HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 992 of 1995 DATED: 29.04.2011 Between: Nunna Krishnamma .. Appellant And Nunna Venkateswarulu .. Respondent JUDGMENT:- (Per Hon’ble Sri Justice V.Eswaraiah) The appellant is the wife of the respondent who has filed this appeal against the decree and order dated 19.04.1995 in O.P. No. 305 of 1993 passed by the learned Subordinate Judge, Kothagudem, whereby and whereunder the Original Petition filed by the respondent under Section 13(1)(ia)(ib) of the Hindu Marriage Act seeking divorce on the ground of cruelty and desertion, was allowed. For the sake of convenience, the parties are referred to as they are arrayed in the original petition. The petitioner is the husband of the respondent. Their marriage took place in the month of May, 1995 at the parents’ house of the respondent at Kothuru village, Julurpad Mandal as per the customs prevailing in their community. After the marriage, they lived happily for two years and are blessed with two male children. Thereafter, disputes arose between them. It is alleged that wife demanded separate residence and as the petitioner did not yield to the ill-desire of the respondent, she started quarrelling with the parents of the petitioner and used to scold his brothers in filthy language before his family members and the public. It is also alleged that the respondent is adamant and did not care the petitioner’s family reputation or the parents of the petitioner. The petitioner, being an agriculturist, had to go to his filed by 07.00 a.m. carrying lunch with him and return home by 06.00 p.m., but his wife did not care to prepare lunch and breakfast before his departure to his fields and she was least bothered to look after his needs. Further, if any elder member of their family advised to mend her manners, she used to break her bangles and scold all the members of the family including the petitioner in filthy language. She used to strike her head against the wall and throw away the articles and leave the matrimonial house without intimation to the petitioner. She neither cared her children nor attended their domestic necessities, instead the mother of the petitioner used to look after the children of the petitioner. In January 1991, the respondent went to her parents’ house, and when the petitioner tried to bring her back home, she did not come. The children are living with the petitioner and the respondent did not like the company of the petitioner. She used to create a scene before the public and made the petitioner’s family members to suffer mental agony. Ultimately, she left the house in the month of June, 1991 and since then she had been residing with her parents. When the petitioner had approached her parents, the father of the respondent, instead of advising his daughter, stated that he committed a mistake by giving his daughter in marriage to the petitioner. After leaving the matrimonial house, the respondent never came back in spite of repeated requests and demands of the petitioner. Alleging the above referred circumstances, the petitioner sought dissolution of his marriage with the respondent on the ground of cruelty and desertion. The respondent filed a counter. Her case is that at the time of her marriage, her parents presented Rs.10,000/-, a gold ring, a wrist watch worth Rs.500/- to the petitioner, and also gold ornaments weighing five tulas and silver anklets weighing 20 tulas and that an extent of Ac.2.00 guntas of agricultural land was also given to her. Her specific case is that the petitioner himself used to ill-treat her on some pretext or the other without her fault. He used to harass her demanding more dowry. His parents also used to harass her to bring additional dowry. It is her further case that the petitioner and his parents necked out her from the matrimonial house by beating and scolding her severely. In the above circumstances, she along with the children was constrained to leave the house of the petitioner to her parents’ house. The father of the respondent brought her to the house of the petitioner and gave Rs.5,000/- to the petitioner as additional dowry. Being not satisfied with that amount, the petitioner and his parents continued to harass the respondent with an evil intention to get more money. It is also alleged that the parents of the petitioner and the petitioner himself beat the respondent and necked her out of their house inhumanly with an evil intention to perform second marriage to the petitioner with another girl with a view to get huge sum of dowry. As the respondent was not in a position to meet the illegal demands, she was compelled to take shelter in her parents’ house. The petitioner came to the house of his in-laws and without the knowledge and consent of the respondent, he had fraudulently taken away the second son of the respondent to his house. Thereafter, the parents of both the petitioner and the respondent held many panchayats to pacify the matter but their efforts did not yield any results. As the petitioner neglected and failed to provide maintenance to the respondent and her children, she filed M.C. No. 19 of 1994 seeking maintenance which is pending (as on that date) on the file of the learned Additional Judicial First Class Magistrate, Kothagudem. The petitioner filed Crl.M.P. No. 4104 of 1994 on the file of the Additional Judicial First Class Magistrate, Kothagudem claiming to return their first son. She had also filed a complaint against her husband under Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act. In order to establish the grounds of cruelty and desertion, the petitioner examined himself as PW1, who reiterated the contentions of the original petition. He deposed that a panchayat was conducted in which he agreed to pay Rs.30,000/- towards permanent alimony, however that was not materialized. In the cross-examination, he has denied a suggestion that he was given cash of Rs.5000/- and wristwatch as gift at the time of marriage and other gold and silver ornaments to his wife. He has accepted that an extent of Ac.02.00 cents of land was given to his wife towards pasupukunkuma. However, his case is that the said land is in the possession of the parents of the respondent. He has also denied a suggestion that he had sold away the land given to his wife to one Kummari Ramulu. He has also denied a suggestion that he did not go to the fields by 06.00 a.m. and return home by 07.00 p.m. He has also denied a suggestion that his second brother got more dowry than him. He has also denied the suggestion that he used to beat and neck out his wife from the house. It is further denied that his wife never abused either him or his parents. It is his specific case that the respondent herself left his company. He further alleged that his wife used to beat the children and never made any attempt to join him. To corroborate the evidence of PW1 and the petition