THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.1748 of 2000 JUDGMENT: (Hon’ble Sri Justice B.N.Rao Nalla) This Civil Miscellaneous Appeal is filed by husband aggrieved by the order dated 21.04.2000 in O.P.No.50 of 1996 on the file of the Judge, Family Court, Secunderabad, whereby and whereunder the said O.P. filed by him for dissolution of the marriage under Section 13 (1A) (ii) of the Hindu Marriage Act, 1955 (for short ‘the Act’), was dismissed. 2. For the sake of convenience, the parties hereinafter be referred to as ‘appellant’ and ‘respondent’ as arrayed in this C.M.A. 3. It is the case of the appellant that he and the respondent were married on 3.11.1988 as per Hindu rites and customs at Vijayawada and the respondent joined him at his house at Secunderabad. After one year i.e. on 10.12.1989, the respondent left the matrimonial home without informing either the appellant or his parents and went to her parents’ house at Vijayawada by taking all her jewellery and costly Sarees. The parents of the appellant and other well wishers made efforts to get back her to the appellant’s house but in vain. The appellant having vexed with her behaviour filed O.P.No.48 of 1991 on the file of the III Additional Judge, City Civil Court, Secunderabad for restitution of conjugal rights. The said O.P. was decreed exparte on 14.7.1993. Thereafter, the appellant went to Vijayawada many a time to bring her back to Secunderabad so as to live with her, but the respondent refused to join the appellant despite the court orders in O.P.No.48 of 1991. Under these circumstances, the appellant is constrained to file O.P.No.50 of 1996 for dissolution of the marriage. 4. On the other hand, the respondent admitted about her marriage with the appellant on 3.11.1988 at Vijayawada. She states that ever since the marriage, the appellant’s father started harassing the respondent for not meeting his demands and finally on 10.12.1989 he abused the respondent in filthy language and beat her and sent her out from the house. Though the appellant was present at that time, he did not prevent his father from beating and abusing the respondent and instead joined his father in abusing the respondent. At that time the respondent was pregnant. The appellant asked the respondent to go to her parents’ house and accordingly she went to her parents’ house at Vijayawada on 10.12.1989. The allegation of the appellant that while leaving the house she took away all her jewellery and costly Sarees is false. Thereafter, the well wishers from both sides reconciled and compromised the matter. The respondent delivered a male child on 30.5.1990 and the child was named as ‘Kaparthi’. The respondent’s father requested the appellant’s father to fix a date for Barasala function, but neither the appellant nor his father bothered to fix the date. The respondent’s father wrote a letter dated 19.11.1990 to the appellant’s father requesting to fix a date for Barasala function. On 30.1.1991, the respondent’s father received a letter informing that 10th February,1991 was an auspicious day for Barasala function. Accordingly, the respondent’s parents made necessary arrangements for Barasala function. Surprisingly on 8.2.1991 the appellant’s father asked the respondent’s father to put off the function and promised to inform the next auspicious day. The appellant and his father again fixed the date in the 3rd week of February,1991, but on 15th February, the respondent’s father received a telegram stating that they cancelled their journey to Vijayawada due to respondent’s hasty talk. There was no occasion for the respondent to talk hastily with the appellant’s father and he made such allegations just to abstain from attending the function. When the respondent was contemplating to join the appellant at Secunderabad, respondent’s mother died in October,1991 and the appellant lived with the respondent for more than one year in Vijayawada. While living with the respondent, the appellant filed O.P.No.48 of 1991 for restitution of conjugal rights. On receipt of the notice, the respondent questioned the appellant and he replied that at the behest of some of his elders, he filed the petition and asked her to ignore the proceedings. The respondent later came to know that O.P.No.48 of 1991 was decreed exparte on 14.7.1993. On 18.5.1993 respondent’s father received a letter from appellant’s father inviting them to attend the marriage of his second son and requested the respondent’s father to send the respondent to their house. The respondent and the appellant attended the marriage of the appellant’s brother in June, 1993. Thereafter, the appellant and the respondent lived together in Hyderabad for some time. Later, the appellant wanted to start some business at Vijayawada and came over to Vijayawada along with the respondent in June,1993. Thereafter, they lived together in Vijayawada up to June,1994. In June,1994, the appellant wanted to go back to Hyderabad to restart the business and promised to take the respondent after some time. Surprisingly in the later half of 1994, the respondent received notice in O.P. No.138 of 1994 on the file of the II Additional Judge, City Civil