THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL NO.3177 OF 2001 JUDGMENT (Per the Hon’ble Sri Justice V.Eswaraiah): This Civil Miscellaneous Appeal is filed against judgment and decree dated 30.10.2001 in O.P.No.378 of 1998 on the file of the Family Court, Vijayawada. The petitioner in the O.P is the appellant herein. He filed the O.P under Section 13(1)(ia) of the Hindu Marriage Act seeking divorce on the grounds of cruelty and adulterous life of his wife/the first respondent herein. The Family Court dismissed the said O.P. Hence, this appeal. For the sake of convenience, the parties will be referred to as they are arrayed in the O.P. The brief facts of the case are that the marriage of the petitioner and the first respondent was performed on 01.09.1983 at Ongole, Prakasam District as per Hindu rites and customs. The marriage was consummated. The petitioner got employment in South Central Railway School in Rajahmundry in 1984 and subsequently, he was transferred to Vijayawada in November, 1993 to work as Telugu Pandit in Railway Mixed High School, Vijayawada. The first respondent gave birth to two children. It is stated that the petitioner is suffering with night blindness and he needs the assistance of somebody after sunset. He also met with an accident, while getting into the train at Chirala on 06.07.1995 and sustained multiple fractures and underwent major operation of urinary bladder. He underwent treatment at Guntur and Ongole hospitals for 4 ½ months. During the said period, it is stated that the first respondent did not serve him and left for Vijayawada on the plea of children education. After the petitioner went to Vijayawada, he came to know that his wife developed illicit intimacy with the second respondent, a Sales Promoter of Titan Watches, who was living opposite to the residence of the petitioner. He also learnt from the neighbours that in his absence, the second respondent used to visit his house. On one occasion, he saw the first and second respondents on the same cot when he visited his house suddenly during duty hours. On another occasion, he found the first and second respondents traveling in a train sitting side by side. It is stated that the first respondent developed aversion towards him and started harassing him. She did not assist him in his night blindness and also refused to cohabit with him and her relations with the second respondent strengthened. The first respondent also threatened to throttle his neck and even said that she would squeeze his testicles in case he comes nearer to her. The petitioner also subsequently came to know that the first respondent also had close intimacy with one Purushothama Rao, who lived near their house at Ongole, and that the close intimacy gradually culminated into illegal contact and due to that the said Purushothama Rao used to visit the first respondent during their stay at Rajahmundry also. During 1985, the first respondent went to Kanduru to write APPSC exam and stayed with the said Purushothama Rao and after a week of her return, she conceived to give birth to a boy child on 14.11.1995. The petitioner believes that the said boy by name Sandeep is not his son. The petitioner on one day called the second respondent and warned him for his misconduct. After this, on 31.05.1997, the first respondent left the house without any information to the petitioner. The petitioner gave a telegram to the first respondent’s father and on 10.06.1997 the petitioner and his father-in- law lodged a complaint about the missing of the first respondent. After that he came to know that the first respondent lodged against him a complaint with the police under Section 498-A IPC. The police obtained an undertaking letter from the petitioner that he would live separately from the first respondent and that he would cooperate with her in obtaining divorce. Thereafter, the petitioner came to know that the first respondent was admitted by the second respondent in Vasavi Nasthika Working Women’s hostel at Vijayawada. After a month’s stay there, the first respondent went to her father’s place. On 04.10.1997, the petitioner got issued a legal notice to the first respondent with a copy to her father inviting her back to him. She refused the notice and in Novermber, 1997, the first respondent along with her father and children came to the petitioner and her father informed the petitioner that the first respondent agreed to mend her ways and live with the petitioner. With a fond hope that the first respondent has changed her attitude, the petitioner allowed her to live with him, but he was badly disappointed as she continued her quarrelsome and cruel behaviour towards the petitioner without any change or realization. The first respondent again on 01.05.1998 left the petitioner and again she returned in June, 1998 and having vexed with the attitude of the first respondent, the petitioner began to live separately from July, 1998. The first respondent continued to stay in the railway quarters allotted to the petitioner and she did not allow the petitioner to take his belongings. It is stated that the first respondent made untenable allegations against him before the railway authorities and she filed M.C. No.135 of 1998. Thus, it is the case of the petitioner that the first respondent left his company finally from 01.07.1998 and started living separately. The first respondent filed a counter-affidavit denying all the allegations and further submitted that the illegal relations with the second respondent and Purushothama Rao are untrue and incorrect. It is stated that in fact the petitioner himself threatened and harassed her on many occasions and sometimes he became wild against her and the neighbours used to interfere and advise the petitioner not to beat and harass her. It is stated that the petitioner used to abuse the first respondent as well as the neighbours also who interfered at that time. The attitude of the petitioner and his behaviour is abnormal and the allegations made against her are all not correct. The petitioner suffers from inferiority complex as he had night blindness and the allegations made against her character are all untenable. Before the Court below, the petitioner examined himself as P.W.1 and examined four others as P.Ws.2 to 5 and marked Exs.A1 to A17. The respondent examined herself as R.W.1 and examined two others as R.Ws 2 and 3 and marked Exs.B1 to B6. The Court below, having considered the evidence on record and the documents produced before it, held that the petitioner failed to prove the cruel nature and adulterous life of the first respondent and, accordingly, dismissed the petition. Heard learned counsel for the parties and perused the material available before us. The petitioner, in his evidence as P.W.1, reiterated the petition averments. In the cross-examination, he denied the suggestion that the children are his legitimate children. He stated that he filed application for DNA test of himself, the first respondent and Sandeep attended for the test; that they were examined by the doctor and the report disclosed that Sandeep was born to the petitioner. He also denied the suggestion that he was in the habit of suspecting the character of his wife and used to gather some names making allegations of illegal