THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH F.C.A.NO.264 OF 2010 JUDGMENT (Per the Hon’ble Sri Justice G.Chandraiah) The appellant is the husband and the respondent is his wife. The husband filed O.P.No.811/2007 on the file of Additional Family Court, Visakhapatnam, seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. The wife filed M.C.No.85/2007, seeking maintenance. By common order dated 1.12.2009, the trial court dismissed the O.P.No.811/2007 filed by the husband for divorce and allowed the maintenance case in M.C.No.85/2007 filed by the wife and granted maintenance of Rs.7,000/- per month. Now challenging the dismissal of O.P.No.811/2007, the husband filed the present appeal. 2. The case of the appellant is that he joined MBBS course in Andhra Medical College, Visakhapatnam in the year 1994 and during the year of 1996, his classmate introduced the respondent to him and slowly friendship developed into love and they got married on 20.8.1997. As his parents did not like their marriage, he was constrained to stay in the house of the respondents initially. The respondent used to suffer from ailments and that her condition turned worse in the month of May, 2007. The grievance of the appellant is that the respondent was suffering from heart ailment and pace maker was arranged to her and that she was also suffering from Agoraphobia i.e., fear of closed places and crowds and also cleptomania i.e., committing theft of articles belonging to others. Without disclosing the ailments from which the respondent was suffering, the marriage was performed. He got the respondent treated, but the problems persisted. In the petition, he narrated the incidents stating that once they went to Rayagada to their relatives house and on their return in the train, the respondent grew restless and wanted to get down from the train and that with great difficulty, he could stop her. He stated that they went to his friend’s house by name Dr.Mallikarjuna and after their return from his house, his friend informed that they lost gold necklace and that later it was recovered from the house of the parents of the respondent. His further grievance is that the respondent was reluctant to lead conjugal life and that she was also suffering from Thyroid and Diabetic problems. Because of the ill-health of the respondent, the mother of the petitioner used to stay with them and in the month of June, 2005, a pace maker was inserted for the third time and that then only they came to know that packer maker was arranged in the respondent in the year 1989. He also alleged that the respondent used to throw all the house hold articles and that she used to leave the house without locking and that she used to pick up quarrel and abused him. Because of the ill-health of the respondent, both mentally and physically, she never co-operated with him for marital life and that because of her ill-health, she has not conceived and doctors suggested that she is not fit for conceiving. Initially in the petition, he stated that he studied MBBS for the first two years with the scholar ship and later by securing employment in real estate firm and with that he used to maintain his family and completed his studies. Thus his case is that he completed the MBBS course on his own, without any financial support from the parents of the respondent. His further case is that he secured job as temporary Medical Officer in Government Service in the year 2003 and later it was regularized. His further case is that in the month of December, 2005, without informing him, the respondent left to her parent’s house and though he tried to bring her back personally and also through mediators, his efforts turned futile and hence he was forced to issue legal notice dated 22.5.2006 seeking divorce and that the respondent issued reply on 8.6.2996 with frivolous allegations. In view of the above circumstances, as the respondent behaved cruelly and made his life miserable, he filed the petition under Section 13(1) (ia) of the Hindu Marriage Act, 1955 for divorce. 3. While denying the above averments, the respondent filed counter affidavit and her case, while admitting that theirs is a love marriage, is that the mother of the appellant is the 1st wife of his father and that the father of the appellant deserted them and thus there was no financial and moral support to the appellant. While studying MBBS 1st year, the appellant fell in love with her and they got married and though initially the parents of the respondent did not like the marriage, later they compromised and allowed the respondent to stay with them at Pendurthi and as the appellant has no house of his own and as he has no support of his parents, he requested her father to help and, therefore, with the help of her father, he completed the MBBS course. For helping the appellant, the father of the respondent had to incur loans. After completing the course and enjoying the fruits of matrimonial home with the respondent and also financial help, without any reason, the petitioner started disliking the respondent and demanding for divorce. The appellant being a doctor never helped the respondent in providing medical aid and totally neglected her to her fate. On 8.12.2005, the appellant dropped the respondent at Visakhapatnam at her parents house to attend her B.A., final year examinations and that after completing the examination, when she went to the parents house of the petitioner along with her aunt, the mother of the petitioner did not allow her into the house and thus she was forced to come back to her parents house. In the counter, the respondent made allegations stating that the appellant was short tempered and use to talk to her vulgarly and beat her and though her parents and colleagues advised him to mend his ways, the same was of no use. Later the appellant sent notice with false allegations seeking divorce and that she replied the said notice. With the averments inter alia, she sought to dismiss the petition. 4. On behalf of the appellant, P.Ws.1 and 2 were examined and Exs.A-1 to A- 7 were got marked. On behalf of the respondent R.Ws.1 to 4 were examined and Ex.X-1 was got marked. 5. Appreciating the entire evidence, both oral and documentary, the trial court dismissed the petition. Hence, the appeal. 