Court, Secunderabad for dissolution of marriage. Later the petition was transferred to the Family Court, Secunderabad and renumbered as O.P.No.50 of 1996. After receiving the notice in divorce petition, the respondent along with her elders visited the appellant’s house at Secunderabad and the matter was compromised in the presence of respondent’s sister’s husband by name C.V.Ramakrishna and respondent’s father Gopala Sastry. In persuasion of the compromise, the respondent joined the appellant along with her child at Hyderabad. The appellant admitted their son Kaparthi in St. John’s Public School, Cross Roads, Kushaiguda, Hyderabad. The appellant himself signed on the application form and paid the school fee. Thereafter, disputes arose between them and the respondent left for Vijayawada within one month. Thereafter, the appellant and the respondent began to live together at Vijayawada. The appellant enrolled himself as voter for the general elections in 1995 at Vijayawada. On 8.4.1995 the appellant received an invitation from his father to the Namakaran Function to be held on 11.4.1995 at Hyderabad. The appellant and the respondent attended the said function. But once again, the relationship between the appellant and the respondent was disturbed by the father-in-law of the respondent and the appellant did not accompany the respondent to Vijayawada. The appellant used to come to Vijayawada and stay for sometime and leave for Hyderabad. Having vexed with the behaviour of her father-in-law, the father of the respondent wrote a letter dated 4.10.1995 to his son-in-law, Ramakrishna (respondent’s sister’s husband) and requested to convene meeting and compromise the matter. On 22.10.1995 the appellant and the respondent sat together and compromised the disputes. On the same day, they left for Vijayawada. Within one month, the appellant left Vijayawada without informing anyone. Immediately on 18.11.1995, the respondent’s father wrote letters to appellant’s father and also to Ramakrishna requesting them to enquire about the whereabouts of the appellant. The appellant wantonly suppressed the above facts in his petition. During the course of O.P. proceedings, the appellant and the respondent appeared before the court on 26.11.1996 and agreed to live together. Thereafter, the appellant gave an impression that the respondent need not attend the court further as they agreed to live together and there is no need to proceed with the divorce petition. But to her surprise, the appellant prosecuted the petition for divorce and obtained exparte decree of divorce on 12.3.197 behind her back. The respondent is always ready and willing to live with the appellant and she is not willing for divorce. Therefore, she prayed to dismiss the divorce petition. 5. Basing on the pleadings of both parties, the court below framed the following points for consideration: “i. Whether there has been no restitution of conjugal rights between the petitioner and the respondent after passing decree for restitution of conjugal rights? ii. Whether the petitioner is entitled for dissolution of the marriage on the grounds stated in the petition?” 6. On behalf of the appellant, appellant and his father and two others were examined as PWs 1 to 4 and Exs.A.1 to A.33 were marked. On behalf of the respondent, respondent and her father were examined as RWs 1 and 2 and Exs.B.1 to B.10 were marked. 7. The court below dismissed the O.P. on the ground that after passing the decree of restitution of conjugal rights on 14.7.1993 in O.P.No.48 of 1991, they lived together and resumed cohabitation. Challenging the order of dismissal, the present C.M.A. has been preferred by the appellant-husband. 8. Having heard the learned counsel for both the parties, the only question that arises for determination in this appal is whether the dismissal of O.P.N.50 of 1996 filed by the appellant-husband is justified in the facts and circumstances of the case? 9. The appellant-husband was examined as PW.1. He deposed that in December 1989, the respondent went to her sister’s house near Rajeshwari theatre in Secunderabad without informing him and from-there she went to her parents’ house. He sent elders to her parents’ house, but she refused to join him. Then he filed O.P.No.48 of 1991 for restitution of conjugal rights. The said petition was allowed granting a decree for restitution of conjugal rights. Even after passing of the decree, he tried through elders to bring her back, but the respondent did not join him. In his cross-examination, he admitted that his name finds place in the voters list prepared in 1995 at Serial No.979 relating to Mangalagiri Assembly Constituency. He stated that he has seen his son in 1994 or 1995 when he went to his in-laws house at Vijayawada. Ex.B.2 is the photograph taken by him with his son in 1994 or 1995. He stated that on 28.9.1996 and also on 26.11.1996, he and the respondent represented before the court that they agreed to live together. In his further cross- examination, he stated that both of them appeared before the court and agreed to live together. 