* HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA + C.M.A. No. 636 of 2001 %10-03-2010 #K.S.V.V.L. Narasimha Rao ….petitioner Vs. $ Kamisetty Suguna …. Respondent !Counsel for the Petitioner: Sri D.V. Seetharam Murthy Counsel for the Respondent: Sri Sarvabhovma Rao <Gist : >Head Note: ? Cases referred: 1. 1997 (5) ALT 805 (D.B) 2. (2002) 1 SCC 308 3. AIR 1994 SC 710 JUDGMENT:- (Per Hon’ble Sri Justice B.N.Rao Nalla) 01. This Civil Miscellaneous Appeal is directed against the judgment and decree dated 11.09.2000 passed in O.P. No.150 of 1998 by the learned Judge, Family Court, Visakhapatnam, whereby the Original Petition filed by the petitioner under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 ( for brevity “the Act”) for dissolution of the marriage on the ground of cruelty and desertion for a continuous period of not less than two years immediately preceding the presentation of the petition, was dismissed. For the sake of convenience, the parties are referred to as they are arrayed in O.P.No.150 of 1998. 02. The brief facts of the case are that the marriage of the petitioner with the respondent took place on 22.12.1974 and was consummated. The petitioner-husband was working in the State Bank of India, Visakhapatnam and both of them lived together in the house of the petitioner’s father as joint family members. It is averred that soon after joining the petitioner, the respondent started harassing him to set up separate family, and as he did not pay any heed to her words, she did not attend the house-hold chores, abused his parents, insulted them on every occasion and disrupted the mental peace of the petitioner. It is also stated the respondent-wife used to leave for her parents’ house very often without his consent and the petitioner had to get her back from her parents’ house. After she was blessed with two daughters, the petitioner expected that the respondent would continue to stay with him along with his children, but on 02.06.1979, the respondent left the matrimonial home along with her children and a suitcase containing 15 tulas of gold belonging to his mother, and the petitioner went to his in-laws’ house and requested her to join him, but she bluntly refused to do so and abused him in filthy language. Then, the petitioner-husband filed O.P. No.211 of 1979 on the file of II Addl. District Judge, Visakhapatnam for restitution of conjugal rights and the same was decreed. In spite of the decree in his favour, she did not join him for one year. The respondent preferred C.M.A. No. 468 of 1990 against the order, dated 18.02.1990 made in O.P. No.211 of 1979, but the same was dismissed. He further stated that as a result of mediation effected by the petitioner on the advice of the elders, the respondent joined the petitioner at his parents’ house, but again started insisting him on setting up separate family and continued her cruel behaviour towards him. At last, he set up separate residence in other portion of his father’s house. When she became pregnant in the year 1981 for the third time, on the pretext of delivery she went to her parents’ house without his consent, and was blessed with a baby-girl by name Lakshmi in the year 1982, and when the respondent came to take her to matrimonial home, she refused to join him and her parents pushed him away from the house forcibly. In June, 1996, he was transferred to Toopran of Medak District, where he came to know that his mother and brother were arrested by the Police based on a report lodged by the respondent for an offence punishable under Section 498-A IPC in II Town Police Station, Visakhapatnam and the same was numbered as C.C. No.42 of 1990, and by the time the report was lodged, according to the petitioner, she was not residing with him for a continuous period of 7 years preceding 03.10.1989. On 11.10.1989, he was transferred to Visakhapatnam and having become vexed with the criminal attitude of the respondent and desertion for more than two years, he filed O.P. No.422 of 1989 for divorce and O.P. No.130 of 1989 for custody of the minor children. According to the petitioner, on 10.05.1992, the respondent, with the help of her goondas, broke open the locks of the house constructed by him at Paradesipalem, forcibly entered the house and took away the household articles, in respect of which, he gave a report to the police under Ex.A4, but of no avail. It is further stated that at that stage, the respondent herself approached him and offered to join him for restitution of conjugal life with a promise that she would stay and would not desert him and prevailed upon him not to press the petitions filed by him on condition that she would withdraw C.C. No.42 of 1990. Believing