HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A. Nos. 3505 of 2000 and 294 of 2001 DATED: 27.04.2010 Between: Routhu Ramanamma .. Appellant And Routhu Appala Raju .. Respondent COMMON JUDGMENT:- (Per Hon’ble Sri Justice V. Eswaraiah) As the point involved in these two Civil Miscellaneous Appeals is inter-related, these matters are taken up together for disposal by this common judgment. The appellant-wife has preferred both C.M.A. No. 3505 of 2000 against the order in O.P. No. 97 of 1998 and C.M.A. No. 294 of 2001 against the order in O.P. No.175 of 1998. The learned Judge, Family Court, Visakhapatnam passed the Common Order dated 07.01.2000 in O.P.No.175 of 1998 and O.P.No.97 of 1998, whereby O.P. No. 175 of 1998 filed by the respondent-husband under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (for short “the Act”) for dissolution of the marriage on the ground of cruelty and desertion was allowed and O.P. No. 97 of 1998 filed by the appellant-wife under Section 9 of the Act seeking restitution of conjugal rights, was dismissed. Heard the learned counsel for both the parties and perused the material placed on record. The respondent-husband, who filed O.P. No.175 of 1998 for divorce, averred that the marriage between him and the appellant-wife took place on 31.08.1988 at Visakhapatnam, and it was consummated. He stated that he is dumb and deaf. After they lived for sometime together, the appellant-wife developed an attitude of leaving him alone at home in the Shipyard Colony, Visakhapatnam where he was allotted a quarter and go to her parents’ house at Gopalapatnam and act upon her whims and fancies taking advantage of his dumbness and muteness. She also did not allow him to have sexual intercourse with her, and he being the deaf and dumb person, never intimated his feelings to anyone, but suffered mental agony. It is stated that the appellant-wife, on many occasions, threw her footwear on him in the presence of his parents, and when the parents objected to it, she used to abuse his mother and sister including himself instead of repenting for her acts. She wilfully deserted the respondent-husband in September, 1995 and is staying with her parents at Gopalapatnam. The allegations made by the respondent-husband in O.P.No.175 of 1998 have been specifically denied in the counter filed by the appellant-wife. The respondent-husband, who was examined as PW1, stated that after living with the appellant-wife at Visakhapatnam for eight months after the marriage, the appellant-wife denied conjugal life with him, as such, he used to suffer mental agony without making any complaints against her in that regard. She did not provide him food, coffee or tiffin. She abused him in filthy language, quarrelled with him without any reason whatsoever, and left his company in the year 1997 by denying conjugal life with him and thereby deserted him. O.P. was filed in May, 1998. PW2, who is the brother-in-law of PW1, stated that the appellant-wife deserted the respondent-husband in the year 1997 and living separately. PW3, who is known to both PWs.1 and 2, also stated that the appellant-wife left the company of the respondent-husband in the year 1997 and the petition for divorce was filed in the year 1998. Insofar as the desertion is concerned, as contemplated under relevant provisions of the Act, cause of action arises for filing the O.P. for dissolution of marriage on the ground of desertion if the wife deserts the husband continuously for a period of not less than two years immediately preceding the date of presentation of the O.P. In the instant case, the petition for divorce was filed in the year 1998, whereas the evidence of PWs.1 to 3 would go to show that the appellant-wife deserted the respondent-husband only in May, 1997. Even though it was alleged in O.P. No.175 of 1998 that the appellant- wife deserted the respondent-husband in September 1995, but the evidence as admitted by PWs.1 to 3 goes to show that the appellant- wife deserted the respondent-husband in May 1997. Therefore, the mandatory period of two years has not been lapsed giving rise to any cause for filing the petition for dissolution of the marriage on the ground of desertion. Hence, we are of the considered opinion that there is absolutely no evidence on record to show that the respondent- husband filed the petition for divorce within the period stipulated in the provisions of the Act i.e. for a continuous period of not less than two years immediately preceding the presentation of the petition. Insofar as cruelty is concerned, what all that has been sated by the respondent-husband in his evidence is that after eight months after the marriage, the appellant-wife denied the conjugal life, and by reason of which, he used to suffer mental pain without making any complaints to anybody, and that the appellant-wife did not provide him food, coffee or tiffin, abused him in filthy language and also quarrelled with him without any reason whatsoever. The nature of these allegations would not amount to cruelty as contemplated under the provisions of the Act. Further, even though it is averred in the petition that on many occasions, the appellant-wife threw footwear on the respondent-husband in the presence of his parents, and when his parents objected to it, she abused them in filthy language, but the fact remains that he has not stated to that effect in his oral evidence. PW2, who is the brother-in-law of the husband, stated that PW1 used to inform his problems to him and PW2, in turn, used to inform the same to the parents of the respondent-husband, and at one time there was mediation also. He has not stated anything about the cruel acts on the part of the appellant-wife. PW3, who knows both the parties, also did not state anything about the cruel acts on the part of the appellant-wife towards the respondent-husband, but he stated that on one occasion, the appellant-wife beat the respondent-husband with chappal in his presence. As the respondent-husband did not say anything in his evidence about the incident that took place with regard to the throwing of chappal by his wife, we are of the opinion that the Court below rightly did not give credence to the deposition of PW3. However, from a careful perusal of the common order passed by the trial Court, it is found that the learned Judge, without recording any specific finding with regard to the desertion and the cruelty, generally discussed the pleadings and came to the conclusion that the relations between the parties have been strained irretrievably and felt that it is a fit case to grant a decree for divorce on the grounds of cruelty and desertion. It appears that the decree for divorce was granted on the ground that marriage has been broken down irretrievably. Breaking down of the marriage is not a ground under Section 13 of the Act. Any dissolution of the marriage has to be ordered on specific grounds mentioned under Section 13 of the Act only. Insofar, the desertion is concerned, no ground is made out and insofar as cruelty is concerned, except the respondent-husband stating that the appellant-wife was not co-operating with him for conjugal life, no other cruel acts have been narrated nor attributed to his wife. Therefore, the alleged acts of cruelty on the part of the appellant-wife are general, vague and not specific. Without there being specific evidence, the learned Judge, Family Court cannot have a feeling to draw an inference that it is a fit case to grant divorce on the alleged grounds of desertion and cruelty. The feeling of the learned Judge in drawing an inference that the grounds of cruelty and desertion have been made out, is not justified. In view of the aforementioned reasons, we are of the opinion that the respondent-husband has not made out any grounds of cruelty or desertion on the part of the appellant-wife for dissolution of the marriage. Hence, the contention put forth by the learned counsel for the respondent-husband that the appellant-wife was cruel towards the respondent-husband is not sustainable. Hence, the common order passed by the learned Judge, Family Court, Visakhapatnam is liable to be set aside. Accordingly, C.M.A. No. 294 of 2001 is allowed setting aside the order passed in O.P.No.175 of 1998. Inasmuch as the appellant- wife is always ready and willing to join the company of the respondent- husband on the ground that the alleged cruelty and desertion have not been made out, O.P. No. 97 of 1998 filed by the appellant-wife for restitution of conjugal rights is liable to be allowed. Accordingly, C.M.A. No.3505 of 2000 is allowed, and consequently, O.P. No.97 of 1998 filed by the appellant-wife seeking restitution of conjugal rights stands allowed. No costs. ________________ V. ESWARAIAH, J. 27th April, 2010 ________________ B.N. RAO NALLA, J. bcj