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2014 DIGILAW 1446 (AP)

K. Srinivas Sharma v. T. Vijaya Laksmi

2014-12-01

M.SATYANARAYANA MURTHY, RAMESH RANGANATHAN

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JUDGMENT : M. Satyanarayana Murthy, J. The unsuccessful petitioner in OP No.4 of 2004 on the file of Judge, Family Court, Kurnool preferred this appeal challenging the dismissal order dated 23-09-2004. 2. The parties to the appeal for convenience of reference ranks given in O.P.No.4 of 2004 before the trial Court will be adopted throughout the judgment. 3. The petitioner filed the OP under Section 13 (1) (i-a) of Hindu Marriage Act (for short 'the Act') and Section 7(1) (a) of Family Courts Act, seeking divorce dissolving the marriage between the petitioner and respondent alleging that their marriage was solemnized on 15-04-2001 in Saptagiri Kalyana Mantapam as per Hindu rites and customs. At the time of marriage, the petitioner is an employee of Rayalaseema Grameena Bank at Kurnool, whereas the respondent was working as Higher Grade Assistant in Life Insurance of Corporation of India (LIC), Atmakur branch. Immediately after the marriage, the marriage was consummated and set-up family at Kurnool. The respondent-wife used to shuttle between Kurnool and Atmakur to attend her duties in LIC. From the date of marriage including the date of honeymoon, the petitioner has experienced unhappiness and unbearable events in the married life which continued till the date of filing petition. Respondent used to express unhappiness about the marriage with the petitioner, developed hatredness towards the petitioner, openly declared that she was not willing for her marriage with the petitioner as the petitioner was not handsome and she married him out of pressure. 4. The respondent is highly educated and employed but not behaving properly always abuse the petitioner in the presence of his friends and family members as 'Yera' 'ore' 'Moddu' 'Moddu Vedhava' and 'Samsaraniki Panikiradu' etc., and openly declared that he was not able to perform sex to the satisfaction of respondent, which caused mental pain to the petitioner and on account of her conduct reputation of the petitioner was denounced in the society. 5. The respondent used to telephone to friends and colleagues of the petitioner by name Raja Sekhar, Excise constable and Gowri Sankar who is an employee of Rayalaseema Grameena Bank complaining about impotency of the petitioner while saying that she was not enjoying sexual life with the petitioner. 5. The respondent used to telephone to friends and colleagues of the petitioner by name Raja Sekhar, Excise constable and Gowri Sankar who is an employee of Rayalaseema Grameena Bank complaining about impotency of the petitioner while saying that she was not enjoying sexual life with the petitioner. During one day night, the respondent suddenly woke-up and started weeping loudly and poured kerosene on her body while shouting that the petitioner is "ugly fellow" and that her family members cheated her and expressed her intention to take revenge against all his family members by filing a case and intending to ruin the career of all of them. Thus, the indifferent attitude of the respondent caused severe mental cruelty to the petitioner. 6. The petitioner bore all the harassment, torture and mental agony to maintain family relationship and to keep up esteem of family with a hope that respondent would change her attitude. But no useful purpose was served on account of behaviour of the petitioner and he was not able to concentrate on employment and consequently shifted from cash section to other section. The petitioner having no other alternative got issued legal notice calling upon the respondent to join him to lead marital life. Hence sought divorce on ground of cruelty. 7. The respondent field counter denying the material allegations resisted the claim of the petitioner on the following grounds: 8. The allegations made in the petition are far from truth and it is nothing but exposure of the petitioner mental disorder. The petitioner is educated and employed in bank. But he does not behave with his better-half who is educated employed lady and the petitioner forgot the sanctity and sacredness of wedlock and making grave allegations losing mental balance because of infertility. She also denied the allegations made in the legal notice. It is further contended that the acts or omissions attributed to the respondent, which amounted to cruelty are baseless. The respondent opposed grant of divorce on any of the grounds and prayed to dismiss the petition. 9. During the course of enquiry on behalf of the petitioner, PWs 1 to 5 were examined marked no documents. Respondent herself was examined as RW.1 and marked Exs B.1 and B.2. 10. The respondent opposed grant of divorce on any of the grounds and prayed to dismiss the petition. 9. During the course of enquiry on behalf of the petitioner, PWs 1 to 5 were examined marked no documents. Respondent herself was examined as RW.1 and marked Exs B.1 and B.2. 