THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.76 of 2000 JUDGMENT: (Hon’ble Sri Justice B.N.Rao Nalla) This Civil Miscellaneous Appeal is filed by husband aggrieved by the order dated 11.06.1999 in O.P.No.887 of 1997 on the file of the Principal District Judge, Ranga Reddy District at Saroornagar, Hyderabad, whereunder and whereby the said O.P. filed by him for dissolution of the marriage under Section 10 of the Indian Divorce Act, 1869 (for short ‘the Act’), was dismissed. 2. For the sake of convenience, the parties hereinafter be referred to as the appellant and the respondents as arrayed in this C.M.A. 3. It is the case of the appellant that the marriage between him and the first respondent took place on 5.8.1981 as per Christian rites and they lived at Ramnagar. Out of wedlock, they had a daughter on 13.12.1982. Then they shifted their residence to Nandanagar, Hyderabad. In the year 1988, they shifted their residence to KPHB Colony, Kukatpally. The appellant is working in National Remote Sensing Agency (NRSA). The second respondent is also working in NRSA and he is friend of the appellant. He used to come frequently to the house of the appellant. In the year 1988, on account of unusual and strange behaviour of the respondents 1 and 2, he got a doubt of illicit relations between them. The appellant asked the first respondent about the same, but she denied such relations with the second respondent. Believing the words of the first respondent, the appellant continued to live with her. He advised the first respondent to mend her ways otherwise her behaviour would create a doubt in anybody’s mind that she is having illicit affair with the second respondent. He also advised the second respondent not to enter his house. But, since appellant and second respondent are working in the same concern, the second respondent knew working hours of the appellant and whenever appellant is in office, he used to enter the house of the appellant stealthily and continue adulterous relationship with the first respondent. On 6.4.1994, the appellant saw the respondents sharing the bed and he caught them red handed. The second respondent ran out of the house and the first respondent admitted the adulterous relationship. In April, 1994, the appellant brought to the notice of the church authorities about the adulterous life of the first respondent. Then, the first respondent created a big scene and the appellant has been driven out from the home. When he complained to Police, they told him to approach the civil court. The appellant has been staying away from the house since May,1994. However, the appellant is meeting the expenditure of his daughter who is studying in Vignan Prabha Vidya Nikethan, KPHB Colony, Kukatpally, Ranga Reddy District. The first respondent is doing tailoring work and she is earning Rs.2,000/- to Rs.3,000/- per month. The first respondent is guilty of adultery and as such, the marital relationship between them is irretrievably broken down. 4. On the other hand, the first respondent admitted about her marriage with the appellant and gave birth to a female child out of wedlock. The marital relationship between her and the appellant continued till January, 1996. Thereafter, the appellant has started behaving in abnormal manner and harassing her physically and mentally. The appellant asked her to commit suicide and expressed his desire to get rid of her and to marry another woman. Her neighbours witnessed the physical violence suffered by her at the hands of the appellant. Many a time, they interfered and stopped the violence. He stopped giving money to her to meet the day-to-day household expenditure. She and her daughter were subjected to financial troubles. She denied having any relationship with the second respondent. The appellant is coming to her house at H.No.96/6, LIG, III Phase, KPHB Colony, Ranga Reddy District now and then and the same is known to the neighbours and the locality people. The appellant is troubling her and her daughter by not visiting her house regularly and also not maintaining them. They are pulling on their lives with the support of her sister and other relatives. She is not earning Rs.2,000/- to Rs.3,000/- through tailoring work as stated by the appellant. Her eyes got partially damaged due to pouring of hot boiling milk on her head and also due to continued violence by the appellant on her about 6 or 7 years ago and as such, she is not in a position even to do some manual labour work. The allegation of the appellant that she is living in adultery with the second respondent, is invented for the purpose of the O.P. 5. The case of the second respondent is that he is not the friend of the appellant, but they got acquaintance with each other as both of them are working in the same unit. He never visited the house of the appellant. The allegation of the appellant that he and first respondent were sharing the bed on 6.4.1994 is invented for the purpose filing the O.P. He saw the appellant moving with some other unknown women in the streets of twin cities. He came to know that the appellant is contemplating to get rid of the first respondent, who is a un-employee and to contract 2nd marriage with an employed woman. To attract the provisions of Section 10 of the Act, he has been made a scapegoat by the appellant. 6. Basing on the pleadings of both parties, the court below framed the following point for consideration: Whether the petitioner (appellant herein) is entitled for dissolution of the marriage between him and the first respondent solemnized on 5.8.1981. 7. On behalf of the appellant, he himself got examined as PW.1 and marked Exs.A.1 to A.3. On behalf of the first respondent, she herself and another were examined as RWs 1 and 2, and on behalf of the second respondent, he himself got examined as RW.3. No documents were marked on behalf of the respondents. 