averments, PWs.2 and 3 were examined. They deposed about the family affairs and the attitude and behaviour of the respondent. According to them, the respondent deserted the petitioner and that she agreed for divorce and to take Rs.30,000/- from the petitioner and that the petitioner had deposited Rs.30,000/- with the mediator as per the said agreement. On the other hand, the respondent-wife examined herself as RW1, who reiterated what all had been stated in the counter. In the chief-examination, she has stated that she is not prepared to give divorce to her husband. She has also stated that she has four sisters and she is the eldest and have no brothers. She further admitted that she filed a criminal complaint under Section 498-A IPC and Sections 3 and 4 of the Dowry and Prohibition Act after Search Petition was filed by her husband. She further stated that she does not know whether the police harassed the petitioner and their family members basing on the complaint filed by her. She denied a suggestion that she did not lead the matrimonial life with the petitioner for the last eight years. She admitted that both the sons are residing with the petitioner. She denied a suggestion that the petitioner never demanded her to sell away the land given in her favour. She also denied a suggestion that the petitioner never beat her. It is stated that Harinadh and Ravi forcibly took away her second son. The suggestion that in spite of the efforts made by the petitioner she did not join his company, was denied. She admitted that herself and her father went to Chandrugonda and filed a criminal complaint against the petitioner in the police station, but according to her, she does not know what happened later. RW2 is the cousin brother of RW1, who stated about the particulars of cash, gift, gold, silver ornaments, etc. given at the time of the marriage by the parents of the respondent and also about the lease of the land, but he does not know for what reason the petitioner used to beat the respondent. He further stated that himself and the father of the respondent took the respondent to the petitioner and asked him as to why he was beating her. It is further stated that though the petitioner was not willing to allow the respondent to live with him, they left the respondent in the house of the petitioner. Thus, RW2 states that there was no fault on the part of the respondent and she never ill-treated or deserted the petitioner, and on the other hand, the petitioner himself deserted and ill-treated the respondent. Heard the learned counsel for both the parties and perused the material placed on record. Admittedly, the marriage of the petitioner and the respondent was solemnized in May, 1985. Their elder son was aged about 5 years and their second son was aged about 2½ years on the date of filing of divorce petition in 1993. Thus, it appears that their elder son was born in 1988 and younger son in 1991. It is alleged that the respondent had been living in her parents’ house since 1991. Thus, she lived with the petitioner for about 6 years. We have considered the entire material allegations made against one another and the evidence of the witnesses adduced on behalf of the parties. The petitioner is elder son to his parents. The respondent is the eldest daughter to her parents. It is alleged that wife started non-co-operation when the petitioner did not concede to her demand of separate residence. But it has to be seen that the petitioner and the respondent lived together for considerable period and begot two sons. Considering the length of the period they lived together, the allegations made against the respondent appears to be trivial in nature. It has to be seen that the respondent initiated legal proceedings only after the petitioner filed the petition for divorce. The respondent categorically stated that she was ready and willing to join the company of the husband. In fact, her evidence clearly shows that when she along with two elders came to the house of the petitioner, and though the petitioner was not willing to permit her to live in that house, they forcibly left the respondent in the house of the petitioner, and on the next day morning itself, the petitioner seems to have forcibly sent her to her parents’ house. In the circumstances, it is clear that it is the petitioner, who subsequently did not allow the respondent to live with him, and subsequent events reveal that it is the petitioner, who deserted her and made her to live in her parents’ house. Though in the initial stage, it appears that the petitioner was not co-operating with the respondent, but after perusing the entire evidence and considering all the facts and circumstances of the case, we feel that the petitioner ought to have allowed the respondent to live with him when she subsequently came to his house and expressed her intention to live with him. The evidence of PWs.2 and 3 reveal that the respondent agreed to take Rs.30,000/- from the petitioner and to give divorce to the petitioner, and that the petitioner had deposited Rs.30,000/- with the mediator. Even if this version is true, this circumstance cannot be treated as a ground to grant divorce. It may be a fact that though opportunity was given to the respondent, she failed to produce mediators as witnesses on her behalf. It is also a fact that she did not aver in her counter that the petitioner had sold away Ac.2.00 guntas of land given to her, but on these grounds, no presumptions can be drawn against the wife. Even if wife failed to substantiate her allegations that cannot be a ground to grant divorce. The socio- economic and family conditions have to be considered before considering whether certain acts amount to cruelty or not. Usual quarrels cannot be given credence when the parties lived together subsequently for a considerable period. The lower Court failed to see that the disputes between the parties are trivial in nature, reveal normal wear and tear and the fact that it is the petitioner who ultimately did not allow the respondent to live with him. The entire evidence has to be properly considered. The circumstance on which the trial Court based its judgment seems to be not sufficient to prove the “cruelty”. It is not sufficient to see who was initially responsible for the disputes, but it has to be seen, who is ultimately responsible for separate living. In the above circumstances, we are of the view that the burden lies on the petitioner-husband to prove cruelty and desertion by cogent evidence, and it appears that the petitioner-husband has failed to prove the facts of cruelty alleged to have been committed by the respondent and also failed to prove that the respondent has voluntarily deserted him. Hence, the appeal is allowed setting aside the impugned order dated 19.04.1995. No order as to costs. ________________ V. ESWARAIAH, J 29.04.2011 ____________________ B. CHANDRA KUMAR, J bcj