10. Upon hearing argument of both counsel, perusing the oral and documentary evidence, the trial Court dismissed the petition rejecting the relief of divorce dissolving the marriage between the petitioner and respondent on the ground of cruelty observing that the allegations made in the petition are in the nature of family feud and mother-in-law and sister-in-law of respondent are responsible for this feud. 11. Aggrieved by the dismissal order, the petitioner being unsuccessful, filed the present appeal on various grounds mainly contending that the trial Court did not appreciate the evidence of PWs.1 to 5 in proper prospective and describing the evidence of PW.1 as self-serving and without any basis, making grave allegation of impotency against the petitioner and insulting him in the presence of his friends certainly would cause mental pain or agony which may diminish his capacity to discharge his duties effectively in a financial institution. But the trial Court did not consider the effect of making such allegations in the presence of friends and relatives of the petitioner. The acts or omissions attributed against the respondent are substantiated by examining PWs.1 to 5, but the trial Court did not consider the evidence in proper perspective with reference to law laid down by various Courts and prayed to allow the appeal setting aside the decree and order passed by the trial Court in O.P.No.4 of 2004 on the file of Judge, Family Court at Kurnool and grant decree of divorce, dissolving the marriage of the petitioner and respondent. 12. During the course of argument, learned counsel for the petitioner would contend that serious allegation of impotency attributed to the petitioner would certainly amount to mental cruelty and legal cruelty and it is a ground under Section 13 (1) (1-a) of the Act, placed reliance on a judgment of Viswanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 , and prayed to grant decree of divorce. 13. 13. Per contra, it is the contention of the respondent that serious allegations made in the petition against respondent are not substantiated by evidence except the interested testimony of PW.1 and his supporters PWs 2 to 5. The facts elicited in cross-examination would establish that the allegations made in the petition are false on the face of it. Therefore, the trial Court rightly believed the contention of respondent and dismissed the petition, declining to grant divorce dissolving marriage between petitioner and respondent and prayed to dismiss the appeal confirming decree and judgment of the trial Court. 14. Considering the contentions of learned counsel for the petitioner, perusing oral and documentary evidence and order under challenge the sole point that arise for consideration is as follows: Whether the respondent used to call the petitioner as 'Yera' 'ore' 'Moddu' and 'Moddu Vedhava' and "Samsaraniki panikiradu" etc., (in vernacular) and that the petitioner is an impotent, in the presence of friends and relatives of the petitioner? If so, such acts caused mental cruelty which creates reasonable apprehension in the mind of the petitioner that it is unsafe for him to live with the respondent; if so whether the marriage between the petitioner and respondent to be dissolved? Point: 15. The petitioner filed this petition for grant of divorce on ground that he was subjected to mental cruelty by the respondent. Both the petitioner and respondent are educated and employed in different Government undertakings. But the petitioner filed this petition on account of his alleged unbearable mental harassment. The specific instances pointed out by the petitioner are that the respondent though educated and employed person used to comment him as 'Yera' 'ore' 'Moddu' 'Moddu Vedhava' and 'Samsaraniki Panikiradu' etc., and complain that he is impotent, unable to perform sexual intercourse, to the colleagues of the petitioner which denounce his prestige among his friends though said allegation is not true. Whereas, the respondent simply denied the serious or wild allegation made against her and while contending that the petitioner lost mental balance, made such wild allegations against her and still she wanted to keep up marital tie. The petitioner sought divorce on the ground that he was subjected to cruelty by the respondent attributing several acts or omissions to the respondent amounting to cruelty which are referred in the earlier paras. 16. The petitioner sought divorce on the ground that he was subjected to cruelty by the respondent attributing several acts or omissions to the respondent amounting to cruelty which are referred in the earlier paras. 16. To substantiate those acts or omissions attributed to the respondent, the petitioner himself was examined as PW.1. As usual he reiterated the allegations made in the petition in his examination-in-chief. In the cross-examination he admitted about issue of legal notice dated 04-01-2002 calling upon the respondent to join him to lead marital life i.e. for restitution of conjugal rights. But explaining reason for calling the petitioner to join him is that she may change her attitude at least after receipt of notice. But since there was no change in her attitude he filed the present petition. In entire cross-examination of PW.1 nothing has been elicited to disprove the allegations made in the petition or the examination-in-chief of PW.1. The tenor of cross-examination of PW.1 at best show that the respondent is having love and affection towards the petitioner, so, she used to shuttle between Atmakur and Kurnool, living under same roof. The counsel for the respondent made an attempt to prove that respondent is having love and affection towards the petitioner but it is not a ground to disbelieve the plea of the petitioner. A bald suggestion was put to PW.1 that the respondent never insulted the petitioner in the presence of his friends and she never abused him that he is impotent and got denial of it. Thus nothing has been elicited to discredit the testimony of PW.1 with regard to the acts and omissions attributed to the respondent, which diminish his prestige among his friends. 