8. The court below after taking into consideration the documentary evidence brought on record as well as factual and legal aspects of the matter, dismissed the O.P. 9. The learned counsel for the appellant contended that the court below failed to see that the appellant was subjected to cruelty by the first respondent, that the court below ought not to have considered and believed the evidence of RWs 2 and 3 as their evidence is not genuine and is in collusive nature and that the court below committed error in observing that the appellant lived with the first respondent after alleged incident which amounts to condonation of lapses on the part of the first respondent, if any. 10. Per contra, both the learned counsel for respondents 1 and 2 submitted that the court below has given cogent and convincing reasons while dismissing the O.P., and as such, the impugned order does not warrant interference from this court. 11. Having regard to the facts and circumstances of the case, the point that arises for consideration before this court is whether the appellant has proved his case to dissolve the marriage between him and the first respondent? 12. The marriage between the appellant and the respondent took place on 5.8.1981 and they are blessed with a female child on 13.12.1982. The O.P. was filed in the year 1997 under Section 10 of the Act on the ground that the first respondent is living in adultery with the second respondent. 13. The evidence of PW.1, who is appellant herein, is that in the year 1989 when he went home he saw the second respondent sitting in a folding chair in the compound of the house, whereas his chappals were found inside the house and he warned his wife- first respondent- RW.1 not to permit second respondent into the house in his absence. Then, he shifted his residence from Nandanagar to his own house with his wife and daughter at Kukatpally Housing Board Colony. On 6.4.1994 during lunch hours he came from the office and saw TVS Champ of RW.3- second respondent parked in front of the building and he found his house doors closed and he pushed the doors. Then his w i f e RW.1 and RW-3-second respondent were on the bed. Immediately, he rushed to Esupadam Sangam Church situated in KPHB Colony and informed Pastor Esupadham and his wife about the incident. In his cross-examination, he stated that he did not inform any of elders about his seeing respondent No.2 in his house. He also stated that Pastor Esupadam-RW.2 along with members of family used to come to their house once in a month for prayer. He admitted that he did not lodge complaint against the second respondent either with his department or with Police. But in his chief-examination he stated that he made complaint to the Police. 14. The evidence of RW.1 is that since four years, the appellant left his company. He is residing at NRSA hostel. He visits now and then and beat her. He was coming home fully drunk. He used to tell her that she should die so that he can go for another marriage. RW.2- Yesupadam, on her complaint, advised the appellant not to bring his friends for drinking at home as they have a grown up daughter. She stated that she has no acquaintance with second respondent. She stated that no incident took place in 1994 finding her with the second respondent in her bed room by the appellant. She further stated that the appellant is making all sorts of allegations against her to obtain divorce and to go for second marriage. In her cross examination by the appellant nothing was elicited with regard to her intimacy with the second respondent. She stated that she had marital life with the appellant till January,1996. 15. The evidence of RW.2, who is pastor of the Church, is that RW.1 used to complain to him that PW.1-appellant takes drinks and harass her. PW.1-appellant never complained against the character of RW.1 to him. In his cross-examination, he stated that PW.1-appellant never told him that RW.1 had illicit intimacy with the second respondent. He further stated that he has no acquaintance with the second respondent and he never saw him. 16. The evidence of RW.3 is that he knows PW.1. He has no acquaintance with his family members. He stated that he and PW.1 competed for promotion and he succeeded. Since he got promotion, the appellant developed grudge against him and used to come to his Section in the office and express his anguish for his not getting promotion. He further stated that PW.1 used to tell him since prior to his promotion that he would marry an employed girl. In his cross- examination he stated that he never visited the house of PW.1 and he has no acquaintance with relations of wife of PW.1. Except, PW.1, being an co-employee in the NRSA, he has no other acquaintance with him. He further stated that as on the date of his deposing in the court, he has no acquaintance with RW.1 and he never spoke with her. He saw her when she attended court in the O.P. He stated in his cross- examination that in Para No.9 of his counter, he mentioned that PW.1 is planning to get rid of RW.1, who is unemployed lady and planning to marry an employed woman. His source of information was PW.1 himself. 17. It is seen that the appellant for the first time in the year 1988 came to know about the alleged illicit affair between the first respondent and the second respondent and he did not bring to the notice of any elders or any family members about the incident. Similarly, on 6.4.1994 when he saw both the first respondent and the second respondent on the bed, he has not made any attempts to bring the same at least to the notice of family members of the first respondent or his relatives. RW.1 in his cross-examination stated that till January,1996 she had a marital life with PW.1. 18. Having regard to the facts and circumstances of the case and also in the light of what is stated hereinabove, we do not find any irregularity or illegality in the impugned order dated 11.6.1999 passed in O.P.No.887 of 1997 by the court below and as such, the C.M.A. is liable to be dismissed. 19. Hence, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. ______________ V.ESWARAIAH,J ______________ B.N.RAO NALLA, J .03.2010 Stp