IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH:: AT HYDERABAD FRIDAY, THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT HON'BLE MR JUSTICE B.PRAKASH RAO AND HON'BLE MR JUSTICE G.V.SEETHAPATHY C.M.A.No.1277 OF 2002 Between: Boddu Vijaya Laxmi @ Chiguru Vijaya Laxmi ..... Appellant AND Boddu Joseph @ Jaya Prakash .....Respondent HON’BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1277 OF 2002 JUDGMENT: (Per GVS, J) This appeal is directed against the order dated 03-11-2001 in O.P.No.92 of 1998, on the file of the Senior Civil Judge, Karimnagar, wherein the said application filed by the respondent herein under Section 13(1) (ia) & (ib) of the Hindu Marriage Act, 1955, for dissolution of marriage by a decree of divorce, was allowed. 2. Heard the learned counsel for the appellant. None appeared for the respondent. Perused the records. 3. The respondent herein filed the petition for divorce against the appellant on the ground of desertion and cruelty. The marriage of the appellant with the respondent took place on 12-05-1977 as per Hindu rites and customs at Karimnagar. During the lawful wedlock, a male child was born to them. The respondent-husband was working at Mancherial and thereafter shifted the family to his village Dongathurthy. According to the respondent-husband, the appellant-wife developed dislike towards him and left the matrimonial house and started residing with her parents at Karimnagar and was demanding the husband to get transferred to Karimnagar. The husband alleges that the wife deserted him and left his society on 12-11-1991 and in spite of his making several efforts, she refused to rejoin him. The wife filed M.C.No.4 of 1982 before the Judicial Magistrate of the First Class, Karimnagar for maintenance though she was employed and drawing salary. The maintenance case was closed. The husband filed O.P.No.105 of 1986 for divorce and there was a panchayat before the caste elders wherein the wife promised to rejoin the husband. Therefore, the husband got O.P.No.105 of 1986 dismissed. But even thereafter the wife did not join him. There was again a panchayat before the caste elders on 08-11-1998 but the wife bluntly refused to join the husband. The attitude of the wife caused great mental torture and cruelty to the husband. As such, he has no other option except to file the petition for divorce. 4. The appellant-wife filed counter opposing the petition and denying the allegation that she deserted and left the matrimonial home on 12-11-1981 and also denying the panchayat before the caste elders. She would contend that the husband was always demanding her to resign her job and to get the property of her parents transferred in his favour and as she refused to comply with the abnormal demands, she was subjected to physical assault. She further alleges that the husband attributed unchastity to her and disowned the son born through him. She would also allege that on one day, the husband tried to kill her by throwing her into the well during nighttime. It is also alleged that the husband was demanding her to bring additional dowry and when she expressed her inability, he used to beat her. It is finally contended that the petition for divorce is filed only to get rid of her so that he can marry another lady. 5. During enquiry, the husband was examined as P.W.1 and one Mohd.Saleem was examined as P.W.2. The wife was examined as R.W.1 and two other witnesses RWs.2 and 3 were examined. No documentary evidence was adduced by either side. 6. The learned Senior Civil Judge by the impugned order held that the wife treated the husband with cruelty and also deserted him continuously for a period of two years immediately preceding the presentation of the petition and, therefore, the husband is entitled for grant of divorce. Accordingly, the petition was allowed dissolving the marriage by a decree of divorce. Aggrieved, by the same, the wife filed the present appeal. 7. It is not disputed that the marriage of the appellant and the respondent was solemnized on 12-05- 1977 and during the wedlock they were blessed with a son who was aged 19 years by the date of filing the application in 1998. The respondent-husband alleges that on 12-11-1981, the appellant-wife deserted him and left the matrimonial home and started living with her parents at Karimnagar and was demanding him to get himself transferred to Karimnagar. It is not disputed that the respondent-husband was working in State Bank of Hyderabad at Mancherial whereas the appellant-wife was working as Supervisor in ICDS at Karimnagar. In the petition it is averred by the respondent that he shifted his residence to his village Dongathurthi and the appellant-wife also resided with him for some time at Dongathuthi and thereafter shifted to Karimnagar developing a dislike to live at Dongathuthi, as it is a small village and started demanding the husband also to get transferred to Karimnagar. He alleges that because he refused to shift to Karimnagar as demanded by her, the wife left his society on 12-11-1981 and started living with her parents. Thus, according to the respondent-husband, the cause of desertion by the wife is his refusal to comply with her demand to shift to Karimnagar from Dongathurthi. In the