10. PW.2 is father of the appellant. He deposed that he and his son went to Vijayawada after hearing the news of the death of respondent’s mother, but he cannot say in which year and which month they went to Vijayawada. He also deposed that after exparte decree in O.P., he performed the 2nd marriage of his son with one Parvathi in October,1997. In his cross- examination, he admitted that Exs.B.3 and B.4-post cards dated 28.05.1994, 20.06.1994 written by him to the respondent’s father. He also admitted that Ex.B.5-letter dated 05.07.1994 written by him to the respondent’s father. He stated that in Exs.B.3 to B.5, he wrote that his daughter-in-law and his grand- son are doing well at Hyderabad. 11. PW.3 is family friend of the appellant and his father. He deposed that he attended the marriage of the appellant with the respondent at Vijayawada. After marriage, the appellant and the respondent lived happily for one year. In his cross-examination, he stated that by the date of marriage of appellant’s younger brother, the appellant and the respondent were living together. 12. PW.4 is cousin brother of respondent’s father. In his cross-examination, dated 13th March,2000, he stated that he did not know for what relief the present petition is filed. He stated that he can identify the handwriting of the appellant’s father and the respondent’s father. Exs.B.3 to B.5 were written by the father of the appellant. He stated that at the time of the marriage of appellant’s younger brother, the appellant and the respondent were living together. He stated that the appellant and the respondent lived together for some time at Undavalli. He also stated that to his knowledge, the appellant and the respondent lived together till 3 or 4 years back. 13. Respondent-wife was examined as RW.1. She deposed that after passing of the decree for restitution of conjugal rights in O.P.48 of 1991, she and the appellant lived together up to August,1995. Her mother died in October,1991. After the death of her mother, the appellant came over to Vijayawada and began to live with her at Vijayawada. They lived together at Vijayawada up to April,1995. In April,1955 both of them came to Hyderabad. Ex.B.2-photograph was taken in 1993 at Vijayawada. The marriage of the younger brother of the appellant was performed in June,1993 at Bheemavaram. She attended the marriage of his brother. After marriage, they went back to Vijayawada. Ex.B.3- letter was written by her father-in-law to her father informing that she and appellant are living happily at Hyderabad. Ex.B.1 voters list of 1995 shows that the appellant was residing at Undavalli in her parents’ house. At the time of voters’ enumeration, the appellant was staying in her parents’ house. In September,1996, there was reconciliation in the court. She and the appellant represented before the court that both of them are wiling to live together. Thereafter, the appellant took her to his house at Safilguda and both of them lived together for 10 days. Ex.B.9 is the voters list of Undavalli Grama panchayat for the year 1993. Ex.B.10 is the voter’s identity card of the appellant issued at Undavalli on 15.12.1995. In her cross-examination, she denied a suggestion that the appellant never lived in Undavalli in 1993 and that as per the information given by them, his name is entered in the voters list and that in 1995 also they furnished the name of the appellant to the enumerators and as per their information, his name is printed in the voters list. She also denied a suggestion that in 1995 the appellant was not staying at Undavalli and that he was staying at Secunderabad and that Ex.B.1 was created for the purpose of the case. She stated that the appellant was doing contract work while he was at Vijayawada. She denied a suggestion the appellant never did any business at Vijayawada. She stated that she did not remember when she received notice in O.P.No.138 of 1994. She stated that on receipt of notice, she did not attend the court since the appellant was living with her. She denied a suggestion that the appellant was not staying with her up to December,1995 and that he was in Hyderabad. She lastly denied a suggestion that she has no intention to live with the appellant and that she is contesting the case to extract money from the appellant. 14. RW.2 is respondent’s father. He deposed that the appellant and the respondent lived in his house at Undavalli from 1991 to 1995. Ex.B.2- photograph was taken by the appellant standing in front of his house and by the side of the road. Ex.B.10 is the voter’s identity card issued to the appellant showing his residential address as Undavalli. He stated that since the appellant was living in their house during the pendency of petition, they did not go to court to contest the matter. He stated that the matter was compromised before Deepavali festival in 1995 or 1996. During compromise talks, the appellant was telling that he would take her back and live with her. In his cross-examination, he denied a suggestion that the enumerators did not verify the family members and that on the information furnished by one of the family members, they note down the names. He also denied a suggestion that the appellant was not present at the time of enumeration at Undavalli and that he gave his name to the enumerators. He stated that the appellant and the respondent compromised the matter in 1995 or 1996 prior to Deepavali. 