IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE ELEVENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE G.V.SEETHAPATHY A.S. NO. 1172 OF 1996 Between: M.Ramarajupatnaik Appellant And Smt. M.Ramakumari Respondent. THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE G.V.SEETHAPATHY A.S. NO. 1172 OF 1996 ORAL JUDGMENT: (per the Hon’ble Smt. Justice T.Meena Kumari) This Appeal Suit is filed assailing the order and decree dated 11.12.1995 passed by the learned Judge, Family Court, Visakhapatnam, dismissing O.P. No. 275 of 1995 filed by the husband – appellant herein under Sec. 13(1)(ia)(1b) of Hindu Marriage Act, seeking divorce. The marriage between the appellant – husband and the respondent – wife was solemnized on 8.12.1978 at Simhachalam as per Hindu customs and rites and they lived together for four months at Tatichetlapalem. While so, in March, 1979, the younger sister of the appellant joined them for the purpose of study, which the respondent did not relish. Subsequently, after the marriage of the appellant’s elder sister, his parents also joined the appellant and, thus, there ensued quarrels on petty issues disturbing the mental peace and created agony to the appellant. It is further averred that the brothers and friends of the respondent accompanied her and used to threaten him with dire consequences. The respondent gave false complaint to the police and when the respondent and her brother abused the appellant, in foul language, he lodged complaint with the police. Even though, the appellant shifted the respondent to a new house, which he constructed after taking loan, she became more aggressive and quarrelsome. She lodged complaint with the police, Gopalpatnam, but the police admonished her and the issue was compromised. It is further his case that the respondent had been demanding divorce for the last six years and all of a sudden, accompanied by village elders, she informed the appellant that she wanted to live separately and demanded separate maintenance and residence and since then, she had been residing separately in a portion of his house receiving maintenance from the appellant. It is further averred that the elder son is residing with the appellant and the second son and daughter are residing with the respondent. The respondent resisted the petition denying all the material allegations. It is her case that the appellant himself drove her out of the matrimonial house at the instigation of her in-laws and agreed to pay Rs.300/- per month for herself and the child at the intervention of the elders. It is further averred that while the appellant lives in the center portion, his parents live in another portion and his sister and unemployed brother-in-law live in a separate portion. It is further her case that since her parents refused to perform the marriage of appellant’s sister with their son i.e. the brother of the respondent, harassment ensued to her including physical abuse, which spoiled her health and mental peace. While so, on 30.3.1980, the appellant and his parents beat the respondent severally resulting damage to her right eye, which she got treated at KG Hospital. It is further averred that physical abuse has resulted in mortality of the infant after 45 days of its birth and when she complained to the elders about the ill- treatment meted out to her, the appellant inflicted red-hot iron injury to her knees causing severe burn injuries and she suffered severe pain for three months and she was confined to bed apart from the fact that her mobility was restricted. On behalf of the appellant – husband, he was examined as PW-1 apart from examining three other witnesses as PWs 2 to 4. In support of her case, the respondent – wife was examined as RW-1 and two of her neighbours were examined as RWs. 2 and 3. No documents were exhibited on either side. The court below, on an extensive consideration of the evidence adduced by both the parties, dismissed the petition observing that there is a presentive evidence to show that there is no intention on the part of the respondent to leave the matrimonial house permanently, as required under law and, as such, there is no determination to put an end to the nuptial knot. Aggrieved thereby, the husband preferred this Appeal inter alia contending that when once the respondent has withdrawn from the bed and board and living in a separate portion, constructed by the appellant, it is sufficient to construe desertion on the part of the respondent which is reinforced by the fact that the respondent on a question by the Court, refused to live with the appellant, which makes it abundantly clear that she does not want to continue conjugal relationship with the appellant. It is further contended that inasmuch as the parties are admittedly living separately since 1987, the marriage has irretrievably broken down more particularly when the efforts of elders and the police to re-unite them in the marriage tie, did not yield any result. The marriage between the couple and they