THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE K.S. APPA RAO F.C.A.No. 259 of 2009 JUDGMENT: (Per K.S. Appa Rao, J) Aggrieved by the order dated 6.8.2009 passed by the Court of Judge, Family Court, East Godavari District at Rajahmundry, allowing the petition in O.P.No. 162 of 2008, filed by the respondent herein for dissolution of her marriage with the appellant, the appellant herein filed the present F.C.A. The respondent herein filed Petition under Section 13(1) (a) of Hindu Marriage Act for decree of divorce against the appellant on the ground of cruelty. As per the averments in the petition, that the marriage between the respondent and the appellant took place on 25.4.1999 at Rajahmundry according to Hindu rites and customs and marriage was consummated immediately. At the time of marriage, the parents of the respondent presented a sum of Rs. 2.00 lakhs towards the dowry apart from usual customary gifts associated with the marriage. The appellant right from the beginning of the marriage has been demanding the respondent for more money and also demanded her to sell the property which is standing in her name. In the wedlock, they were blessed with a female child, thereafter the respondent contended that the harassment increased. The respondent therefore went to her parents house and brought a sum of Rs. 50,000/- and gave it to the appellant. In spite of her best efforts and through mediators, the appellant did not change his attitude and continuously demanded the respondent to bring more money and to sell the property standing in her name, and as his demands did not bear fruit, the appellant necked the respondent along with the child out of the house in the month of June, 2005. Since then, respondent and her child are staying in Rajahmundry at her parents house. Thereafter, the respondent got issued legal notice on 25.6.2007 to the appellant narrating the ill-treatment. The appellant having received the said notice kept quiet. Thereafter, the respondent filed maintenance case against the appellant before the IV Additional Judicial First Class Magistrate, Rajahmundry. However, the appellant did not pay the maintenance to the respondent and her child as ordered by the Court. The appellant filed his counter denying the allegations made in the petition and further contended that he married the respondent without taking any dowry and that he never harassed the respondent or ill-treated her for additional dowry or demanded to sell away the property standing in her name and that the respondent without any reason left his company stating that she has no interest to live with him and that her marriage was performed with him against her will and that the respondent has no interest to lead the matrimonial life. That she studied B.Ed. and M.Ed. at Rajahmundry and Visakhapatnam and secured a job of Lecturer in Psychology in RNM College of Education, Bommuru and drawing a salary of Rs. 12,000/- per month. It is further alleged that after receiving the legal notice from the respondent, he along with his father and elders went to the respondent’s house and requested her parents to send the respondent and the child to their house, but the respondent did not come and join him and instead filed the petition for divorce and also maintenance case. Before the lower Court, the respondent examined herself as P.W-1 and marked Exs.A-1 to A-3 while the appellant examined R.Ws.1 and 2 and marked Ex.B-1. The lower Court after hearing the rival contentions, and upon appreciation of the evidence let in by the parties, held that the appellant treated the respondent with cruelty and by dissolving the marriage of the respondent with the appellant, granted divorce. Aggrieved thereby, as stated above, the appellant filed the present appeal. The learned counsel for the appellant submitted that the Order of the Court below is opposed to the very spirit and object of the provisions of Section 13 of Hindu Marriage Act. The Court below grossly erred in not considering the oral and documentary evidence available on record in proper perspective. The Court below ought to have seen that there are absolutely no grounds made out by the respondent touching the ingredients of Section 13(1)(ia) of the Hindu Marriage Act, for granting divorce. The Court below erred in drawing presumptions against the appellant herein and his character without any basis and foundation. The Court below ought to have seen that there is no evidence, except the personal testimony of the respondent, to prove that the appellant herein treated the respondent with cruelty. The counsel for the respondent while attacking the arguments advanced by the appellant counsel urged that the appellant and his parents harassed and treated the respondent with cruelty right from the date of the marriage and after birth of female child, the ill-treatment increased. He further submitted that the appellant is having love affair with a woman by name Karunasri and on account of that love affair, the appellant ill- treated the respondent and ultimately the appellant and his parents necked the respondent out of the house. Heard the learned counsel for the appellant-husband and the learned counsel for the respondent-wife and perused the order under appeal. The respondent admittedly filed the present petition under Section 13 (1)(ia) of the Hindu Marriage Act, for dissolution of her marriage with the appellant and grant of divorce on the ground that she was treated by the appellant and his parents with cruelty. Therefore, it may be seen whether the lower Court was justified in dissolving the marriage of the appellant with the respondent and granting divorce to the respondent holding that the appellant treated the respondent with cruelty? To consider this question, it would be appropriate if a reference is made to the provisions of Section 13 (1)(ia) of the Hindu Marriage Act. Section 13 (1)(ia) of the Hindu Marriage Act reads as follows: “13. Divorce. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) xxx xxx xxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty” The word “cruelty” has not been defined in the Hindu Marriage Act. Since the word “cruelty” is not defined, and no precise definition can be given to the word “cruelty”, the Courts, the law is well settled, must decide each case on its own merits, because what is cruelty to one may not be cruelty to the other. Therefore, while dealing with cases complaining “cruelty” by one spouse towards the other, several factors as laid down by the apex Court, in several of its judgments, such as mental and physical conditions of the parties, their characters and social status and therefore, have to be kept in mind, and what incidents can be termed as “cruelty” have to be adjudged in a case on the facts and circumstances and the evidence adduced on record. The Court, while considering what “cruelty” means in a given case, has to first make an inquiry into the nature of cruel treatment, whether it is physical or mental, and the impact of such treatment on the mind of the other spouse, in that whether it caused reasonable apprehension on the spouse that it is harmful or dangerous to live with the other. It is not necessary for the party to narrate each incident against the other spouse to constitute such conducts of cruelty. Sometimes two or three incidents may be sufficient to prove the cruelty committed on the petitioner by the other spouse. Many a times mental cruelty is more severe than physical cruelty. Therefore, it may be noticed, in the light of the evidence let in by the parties, whether the appellant treated the respondent with cruelty, justifying the lower Court, to dissolve the marriage of the respondent with the appellant and grant of divorce. As per the evidence of respondent, namely P.W-1 her marriage with the appellant took place on 25.4.1999 at Rajahmundry and the marriage was consummated soon after and at the time of her marriage her parents gave a sum of Rs. 2.00 lakhs apart from usual customary gifts associated with the marriage. Right from the beginning of the marriage, the appellant used to demand her more money and pressurize her to ask her parents to get money after selling the property of her and that appellant used to beat her whenever she refused to accept his demand and during wedlock she was blessed with a female child namely Neelima Srilakshmi. The appellant continued his ill- treatment on one pretext or other and that the appellant disclosed that he had love affair with Karunasri prior to his marriage. She further deposed that her parents have paid her a sum of Rs. 50,000/- towards the education and welfare of her daughter. That in spite of the mediation through elders, the appellant did not stop the harassment and subjected her to cruelty and she apprehends danger in the hands of the appellant and the appellant is not taking care of her and the child and vexed with the conduct of the appellant, she got issued a legal notice to the appellant on 25.6.2007 and even though the appellant received the same on 27.6.2007, he did not give any reply. In proof of the same, she filed Ex.A-2 copies of the legal notice and Ex.A-3 acknowledgment of the appellant. She further deposed that she filed a Maintenance Case seeking maintenance to her and her daughter in M.C. No. 66 of 2008. She was put to thorough cross examination and she asserted that appellant used to beat her as and when he did not get any amounts from her family members. Against the evidence of P.W.1, the appellant himself was examined as R.W.1. He also examined R.W-2, a third party. According to R.W.1, he married the respondent without taking any dowry and receiving any exemplary gifts and he did not take any money from the respondent at any point of time and did not insist her to sell away her property and he did not beat the respondent and that the respondent has no interest to continue the matrimonial life as the marriage was celebrated against her wish, and that the respondent left the matrimonial house in the month of June, 2005 without any reasonable cause and that there was no mediation as alleged and that the respondent did B.Ed. and M.Ed. courses and secured a job in R.N.M. College of Education, Bommuru as a Lecturer. He further stated that he lead marital life with P.W.1 at Visakhapatnam and also at Rajahmundry and that he was denied to share the love and affection of his daughter and that the respondent is a headstrong woman. He further stated that after