15. The O.P. was filed by the appellant for dissolution of the marriage under Section 13 (1A) (ii) of the Act. Section 13(1A) (ii) of the Act reads as under: “Section 13 (1A): Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.” 16. The Apex Court in Hirachand Srinivas Managaonkar v. Sunanda,[1] dealing with a similarly placed matter, observed as under: “In this connection, it is also necessary to clear an impression regarding the position that once a cause of action for getting a decree of divorce under Section 13(1-A) of the Act arises the right to get a divorce crystallises and the Court has to grant the relief of divorce sought by the applicant. This impression is based on a misinterpretation of the provision in S.13(1-A). All that is provided in the said section is that either party to a marriage may present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or more after the passing of a decree for judicial separation in a proceeding to which they were parties or that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or more after the passing of a decree for restitution of conjugal rights in a proceeding to which both the spouses were parties. The section fairly read, only enables either party to a marriage to file an application for dissolution of the marriage by a decree of divorce on any of the grounds stated therein. The section does not provide that once the applicant makes an application alleging fulfilment of one of the conditions specified therein the Court has no alternative but to grant a decree of divorce. Such an interpretation of the section will run counter to the provisions in S.23(1) (a) or (b) of the Act. In S.23(1) it is laid down that if the Court is satisfied that any of the grounds for granting relief exists and further that the petitioner is not in any way taking advantage of his or her own “wrong” or disability for the purpose of such relief and in Cl.(b) a mandate is given to the Court to satisfy itself that in the case of a petition based on the ground specified in Cl.(i) of sub-section (1) of S.13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty and in (bb) when a divorce is sought on the ground of mutual consent such consent has not been obtained by force, fraud or undue influence. If the provisions in S.13(1-A) and S.23(1) (a) are read together the position that emerges is that the petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. It has to be kept in mind that relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society. Whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances of the case. In such a matter, it will be too hazardous to lay down a general principle of universal application.” 17. In another case reported in Pavuluri Murahari Rao v. Povuluri Vasantha Manohari,[2] this court held that the sole issue for consideration before the court below was whether the petitioner was entitled to dissolution of marriage under Section 13(1-A) (ii) of the Hindu Marriage Act,1955? On a survey of decisions, the said court came to the conclusion that Section 13 (1-A) (ii) is subject to provisions of Section 23 (1) (a) of Hindu Marriage Act and it held that the petitioner was at fault both prior to decree in the O.P. and subsequent thereto and that he alone was causing obstructions to the respondent to come and live with him and that the respondent was always ready and willing to go and live with him and lead marital life. 18. On the contrary, in the present case, after passing of the orders of restitution of conjugal rights, both the parties lived together as wife and husband resorting to cohabitation in normal fashion. Therefore, the divorce petition filed by the appellant must fail. 19. Further, it is apparent from the record that after filing I.A.No.311 of 1997 by the respondent to condone the delay in filing the petition to set-aside the exparte decree, a notice was ordered to the appellant and it was not served on him and on 17.9.1997, a notice was ordered by substituted service and adjourned the matter to 16.10.1997. Publication was effected in Janatha Daily, Newspaper dated 7.10.1997. On seeing the Newspaper publication, the appellant appeared before the court on 16.10.1997 and he had knowledge about the petition filed by the respondent by 7.10.1997. In spite of knowing the fact, he married second time on 10.10.1997. 20. Having regard to the evidence brought on record and also having regard to the aforesaid decisions, this court is of the considered view that after passing of decree for restitution of conjugal rights on 14.7.1993, the appellant and the respondent lived together and resumed cohabitation and the same is evident from Exs.B.3 to B.5. Therefore, we do not find any irregularity or illegality in the impugned order dated 21.04.2000 passed in O.P.No.50 of 1996 by the learned Judge, Family Court, Secunderabad. 21. In the result, the C.M.A. is dismissed. There shall be no order as to costs. ____________ V.ESWARAIAH,J ______________ B.N.RAO NALLA, J 26.04.2010 Stp [1] AIR 2001 SC 1285 [2] AIR 1984 AP 54