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2014 DIGILAW 90 (AP)

K. Sree Devi v. K. Vidya Sagar

2014-01-23

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

body2014
Judgment L. Narasimha Reddy, J. 1. The appellant is the wife of the respondent. Their marriage took place way back on 4.11.1981 and they were blessed with three children. The respondent filed O.P.No.15 of 2001 in the Court of the Senior Civil Judge, Srikalahasthi against the appellant for divorce, under Sec.13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 (for short 'the Act'). He pleaded that though they lived happily together till 1997, the appellant changed her attitude and behaviour from 1998 onwards and she left the house abruptly and without intimation. He further alleged that the appellant was interested more in extending financial help to the husband of her sister, who filed an Insolvency Petition than to look after her own family. It was also alleged that the appellant insulted the respondent in many ways. 2. The appellant filed a counter and opposed the O.P. She denied the allegations made in the O.P. She pleaded that it was the family of the respondent that insisted on the marriage of the respondent with the appellant and thereafter they have been making demands for dowry, though at the time of marriage it was stated that no dowry would be demanded. She further stated that a house, which was given to her by her father, was sold on account of financial difficulties and the respondent cannot have any objection for it. The trial Court decreed the O.P., through order dt. 18.3.2003. Hence the present appeal. 3. Sri V. Sudakar Reddy, learned counsel for the appellant submits that even according to the respondent the alleged desertion on the part of the appellant was on 01.05.2000 and whereas the O.P. was filed on 20.06.2001 i.e., less than two years from the date of the alleged desertion. He submits that the learned trial Judge has imported his personal likes, dislikes and attitude into the case and granted the decree though the grounds of desertion and cruelty were not at all proved. 4. Though the respondent is served with notice, he has not chosen to enter his appearance. 5. There is no dispute that the parties are spouses and they were blessed with children. Twenty years after the marriage, the respondent filed the O.P., by pleading the grounds of cruelty and desertion. 6. 4. Though the respondent is served with notice, he has not chosen to enter his appearance. 5. There is no dispute that the parties are spouses and they were blessed with children. Twenty years after the marriage, the respondent filed the O.P., by pleading the grounds of cruelty and desertion. 6. The trial Court framed the following points for its consideration: (1) Whether the petitioner is entitled for grant of divorce by dissolving the marriage with the respondent on the ground of desertion and cruelty? (2) Whether the petition can be allowed? 7. On behalf of the respondent, PWs.1 to 3 were examined and a notice, dt.09.08.1999 and its acknowledgment were filed as Exs.A-1 and A-2 respectively. On behalf of the appellant, RWs.1 and 2 were examined and no document was filed. 8. The trial Court recorded findings to the effect that the respondent proved the grounds of cruelty and desertion and decreed the O.P. 9. Now, the points that arise for consideration in this appeal are as to (i) whether the O.P., as filed by the respondent herein, was maintainable in law? (ii) whether the respondent has established grounds of cruelty and desertion on the part of the appellant? 10. Point No.1: The first point framed above is referable to Sec.13 (1)(ib) of the Act. In a way it overlaps the second point also. The Act does recognize desertion on the part of a spouse as a ground for the other spouse to seek divorce. However, the desertion can be a ground for divorce if it is for a continuous period of not less than two years immediately preceding the presentation of the petition. The respondent was not clear as to the exact date of alleged desertion. For example, in the first sentence of Paragraph-6, he stated.. ‘The petitioner submits that finally the respondent deserted the petitioner to her parents’ house at Prashani Nilayam, Puttaparthi on 1.8.1998 without the consent and without the valid reasons of the petitioner’. Thereafter, he said to have addressed letters to the appellant. In the same paragraph it was mentioned that the appellant came back on 20.4.2000 to the house of the respondent at Srikalahasthi. Therefore, the plea that the appellant deserted the respondent on 01.08.1998 becomes untenable. 11. It is not as if the respondent continued to treat the alleged desertion on the part of the appellant from 01.08.1998 onwards. In the same paragraph it was mentioned that the appellant came back on 20.4.2000 to the house of the respondent at Srikalahasthi. Therefore, the plea that the appellant deserted the respondent on 01.08.1998 becomes untenable. 11. It is not as if the respondent continued to treat the alleged desertion on the part of the appellant from 01.08.1998 onwards. In para-6 itself, the respondent stated… ‘The respondent finally deserted the petitioner again without the petitioner committing any mistake or wrong on 1.5.2000’. Once the respondent himself stated that the desertion, finally or otherwise, on the part of the appellant was on 01.05.2000, an O.P., pleading that ground could have been presented only after 01.05.2002. The O.P., however, was filed on 19.07.2001. This does not at all satisfy the requirement under Sec.13(1)(ib) of the Act, which stipulates a minimum of two years period from the date of desertion, for filing the O.P. Therefore, the O.P., was not maintainable. Though this plea was not raised in the O.P., this Court cannot remain oblivious to undisputed facts, which have a direct bearing upon the maintainability of the O.P. The Point No.1 is answered accordingly, in favour of the appellant. 12. Point No.2: Now it needs to be seen as to whether the respondent has proved the grounds of cruelty and desertion on the part of the appellant. This would be on the assumption that the O.P., is otherwise maintainable. The acts of cruelty pleaded in the O.P., are not in the form of any bodily injuries or physical quarrels. It is said to be mental agony caused to the respondent due to the acts and omissions on the part of the appellant. Hardly there is any evidence in this behalf. One incident, which the trial Court treated as constituting the act of cruelty, is that the appellant sold a house without the permission of the respondent. It is not in dispute that the said house was gifted to the appellant by her father. Still the trial Court held that the ground of cruelty was proved, almost by applying the tenets which exist in a feudal set up. The relevant portion reads as under: “On the whole, the respondent sold away the house for the purpose of giving assistance to Bhaskar Naidu, otherwise there was no necessity. Still the trial Court held that the ground of cruelty was proved, almost by applying the tenets which exist in a feudal set up. The relevant portion reads as under: “On the whole, the respondent sold away the house for the purpose of giving assistance to Bhaskar Naidu, otherwise there was no necessity. In case the petitioner would deserted her, she would have lived in the house at Kondamitta which was given by her father and also getting some rents for her livelihood. Instead of it, she sold away and distributed the money as if it was given as a lone to Bhaskar Naidu and another Prasad. No husband would tolerate for this highhanded acts. Even though, the house may be hers, yet it should be sold away with the consent of her family members i.e., the petitioner. RW-2 admitted that the mother of the petitioner was sick and old-aged woman.” 13. It is interesting to note that the learned trial Judge did not want the appellant to sell the house, because she would not have any shelter, on being deserted by the respondent. There cannot be a better instance of demeaning the institution of marriage or humiliating a woman spouse, than this. Even while recognizing that the appellant is the owner of the house, the learned trial Judge observed that the appellant could not have sold the house except by obtaining permission from her husband. More interesting part of it is that the act of sale of the house was linked to the plea of desertion also, and a finding was recorded to the effect that the sale of the house resulted in an act of desertion and amounting to cruelty to the respondent. We find that the order passed by the trial Court is totally unsustainable. 14. The CMA is accordingly allowed and the decree passed by the trial Court is set aside. There shall be no orders as to costs. Consequently, the miscellaneous petitions, if any pending, stand disposed of accordingly.