evidence, the respondent-husband examined as P.W.1 gave a go bye to the version pleaded in his petition. His chief-examination is vague and is conspicuously silent as to whether they lived together after marriage and whether she deserted him. What all he deposed is that they lived happily up to December 1978 and thereafter they have been separated and living separately and that the respondent i.e., wife could not adjust with him and deserted him. There is absolutely no reference in the chief-examination of P.W.1 about shifting his residence to Dongathurthi village and the wife expressing any dislike to stay in the village and because of such dislike she deserted him and left for Karimnagar. In the cross-examination, P.W.1 stated that himself and his wife never resided at his native place Dongathurthi village and because he was working at Ramagundam they were residing at Ramagundam only. He further deposed that they got separated while he was residing at Godavarikhani in 1978. The admission of P.W.1 in the cross-examination that himself and his wife never lived at Dongathurthi village and they were residing only at Ramagundem cuts at the root of his case as pleaded in his petition, inasmuch as the very cause for the alleged desertion by the wife is stated to be her developing a dislike to reside in the village Dongathurthi. The plea of the husband that disputes started after shifting his family to Dongathurthi because the wife was not able to be adjust to live in that village and his further plea that the wife deserted him because he refused to shift to Karimnagar from Dongathurthi, is falsified by his own admission in the cross-examination that himself and his wife never lived at Dongathurthi village at all. When that is so, the question of the wife developing any dislike to continue to reside in the village and, therefore, her shifting to Karimnagar from Dongathurthi does not simply arise. P.W.1 further admitted in the further chief-examination that the wife was residing at her parents’ house in Karimnagar since 1978 onwards. 8. P.W.2 is said to be a neighbour of the appellant and respondent while they were residing at Godavarikhani. According to P.W.2, the wife used to demand the husband to shift the residence to Karimnagar and she refused to reside at Godavarikhani and in spite of his advise, she deserted the husband and left the house from Godavarikhani. It is not the case of P.W.1 in the petition nor in his evidence that himself and his wife were residing together at Godavarikhani or that P.W.2 was his neighbour. The specific case of P.W.1 is that his wife deserted him on 12-11-1991 while they were residing at Dongathurthi village and the reason for such desertion is her developing a dislike to reside in the village. The evidence of P.W.2, apart from being at variance with that of P.W.1, also improbabilises the version of the husband as to the cause of desertion, inasmuch as Godavarikhani is admittedly not a village but is a town. P.W.2’s evidence is also silent as to why the appellant-wife was refusing to reside in a town like Godavarikhani. 9. On the other hand, the version of the appellant-wife has been that after marriage, herself and the respondent-husband lived together for six or seven years at Ramagundam as well as at Mancherial and she secured a job in the year 1984 in Panchayat Raj Department. Her evidence as R.W.1 would show that she was initially posted in Chennur village of Adilabad district when the respondent-husband was working at Mancherial and he was transferred to Peddapalli and she was transferred to Mahadevpur and in 1998 she was transferred to Ashwapuram of Khammam District and even though they were working at different places, they used to meet frequently. She further testified that some time after marriage, the husband started demanding to get the property of her parents’ transferred in his name and ever since misunderstandings arose and he also developed dislike for her talking to others as an employee and was insisting upon her to resign her job. She denied that she herself deserted the husband intentionally and expressed her readiness to join his society and lead marital life, even in her evidence. She also reiterated in her evidence, her plea in the counter that in 1993 the husband even tried to kill her by pushing her into the well at Dongathurthi village on the ground that the property is not settled in his favour. 10. R.W.2, the son of the appellant and respondent who is aged 21 years by the date of his giving evidence, testified that himself and his mother used to visit his father now and then and his father used to visit their house frequently and his father was demanding his mother to transfer the landed property in his name and also demanding his mother to resign the job. He further deposed that even by the date of his giving evidence they were on visiting terms mutually. R.W.2 is not a small kid, he is a grown up man aged 21 years. His testimony cannot be brushed aside simply on the ground that he has been residing with his mother, especially when his evidence is not discredited in any manner in the cross- examination. After all, being the son and that too a grown- up man, he is the most competent witness to testify to the state of relationship between his father and mother. His evidence would disclose that there have been regular and frequent visits to each other’s place wherever they were working. The trial court erred in not giving importance to the testimony of R.W.1, which it deserves. The finding of the learned Senior Civil Judge that from the evidence on record it is clear that the husband and wife are living separately at different places without marital life since long time as the respondent-wife is not inclined to resign job and it is not possible for her to join the society of the petitioner-husband, is clearly erroneous and unsustainable. Firstly, the fact that the wife and husband have been living separately since long time by itself does not afford a valid ground for grant of divorce. 