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2014 DIGILAW 101 (AP)

Y. Rajkumar v. Soujanya

2014-01-24

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

body2014
Judgment L. Narasimha Reddy, J. The appellant is the husband of the respondent. Their marriage took place on 11.05.1996. He filed O.P.No.65 of 1998 in the Court of Senior Civil Judge, Nizamabad, against the respondent, for divorce, pleading the grounds of cruelty. He pleaded that though they lived together for about one month after the marriage, it was not consummated, on account of lack of cooperation on the part of the respondent. He further pleaded that he went to Kamareddy on 23.01.1997 to meet the family doctor of the respondent and the doctor is said to have suggested plastic surgery for the respondent. He alleged that though there was no indication of any pregnancy in the prescription given on 23.01.1997, it was altered later on indicating that the respondent was pregnant. The appellant stated that the respondent filed O.P.No.10 of 1998 in the Court of Senior Civil Judge, Bodhan, under Section 9 of the Hindu Marriage Act, 1955 (for short ‘the Act’), for restitution of conjugal rights, but the same was dismissed for default. According to him, in the course of counselling during the pendency of that O.P., he agreed to live with the respondent and when they started living together, he found some poisonous substance in the bag of the respondent. With these allegations, he prayed for divorce. The respondent filed a counter, opposing the O.P. She stated that the appellant made several reckless allegations against her in an attempt to seek divorce. She pleaded that they lived together for quite some time, so much so, a boy was born out of their wedlock, and suppressing the truth, the appellant filed the O.P. She denied the allegations made against her. The trial Court dismissed the O.P. through order, dated 08.08.2002. Hence, this Civil Miscellaneous Appeal. Heard Sri V. Ravikiran Rao, learned counsel for the appellant, and Sri M.V.S. Suresh Kumar, learned counsel for the respondent. We have also interacted with the parties, in the course of counselling. Though the respondent stated that she is always willing to live with the appellant, the latter refused to take her to his home. The appellant sought divorce against the respondent, by pleading the grounds of cruelty. The trial Court framed only one point, namely, whether the appellant is entitled for a decree of divorce on the grounds of cruelty. Though the respondent stated that she is always willing to live with the appellant, the latter refused to take her to his home. The appellant sought divorce against the respondent, by pleading the grounds of cruelty. The trial Court framed only one point, namely, whether the appellant is entitled for a decree of divorce on the grounds of cruelty. On behalf of the appellant, P.Ws.1 to 3 were examined and Exs.A.1 to A.3 were filed. On behalf of the respondent, R.Ws.1 to 3 were examined and Exs.B.1 to B.7 were filed. Now, the point, that arises for consideration before us, is as to whether the appellant is entitled for a decree of divorce. The basis for the appellant to claim divorce is that the respondent had some abnormal physical features. In his own words spoken as P.W.1: “There is no proper growth of genital organs of the respondent. There is no proper growth of breast of the respondent. The respondent was suffering with severe stomach pain. I was not aware of these defects found in the respondent before marriage. The marriage was not consummated. There is no proper cooperation from the side of the respondent to have the conjugal relations. The respondent left my company, one month after our marriage, and thereafter she did not join my company.” It has already been mentioned that the marriage took place on 11.05.1996. Even according to the appellant, he took the respondent to a doctor (R.W.2) at Kamareddy on 23.01.1997, and that R.W.2 found some defects in the respondent and advised plastic surgery. Ex.A.1 is said to be the prescription. He, however, alleged that the prescription was manipulated to indicate the existence of pregnancy of the respondent. In her chief-examination, R.W.2 stated: “The observation made by me in Ex.A.1 is that the uterous was bulky and soft added indicates pregnancy. I prescribed syrup for R.W.1, as she was complaining morning sickness.” R.W.2 appears to have noticed the strange behaviour of the appellant. Instead of being happy and joyful, when the respondent became pregnant, he was nagging and reflecting unhappiness. R.W.2 stated: “I advised P.W.1 to consult a psychiatrist for counseling, as he was persistent of his complaint against R.W.1 and not convinced with my findings. Instead of being happy and joyful, when the respondent became pregnant, he was nagging and reflecting unhappiness. R.W.2 stated: “I advised P.W.1 to consult a psychiatrist for counseling, as he was persistent of his complaint against R.W.1 and not convinced with my findings. R.W.1 had a regular check up at my hospital, and she had a normal delivery and given breast feeding to her child.” In her cross-examination, R.W.2 stated: “On examination of R.W.1, I was satisfied that she had a normal growth of breast and vulva, but I referred her to another doctor, as P.W.1 was not convinced with my findings. I also advised P.W.1 and R.W.1 to consult another doctor, as P.W.1 was not satisfied with my findings”. No suggestion was made to the contrary, to the respondent. The appellant has gone to the extent of doubting the parentage of the child. The relevant portion of cross-examination of R.W.1 reads: “It is not true to suggest that the male issue, I gave birth, is not the son of P.W.1. I am prepared for going for DNA test for my child to confirm the parentage and also I am prepared to go for any medical checkup to show that I am fully grown up”. The appellant did not take any steps to get the DNA test. Further, no suggestion was made to R.W.2 that R.W.1 was not pregnant. The conduct of the appellant is reprehensible. Being a teacher, who is supposed to be an ideal citizen, he is stooped down to low levels. No allegation was made about the fidelity of the respondent. On the one hand, he pleaded that the growth of the respondent was not natural and, on the other hand, he complained that she was not cooperating in the sexual life. It appears that the appellant is a perverted individual with obsession towards sex. Added to that, he is of a suspicious character and, at the same time, he is afraid of facing the truth. The facts of the case reveal that the cruelty, in fact, is on the part of the appellant, towards the respondent. He rendered the life of the latter and the child miserable. It is brought to our notice that the respondent and the child are finding difficult to lead life. The facts of the case reveal that the cruelty, in fact, is on the part of the appellant, towards the respondent. He rendered the life of the latter and the child miserable. It is brought to our notice that the respondent and the child are finding difficult to lead life. We, therefore, dismiss the Civil Miscellaneous Appeal, by imposing costs of Rs.10,000/-(Rupees Ten thousand only), payable to the respondent, within two (2) months from today. The appellant shall also pay maintenance @ Rs.3,000/- (Rupees Three thousand only) each to the respondent and their child, on or before 10th of every month, from January, 2014 onwards. The maintenance payable for the month of January, 2014 shall be paid, along with that of the month of February, 2014. If the appellant fails to pay the amounts indicated, the amount due would have a charge upon the salary and other emoluments or retirement benefits of the appellant. The Miscellaneous Petitions, if any, pending in the appeal shall stand disposed of.