her words, and in the interest of his minor children, both of them filed a joint memo before the Family Court and both the petitions were dismissed on 14.02.1994. Thereafter, the respondent joined him at his newly constructed house, at Paradesipalem, but failed to withdraw C.C. No.42 of 1990. At that time, he was working in Chittivalas Branch, State Bank of India and used to shuttle between Chittivalas and Paradesipalem. Whenever he returns after office work, he used to find the house locked forcing him to go to her parents’ house and bring her back along with the children. While so, C.C No.42 of 1990 ended in acquittal. Enraged with this, the respondent increased her cruel attitude by locking the house at Paradesipalem and going away somewhere. The respondent’s parents did not furnish her whereabouts several times and he had to wait at the doorstep of her parents’ house till 09.00 P.M. and return to his house. On some occasions, she used to say that dinner is ready, but he will be served only after she takes food. After taking food, she used to say that food was exhausted and even did not allow him to go out for dinner, thereby made him go to bed without food. She used to say that she would pour kerosene on his body and set fire to him and his house, and would make him lose his job and get the same published in new papers, and would see his father killed and would apply the ashes of his father on his forehead, thereby derive pleasure by seeing his mother as widow. She used to sprinkle chilly powder in his eyes and kick him on his testicles. On 15.01.1996, she tore off her “Mangala Suthrams” and was proclaiming that he is no more her husband, and therefore, being afraid of the respondent, he has been living separately since then. On 06.03.1998, during his absence, the respondent and her children forcibly trespassed into the house of his parents, beat their cook by name T.Rama Devi with scissors, sprinkled chilli powder, caused bleeding injuries, and on 24.03.1998, filed a false report before Mahila Police Station and thereupon, he was detained by Sub-Inspector of Police, Mahila Police Station for two days. On 19.04.1998, while the petitioner was on his way to Makkuva, she way-laid him with goondas and threatened to kill him. In view of the threat, he was afraid of attending his duties, and hence, he applied for leave. The cruel attitude of the respondent caused reasonable apprehension in his mind that it would be harmful and injurious for him to continue the marital tie with the respondent, and hence, prayed the Family Court to dissolve the marriage on grounds of cruelty and desertion for a period of more than two years. 03. The respondent-wife filed three counter affidavits denying her leaving the house on 02.06.1979 with a suitcase consisting of 15 tulas of gold and her refusal to join the petitioner. She denied the allegation that she demanded the petitioner to set up separate family, abused her in-laws, broke open the doors of the house constructed by the petitioner and forcibly took away the belongings of the petitioner and his parents. She stated that she joined the petitioner along with their children at Paradesipalem. She admitted in the counter that II Town Law & Order Police Station registered a case in Cr.No.61 of 1998 against herself and her children, but stated that she never threatened nor abused the petitioner and his parents. She further stated that after the marriage, both of them lived in the house of the petitioner’s parents, during which time, the petitioner used to harass her physically and mentally in order to get her gold ornaments to meet his vices like gambling, drinking, etc. In the light of the decree passed in O.P. No.211 of 1979 for restitution of conjugal rights, and at the instance of the elders, the respondent joined her husband by the end of the year 1980 and gave birth to a female child in June, 1982, and after the birth of the third child, both of them lived together till June, 1986. While the trial in O.P.Nos.422 of 1989 & 130 of 1989 was in progress, the petitioner was living with one Ms.Tatavarthi Ramadevi in the house bearing D.No.3064 at Paradesipalem, and both of them visited several places on pilgrimage and there is ample evidence to substantiate that they lived together as husband and wife, and thus, the petitioner is guilty of matrimonial offence of living in adultery with Ramadevi with the active support of his parents, sisters and brothers. After the O.Ps. were dismissed as settled out of Court i.e. on 14.02.1994, the petitioner took the respondent and the children to the newly constructed house at Paradesipalem and started living with them. Subsequently, the petitioner was transferred to Chittivalasa and from there to Makkuva in October, 1997, and in November, 1997, the petitioner took the respondent and the children to Makkuva and both of them lived there till 01.03.1998 while children were allowed to pursue their education at Visakhapatnam. After making the respondent believe his outward goodness in connivance with his family members, the petitioner surreptitiously inducted his kept mistress, Thatavarthi Ramadevi in his parental house bearing D.No.29-10-53, Visakhapatnam, thereby the respondent and her children were neglected and subjected to inhuman and cruel treatments. 