THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.Nos.1974 & 2003 of 2002 COMMON JUDGMENT: (per Hon’ble Sri Justice V.Eswaraiah) C.M.A.No.1974 of 2002 is filed against the order, dated 18.06.2002, passed by the learned Judge, Family Court, Secunderabad, allowing O.P.No.1 of 2000, which was filed by the wife seeking restitution of conjugal rights. Whereas, C.M.A.No.2003 of 2002 is filed against the order, dated 18.06.2002, passed by the learned Judge, Family Court, Secunderabad, dismissing O.P.No.199 of 1999, which was filed by the husband seeking divorce on the ground of cruelty. The appellant in both the appeals is the husband of the respondent-wife. For the sake of convenience, hereinafter, the husband is referred to as “the appellant” and the wife is referred to as “the respondent.” The result of O.P.No.1 of 2000 filed by the respondent seeking restitution of conjugal rights depends upon the result of the O.P.No.199 of 1999, which was filed by the appellant seeking divorce under Section 13(1)(1a) of the Hindu Marriage Act. The case of the appellant was that his marriage with the respondent was performed on 08.02.1992 at Railway Institute, Rajahmundry, as per hindu rites and customs and the marriage was consummated at Kurnool; that they lived together at Vijayawada up to December, 1992; that thereafter, they lived at Samarlakota near Rajahmundry, as he being a railway employee was transferred from Vijayawada to Samarlakota; that right from the beginning of the marriage, the respondent used to criticize him that he is not an apt man for her and she married him only due to the force of her parents; that his salary is not even sufficient to fulfill her comforts; that she used to criticize that if she would have waited, she would have got better husband, who could have provided every luxury for her life like servants, household workers, comforts etc; that she also used to threaten him with dire consequences, if he complaints about her behaviour to her parents or others; that he used to bare all her criticism out of love and affection towards her and used to get himself adjusted to her mentality with a hope that she would change herself in due course of time but there was no change. It is further contended that the respondent begot a male child, but he died and the second son born was on 17.10.1994, even then, he used to suffer mentally as the respondent never used to care him or his child; that when the boy was four years old and suffering from fever, he was made to stand in the rain and cursed him that it would be very happy if he dies and the said cruel activity was witnessed by the neighbours of the locality; that he has also informed about her behaviour, cruelty and inhumane activities to her parents at Kurnool; that he has also learnt that she had premarital relationship with a person at Kurnool and she is continuing the same till date and that, in spite of his hectic efforts he could not secure the name of that person and when he questioned her, after her return from Kurnool, she admitted that she had premarital affair, but did not continue after the marriage; that the respondent not only used to criticize him but also used to make fun of his left eye, which lost its vision in a railway accident; that he suffered mental agony because of her cruel behaviour; that the parents of the respondent also warned her to lead a happy marital life, but there was no change in her attitude, behaviour and temperament and as such, it is the case of the appellant that it is impossible to live with her and accordingly, seeks a decree for dissolution of marriage. A counter has been filed by the respondent denying all the allegations of the appellant and stated that she never committed any wrong or mistake either towards the appellant or his family members or her son; that she has not behaved in such a way that it leads to mental agony and suffering of the appellant; that her parents are suffering from ill-health and her mother is aged about 60 years and got paralysis for the second time in October, 1998 and she was feeling sorry due to the appellant’s attitude and therefore, became bed ridden; that her father is a heart patient and is a retired person, living with his meager pension amount and is working in a private factory even at the age of 74 years; that knowing all these facts, the appellant himself left her at her maternal home to the mercy of her old parents, who are unable to live their own minimum requirements just to severe the matrimonial relations with her; that the appellant is behaving like that at the instance of his mother and sister. The appellant got himself examined as P.W-1 and reiterated what has been stated in the affidavit and apart from that, he also stated that he lost left eye sight due to a railway accident and the respondent used to insult him as he lost his left eye; that the respondent used to talk about his job lightly stating that he is only a Clerk and used to say that if she had not married the appellant, she would have got a better husband to lead a luxurious life. In the cross-examination, he has stated that his wife filed O.P.No.199 of 1999 for restitution of conjugal rights. Further, he stated that when he was returning from Kurnool, after attending the case, he was taken away by the Police, Kurnool Town, informing that the respondent lodged a complaint against him under Section 498-A I.P.C. and that, on the threat of criminal action and for the security of the job, he has executed a document stating that he will appear before the Police as and when required and subsequently, he obtained anticipatory bail from the High Court. He further stated that the respondent herself left his company and therefore, she is not entitled for restitution of conjugal rights. He stated that he never necked out the respondent from the house, as alleged by her. He has admitted that his father-in-law wrote a letter- Ex.A-1 to pardon her and