11. In a recent decision in ‘Dutt Sharma vs. Manju Sharma[1]’, the apex Court held that ‘irretrievable breakdown of marriage is not a ground for grant of divorce’. It was further held that ‘if we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant.’ 12. In the above decision, the Apex Court held that the fact that the marriage is irretrievably broken, is not ground for grant of divorce under Section 13 of the Hindu Marriage Act. In the present case, the evidence on record does not disclose that the marriage between the appellant and respondent has been irretrievably broken. The parties have been residing at different places in view of the exigencies of their jobs. The fact that the wife and husband have been living separately in the sense that they have been residing at different places where they have been working, does not lead to any inference that there has been estrangement between them or that the marriage is irretrievably broken and it is not possible for them to rejoin. Such an inference as is sought to be drawn by the trial Court, apart from being not warranted by the evidence on record, is also hazardous and leads to dangerous consequences in the present day society where it is not uncommon for a married couple who are both on jobs to live at different places away from each other on account of their employment and exigencies of service. The repeated observation of the trial Court that it is not possible for the appellant and respondent to live together as wife and husband is totally uncalled for, as the same is not supported by evidence. In fact, the evidence on record totally disproves the very plea of the husband as to the alleged cause of desertion by the wife and the total divergence between the pleadings and evidence putforward by the husband knocks the basis out of the said plea of desertion. The evidence on record would, on the other hand, disclose that the wife had to live away from the husband at different places on account of her job, but not otherwise. The evidence on record shows that the husband has been insisting upon the wife to resign her job and join him. Her refusal to resign the job cannot be put against her as amounting to desertion as she is under law perfectly justified and entitled to work and reside at her work place. Such residence, on account of job, away from the husband, cannot be branded as desertion by her. The conclusions of the trial Court that the respondent-wife is not joining the petitioner-husband to lead marital life stating that she is working at a different place is nothing but cruelty towards the petitioner and since the respondent is not residing with the petitioner on the ground that she is employed and working at a different place is nothing but desertion and the further observation that by her refusal to resign the job, the wife treated the husband with cruelty and deserted him, apart from being unwarranted are uncalled for in the light of the evidence on record, are also unacceptable and unsustainable and they tend to suggest that when the wife is unable to reside in the same house along with the husband on account of her employment elsewhere, it amounts to desertion and also cruelty on her part, which proposition defies any logic or reason. The respondent-husband pleaded that he made efforts more than once through caste elders to get back his wife and on the first occasion she agreed to rejoin and on the second she bluntly refused to do so. The said plea of mediation through caste elders totally remains unsubstantiated, as none of those caste elders or panchayatdars is examined. 13. The evidence on record does not establish the plea of the respondent-husband that the appellant- wife either deserted or subjected him to cruelty in terms of Section 13(ia) & (ib) of the Hindu Marriage Act. As the grounds alleged for grant of divorce are not made out, the respondent-husband is not entitled for the relief prayed for. 14. The impugned order of the learned Senior Civil Judge, Karimnagar dissolving the marriage of the appellant and respondent by a decree of divorce is, therefore, held unsustainable and the same is accordingly set aside. Consequently, O.P.No.92 of 1998 filed by the respondent herein stands dismissed. 15. In the result, the civil miscellaneous appeal is allowed. There shall be no order as to costs. __________________ B.PRAKASH RAO, J ____________________ G.V.SEETHAPATHY, J Dated 19th day of February 2010. Lrkm. [1] 2009 (3) ALT 12 (SC)