HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A. Nos.378 and 400 of 2001 DATED: 09.03.2010 C.M.A. No.378 of 2001 Between: Kondeti Venkateswara Rao .. Appellant And Kondeti Jayalakshmi .. Respondent COMMON JUDGMENT:- (Per Hon’ble Sri Justice V.Eswaraiah) As the point involved in both the appeals is one and the same, and these matters arise out of common order dated 18.12.2000 passed in O.P. Nos.49 of 1991 and 7 of 1997 on the file of the Senior Civil Judge, Kovvur, West Godavari District, they are taken up together for disposal by this common judgment. O.P. No.49 of 1991 was filed by the wife i.e. the respondent herein seeking restitution of conjugal rights, whereas the husband i.e. petitioner herein filed O.P. No.7 of 1997 seeking decree for divorce, and the learned Senior Civil Judge, Kovvuru, by common order dated 18.12.2000, allowed O.P. No. 49 of 1991 and dismissed O.P. No.7 of 1997. Challenging the same, the husband filed C.M.A. No. 378 of 2001 aggrieved by the order passed in O.P. No. 49 of 1991 and C.M.A. No. 400 of 2001 aggrieved by the order passed in O.P. No. 7 of 1997. For the sake of convenience, the parties are referred to as “the petitioner-husband” and the “respondent-wife”. When O.P. No.49 of 1991 was filed by the respondent-wife for restitution of conjugal rights, her age was 30 years and the age of her husband was 33 years. Her case is that their marriage took place on 31.08.1977 at Tirumala Hills according to Hindu custom and rites, and subsequently, the marriage was duly consummated. At the time of marriage, her parents gave Ac.01.00 cents of land towards Pasupukukuma, cash of Rs.10,000/- and gold weighing 14 sovereigns to the husband as dowry. Immediately after the marriage, the wife joined the husband and lead marital life. After sometime, the wife faced ill-treatment in the hands of the husband, her mother-in-law and sisters-in-law. It is stated that her mother-in-law and the husband used to beat her, demand her to bring additional dowry and sell away the land given to her towards Pasupukunkuma. When she refused to sell away the land, they drove her out of their house. The husband did not take the wife to his house for a period of nine years. Therefore, at the instance of well-wishers and elders, the parents of the respondent-wife sold away the land and gave money to the husband and mother-in-law and it was also misappropriated. It is stated that again the wife joined the husband, but the attitude of the husband and the mother-in-law did not change and they continued to harass and ill-treat her mentally and physically, and unable to bear the ill-treatment, on one occasion, she tried to commit suicide by consuming sleeping tablets. It is stated that on 11.08.1980, the husband and his family members beat the wife and tried to kill her, but due to intervention of the elders, she was saved from their hands. The wife filed a criminal case before the Court of II Additional Judicial Magistrate of First Class, Kovvur and the same was forwarded to Chagallu Police Station for investigation. The Station House Officer, Chagallu, after investigation, filed charge sheet against the husband and his family members. It is stated that as she was only driven out of the house of the husband, she filed the O.P. seeking restitution of conjugal rights. The petitioner-husband filed counter affidavit denying all the allegations made in O.P. No.49 of 1991 filed by the wife. The petitioner-husband filed O.P. No.7 of 1997 seeking divorce, six years after the wife filed O.P. No.49 of 1991. The petitioner- husband stated that the respondent-wife is his legally wedded wife and their marriage took place about 20 years ago at Tirumala Hills. He is innocent person and not worldly-wise, but the wife is active and an intelligent woman. The consummation of marriage between them was arranged at Nidadavolu in the house of the petitioner’s in-laws, but after the marriage, the respondent-wife did not permit him to touch her. After spending three days in his in-laws’ house, the petitioner and the respondent went to his house at Chikkala, where they stayed nearly for one month, during which time also, the wife did not permit him to touch her nor did she allow him to sleep with her. Her father came to the petitioner’s house and took his daughter to his house. Three month’s later, the mother of the petitioner fetched her daughter-in-law and the respondent-wife stayed with the petitioner for about 20 days. It is stated that the respondent-wife did not like him and demanded a share in her husband’s properties and asked him to execute a registered sale deed in the name of the male child yet to be born to them, but the mediators did not like her unjust demand, and therefore, she did not agree to join the husband. Four years prior to filing O.P.No.7 of 1997, when he went to fetch her, his father-in-law beat and threatened him to kill. When mediator was sent to the respondent’s house to ask her to come and join her husband, she stated that with whom she should live, in the sense, cohabit with tree, wall, brother of somebody of the petitioner, obviously meaning that the husband is incapable of having conjugal life with her. Several things have been stated in the petition attributing adultery to her for the last 10 years causing humiliation to the petitioner physically and mentally. Unable to bear the torture he lost his mental balance and was hospitalised for