HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A. No. 3700 of 2002 DATED: 04.03.2010 Between: Vastavai Savithramma .. Appellant/ respondent And Gudithi Nagabhushanam .. Respondent Petitioner JUDGMENT:- (Per Hon’ble Sri Justice V. Eswaraiah) This Civil Miscellaneous Appeal is directed against the order dated 21.01.2002 passed in H.M.O.P. No.90 of 1999 by the learned Senior Civil Judge, Khammam, whereby the petition filed by the husband under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (for brevity “the Act”) for dissolution of the marriage, was allowed. For the sake of convenience, the parties are referred to as they are arrayed in the H.M.O.P. The marriage between the petitioner-husband and the respondent-wife took place in the year 1977 in Tirumalagiri Temple. They lived together happily for four years and were blessed with two daughters. Thereafter, differences arose between them, and in 1981, the respondent along with the daughters left the company of the petitioner without any valid reason and stayed with her parents at Banapuram. The petitioner and the elders went to the respondent and made efforts to make her join the petitioner, but their efforts became futile, and finally, as per the advice of the elders, the petitioner gave a piece of land in an extent of Ac.03.00 guntas to the respondent for performing the marriage of the daughters and for maintenance of the respondent. Since all efforts to make the respondent join the company of the petitioner went in vain, the petitioner-husband filed H.M.O.P. seeking divorce on the ground of desertion. The respondent-wife filed counter affidavit admitting the marriage and the birth of two daughters, but denied the other allegations. She stated that in 1981, the respondent along with the daughters did not leave the company of the petitioner as alleged, but in fact, the petitioner started harassing her for the last four years, and was addicted to bad vices, such as drinking, debauching, gambling, etc. and used to beat her in a drunken condition, and started neglecting her and her children. It is further stated that the petitioner developed illicit intimacy with one G.Jayamma of Chinamandava village, and the respondent along with her children was necked out from his house, as such, she was constrained to live at Banapuram. The petitioner filed the H.M.O.P. only with a view to leading illegal and immoral life with Jayamma. It is alleged that the respondent filed M.C. No.46 of 2000 on the file of the Judicial First Class Magistrate, Special Mobile Court, Khammam, and her minor children filed a suit for partition and the same are pending. It is stated that there is no cause of action for the petitioner to file the H.M.O.P. for dissolution of the marriage. The petitioner-husband, who was examined as PW1, stated that in the year 1981, the respondent-wife along with the children left his house and was often quarrelling with him for petty things and not looking after him well. The respondent went to her parents’ house in Banapuram village and his attempts to bring her back failed. In 1985, the respondent came to Chinamandava village and convened a panchayat, wherein the elders asked the petitioner to give Ac.03.00 guntas of land out of Ac.5.20 guntas owned by him towards maintenance of the respondent and her minor children, and accordingly, he executed an agreement to that effect. In cross-examination, he stated that since 1982, they have not been living together, and he did not issue any notice to the respondent asking her to come and live with him nor did he file any petition for restitution for conjugal rights. His daughters are living with the respondent. He admitted that the respondent left him only in 1985 after the property was partitioned, and Ac.03.00 guntas of land was sold in favour of his brothers in 1996-97. It is stated that as per the agreement, neither of the parties is entitled to sell away the properties, but afterwards, both of them agreed to sell the property, as such, the petitioner himself executed sale deeds even in respect of the land in an extent of Ac.03.00 guntas, which was allotted to the respondent, for the benefit of the respondent and the children. He admitted that the respondent filed M.C.No.24 of 1999 prior to the petitioner filing the H.M.O.P. The suggestions made to him that he was addicted to drinking, debauching, etc. and used to beat the respondent and the children, and that he himself, having developed illegal intimacy with Jayamma, necked out the respondent of his house, are all denied. It is stated that the respondent is his only wife, but her surname is wrongly shown in H.M.O.P. as Guditi. He admitted that the respondent raised no objection to him in executing the document to sell the property allotted to her. PW2 deposed only to the effect that there was a settlement with regard to devolution of Ac.03.00 