receipt of the legal notice, he approached the respondent and her parents along with elders at Rajahmundry and they assured that they will send the respondent, but the respondent did not join him as promised. He admitted in the chief examination that P.W.1 brought Rs. 50,000/- to her house which is lease amount on her lands situated at Nagampalli village. He admitted that he is cultivating three acres of agricultural land which belongs to the company, on lease. Though the appellant contends that the respondent is adamant and headstrong and that she treated him with cruelty, but there is nothing on record to prove such an allegation, and on the other hand, the evidence is otherwise, and in fact, the evidence let in by him, goes contrary to his very own allegations made by him against the petitioner. This is evident from the fact that R.W.1 in his evidence categorically admitted that he never paid any tuition fee and other educational expenses towards his daughter’s education. That he did not take any steps for restitution of conjugal rights even after receipt of Ex.A-2 legal notice issued by the petitioner. If really the respondent was not harassed, she would not have issued notice under Ex.A-2. In Ex.A-2 she narrated the harassment meted in the hands of the appellant. The appellant having received the notice under Ex.A-3 acknowledgment, kept quiet without issuing any reply-notice. In Ex.A-2, the respondent clearly narrated the harassment meted out to her by the appellant and about his conduct and the manner in which he acted against the respondent. If really, the appellant was aggrieved by the contents of the notice in Ex.A-2, he would have issued reply. Non-issuing of any reply rebutting the contents in Ex.A-2, gives scope to draw an inference that he accepted the allegations made in the legal notice. In the 5th and 6th para of the legal notice Ex.A-1, it is clearly asserted that despite the request made by her, her father and mediators, he demanded them in his way and on the other hand had sent messages to the respondent to bring money by selling her property. It is positively informed to the appellant through Ex.A-2 that he is guilty of cruelty towards his wife and that her efforts through mediators for conciliation proved futile. At any rate, as already stated supra, the appellant even after receipt of the notice under Ex.A-3, in which the respondent requested the appellant for mutual divorce on the ground of cruelty, the appellant neither issued any reply nor filed any petition for restitution of conjugal rights. It is the evidence of appellant that he had love and affection towards his wife and the daughter. If that be the case, non taking of any steps for restitution of conjugal rights, would draw an adverse inference that the appellant had no inclination towards his wife and his daughter. As per Ex.A-2, the respondent and the appellant are living separately for the last so many years. Though the marriage was performed on 25.4.1999, the respondent and the appellant lived together for six years and the rest of the period i.e. for more than four years, they are living separately. It is strange to note in the evidence, the appellant stated that he is fond of the respondent and her daughter, in spite of the fact of his allegation against his wife is that she is adamant and arrogant. It is admitted in the evidence of R.W.1 that he has not even spent any amount towards the education of his daughter. He also admitted that he received Rs. 50,000/- from the respondent. If really the respondent is adamant and arrogant, she would not have parted with Rs. 50,000/- given by her parents, which was realized from her agricultural income. Respondent being a household lady gave Rs. 50,000/- to the appellant on the fond hope that he will take care of the family. That itself goes to show that the respondent was not adamant and that she was loyal to the appellant and it is the appellant, who was adamant, reluctant and indifferent towards the respondent and her child. The non-taking of any steps in filing petition for restitution of conjugal rights and non- issuing of any reply legal notice to Ex.A-2 and the conduct of the appellant in not taking care of his wife and his daughter and his continuous conduct of deserting the respondent and her daughter tantamount to harassment and humiliation. In other wards, it amounts to cruelty. So, from the evidence on record, especially from the evidence of R.W-1, the appellant, it does not inspire confidence to say that the appellant was humiliated or ill-treated by the respondent. On the other hand, the evidence on record established that the appellant humiliated and ill-treated and neglected the respondent and her daughter. In the totality of the circumstances, the conduct of the appellant, we are of the considered opinion, squarely falls under the definition of cruelty. Therefore, we hold that the lower court was justified in holding that the appellant treated the respondent with cruelty and thereby dissolving her marriage with the appellant and granting divorce, under Section 13(1)(ia) of the Hindu Marriage Act. In the result, the appeal is dismissed. ___________________ N.V. RAMANA, J ___________________ K.S. APPA RAO, J 29.4.2011 CHV