years together. He asserted that his wife developed illegal relationship with his brother namely K. Pallarao and also with one Kondeti Ganga Raju and Atkuri Papanna, but all his attempts to change her attitude proved futile, and on the other hand, she harassed the petitioner and the members of his family. It is stated that the respondent-wife filed criminal case under Section 498A IPC against him and the members of his family, M.C. No.21 of 1991 seeking maintenance and O.P.No.49 of 1991 for restitution of conjugal rights only with a view to harassing the petitioner. Hence, he filed O.P. No.7 of 1997 seeking a decree for divorce on the ground of desertion by his wife from July, 1997. The respondent-wife filed counter affidavit denying all the allegations made in O.P. No.7 of 1997 and reiterating the averments made by her in O.P. No.49 of 1991 seeking restitution of conjugal rights. She further stated that at the time of the marriage, her parents agreed to give Ac.01.00 cents of land at Srikakulam and gave Rs.10,000/- cash and 14 sovereigns of gold towards dowry, and also entrusted money and gold to the petitioner and his mother to develop the same. After the marriage, she joined her husband with saree samans to lead a happy marital life, but she faced ill-treatment in the hands of her husband and his mother. On 11.08.1990, at about 11.00 A.M., her husband and the members of his family beat and tried to murder her. All her efforts to reconcile the issue became futile, as such, she filed O.P. No.49 of 1991 for restitution of conjugal rights. In fact, the husband filed another O.P. No.85 of 1987 for divorce and the same was dismissed. She stated that her husband’s brother, Pallarao filed O.S.No.142 of 1996 against her claiming damages of Rs.52,000/-. Common evidence relating to both the petitions in O.P.Nos.49 of 1991 and O.P. No.7 of 1997, was recorded in O.P. No.49 of 1991. The respondent-wife, who was examined as PW1, stated that she is always prepared to live with her husband, but she was driven out of his house. She only reiterated the averments made in O.P. No.49 of 1991 filed by her seeking restitution of conjugal rights and also in her counter in O.P. No.7 of 1997 filed by her husband. She further deposed that she filed criminal case in C.C. No.422 of 1990 against her husband and the members of his family and she never lived in adultery nor cohabited with any other person. She does not know K. Ganga Raju, A. Papanna nor does she have any illegal contacts with them. She filed a complaint against Pallarao, who is the brother of her husband, for outraging her modesty, on the file of the Judicial First Class Magistrate, Kovvur, and the same was taken cognizance of the offence punishable under Section 354 IPC, but the case ended in acquittal. Therefore, Pallarao filed a suit in O.S. No.142 of 1996 against her and her father for damages and malicious prosecution. Her mother-in-law did not allow her to live with her husband as she did not bring sufficient money. It is stated that as she has no children, her husband informed that his mother and brother are not allowing him to live with her. She is not willing to give divorce to her husband, but willing to join him. She admitted that she filed C.C. No.422 of 1990 which ended in conviction, and against which, an appeal was preferred by her husband, on the file of the District Court, Eluru, and the same is pending. She also filed M.C. No.21 of 1991 against her husband on the file of JFCM Kovvur, which was allowed granting maintenance at Rs.300/- P.M. It is specifically stated that her marriage was consummated, and she denied the other allegations that she developed illegal intimacy with Pallarao, who is the brother of her husband, one K. Ganga Raju and A. Paparao. PW2, her father, corroborated the evidence of PW1 and denied all the suggestions made on behalf of the petitioner-husband . PW3, who is one of the community elders and the resident of Chikkala village, deposed that the respondent-wife has good conduct and the petitioner and the respondent can live happily if her husband leaves his parents and live with her. The respondent-wife stated before the elders that she is willing to live with her husband. In the cross-examination, he denied a suggestion that the respondent-wife and her father harassed the petitioner and the petitioner-husband suffered mental disorder as a result of harassment and misbehaviour of the respondent-wife. PW4, who is the house-owner, deposed that the respondent- wife and her father lived in his house for four years, and thereafter, shifted to Palluri Venkateswarao’s residence. In his cross- examination, he denied a suggestion that he evicted the father of the respondent-wife from his house due to illegal contacts of her daughter. PW5, who is the cousin of the petitioner-husband, deposed that the respondent-wife lived in his house as tenant for about 11 months, and thereafter, she was evicted only on the ground that he wanted to renovate his house. He denied a suggestion that she was evicted because of her illegal contacts with Kondeti Gangaraju. RW1, who is the petitioner-husband in O.P. No.7 of 1997, deposed that his wife was not providing food to him and she and her father used to assault him for property. He stated that he never harassed his wife. His father-in-law obtained his signature on some papers and filed a suit. Due to witchcraft practiced by his wife forcibly