begetting two sons and a daughter out the wedlock and the aspect of the parents of the appellant joining the couple is not in dispute. It is also not in dispute that the couple is living separately since 1987. The couple attributed cruel treatment to each other, as such, it has to be seen whether there is any cruel treatment and/or whether the respondent has withdrawn from the company of the appellant. It is the evidence of PW-1 that in the year 1977, his father retired from service and they joined him with his sister, as he being the only son. The respondent started quarrelling with them and attributed bad character to his sister. It is his further evidence that the respondent and his father and four brothers came to his house and the respondent’s father abused his mother and they also lodged complaint with the police on 30.3.1980. It is his further evidence that after constructing a house, they shifted their residence to new house in the year 1985, but the respondent continued the same treatment towards him and lodged a false complaint with the police on 14.9.1985. He further deposed that at the intervention of the elders, brought by the respondent, he provided her separate residence and also maintenance. This aspect of mediation by the elders and demand of the respondent for maintenance and separate residence is spoken to by PW- 2. The cruel attitude of the respondent is spoken to by the sister of the appellant, examined as PW-3, who is wife of one of the brothers of the respondent. The evidence of PW-4, who is first son of the couple, supports the version of the appellant. RW-1 while narrating the cruel incidents of the appellant, deposed that while they were residing at Tatichetlapalem, she suffered an injury at the hands of the appellant and her in-laws to her left eye and after shifting to Krishnarayapurm, the appellant twisted her left wrist, which resulted in dislocation of wrist bone and still she is experiencing pain and cannot lift weight. She also deposed about inflicting red-hot iron injury to her knees. RW-2, who is an independent witness and a retired Assistant Engineer, deposed that he personally heard the respondent complaining to her parents about the ill- treatment of the appellant and his family members. He further deposed about the physical assault of the appellant on the respondent, which resulted in bleeding injury and he suggested her to go to police station. The evidence of RW-3 is more or less on the same lines. She further deposed that seeing the bleeding injury, the women folk felt pity for her. The word cruelty is not defined in the Act but it can be determined keeping in view the physical, mental and societal condition and status of the spouses and the circumstances of the case. Thus it varies from person to person and place to place. At the same time, it has to be borne in mind that petty domestic squabbles, without evidence, should not be taken as ground to annul the marital tie. In a conjugal relationship, cruelty means, whether one spouse so treated the other spouse or manifested such feelings towards her or him, so as to have inflicted bodily injury or to have caused reasonable apprehension in the mind. Cruelty is not only physical, but also mental, which has to be adverted to depending upon the conditions and status, in which the spouses live. Having gone through the entire evidence and the impugned order, we are of the considered view that the trial court has rightly observed that the allegation of the appellant that he got cruel treatment from the respondent is too general to merit consideration when compared to the specific incidents of ill-treatment meted out to her, explained by the respondent. Thus, we are in agreement with the view expressed by the trial court that the appellant failed to establish his plea of cruelty meted out to him by the respondent. The evidence further discloses that the respondent did not, on her own accord, leave the matrimonial house. Had the intention of the respondent been to desert the appellant, she would not have resided in a portion of the house of the appellant and that too with a son and the daughter. The evidence of the parties and the chain of events, do not suggest that there was a determination to put an end to the matrimonial relations permanently. Thus there is no intentional and permanent forsaking of the appellant by the respondent on her own and without their being a reasonable cause. Therefore, the court below has rightly held that there is no determination to put an end to the matrimonial relations and cohabitation permanently, as is required under law. Having gone through the entire evidence and the well-considered judgment of the court below, we do not find any reason to differ with the views expressed by the trial court. Consequently, the appeal fails and is accordingly dismissed, confirming the order of the trial court. No order as to cost. ____________________ Justice T.Meena Kumari __________________ Justice G.V.Seethapathy August 20, 2009 MAS.