17. The petitioner also examined M. Venkataiah, Landlord of the petitioner where the petitioner and respondent used to live as tenants on payment of Rs. 1000/- per month since February,2002. According to the testimony of PW.2 the petitioner and his wife occupied a part of his house bearing No.51/15-A/18-5 of Baba Brindavan Nagar, Kurnool on payment of monthly rent of Rs. 1000/- and even by the date of entering into the tenancy, the terms between petitioner and respondent were not good and they used to quarrel with each other. The respondent used to scold and abuse the petitioner in filthy language in the presence of others and abused the petitioner in his presence and his wife, many times. 1000/- and even by the date of entering into the tenancy, the terms between petitioner and respondent were not good and they used to quarrel with each other. The respondent used to scold and abuse the petitioner in filthy language in the presence of others and abused the petitioner in his presence and his wife, many times. The respondent used to call the petitioner as 'Yera', 'ore', 'Moddu' and 'Moddu Vedhava'. Sometimes during nights, he used to hear cries of the respondent suddenly scolding the petitioner as 'you ugly fellow'. PW.2 being elderly person unable to bear the awkward situation and advised the respondent several times to control herself as an Indian and Hindu woman. But she did not change her attitude. In the cross-examination, the counsel for the respondent could elicit that PW.2 is under occupation of rear portion of house, while front portion of the house is under occupation of petitioner and his wife respondent herein and made an attempt to elicit that there is no possibility to hear the conversation and put a suggestion to witness that there is no possibility to hear the conversation and got denial of it. When the petitioner and respondent used to live in a part of the house, though PW.2 is under occupation of rear portion of the house, there is every possibility to hear shootings during nights because, silence prevail during nights, normally. Hence the possibility to hear shootings etc., cannot be ruled out and presence of PW.2 cannot be denied. In the entire cross-examination of PW.2, no suggestion was put to him denying that the respondent never abused or scolded the petitioner in the presence of his friends or in the presence of Pw.2 and his wife. In the absence of any suggestion, the evidence of PW.2 can be believed. The petitioner also examined Sheelam Seshadri Naidu who is neighbour of rented house of the petitioner and respondent. But in the examination-in-chief, he testified that petitioner and respondent used to quarrel for petty reasons and the respondent called the petitioner as 'Yera', 'ore', 'Moddu' and 'Moddu Vedhava'. Thereby insulted and harassed the petitioner in the presence of several friends and public including neighbours and being elderly person, he advised the respondent not to behave rudely. In the cross-examination, PW.3 admitted that the petitioner wept before him as the respondent is not behaving properly towards him. Thereby insulted and harassed the petitioner in the presence of several friends and public including neighbours and being elderly person, he advised the respondent not to behave rudely. In the cross-examination, PW.3 admitted that the petitioner wept before him as the respondent is not behaving properly towards him. This fact also supports the case of petitioner. Further a suggestion was put to him that respondent never misbehaved with the petitioner and denied by him. 18. One P. Govindu was examined as PW. 4 landlord of petitioner and respondent for some time. But his evidence is not useful to prove the acts or omission attributed to the respondent for grant of divorce. 19. One Masoom Saheb was examined as PW.5. He is Managing Director of Rayalaseema Farmers Cooperative Society, which is sponsored by Rayalaseema Grameena Bank but he is working on deputation, as he is working as Manager in Rayalaseema Grameena Bank, Tangatur along with the petitioner prior to his deputation and he knows both the petitioner and the respondent and he used to visit the house of the petitioner and the respondent. He observed that there was no cordial relationship between the Sreenivasa Sharma and his wife. Respondent used to scold Srinivasa Sharma in his presence without any decency and telephoned him and used to inform that "Your friend Sreenivasa Sarma is Moddu Vedhava" and that fellow "Samsaraniki paniki Radu" etc,. Then he advised the respondent not to utter those words. PW.5 was cross-examined at length. But nothing has been elicited except suggestion that respondent never behaved indecently in his presence and that she never informed him by phone that your friend Srinivasa Sharma is 'Moddu Vedhava' and denied by him. PW.5 admitted that no educated woman speaks indecently about her husband in the presence of other persons but the respondent scolded the petitioner indecently. In the entire cross-examination nothing was elicited to discredit the testimony of PW.5 with regard to the words uttered against the petitioner by the respondent over phone. 