on him, he was mentally affected for 17 to 18 years. His wife was having illegal contacts with his younger brother - Kondti Pallarao and also with Atukuri Paparao, Kondeti Gangaraju, Kasani Ramachandram and another Muslim person. He stated that he personally saw his wife sleeping with his brother- Paparao. His wife assaulted his mother and caused fracture to her fingers. He deposed as to the filing of criminal case against him, which ended in conviction, and of another criminal case against his brother and his paying maintenance to his wife as awarded by the Court. He deposed that he cannot live with his wife for the fear of assault against him. He denied a suggestion that his wife had no illegal contacts with others. He also denied a suggestion that his wife was gifted Rs.10,000/- and Ac.01.00 cents of land at the time of marriage, and the land was sold and the money received on it was paid to him. He denied a suggestion that his mother and brother are preventing him from living with his wife. He denied a suggestion that his wife had no illegal contacts with others. RW2, who is the father of RW1, corroborated the entire evidence of his son. He also stated in his cross-examination that the respondent-wife was giving sleeping tablets to his son and the same was informed to his advocate. RW3, who was residing in the house of the petitioner-husband, stated that the respondent-wife was not living with the petitioner- husband amicably and she frequently quarrelled with her husband and assaulted him. He stated that she developed illicit intimacy with one Pallarao and when the matter was brought to the notice of the police, they allowed them to put up family separately in the house of Kondeti people where she developed illicit intimacy with the son of the landlord. He stated that the petitioner-husband left the house for fear of danger to his life. He denied a suggestion that the wife was not living in adultery with Pallarao. RW4, who is one of the caste elders, has not stated any thing except deposing as to the performance of the marriage of the petitioner-husband and the respondent-wife. RW5, who is the resident of Chikkala village, deposed that the respondent-wife insisted her husband to give share of his property and she married the petitioner knowing his mental condition and she shifted her residence from one place to another because of her immoral character. He denied a suggestion that the mother-in-law of the respondent-wife and others sent her out of the house. RW6, who attended the marriage of the petitioner-husband and the respondent-wife, and being one of the caste elders, deposed that the respondent-wife has immoral character and she married the petitioner-husband only to get his property. One Karinki Satyam, Kasani Annavaram and Balusu Chandra Rao, in whose houses the respondent-wife lived as tenant from time to time, evicted her because of her immoral behaviour. He deposed that the respondent-wife had illicit intimacy with Pallarao, who is the brother of her husband, and she hardly lived with the petitioner-husband for about 10 to 15 days. RW7 – Kondeti Palla Rao, who is the brother of the petitioner- husband, deposed that he has illicit affair with the respondent, and for that reason, he separated from his brother. He deposed that even though he was already married to somebody else, the respondent-wife wanted him to marry her. He stated that his brother (RW1) is not worldly-wise and the wife used to give sleeping tablets to his brother during nights and come to him, and she married his brother only for the sake of his property. She shifted her residence to the house of Karinki Satyam and from there to the house of Kasani Annavaram and further to the house of Balusu Chandra Rao, who also evicted her because of her immoral character. He deposed that when his mother questioned about her illegal character, she assaulted her. In his cross- examination, he deposed that he filed a suit in O.S. No.142 of 1996 for malicious prosecution and he did not mention in the plaint about his illegal contact with his brother’s wife. He denied a suggestion that he had no illegal contacts with his brother’s wife and that she never slept with him, and also denied a suggestion that she never beat his brother when he questioned about her illegal contacts. RW8, who is the farm-servant of his landlord Balusu Chandra Rao, deposed that the respondent-wife lived in the house of his landlord, and she had illegal contacts with one Koneti Ganga Raju, who, one day visited her house. When he saw Gangaraju with her, he bolted the house from outside, and informed Balusu Chandra Rao about it. When B.Chandra Rao saw her in the company of K.Ganga Raju, he chided and evicted her from his house. He denied a suggestion that he was not a farm servant of B. Chandra Rao and also he did not lock the door from outside when he saw her in the company of Ganga Raju. Heard the learned counsel for both the parties and perused the material placed on record. Now, the question that arises for consideration is as to whether the allegations made by the petitioner-husband with regard to the adulterous life of his wife with his younger brother or any other persons is established and whether the respondent-wife is entitled to restitution of conjugal rights? Insofar as the first point is concerned, it is the case of the petitioner-husband that he is an innocent person and not worldly-wise, but