6. The learned counsel appearing for the appellant contended that the court below failed to appreciate the material evidence on record and has erred in rejecting the divorce to the appellant. He contended that neither the respondent nor her parents revealed about the ailments being suffered by the respondent. He stated that the appellant came to know about the ailments at the time of operation for congenital heart block and that even then, the appellant agreed to marry the respondent due to his love and affection towards her. The further contention of the counsel for the appellant is that due to ill health of the respondent both physically and mental, she never co-operated with the appellant for marital life and as per the suggestion of the doctor, the respondent is not fit for conceiving. He contended that that the court below failed to take into consideration the economic status of the appellant at the time of studying MBBS. With these contentions and reiterating the averments made in the petition and stating that as the respondent subjected the appellant to cruelty with his acts and abnormal behavior, the learned counsel sought to set aside the impugned order and grant the decree for divorce. 7. On the other hand, the learned counsel for the respondent supporting the impugned order sought for dismissal of the appeal. 8. The main ground on which the appellant seeks divorce is that the respondent is suffering from both physically and mentally and that she is not fit for conceiving because of arrangement of pace maker and that the said ailments were not revealed to him and that her behavior is also abnormal and thus subjected him to cruelty. 9. The admitted fact is that the both the appellant as well as the respondent fell in love and got married. Though the appellant has taken the plea that she is suffering from mental ill-health and that she is not fit for conceiving because of arrangement of pace maker and that she has abnormal behavior and subject him to cruelty, has failed to prove the same by any cogent and convincing evidence. Except his oral evidence, there is no other evidence on record. He has not examined any psychiatric doctor, who treated the respondent for her alleged abnormal behavior. Therefore, any amount of oral assertion, without relevant evidence, is of no use. 10. With regard to averments of the appellant that the respondent tried to jump from a running train and that she committed theft in his friend’s house, and that she used to pickup quarrel with him and abused him and that she used to throw household articles and also would leave the house without locking when the appellant is on duty, there is no evidence, except his averments. Though he examined P.W.2, his evidence did not throw any light, since he deposed that he do not know anything about the disputes between the parties. He deposed that he never saw the respondent throwing vessels in the air. Therefore, the court below rightly found that the evidence of P.W.2 is not useful to prove the case of the appellant. 11. The respondent who is the wife of the appellant, denied the averments and got examined herself as R.W.1 and also examined R.Ws.2 to 4 to support her case. She got examined the doctor who treated her, as R.W.4. He categorically deposed that arrangement of pace maker is not an obstruction for the respondent to conceive; that for arranging pace maker, the patient might have got hyper tropic cordial myopathy and hence he has given some medicine for anxiety disorder. The evidence of R.W.4, who treated the respondent, is to the effect that the respondent is fit for conceiving and that she is not suffering from psychological problem. 12. Hypnotically assuming that respondent is suffering from ailments, there is no material on record to show that the alleged mental and physical ailments of the respondent are not curable. Further, the appellant is a doctor and, therefore, he shall be in a better position, to get the ailments treated. On these grounds, he cannot seek for divorce. The circumstances pleaded, which have not been proved, do not fulfill the requirement of ‘cruelty’ under Section 13(1)(ia) of the Act. 13. The conduct of the appellant also requires to be noticed at this stage. The case of the appellant is that he completed MBBS course, for the first two years with the scholarship and thereafter, with the earnings by securing employment in a real estate firm. These circumstances, would lead to an inference that the appellant is not financially sound. If he is financially sound, there was no necessity for any scholarship or doing any job. However, the appellant did not produce any evidence to show that he worked in a real estate firm and completed his studies. As rightly found by the court below, the medical students may not have time to do other business for earning. Therefore, the theory sought to set up by the appellant that he worked and completed the course with the earnings therefrom, is far from imagination. 14. Further it is to be noticed that appellant joined MBBS course in the year 1994 and he married the respondent in the year 1997 and he secured job in the year 2003. Therefore, at the time of marriage, he was studying and after the marriage, he completed the course and for about six years from the date of marriage, he had no job. As already noted above, as per his statement in the petition, an inference could be drawn that he was not financially sound and he could not produced any evidence, with regard to his economic status or that he did any job and completed his studies. The appellant stated in the petition that initially for some period, they were with the parents of the respondent. These circumstances probablises the case of the respondent that the appellant had taken the help of the parents of the respondent and completed his studies and also thereafter, could secure job and after securing the regular employment, he filed the present petition, seeking divorce under Section 13(1)(ia), without proving any cruelty on the part of the respondent. Hence, the conduct of the appellant cannot be appreciated. 15. Therefore, in view of the above facts and circumstances and considering the entire evidence available on record, the court below rightly dismissed the petition and we do not find any merit in the appeal and the same is liable to be dismissed and accordingly dismissed with costs. ------------------------------------- GODA RAGHURAM,J ------------------------------------- G.CHANDRAIAH,J DATE: 19 --11--2010 AVS