20. The respondent though denied the acts or omissions attributed to the petitioner while contending that due to loss of mental balance, he made such serious allegations. To substantiate her contention she herself examined as RW.1 filed affidavit under Order 18, Rule 4 CPC reiterated what she pleaded in her counter. 20. The respondent though denied the acts or omissions attributed to the petitioner while contending that due to loss of mental balance, he made such serious allegations. To substantiate her contention she herself examined as RW.1 filed affidavit under Order 18, Rule 4 CPC reiterated what she pleaded in her counter. In the cross-examination she admitted that her two sisters and one brother are unmarried and her father is a retired Andhra Bank Officer and that they were residing in the rear portion of the house of PW.2 and front portion is occupied by PW.2. Therefore living together in the house of PW.2 is undisputed. When they are living together in the house of PW.2 there is every possibility to hear the conversation during nights and same cannot be ruled out. Several suggestions were put to RW.1 suggesting that she used to call the petitioner as 'Yera', 'ore', 'Moddu' 'Moddu Vedhava' and Samsaraniki Panikiradu etc. and that she was not behaving with him properly and those suggestions were bluntly denied by her. She admitted about giving complaint against petitioner and his mother for harassing her for non-payment of dowry. She denied a suggestion that she subjected the petitioner to cruelty by insulting the petitioner in the presence of others. Thus in the entire cross-examination of RW.1 the counsel for the petitioner could elicit nothing except suggestions and getting denial of those suggestions denying the acts or omissions attributed to the respondent. 21. As seen from the material available on record Pw. 2 is the owner of the house where the petitioner and respondent used to live as tenants occupying part of the house. Pw.5 erstwhile manager of Rayalaseema Grameena Bank, where the petitioner is working. But the trial Court described them as interested witnesses and refused to place reliance on their evidence. But they are not interested witnesses for the reason that they are not going to get benefit out of this litigation, hence PWs 2, 3 and 5 cannot be said to be interested witnesses, in view of relationship of Land lord and tenant, Manager and Assistant between him and the petitioner, their presence cannot be doubted. PW.2 is the owner of the house. PW.3 is neighbour who are allegedly witnessed the alleged incident being the occupier of part of the house and neighbour. PW.2 is the owner of the house. PW.3 is neighbour who are allegedly witnessed the alleged incident being the occupier of part of the house and neighbour. Therefore, their presence at the time of those acts or omissions attributed to the respondent cannot be doubted. PW.5 was the manager of Rayalaseema Grameena Bank to whom she used to telephone complaining about impotency of the petitioner. In the evidence of RW.1 she did not deny the allegation of telephoning to PW.5. Therefore, un-rebutted testimony of PWs 2, 3 and 5 who are independent witnesses cannot be discarded while appreciating the evidence. 22. Undisputedly, at the first instance the petitioner called upon the respondent to join him to lead marital life by issuing Ex.B.1 notice dated 04-01- 2002. The trial Court disbelieved the omissions or acts on the ground that those acts were not complained in Ex.B.1 notice. A bare look at the contents of Ex.B.1 the petitioner made several assertions in the notice that the respondent used to cause troubles to the petitioner for one reason or other without any justifiable cause or reason and that their parents took her to their native place on account of Ashada masam and that she made unnecessary and baseless allegation against the petitioner, such as impotency etc., Therefore the allegation of petitioner calling as 'Yera', 'ore', 'Moddu', 'Moddu Vedhava' and Samsaraniki Panikiradu etc., are not found in notice, absence of these allegations may be a ground to disbelieve those allegations. But making wild allegation against the petitioner i.e. impotency, unfit for performing sexual intercourse certainly causes mental pain and it is a ground to grant divorce under Section 13-1 (ia) of the Act. Even in the counter she made an allegation that due to infertility the petitioner making baseless allegation against the respondent, it also indicates that due to petitioner's inability to procreate children she did not conceive. It is a serious allegation as impotency of petitioner is not proved. 