in fact, she mentioned in the counter stating that she herself left his house in November, 1998 and received the legal notice in December, 1998 and later, she also wrote a letter to him on 04.01.1999-Ex.A-6 stating that she was alright with the stay with him. The said letters, legal notice, acknowledgment and the anticipatory bail were marked as exhibits. P.W-1 has also admitted in the cross-examination that their marriage was an arranged marriage; that the defect to his left eye was before the marriage itself and the same was also informed to the parents of the respondent even prior to the marriage. He stated that he is a Commerce graduate, whereas the respondent is a Post- graduate in M.A. Before the marriage, there were negotiations between the parties and both of them lived together at Vijayawada happily till December, 1992 and thereafter, he was transferred to Samarlakota and lived there for 3½ years. He stated that as his parents were living at Rajahmundry and his sister-Nirmala Kumari is a divorcee, she used to visit their house now and then. During their stay at Rajahmundry in May 1996, he and his parents used to live in separate houses, as his parents’ house was small and not sufficient. It is stated that the respondent started to dislike him one week after the marriage and that he never intimated the parents or brother-in-law about the attitude or her dislike towards him after the marriage. One year after the marriage, a son was born, but he died and the second son was born on 17.10.1994. He admitted that the respondent knows that prior to the marriage that he was only a Clerk and his parents-in-law also belong to middle class family and they never used to move in cars. A suggestion that under the influence of his mother and sister, he used to ill-treat the respondent was denied and also a suggestion that he used to demand additional dowry from them and used to harass the respondent was also denied. A further suggestion that he used to demand a share along with his brother-in-law in the property of his parents-in-law and that he made a big issue at the time of marriage of the third brother of the respondent was also denied. The suggestion that her parents came to his house in September 1998 and at that time, his mother and sister abused her for not brining dowry was also denied. He stated that he got information about the premarital relationship of the respondent with a person at Kurnool and that she is continuing with the illicit relationship with him till today. P.W-1 examined his neighbour at Rajahmundry, where the appellant and the respondent lived from 1996 to 1999, as P.W-2. P.W-2 stated that the respondent was not in the habit of mingling with the neighbours and she used to stay alone in the house and she never used to allow her child to go out of the house and that, one day in the year 1999, when the child was suffering with fever, the respondent made him to stand in the rain and when the appellant questioned, she told that she is vexed with her son. However, P.W-2 admitted that he did not ask the respondent as to why she was vexed with the boy. In the cross-examination, he stated that he has no idea whether the respondent used to attend social functions in neighbourhood and he has no knowledge whether the appellant has put any condition to the respondent not to go anywhere. The respondent-wife got herself examined as R.W-1 and stated that after her marriage with the petitioner in February, 1992; that she is having love and affection towards the appellant; that as the appellant did not allow her to join him since October, 1998, she is living separately; that even the mediators and the elders tried for reconciliate the matter several times, but the appellant left her at her maternal house in the month of November, 1999; that she wrote a letter on 04.01.1999 stating that she used to live happily with him at Samarlakota and Ex.A-6 is the said letter. In the cross-examination, she stated that though she gave a report to the Police, the Police did not register any case against the appellant. It is stated that the appellant left her at her parents house in the month of October or November, 1998 and thereafter, in December, 1998, the appellant took her back to the elders and got issued a legal notice. Even a suggestion that the appellant demanded money and that she used to accuse the appellant for not providing luxurious life are all denied. She categorically stated that she likes the appellant, but does not know as to why he is not liking her. She further stated that she used to prepare food for him and she always used to co-operate him and that she is not an arrogant or stubborn lady, as alleged by the appellant; that she always adjusted towards the liking and wishes of the appellant and that he was a good man up to October 1998 and thereafter, only he started to treat her with cruelty without there being any reason; that when her father approached the appellant and his parents, they closed the doors without even allowing him to enter into their house; and she further stated that she was never arrogant and the reasons mentioned in the O.P. seeking divorce are all incorrect. Heard the learned counsel appearing on either side. Learned counsel appearing for the appellant submits that admittedly, the appellant and the respondent have been living separately since October or November, 1998; that even after dismissal of the O.P. filed by the husband seeking divorce and the O.P. filed by the wife seeking restitution of conjugal rights was allowed, no steps have been taken by the respondent-wife for joining the appellant-husband and therefore, at this juncture, it is not possible for the appellant and the respondent to live together and therefore, it is a clear case of irretrievable break down of marriage and in support of his contention he has relied on the judgment of the Supreme Court in Durga Prasanna Tripathy V. Arundhati Tripathy[1]. On