04. On the premise of the aforesaid pleadings of the parties, the trial Court framed the following issue for determination: “whether the respondent is guilty of cruelty and desertion of the petitioner and the marriage between the petitioner and the respondent is liable to be dissolved?” Before the Family Court, the petitioner-husband examined himself as PW1 and his mother as PW2 and T.Ramadevi as PW3 and got marked Exs.A1 to A13. The respondent-wife examined herself as RW1 and six others as RWs.2 to 7 and got marked Exs.B1 to B29. Ex.C1 and Exs.X1 to X3 were marked on behalf of the Court. 05. PW1, who is the petitioner-husband, deposed that the marriage between him and the respondent took place on 22.12.1974, and for one and a half months they led peaceful life in the petitioner’s joint family, and thereafter, she began picking up quarrels on petty matters and pestered him to set up separate family. On 12.09.1976, their first daughter was born, in 1978, their second daughter was born and even then, she pestered him to set up separate family. In June, 1979, in his absence, and when his parents were not in the house, his wife went away along with 15 tulas of gold with two kids to her parental house, and the petitioner had to rush to her in-laws’ house to bring her back, but their in-laws, suppressing the fact of her arrival, abused him stating that the respondent went away because of his harassment and they did not know anything about her. When he insisted on revealing the truth of her whereabouts, her brothers and friends threatened to kill him. Then, he complained to the police about her missing of the respondent, and the police after investigation, told that his wife is with her parents. Then, he filed a petition in O.P. No.211 of 1979 for restitution of conjugal rights, and the same was decreed in his favour. Even after the petition was decreed, she did not join him and preferred an appeal against the order in O.P., but it was dismissed. In the interest of the children and with the help of elders he brought back his wife and children and lived with them jointly with his parents, but again she resorted to the old game and stayed with him up to December, 1981. Ultimately, he set up separate family by taking separate portion of his father’s house in Visakhapatnam. Again, she got pregnancy in December, 1981 and went away to her house stating that she had some problem, and on 12.06.1982, third daughter was born to them. Thereafter, she did not join him in spite of the petitioner going and requesting her to come and lead matrimonial life. After getting promotion, he was transferred to Tupran, Medak District, and on 3.10.1989, he knew that his mother and brother were arrested by II Town Police, Visakhapatnam based on a complaint lodged by his wife. In 1981, she filed a case against him for the offence punishable under Section 498-A IPC and made number of complaints to his superiors. There was 7 years of estrangement between them. Hence, he was constrained to file O.P. No.422 of 1989 seeking divorce and O.P. No.139 of 1989 for custody of his children, and the police filed charge sheet against him in C.C. No.42 of 1990. When he was transferred to Chittivalsa in 1994, she began to visit him and caused lot of disturbance to him. She proposed to withdraw the criminal case only if he withdraws the divorce petition and guardian petition against her. In 1994, on her persuasion and on the advice of elders, he withdrew both the O.Ps., but she did not withdraw the criminal case, however, on 06.02.1995, the criminal case ended in acquittal, by which date, they were living together. Contrary to his expectation, she was harassing him and not providing even food, and by the time he returned from office, she went away to her parents’ house and during night times, she was disturbing his sleep by putting on lights and hiding the keys of his Branch Office and caused much difficulty. Ultimately, on 15.01.1996, during Pongal, she took off her “Mangal Sutrams”, threw them on his face claiming that the house is not his and threatened him with dire consequences. In