23. The cruelty is not defined under Hindu Marriage Act but it is a act of indifferent to or delighting in another's pain. The Courts have described the cruelty in different cases differently depending upon the facts and circumstances of each case. Cruelty may be infinite variety. It can be subtle or brutal. It may be physical or mental. It may be by words, gestures or by mere silence, violence or non-violence. The Courts have described the cruelty in different cases differently depending upon the facts and circumstances of each case. Cruelty may be infinite variety. It can be subtle or brutal. It may be physical or mental. It may be by words, gestures or by mere silence, violence or non-violence. That is the reason why Courts have never tried to give an exclusive definition of cruelty in matrimonial law. However to constitute cruelty the acts or omissions must be so serious to create reasonable apprehension in the mind of other spouse that it is unsafe for one spouse to live with the other. The legal concept of cruelty generally described as conduct of such character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger. Therefore, no hard and fast rule can be laid down as to what acts or conduct will amount to cruelty in any given case. What may amount to cruelty in one case may not be in another case. In deciding whether or not a particular state of affairs amounts to legal cruelty, the Court has to consider the social status, the environment, the education, the mental or physical conditions and the susceptibilities of the innocent spouse as also the custom and manners of the parties. Whether acts and conduct complained of constitute cruelty have to be construed in reference to the whole matrimonial relationship. It may be that various acts or conduct complained of, by itself and in isolation to each other, do not amount to cruelty, but in their overall effect they may have amount to cruelty. Therefore, it is obligatory on the part of Courts to take into consideration of cumulative effect of acts of one spouse and decide whether those acts or omissions amount to either physical or mental cruelty if those acts complained would cause mental agony. Such cruelty can be said to be a legal cruelty, which constitutes a ground to grant decree of divorce. Time and again the Apex Court discussed about the acts which would amount to cruelty, precisely defined the word cruelty. 24. Such cruelty can be said to be a legal cruelty, which constitutes a ground to grant decree of divorce. Time and again the Apex Court discussed about the acts which would amount to cruelty, precisely defined the word cruelty. 24. In Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591 the Apex Court while deciding the matter for grant of divorce on the ground of cruelty and desertion held as follows: "Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts, which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, or suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of sensitivity of the petitioner and has to be adjudged on the basis of course of conduct which would, in general, be dangerous for a spouse to live with the other. The averments made in the petition and the evidence led insupport thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life." 25. In another judgment of Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675 the Supreme Court held as follows: "To constitute cruelty, the conduct complained of should be 'grave and weighty' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. In another judgment of Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675 the Supreme Court held as follows: "To constitute cruelty, the conduct complained of should be 'grave and weighty' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive languages leading to constant disturbances of mental peace of the other party". "The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity, it has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. It is for the Court to weigh the gravity, it has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be by words, gestures or by mere silence, violent or non-violent". 26. In another judgment of Samar Ghosh v. Jaya Ghosh, 2007(4) ALD 11 (SC) the Apex Court precisely gave illustrations of the acts amount to cruelty. 27. The following are instances of human behaviour to amount to mental cruelty: (i) on consideration of complete matrimonial life of the parites acute mental pain, agony and suffering as would not make possible for the parites to live with each other could come within the broad parameters of mental cruelty. (ii) ........ (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. 28. Keeping in mind relevant considerations to decide cruelty and those two instances, applying to the facts of the present case, certainly serious or wild allegations made against the petitioner by the respondent that the petitioner is "impotent" amount to cruelty, such baseless allegations would certainly amount denouncing his prestige among his friends and public and when the respondent telephoned to PW.5 and informed that the petitioner is impotent and incapable of performing sexual intercourse, certainly it would cause mental pain. 29. For deciding the questions, it is necessary to know what is the meaning of impotency, it means: "The word 'impotency' is absolate. Previously it was used as a blanket term to denote that the male is not sexually fit. Now, the word impotency is no more used. Scientifically accepted term is "ERECTILE DISFUNCTION" which means inability to get erection/or inability to perform sexual intercourse." 30. Previously it was used as a blanket term to denote that the male is not sexually fit. Now, the word impotency is no more used. Scientifically accepted term is "ERECTILE DISFUNCTION" which means inability to get erection/or inability to perform sexual intercourse." 