a perusal of the averments of the petition discloses that he is otherwise, and he made every possible attempt to scandalize and defame the wife attributing her illicit intimacy with his own brother K. Palla Rao, Atukuri Paparao, Kondeti Gangaraju, Kasani Ramachandram. Had the respondent-wife illicit intimacy with his own brother, she would not have filed criminal case against him for the offence punishable under Section 354 IPC and also for harassment of the family members of her husband. All the witnesses examined on behalf of the petitioner-husband are either residing in the house of his relatives or associated with him, and no independent witness on his behalf was examined except K. Pallarao and the person residing in the house is attributing illicit intimacy, but no other person stated about the alleged illicit intimacy, whereas it is the case of the respondent-wife that she lived happily with her husband for sometime, but when the situation is not conducive, trouble started and all the members of his family including the husband’s brother Pallarao harassed her. The other allegations that the respondent-wife demanded to register the property in her name appears to be incorrect, and on the other hand, the evidence on record goes to show that it is the mother of her husband who was insisting her on paying more money, and upon that she had to sell way Ac.01.00 cents of land and the money was given to her, and in spite of that the harassment was not abated. The allegations of the petitioner-husband that the marriage was never consummated is without any basis and unbelievable. Had the marriage was not consummated, the petitioner-husband would not have gone several times to his in-laws’ place and made attempts to fetch her. The allegations made by the members of his family on the wife appear to be incorrect, unreal and only scandalize the character of the innocent lady. Inasmuch as she filed a case against her brother-in- law for outraging her modesty, the other case under Section 498-A IPC for harassment that she was deserted and that her husband left the house without any reason, and she was always attempting to protect her conduct, character and interest to live with her husband, she also filed the O.P.No. 49 of 1991 for restitution of conjugal rights. Smt P. Anjana Devi, learned counsel for the petitioner-husband contended that the marriage between the petitioner and the respondent has been irretrievably broken down and there is no possibility of their living together, and thus, it is a fit case to grant divorce on the ground of irretrievable breakdown of the matrimonial life. In support of her contentions, she has relied on the judgment reported in Rishikesh Sharma Vs. Saroj Sharma[1] wherein, the Apex Court was of the opinion that it will not be possible for the parties to live together and therefore there is no purpose in compelling both the parties to live together. Therefore, best course would be to dissolve the marriage. Another judgment is relied on by the petitioner- husband in the case of Satish Sitole Vs. Ganga[2] wherein the Supreme Court held that the husband and the wife are living separately for 14 years, and accordingly, their Lordships convinced that any further attempt of reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably and in exercise of their powers under Article 142 of the Constitution of India, dissolved the marriage between the husband and the respondent subject to the condition that the husband pays the wife a sum of Rs.2.00 lakhs by way of permanent alimony. Sri V. Sai Kumar, learned counsel for the respondent-wife, has relied on the latest judgment of the Supreme Court reported in Vishnu Dutt Sharma Vs. Manju Sharma[3] wherein it is held that Section 13 of the Act does not provide a ground for granting decree for divorce for the reason of irretrievable break-down of the marriage. It is however, the function of the legislature to amend the law for granting decree for divorce on the ground of irretrievable break-down, but the Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. It was also further held that the cases where the Supreme Court passed a decree for divorce on the ground of irretrievable breakdown of the marital life cannot be treated as a precedent. Mere direction of the Apex Court without considering the legal position is not a precedent. If any divorce on the ground of irretrievable break-down is granted, then they 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. Therefore, it is clear that the alleged ground of irretrievable break-down is not a ground for granting divorce. Similar view was taken in the case of Anil Kumar Jain Vs. Maya Jain[4] wherein it was held by the Apex Court to the following effect: “It may, however, be indicated that in some of the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution, this question had arisen and it was held in most of the cases that despite the fact that the marriage had broken down irretrievably, the same was not a ground for granting a decree for divorce either under Section 13 or Section 13-B of the Hindu Marriage Act, 1955 In the ultimate analysis, the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Act for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Act into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other courts can exercise such powers. The other courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at