November 1997, he was transferred to Makkuva and on 06.03.1998, when he was in office, the respondent along with three daughters entered the house of his parents with the help of goondas and caused physical harassment and bleeding injuries with knives to his parents and their cook Ramadevi. A complaint in II Town Police Station was lodged by his parents with the help of neighbours and cook, and that criminal case is pending against his wife. On 23.03.1998, his wife complained against him, and based on her complaint, he was detained by the police at Mahila Police Station, for two days, as such, there is absolutely no possibility of leading married life with her because of her cruel behaviour. Hence, he filed the O.P.No.150 of 1998 seeking divorce on the grounds of cruelty and desertion, and he is prepared to pay maintenance and also willing to perform the marriages of their daughters as a dutiful father. In the cross-examination, he denied a suggestion that he lived with one Tatavarthi Ramadevi, who worked as cook in his parents’ house. He stated that in 1997, when he was working at Makkuva, he used to stay alone. He denied a suggestion that he took the respondent and the first child to Makkuva and lived happily for five months, and on 22.02.1998, they returned to Visakhapatnam and Ramadevi abused the respondent in the house of his mother, and therefore, the respondent also retorted and later returned to Visakhapatnam, and he harassed the respondent on the ground that she questioned the attitude of Ramadevi. He further deposed that Exs.B5 (a to d) are photos with the corresponding negatives taken in Shiridi, but he did not know by whom they were taken. Exs.B6(a to f) are another set of photos with corresponding negatives, while some of which contain his photographs, some others contained the photographs of Ramadevi. In the cross-examination, he stated that Ramadevi was staying in the house of his parents in Visakhapatnam as Cook and filed a Criminal Case for the offence punishable under Section 354 IPC against the respondent and their children on the file of the Court of Mahila Sessions Judge, Visakhapatnam. 06. PW2, the mother of the petitioner, deposed that the respondent did not return after having gone to her parents’ house for the second delivery, and the petitioner had gone to bring her back to his house. After the disposal of the appeal filed by the respondent against the order in O.P.No.211 of 1979 filed by the petitioner for restitution of conjugal rights, there was compromise at the instance of some elders, and the respondent joined the petitioner at his house and stayed only for one and a half years. She further deposed that after the third delivery, the petitioner joined the respondent at their house and stayed for sometime, and later she left the place. She further deposed that after the petitioner left for Tupran, there was nobody to look after her, as such, her husband engaged one Ramadevi to do all domestic works in the house including cooking. Whenever they go to Shiridi, Hyderabad and Tirupathi they used to take Ramadevi along with them, but the petitioner never accompanied them to those places. 07. PW3, Ramadevi, deposed that her father and the father of PW1 are friends and after her father expired, she used to stay in her sister’s house. While so, in January, 1989, PW2 asked her to come and assist her and her husband in her house at Visakhapatnam as they are old, as such, she went and stayed in her house by doing domestic works including cooking. She stated that except along with PW2, she did not visit any pilgrim centres with the petitioner. She deposed that she does not remember the places covered in Ex.B6(c to e), Ex.B7(b to d), Ex.B8, Ex.B9(a, b), Ex.B10(c, d), Ex.B11(a to d), which are her photographs. She denied the suggestion that on 10.05.1992, she and the petitioner lived together as wife and husband and visited pilgrim centres when the respondent and her children visited the house at Madhurawada. In cross-examination, she admitted that the petitioner has been working in Visakhapatnam and living in the house of PW2 and she has been staying in the same house. 