guntas of land in favour of the respondent towards maintenance of herself and her children. RW1, who is the respondent, deposed that after 20 years of the marriage, the petitioner developed illicit intimacy with one Jayamma, eloped with her, and was addicted to drinking, gambling, etc. and used to beat her and drove them away from his house, and therefore, she is staying in her parents’ house. In her cross-examination, she deposed that her mother-in-law got scribed a document wherein it is mentioned that Ac.3.00 guntas of land was given to her and the petitioner retained Ac.2.04 guntas and both of them should not alienate the property. When the petitioner refused to perform the marriage of the second daughter, she raised a dispute and the elders made him agree to devolve Ac.03.00 guntas of land in her favour, but the petitioner, without the consent of the respondent, sold away the land in favour of his brothers by executing sale deeds. Insofar as the remaining extent of Ac.02.04 guntas of land is concerned, it was retained by the petitioner himself. In 1985, when she was driven out of the house, he was having intimacy with Jayamma and the elders also knew about that relationship. It is stated that she did not give any report to the police about the harassment meted out to her, and even now, she is willing to live with the petitioner. She denied a suggestion that their marital tie was broken and there is no possibility for them to live together. RW2, who is brother-in-law of the petitioner, deposed that he married the elder sister of the petitioner. The petitioner was beating the respondent for the reason that she was not required to him keeping in view his illegal intimacy with Jayamma. He stated that the petitioner and the respondent jointly performed the marriage of their elder daughter, but the respondent alone performed the marriage of the younger daughter. He further deposed that he was also one of the mediators for the disputes among them and the petitioner alone was found at fault. He stated that he also advised the petitioner to take back the respondent to lead marital life, but he did not agree to that. In cross-examination, he stated that the petitioner and the respondent lived together till the marriage of their elder daughter and there were no disputes among themselves for a period of 15 years. The deposition of the respondent in M.C. No.46 of 2000 was marked as Ex.A1 and the agreement arrived at the instance of the elders for giving Ac.03.00 guntas of land to be enjoyed by the respondent and her children was marked as Ex.A2. Ex.A3 is No Objection Letter of the respondent for disposal of Ac.02.04 guntas of land by the petitioner. The Family Court, having perused the evidence on record, held that as per the admission of the petitioner, the respondent lived with him up to 1985 even though it is stated in the petition that the respondent deserted him in 1981, and according to the petitioner, they have been living separately since 1985 and the petitioner also gave Ac.03.00 guntas of land in settlement of the disputes among themselves and both the daughters were already married and there is no possibility of reunion between them, and the respondent has not established any valid ground of her living away from the petitioner, and the averment made by her that the petitioner was addicted to bad vices like drinking, gambling, debauching, etc. and that the petitioner beat her and intentionally necked her out of the house were not established, and recorded a finding that the alleged petitioner’s illicit intimacy with Jayamma was also not established and the respondent is living away from the husband without any valid ground. The trial Court further recorded a finding that the respondent came up with a definite case that the petitioner has illicit intimacy with Jayamma, but that averment was not proved, as such, it amounts to cruelty, and accordingly, allowed the H.M.O.P. granting divorce to the petitioner. Now, the question that arises for consideration is whether the petitioner established the ground of cruelty though not raised in the pleadings in the H.M.O.P. The other question that arises for determination is whether the respondent deserted the petitioner continuously for a period of two years prior to the petitioner filing the H.M.O.P. in order to attract the provisions of Section 13(1)(ia & ib) of the Act. Insofar as the ground “cruelty” is concerned, the trial Court held that the respondent having taken defence in the counter affidavit stated that as the petitioner developed illicit intimacy with one Jayamma and wanted to continue his relationship with her only, she was necked out treating her to be an obstacle. But, the fact remains that the petitioner has not taken any ground in the H.M.O.P. with regard to cruelty. The trial Judge has not taken into consideration Maintenance Case and