HONOURABLE SRI JUSTICE B. PRAKASH RAO AND HONOURABLE SRI JUSTICE G.V. SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No. 2836 OF 2002 Dated 28th January, 2010. BETWEEN Ramulamma ….Appellant and Kavali Narasimhulu … Respondent. HONOURABLE SRI JUSTICE B. PRAKASH RAO AND HONOURABLE SRI JUSTICE G.V. SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No. 2836 OF 2002 JUDGMENT: (Per Hon’ble Sri Justice B. Prakash Rao) Heard both sides. The appellant herein is the wife. She ﬁled the present appeal aggrieved by the order and decree dated 31.7.2002 passed in O.P.No. 40 of 1996 on the ﬁle of the Senior Civil Judge, Mahaboobnagar, whereunder and whereby the learned Judge allowed the said OP ﬁled by the respondent/husband granting divorce. The brief facts necessary for disposal of the present appeal are as follows: The marriage between the appellant and respondent was performed in the year 1988 and two children were born to them during their wedlock. It was alleged that six months thereafter, the appellant-wife went to her parents house in the same village and there-onwards they are not living together and since then there is no cohabitation. It was further alleged that in a panchayat conducted in the presence of elders on 26.6.1996, they have mutually agreed to take divorce. Hence, the respondent/husband ﬁled the aforesaid OP under Section 13 of the Hindu Marriage Act for dissolution of their marriage. The said OP was contested by the appellant/wife mainly alleging that she was the victim for all the ill- treatment meted out to her by the respondent/husband as well as his parents. She further alleged that the respondent/husband started harassing her to get more dowry and in pursuance thereof, they driven out her from the paternal house. She further alleged that the respondent/husband contracted second marriage with one Chandrakala and he is living with her and that he never made any eﬀorts to get her to join him. It was lastly pleaded that she never deserted the respondent. Based on the respective pleadings, the Court below framed the following point for consideration: “1. Whether the petitioner is entitled for divorce as prayed for? 2. To what relief?” During the course of enquiry, on behalf of the husband, he himself was examined as P.W.1 apart from examining P.W.2 and marked Exs.A.1 and A.2. On behalf of the wife, she herself was examined as R.W.1 and one Balamani as RW.2, however, no documentary evidence was adduced on her behalf. On a consideration of the oral and documentary evidence brought on record, the Court below came to the conclusion that after the marriage in the year 1988, they led conjugal life for six months and thereafter they have been living separately. The Court below on evidence, further observed that there was no possibility of living together, which by itself constitutes irretrievable breakdown of marriage between them and as such the respondent/husband was entitled to decree of divorce. Though the husband pleaded that the appellant/wife was leading adulterous life, but the Court below disbelieved the same. The main ground urged in this appeal is that the Court below allowed the application ﬁled under Section 13 of the Hindu Marriage Act by reaching a conclusion that there is no possibility of the appellant/wife and respondent/husband living together, which by itself implies irretrievable break down of marriage. He therefore submits that the same is no longer a good ground to grant divorce and the same shall not constitute a valid reason for dissolution of marriage. He further submitted that Ex.A.-1 compromise deed cannot be taken into consideration because the evidence of P.W.2 with regard to Ex.A.1 is not in corroboration with the evidence of R.W.1. Having considered the contentions on both sides and material on record, the Court below recorded that there is no possibility of the appellant/wife and respondent/husband living together which imlies that the marriage between them had broken down irretrievably due to desertion of wife and accordingly dissolved the marriage between them. Grant of divorce on the ground of irretrievable break down of marriage fell for consideration before the Supreme Court in the case of Dutt Sharma Vs. Manju Sharma {2009(3) ALT 12 (SC)}. The Supreme Court, while referring to Section 13 of the Hindu Marriage Act, observed that no such ground of irretrievable break down of the marriage is provided by the legislature for granting a decree of divorce and that the Court cannot add such a ground to Section 13 of the said Act as that would amount to amending the Act which is the domain of the Legislature. In view of the principle laid down by the Apex Court in the case stated supra, it is not open for the Court below to grant decree of divorce on such a ground. Though there are other allegations and counter allegations, but the Court below without recording a ﬁnding thereon, granted decree of divorce on the ground that there is no possibility of living together, which implies irretrievable break down of the marriage. Admittedly, no such ground of irretrievable break down of marriage has been mentioned for granting divorce under Section 13 of the Hindu Marriage Act. In that view of the matter, the matter requires fresh consideration by the Court below. For the foregoing reasons, the order and decree dated 31.7.2002 passed in O.P.No. 40 of 1996 on the ﬁle of the Senior Civil Judge, Mahaboobnagar, is set aside and the matter is remanded to the Court below for consideration afresh. The Court below is directed to dispose of the matter afresh keeping in view the principle laid down by the Apex Court, as referred to supra. Both parties are at liberty to adduce further evidence, if any. The Appeal is allowed to the extent indicated above. However, in the facts and circumstances of the case, there shall be no order as to costs. ----------------------------------------- JUSTICE B. PRAKASH RAO ----------------------------------------------- JUSTICE G.V. SEETHAPATHY DATED 28T H JANUARY, 2010. MSNR.