08. RW1, who is the respondent-wife, deposed that after her marriage with the petitioner, three daughters were born to them in 1976, 1978 and 1982 respectively and on 06.06.1979, the petitioner filed a petition on the file of II Additional District Judge, Visakhapatnam, for restitution of conjugal rights against her, and after the petition was decreed, and on the advice of the Presiding Officer, both the petitioner and the respondent compromised the matter in 1981 and started living together up to Septemper, 1987, and in which year, the petitioner was transferred to Tupran and lived with the respondent and his third child while the first two daughters were studying in St. Joseph Convent in Visakahpatnam. She further stated that on one occasion, she came to know that her parents-in-law forced the petitioner to marry again leaving her to her fate, and when she questioned, the petitioner and his brother, Satyanarayana harassed and beat her. In November,1989, when she came to Visakhapatnam in connection with the marriage of his sister, she received a notice from the petitioner claiming that she deserted him. When she questioned her mother-in-law as to why the notice was issued to her, then her brother-in-law beat her. To avoid further disputes the petitioner took her to Tupran. She further deposed that on 10.05.1992, herself and the children visited the newly constructed house of the petitioner at Paradesipalem and found PW3 (Ramadevi) living with the petitioner. She further deposed she and the petitioner along with the children lived in Paradesipalem up to November, 1997. Thereafter, the petitioner got transfer to Makkuva and the petitioner took her and the children to that place and lived with them. She deposed that she was having Type Institute at Suryabagh, Visakhapatnam with 6 typewriters. On 01.01.1998, while she was at Makkuva, there was theft of all the typewriters, and in that connection, she came to Visakhapatnam and found her husband at his parents’ house with Ramadevi and she did not know when her husband came to Visakhapatnma. At Makkuva, the petitioner looked after her well and ever since she and her children have been residing in the house at Paradesipalem, the petitioner has been living in adultery with Ramadevi in the house of his parents at Dabagardens, Visakhapatnam. The petitioner filed I.A. No.359 of 1998 in O.P. No.422 of 1989 seeking to prevent the respondent from going to the houses at Makkuva and Dabagardens. After obtaining the injunction order, he joined his office on 07.05.1998 at Makkuva. When she and the children visited their house at Makkuva, he stayed in the Bank for one and a half days without coming out and opening the doors of the house, therefore they could not collect their belongings and suffered with hunger. In December, 1998, the petitioner got transfer to Visakhapatnam and she went to her in-laws’ house, but on enquiry, it came to light that the petitioner instigated Ramadevi to give complaint against her and the children, and on 21.01.1999, she was arrested by the police. She further deposed that on 06.07.1999, at Dabagardens, Visakhapatnam her father-in-law died and she went to see his dead- body, but the doors of the house was closed and she was not allowed to see the dead-body. She further deposed that she saw the petitioner and Ramadevi going by car on several occasions. She performed the marriage of their first daughter by taking loan from Margadarsi Chit Fund Company and her sister, Revathi. In cross-examination, she deposed that since 10.05.1992, she has been residing at Paradesipalem with the petitioner. She denied a suggestion that on 10.05.1992, Ramadevi was not in the house at Paradesipalem. She denied a suggestion that she committed theft of Exs.B20 and B27 from the house in Visakhapatnam on 06.03.1998 when she went there. She denied a suggestion that she went to her husband’s house at Paradesipalem on 10.05.1992 along with goondas and looted all the belongings of the petitioner. She stated that the petitioner beat her in Hyderabad and in that regard and also with regard to other aspects, she gave a police complaint, and Ex.A13 is the certified copy of the deposition in C.C .No.42 of 1990. 09. RW2, who is the Sarpanch of Paradesipalem, Maruthivalsa and Boravanipalem villages, deposed that he was invited by the petitioner to the house-warming ceremony and the person shown in Exs.B6(c & d) – photographs is called “Pantulamma” and he did not know her actual name, and as the petitioner and she were moving closely and sat for house-warming ceremony, he thought that she was his wife, but later the respondent told him that the respondent herself is the actual wife. Then, the petitioner and that lady left the place and the respondent and the children started living in that house. The petitioner and “Pantulamma” came from Makkuva and exercised their franchise at Paradesipalem for panchayat elections in 1998. In his cross-examination, he stated that after the respondent came, the petitioner and the respondent started living together at the house in Paradesipalem. One month after the respondent joined him subsequent to the house-warming ceremony, the petitioner left her, and thereafter, did not join the respondent. RW3, who is also