relationship of the first respondent with them. It is surprising to note that even after coming to know about the alleged illegal contacts of his wife, the petitioner allowed her to stay with him till 01.07.1998. P.W.2, who is the neighbour of P.W.1, stated that P.W.1 is suffering from night blindness and several male persons used to come to the first respondent during night times. They objected for the same being a residential colony. He stated that the character of the first respondent is not good and he could identify some of the persons, who used to visit the first respondent and one Tirumalarao used to visit frequently. Several times, they reprimanded the first respondent but she did not open her mouth. P.W.3 stated that he was working as Vice President of City Unit of Bharatiya Janata Party. In September, 1997, he visited the house of P.W.1 and the first respondent at Railway Quarters. He talked to both of them. The first respondent complained that P.W.1 wanted high sex with her and he asked the parties to adjust with each other. P.W.4, who is also a neighbour of P.W.1, stated that he knows P.W.1 and the first respondent since about one year; that about 6 months prior to his giving evidence, P.W.1 and the first respondent went to him and he advised them to stay together and lead marital life. P.W.1 and the first respondent complained against each other and he advised them to live together. P.W.5 stated that the first respondent developed illicit intimacy with her husband Chundi Suryanarayana Rao after the first respondent came down from Vijayawada and staying with her parents. She denied the suggestion during her cross-examination that she was put up by the petitioner. The first respondent examined herself as R.W.1 and she stated that after her marriage with the petitioner, they stayed at Guntur for a month; that thereafter they shifted to Bihar State, where they lived for six months; that thereafter from Bihar they went to Rajahmundry. In Rajahmundry, they lived together for two years and from there, they went to Vijayawada. Out of their wedlock, she begot two children, one daughter and one son. She stated that she does not know respondent No.2 and she knows the sisters of respondent No.2, who are her friends. She stated that when the petitioner met with an accident in 1995, she and her father served him and after discharge, they took him to Ongole. She has not left the petitioner when he was at Ongole. Her children are living with her alone and all the allegations made against her touching her conduct are incorrect and she herself filed a complaint against the petitioner under Section 498-A IPC when he tried to throttle her. It is stated that she never went out of the house at any time and stated that she herself went to Vasavi Hostel and got admitted therein. She stated that thereafter also she lived with the petitioner for 4 or 5 months. She further stated that she cooperated with the petitioner in all respects. She stated that the said Purushothama Rao is her uncle by courtesy, who is of 52 years old, and she has no sexual relations with him and that Sandeep was born through the petitioner alone. In the cross-examination, she stated that she and the petitioner lived together for 15 years without any strong differences and she denied all the suggestions made to her disputing the allegations made by the petitioner. This witness was cross-examined at length putting each and every averment made in the O.P and she has denied all the allegations. R.W.2 is the father of R.W.1. He stated that the petitioner only used to beat R.W.1 demanding more money. R.W.1 used to come to his house requesting to pay money to meet the demand of the petitioner and he used to give her money and she used to give the same to her husband. He has deposited Rs.13,000/- and Rs.3,000/- and obtained D.Ds and challans in the name of the petitioner and sent the same to the petitioner. Exs.B1 and B2 are those challans. He was also cross-examined at length making several suggestions, which were all denied as false and untrue. R.W.3 is the second respondent and he stated that he is a sales promoter in HIRSCH Watch Stabs Private Limited, an Australian Company. He stated that he travels extensively six days in a week and presently he is working as a Sales Officer in Coca Cola Company. He stated that there is no illegal intimacy between him and the first respondent. He stated that he knows the petitioner and the first respondent as they were neighbours to him and he has been implicated in the present case as he and others questioned the behaviour of the petitioner when he was beating the first respondent. He stated that the petitioner is of a very suspicious nature. This witness also spoke about the petitioner alleging illicit intimacy of the first respondent with one Purushothama Rao and the petitioner filing application for DNA test. He stated that there is no illicit intimacy between him and the first respondent. In view of the aforesaid evidence available on record, the question that arises for consideration is whether the petitioner is able to establish the cruel nature and adulterous life of the first respondent? The petitioner made averments in the petition stating that the second child, Sandeep was not born through him. This allegation of the petitioner has become disproved by reason of the DNA test report, which shows that the child was born to the petitioner. According to the petitioner, he was suffering from night blindness and some other complications. The allegations of the petitioner made against the first respondent doubting her character are not at all proved. The persons, who were examined by him, except P.Ws.2 and 5, did not say anything about the first respondent’s character and conduct. Even P.W.2 stated that some persons used to come to the house of P.W.1 to meet the first respondent. His statement is suspicious without any material particulars. P.W.5 stated that her husband had illicit intimacy with the first respondent. This fact was not spoken to by any witness and for the first time, P.W.5 stated in her evidence that her husband and the first respondent are having illegal intimacy with each other. It seems that the petitioner planted P.Ws.2 and 5 to speak against the first respondent. The fact remains that the petitioner himself has not taken care of his wife and children, and his wife alone has taken care of the children with the help of her parents. The petitioner has not shown any sympathy on his wife and children, but on the other hand, he made a very serious and untenable allegations against the first respondent, which are not at all established and therefore, it cannot be said that his wife lead adulterous life and committed acts of cruelty towards him. On the other hand, the nature and conduct of the petitioner shows that he not only suffers from night blindness but also suffers from suspicious nature. Therefore, we are of the opinion that the Court below rightly dismissed the O.P holding that the petitioner failed to prove the cruel nature and adulterous life of the first respondent. For the above mentioned reasons, the Civil Miscellaneous Appeal is dismissed. No order as to costs. _____________ V.ESWARAIAH, J Dated 25th February, 2010 _________________ B.N.RAO NALLA, J vrn