the other hand, learned counsel appearing for the respondent submits that the appellant filed O.P. seeking divorce only on the grounds of cruelty, but, no specific ground of cruelty has been established and in fact, the appellant, having attributed the allegations to the wife, himself has got illicit intimacy even prior to the marriage with some one else; that the allegations made by the appellant that the respondent used to ill-treat and insult him, not liking his job criticizing that he gets a meager salary, teasing him about the defect to his left eye are not at all established. Admittedly, the appellant has defect in the left eye even prior to the marriage and the said fact was informed to the respondent and her parents and the respondent also knows about the Railway Clerkship of the appellant even prior to the marriage. Admittedly, both the appellant and the respondent hail from lower middle class family and the respondent’s parents never led any luxurious life and they never had any car and therefore, the allegation against the respondent that she used to criticize that had she not married the appellant, she would have got a better husband and better life also cannot be believed. He also placed reliance on the judgment of the Supreme Court in Vishnu Dutt Sharma v. Manju Sharm[2]. In view of the rival contentions of both the learned counsel, it is pertinent to take a note of the judgments of the Supreme Court on these aspects. In the case of Samar Ghosh v. Jaya Ghosh[3] the Hon’ble Supreme Court of India held that no uniform standard can ever be laid down for guidance and it enumerated some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated below are only illustrative and not exhaustive; (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to- day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. Irretrievable break down of marriage is not a ground for grant of divorce, as held by the Hon’ble Supreme Court of India in the case of Vishnu Dutt Sharma v. Manju Sharma (2nd cited supra). The Hon’ble Supreme Court of India in the said judgment held as follows: “In this connection it may be noted that in Section 13 of the Hindu Marriage Act, 1955 (for short “the Act”) there are several grounds for granting divorce e.g. cruelty, adultery, desertion etc., but no such ground of irretrievable breakdown of the marriage has been mentioned for granting divorce. Section 13 of the Act reads as under: “13.Divorce—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband of the wife, be dissolved by a decree of divorce on the ground that the other party— (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the appellant with cruelty; or (i-b) has deserted the appellant for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be a Hindu by conversion to another religion; or (iii) has been in curably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent. Xxx xxx xxx Xxx xxx xxx (iv) has been suffering from a virulent and incurable form of leprosy; or (v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.” On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. In the case of Anil Kumar Jain v. Maya Jain[4] the Hon’ble Supreme Court of India, on the same issue, also held as under: “28. It may, however, be indicated that in some of the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution, this question had arisen and it was held in most of the cases that despite the fact that the marriage had broken down irretrievably, the same was not a ground for granting a decree of divorce either under Section 13 or Section 13-B of the Hindu Marriage Act, 1955. 29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955 for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable breakdown of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955.” Therefore, in view of the aforesaid authoritative pronouncements of the Supreme Court, the decision cited by the learned counsel for the appellant cannot be treated as a precedent and the grounds mentioned under Section 13 of the Hindu Marriage Act alone are relevant. Admittedly, the appellant and the respondent lived together from 1992 to 1998 i.e., for a period of more than six years and the respondent gave birth to a child, who died, and two years thereafter, she begot another child. The allegation that she has tortured their son also cannot be believed, as, admittedly, the son is being educated by her only and she being a teacher is able to bring up a child in his best interest. Same grounds have been taken by the respondent-wife in the counter in the O.P. filed by the appellant and also in the O.P. filed by her seeking restitution of conjugal rights. We are unable to accept the contention of the learned counsel for the appellant as regards the irretrievable break down of marriage as the appellant failed to establish the cruelty on the part of the respondent i.e., his wife and by the aforesaid averments made in the petition, it cannot be said that the appellant was subjected to cruelty by the respondent. Therefore, we are of the opinion that the grounds of cruelty as alleged by the appellant are not at all established. It is not a case of desertion. Even otherwise, it is the case of the respondent, that the appellant himself left her at her maternal house place and thereafter, her father made attempts through mediators to take her back, but in vain, as the appellant has not allowed her father even to enter into the house and admittedly, there was no attempt made by the appellant to bring her back to his marital fold. On the other hand, in fact, the respondent filed O.P. for restitution of conjugal rights as all her attempts to join her husband-the appellant proved futile. For the foregoing reasons, we are of the opinion that the lower Court rightly appreciated the evidence available on record from a right perspective and dismissed the O.P. filed by the appellant seeking divorce, while allowing the O.P. filed