claimed in the O.Ps. 7. The respondent deposed as PW 1, and he filed Exs. A1 to A3. The appellant deposed as RW1, and she filed Ex.B1, an e-mail sent by the respondent. OP No. 407 of 2008 filed by the respondent was allowed and OP No. 831 of 2008 filed by the appellant was dismissed. 8. In these appeals, the points that arise for consideration are, (1) whether the respondent made out a case for grant of divorce; and (2) whether the appellant was entitled for the relief of restitution of conjugal rights. The second point is almost dependant upon the answer to the first point. 9. 8. In these appeals, the points that arise for consideration are, (1) whether the respondent made out a case for grant of divorce; and (2) whether the appellant was entitled for the relief of restitution of conjugal rights. The second point is almost dependant upon the answer to the first point. 9. The relationship between the appellant and the respondent at the initial stages of marriage was very cordial and they are also blessed with a child, almost within one year. The respondent went to United Stated for employment/project. Though he was married by the time he left for United States, he did not initiate any steps to take the appellant to that place. However, he made an allegation against the appellant, stating that she was dreaming to go to United States. Any married woman would like to, and as a matter of fact, is entitled to accompany her husband, wherever he is, and her wish, in that regard, cannot be treated as a dream or greed. 10. The ground on which the respondent claimed the relief of divorce is the one of cruelty, under Section 13(1)(ia) of the Act. It is too well settled that the acts of cruelty mentioned in the provision, referred to above, need not be those, that result in any bodily injury, or the like. It would be sufficient, if it is proved to the satisfaction of the Court, that through his or her acts and omissions, one spouse to the marriage has caused mental agony, unrest and anguish in the mind of the other spouse. To constitute an act of cruelty, a solitary or isolated instance may not be sufficient it should be through the consistent conduct of the spouse, alleged to have caused cruelty. The proof in this regard required to be substantial. The reason is that, on being accepted, the ground would result in breaking an important event, in the lives of the two spouses, i.e., the marriage. 11. The party seeking divorce on this ground cannot have the luxury of expecting an ideal and flowery situation and treat any acts or omissions on the part of the spouse, which caused hindrance for such a rosy picture, as acts of cruelty. 11. The party seeking divorce on this ground cannot have the luxury of expecting an ideal and flowery situation and treat any acts or omissions on the part of the spouse, which caused hindrance for such a rosy picture, as acts of cruelty. It must be pleaded and proved that the concerned spouse had a deliberate intention to harass, insult and create trouble for the other spouse through physical acts, oral utterances, or other gestures. 12. A person complaining of cruelty from his or her spouse cannot dependant upon his or her participation alone, nor can the Court treat the ground as proved, on the basis of the version presented by the one, who is seeking the relief. It is only when other persons in the surroundings, including the family members, who had the occasion to observe the relationship between the spouses also form the same opinion, and if their evidence is found to be trustworthy, that the ground can be taken as proved. 13. Coming to the facts of the present case, the respondent alone deposed as witness. He stated that the appellant was dreaming of going to United States, and to sponsor her sister. It is just un-understandable as to how this thinking of the appellant, even if true; would constitute a ground of cruelty. He attributed some acts of physical assault, to the appellant However, they were not about him. It was alleged that the appellant tried to assault the mother and father of the appellant. None of them were examined as witnesses. 14. Another serious allegation is that the appellant refused to accompany him, unless he promises to take her to United States. This is equally weak and feeble. It is just un-understandable as to how the respondent expected the appellant to reside in the house of his (respondent's) parents, when he was merrily in United States. 15. It is sought to be projected that the filing of criminal cases by the wife would, by itself, constitute an act of cruelty. We are afraid that the proposition can be treated as so absolute. If a woman spouse has genuine grievance and she pursued the remedies, under the law, the effort should be, to verify as to what was the circumstances that have driven her to take recourse to the remedy. We are afraid that the proposition can be treated as so absolute. If a woman spouse has genuine grievance and she pursued the remedies, under the law, the effort should be, to verify as to what was the circumstances that have driven her to take recourse to the remedy. On the other hand, if, as pleaded by the respondent, the very factum of filing cases, under the relevant provisions of law, is to be treated as an act of cruelty, the easiest way for a male spouse, to get divorce from his wife, would be to harass her, to such an extent, that she approaches a Court of law, and then plead it as a ground to pray for divorce under Section 13(1)(ia) of the Act. Neither the Parliament, nor the Apex Court may have contemplated such a situation in their wildest of the dreams. 16. This is a typical, if not, an unfortunate case, where the learned Family Judge, concentrated only upon the evidence of respondent in a petition filed for divorce and the contents of the counter. There was not even a remote reference to the evidence of the only witness, i.e., PW1. It was almost on imagination that the learned Judge observed: “Therefore, it is very clear that the respondent is prepared to join the husband only if he is prepared to stay away from his parents. Nowhere in the entire evidence she has stated that she was subjected to dowry harassment and it is not at all her case that the petitioner and his parent's demanded her to get additional dowry. But she filed criminal cases may be with a view to pressurize the petitioner to take her to USA...” 17. Nowhere in the order, the learned Judge has undertaken any discussion as to what is the evidence, which, the respondent has adduced, to substantiate his plea of cruelty. He rested his conclusions only on the factum of filing of a complaint, under Section 498-A IPC. 18. We are not at all satisfied with the finding recorded by the trial Court, and are of the view that the respondent failed to prove and establish the acts of cruelty, attributable to the appellant. He rested his conclusions only on the factum of filing of a complaint, under Section 498-A IPC. 18. We are not at all satisfied with the finding recorded by the trial Court, and are of the view that the respondent failed to prove and establish the acts of cruelty, attributable to the appellant. The ground pleaded by the respondent, that the appellant refused to join him, in spite of repeated requests; is belied from the fact that he opposed the petition filed by the appellant under Section 9 of the Act, for restitution of conjugal rights. The trial Court placed a twisted interpretation on this, and took the view that the O.P., under Section 9 of the Act was filed by the appellant, only as a counterblast for divorce. Such an approach does not at all befit a Family Court. 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. 19. The appeals are accordingly allowed. As a result, the OP No. 407 of 2008, filed by the respondent is dismissed, and OP No. 831 of 2008, filed by the appellant herein, under Section 9 of the Act is decreed. 20. The miscellaneous petitions filed in the appeals shall also stand disposed of. 21. There shall be no order as to costs.