the suit for partition to attribute cruelty to the wife, but mainly arrived at the conclusion that taking such a defence in the counter making certain allegations against her husband attributing illicit intimacy with Jayamma to the petitioner, amounted to cruelty. It is the case of the petitioner that the wife used to quarrel with him without any reason whatsoever, but the respondent’s case is that as the petitioner developed illicit intimacy with Jayamma, he neglected her and he himself necked her out of the matrimonial house, and therefore, she was constrained to stay with her parents. We are of the opinion that it may not be possible to prove the illicit intimacy of a woman from an ordinary house-wife like the respondent, but the fact remains that the husband of the petitioner’s own elder sister also testified that the petitioner has got illicit intimacy with Jayamma, and in fact, the petitioner himself used to be blamed for the dispute, and he himself necked her out of the house. Therefore, the defence taken in the counter affidavit amounts to cruelty on the part of the petitioner. Hence, we are inclined to set aside the finding recorded by the Family Court, with regard to the grant of divorce on the ground of cruelty. Insofar as the ground “desertion” is concerned, the learned counsel for the petitioner-husband has strenuously contended that there was settlement of Ac.03.00 guntas of land in favour of the petitioner’s wife and they were living separately and the wife never made any attempt to join the company of the husband and her defence is at variance with both the M.C. and the H.M.O.P. and she herself left the company of the petitioner-husband, and therefore, the petitioner- husband is entitled to the grant of decree for divorce on the ground of desertion. On the other hand, the learned counsel for the respondent-wife submits that the petitioner disowned his responsibility towards his wife and the grown-up children, and therefore, the allegation that she was not at all giving food for the husband and she herself left the company of the petitioner is incorrect and without any basis. Heard the learned counsel for both the parties and perused the material placed on record. It is stated that admittedly, the respondent-wife looked after her daughters and played the role of parents, and in the best interest of the children only she raised a dispute for their survival, and therefore, the elders decided and prevailed over him and stating that Ac.03.00 guntas of land should be enjoyed by her. The settlement was only a provision for their maintenance when the children were grown up and to perform their marriage, and there was no other go to meet the expenses except to sell away Ac.03.00 guntas of land and therefore, the petitioner himself executed a sale deed in favour of his own brothers and with that money alone the marriage of the elder daughter was performed and the petitioner did not take the responsibility to perform the marriage of the younger daughter. Insofar as the vices are concerned, PW2 also stated that the petitioner was addicted to vices, such as, gambling, drinking, debauching, etc. From the material available on record, it is difficult to believe that the respondent herself deserted the petitioner, and wanted to put an end to the marital tie, and therefore, she agreed to take Ac.03.00 guntas of land towards their maintenance alone. In her deposition, she stated that she is always willing to join the company of the petitioner-husband. As the petitioner never gave any notice requiring her to join and did not take any steps for restitution of conjugal rights, we are of the considered opinion that the petitioner- husband, in view of the strained relations and treating the respondent- wife as an obstacle in his way from continuing his illicit intimacy with Jayamma, necked the respondent-wife out of the matrimonial home. Hence, it cannot be said that the respondent herself deserted the petitioner voluntarily on her own volition and without any reason. It is to be noticed that if the respondent herself had deserted the company of the petitioner on her own volition, the petitioner-husband would not have agreed to sell away Ac.03.00 guntas of land for the purpose of performing his elder daughter’s marriage and for the maintenance of his wife and children. Hence, the finding arrived at by the Family Court that the respondent-wife herself deserted the petitioner is not true and sustainable. For the foregoing reasons, we hold that the trial Court committed an error in granting decree for divorce on the grounds of cruelty and desertion. Hence, the C.M.A. is allowed setting aside the order and decree 21.01.2002 passed in H.M.O.P. No.90 of 1999 by the learned Senior Civil Judge, Khammam. No order as to costs. ________________ V. ESWARAIAH, J. 04th March, 2010 ________________ B.N. RAO NALLA, J. bcj