30. Since, impotency is a physical or mental condition it can be proved by medical expert but no such evidence is brought on record, thereby failed to prove impotency of petitioner. 31. In similar circumstances, the Division bench of this Court in Susarla Subrahmanya Sastry v. Padmakshi, 2005(4) ALT 677 ruled as follows: "On account of non-cooperation, hostile attitude of wife-respondent, the husband-petitioner was subjected to serious frustrative experience, it can safely be termed as cruelty within Section 13(1)(ia) of the Act. There is no dispute that the respondent and her parents saying that the petitioner cannot perform sexual intercourse. In our view failure to prove erectile disfuction amount to cruelty." 32. In another judgment reported in G. Padmini v. G. Shivananda Babu, AIR 2000 AP 176 the Division Bench of this Court held that: "When wife made complaint about her husband's impotency and soon after she conceived, immediately her husband filed petition for divorce on the ground of making false allegation, on the ground of cruelty as she made false allegation which caused mental pain and anguish held such conduct amounts to mental cruelty". 33. In view of the principles laid down by this Court in making baseless allegation of impotency against husband or wife causes mental pain and denounces prestige in office so also among his friends. It is nothing but stigmatizing the ability of the petitioner among relatives, friends and public pointing out his inability to perform sexual intercourse. Therefore, such acts certainly causes mental pain, which disables the petitioner, to concentrate on his duties in employment and therefore it is unsafe for him to live with the respondent. Such acts certainly amount to cruelty. 34. Learned counsel for the petitioner while contending that making serious allegations amount to cruelty placed reliance on judgment referred (supra) where the Apex Court held that: "Cruelty has inseparable nexus with human conduct and is always dependent on social strata or milieu to which parties belong, their ways of life, relationship, temperaments and emotions that are conditioned by their social status." 35. In the facts of above judgment, the wife made news item publishing that her husband was a womanizer and drunkard and allegation of extramarital relationship, effort to prosecute him in criminal litigation under Sections 494 and 498-A IPC which ultimately resulted in acquittal and the Court concluded that certain acts caused deep mental pain, agony, suffering and frustration to the appellant husband and it amounts to mental cruelty to grant a decree of divorce. 36. In the present case the respondent-wife made serious allegation of impotency against the petitioner–husband that would certainly cause mental pain to him if the allegation is not true. Here the respondent did not prove that the petitioner is impotent. Even otherwise telephoning to PW.5 complaining that the petitioner is unable to perform sexual intercourse certainly amount to publicizing that petitioner is incapable of performing sexual intercourse and such act amounts to legal or mental cruelty, which affords a ground to grant decree of divorce under Section 13-1 (ia) of the Act. But the trial Court did not consider the conditions in which the petitioner and the respondent are living, their social back ground, traditions they believe, their educational qualification and sense of reaction of each other to such wild allegations but concluded that the disputes between the petitioner and respondent are only in the nature of family feud, on account of mother and sister of the petitioner, stay with them. This reasoning is not based on any material and not supported by any law. The trial Court totally ignoring a specific allegation made and in the notice Ex.B.1, which is the basis for entire case and the evidence adduced in support of such allegation, dismissed petition, erroneously. Hence, the finding of the trial Court liable is to be set aside holding the making wild allegation against petitioner husband that he is incapable to perform sexual intercourse or impotent is a ground to grant decree of divorce under Section 13-1(ia) of the Act. Hence, we hold this point in favour of the petitioner and against the respondent. 37. In view of aforesaid discussion on point, we find that the respondent subjected the petitioner to mental cruelty and thereby, the petitioner is entitled to decree of divorce under Section 13-1(ia) of the Act. Hence, the petitioner is entitled to decree of divorce dissolving the marriage between the petitioner and husband. 38. 37. In view of aforesaid discussion on point, we find that the respondent subjected the petitioner to mental cruelty and thereby, the petitioner is entitled to decree of divorce under Section 13-1(ia) of the Act. Hence, the petitioner is entitled to decree of divorce dissolving the marriage between the petitioner and husband. 38. In the result, appeal is allowed setting aside the dismissal order dated 23- 09-2004 in O.P.No.4 of 2004 passed by the Judge, Family Court, Kurnool and allowed the petition granting decree of divorce dissolving the marriage between petitioner and respondent. But in the circumstances each party has to bear their own costs.