HON’BLE SRI JUSTICE D.S.R. VARMA AND HON’BLE SRI JUSTICE B.N. RAO NALLA Civil Miscellaneous Appeal No.477 of 2007 Date: 18.08.2010 Between: Pantham Subhakara Vijayakumar … Appellant and Pantham Sucharita Vijaya Kumari … Respondent HON’BLE SRI JUSTICE D.S.R. VARMA AND HON’BLE SRI JUSTICE B.N. RAO NALLA Civil Miscellaneous Appeal No.477 of 2007 ORAL JUDGMENT : (per Hon’ble Sri Justice D.S.R.Varma) Heard learned counsel for the appellant as well as learned counsel for the respondent. 2. This appeal is directed against the order and decree, dated 09.04.2007, in H.M.O.P.No.105 of 2003, passed by the I Additional Senior Civil Judge, (FAC) Principal Senior Civil Judge, Guntur, dismissing the petition filed by the appellant-husband against the respondent-wife under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 seeking divorce on the ground of cruelty. 3. The appellant is the husband and the respondent is the wife. 4. For the sake of convenience, in this judgment, the parties are referred to as ‘the husband’ and ‘the wife’, respectively. 5. The facts, in brief, are that the marriage between both the parties took place on 27.8.1978 at Guntur as per the Hindu rites and customs and the marriage was consummated. Thereafter the husband left to U.S.A. Since the wife was pursuing her M.A. course, she stayed back in India to prosecute her academic course. Subsequently, the wife was taken to U.S.A. by the husband. During their stay in Loss Angles in U.S.A., the wife started expressing her unwillingness to lead marital life with the husband. It is the specific averment of the husband that the wife used to behave in a friendly manner with others and also use to take car rides with strangers inspite of requests made by the husband not to do so, that she was also addicted to sleeping pills and sedatives and also alcohol, that there used to be frequent quarrels even with regard to the basic needs of the husband, that, therefore, the husband took her back to India on 29.12.1982 and later to his parents house at Kakinada, that the parents of the wife also came, reprimanded her and informed the husband that they would take her along with them and try to change her attitude. However, the efforts made by the husband through mediators for restoration of marital life with the wife did not yield any result. 6. It was further averred that the suit O.S.No.371 of 1984 on the file of the Principal Senior Civil Judge, Kakinada, filed by the wife seeking maintenance was decreed and the same was confirmed in A.S.No.58 of 1991 on the file of the III Additional District Judge, Kakinada, and further confirmed by this Court in S.A.No.304 of 1997. Since both the husband and the wife have estranged since 1984, the husband filed the present petition seeking divorce against the wife. 7. On the other hand, the wife filed counter admitting the consummation of the marriage and specifically averred that it is the husband alone, who had mal-treated and neglected her right from the inception of their marriage. She further alleged that the husband had intentionally and deliberately delayed initiation of the process of obtaining VISA for her and it was only at the intervention of the parents of the husband, she could travel to U.S.A. to live along with the husband in September, 1981. During their stay in U.S.A. from 18.9.1981 to 30.12.1982, the husband prevented her from contacting her parents over telephone and meeting her sister in New York, that the husband used to abuse her and also beat her brutally, as a result of which she used to collapse losing consciousness, that being a devoted wife, she bore all the ill-treatment with a fond hope that the husband would be changed in due course. 8. It is specifically averred that the husband was addicted to vices like drinking, debauchery etc., and that he had pre-marital relationship with a woman, by name Rohini, that only on the pretext that she could see her parents, the husband brought her back to India on 2.1.1983 and took her to Kakinada. Thereafter he left to U.S.A. and by playing fraud through his family members, he had obtained an exparte decree for divorce from a Court in U.S.A. on 25.8.1983 and the same was served on her on 8.12.1983 at Vijayawada, that realizing the fraud played on her, she promptly took steps to get the said exparte decree set aside as American Courts have no jurisdiction to adjudicate the matter, that prior to his departure to U.S.A., the husband wrote a letter to her that he is going to marry another woman, that she went to U.S.A. on 24.12.1983 and stayed with her sister in New York till 30.4.1984 and during the said period, her efforts to contact the husband yield no result, that she returned to India on 1.5.1984 and, therefore, it was only the husband who deserted her. 9. Before the Court below, the husband was examined as P.W.1 and also examined P.W.2., while marking Exs.A.1 to A.8. The wife was examined as R.W.1 while marking Exs.B.1 to B.11. The Court below, having gone through the facts of the case and also after elaborately discussing the evidence on record, both oral and documentary, had opined that though there was an irretrievable break down of the marriage, still, since the Courts cannot take that ground alone as a valid ground to grant divorce, dismissed the petition filed by the husband seeking divorce. Hence the present appeal. 10. Now, the only point that arises for consideration in this appeal is whether the Court below was justified in dismissing the petition filed by the husband seeking divorce on the ground of cruelty. 11. In this context, it is necessary to look into the evidence on record and, most importantly, the averments made by both the parties in their respective pleadings. 12. It is the main allegation of the husband that the wife used to behave extremely friendly with others and also use to take car rides inspite of repeated requests made by him. It is also alleged that the wife was addicted to take sleeping pills and sedatives and became alcoholic. Further that the wife insisted him to go to New York where her sister was living. He also alleged that on trivial issues, the wife was not cooperating with him and the above attacks on the part of the wife amounts to mental cruelty and, therefore, he is entitled to a decree of divorce. 13. It is also brought to the notice of this Court that the exparte decree was also obtained by him from U.S. Court and the same had become final. Notwithstanding the said decree of divorce, which is not binding on the Indian Courts, he filed petition seeking divorce before the Court below and the same was dismissed, as against which the present appeal is filed. 14. On the other hand, the wife contended that it is the husband, who ill-treated her and he was not even keen to take her to U.S.A. after the marriage and even after going to U.S.A., she was subjected to mental torture. It is also specifically contended by the wife that during her stay in U.S.A., she came to know that the husband was addicted to all vices and he had illegal relationship with a woman, by name Rohini. even prior to the marriage. Finally, it is the specific allegation of the wife that it is the husband who ill-treated her, but not otherwise as alleged by the husband. 15. What is pertinent to note here is, in the counter filed by the wife before the Court below, she made specific allegations that the husband was addicted to all vices, like drinking, debauchery etc., and also specifically asserted that he had pre-marital relationship with another woman. In this regard, it is to be noticed that the wife stick to her guns in the chief-examination and also made some averments with sufficient amount of assertion. She further commented in the chief-examination that during her stay in U.S.A., the husband used to give three dollars per day for her travelling expenses to reach her occupational centre. But, nowhere in her pleadings, we could see that she was employed while her stay in U.S.A. Therefore, the version of the husband giving three dollars per day towards travelling expenses to the wife cannot be believed and the same appears to be an improved version as was not originally taken in her pleadings. In the cross-examination, upon a suggestion made by the counsel appearing for the husband before the Court below, she further specifically asserted that the husband had all vices and illicit intimacy with another woman, by name Rohini, even prior to the marriage. 16. From the above, what appears is several unholy remarks have been made by the wife against the husband, not only in the pleadings, but also in the evidence. 17. Now, the question is whether these counter allegations made in the pleadings as well as in the evidence have any effect on the adjudication of the petition filed by the husband seeking divorce. 18. In this regard, it is to be seen that a Division Bench of this Court in JAYAKRISHNA PANIGRAHI v. SMT. SUREKHA[1] had an occasion to deal with a similar situation as that of the present case, where the Division Bench had placed reliance on the material available on record. It was observed by this Court in the said judgment that the material available on record would eloquently points to the fact that one spouse deliberately hurled the allegations against another spouse, may be, as a counter blast to the proceedings initiated by the spouse seeking divorce. It was further observed that the pleadings together with the deposition of the parties if appear to be capable of maligning the other party would undoubtedly fall within the ambit of mental cruelty. It was further observed that such allegations made in the written statement or the counter, as the case may be, shall be treated as additional particulars for granting the relief sought for. 19. The said judgment had been followed by us in a recent judgment rendered in F.C.A.No.246 of 2008, dated 3.8.2010. 20. To the same effect, in another judgment rendered by a Division Bench of this Court in B. SRINIVASULU v. MRS. VEENA KUMARI[2], to which one of us (DSRV,J) is a party, it has been pointed out that unnecessary allegations made by the wife in the counter itself are self-destructive and further that wife making unethical and disparaging allegations touching upon the character of husband constitutes cruelty of a very grave nature and the Court can take note of such allegations made in the counter subsequent to filing of the petition. 21. To the same effect, a judgment had been rendered by Calcutta High Court in SANTANA BANERJEE v. SACHINDRA NATH BANERJEE[3] wherein it was observed that wife making unethical and disparaging and reckless allegations touching upon character of husband in counter to divorce petition constitutes cruelty of a very grave nature entitling the husband for a decree of divorce. 22. As could be seen from the facts in the instant case, the wife made several counter allegations against the husband. But, all those allegations, in strict sense, amounts to disparaging remarks touching upon the character of husband. In the pleadings and in her evidence, the wife had specifically asserted that the husband was addicted to all vices, like drinking and debauchery etc., and also had pre-marital relationship with another woman, by name Rohini. These averments in the pleadings coupled with the assertions in her evidence would only show that she had deliberately tried to make wild allegations against her husband without any attempt to substantiate the same. 23. From the evidence on record, it is to be seen that the wife had specifically denied the suggestion that she has no suspicion about the character of her husband while she was in America with him. This makes the situation more aggressive and still worse. Her attempt also appears to be making a mountain out of a molehill. Of course, the wife has every right to plead that it is only she, who was harassed and deserted at the hands of the husband. But, the allegations shall not go to the extent of making unnecessary and wild allegations tarnishing the image of the husband, which amounts to cruelty. 24. The acquiescence of the decisions referred to supra is that the averments made in the pleadings and also in the evidence do constitute making wild and disparaging allegations against her husband and the same further constitute to mental cruelty warranting interference by this Court by granting a decree of divorce. 25. In this context, it is to be seen that the Court below, while dismissing the petition filed by the husband seeking divorce, made the following observations: “The petitioner and the respondent have made claims and counter claims regarding alleged ill-treatment on the part of each other. There is no discernible evidence that the petitioner is the victim of cruelty at the hands of the respondent. Further, there is no reason to believe that the respondent herself had deserted the petitioner.” 26. The above observations appear to have been made by the Court below oblivious of the pleadings and the statement made by the wife in her deposition. Therefore, we are of the view that the Court below erred in assessing the situation in a right perspective. 27. For the foregoing and also following the principle laid down in the judgments referred to supra, the impugned order is liable to be set aside, entitling the appellant-husband for grant of divorce on the ground of cruelty. 28. Accordingly, the civil miscellaneous appeal is allowed, setting aside the impugned order and decree, dated 09.04.2007, in H.M.O.P.No.105 of 2003, passed by the Court below, and the marriage between the parties shall stand dissolved. 29. Having regard to the facts and circumstances, particularly in the light of the fact that the spouses have been living separately since 1983 and further in view of the fact that the appellant-husband had been paying a sum of Rs.2,000/- per month towards maintenance, we feel it appropriate to fix a sum of Rs.5,00,000/- (Rupees five lakhs only) towards permanent alimony to the respondent-wife, which shall be paid within a period of three months from the date of receipt of a copy of this judgment. No order as to costs. _______________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE B.N.RAO NALLA 18.08.2010 Msr HON’BLE SRI JUSTICE D.S.R. VARMA AND HON’BLE SRI JUSTICE B.N. RAO NALLA Civil Miscellaneous Appeal No.477 of 2007 18.08.2010 (Msr) [1] 1995 (3) ALT 207 (D.B.) [2] 2007 (5) ALT 382 (D.B.) [3] AIR 1990 CALCUTTA 367