THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL MISCELLANEOUS APPEAL NO.897 OF 2005 DATED SEPTEMBER, 2010 BETWEEN Gunji Padmja … Appellant And Gurrala Venkateswara Prasad … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL MISCELLANEOUS APPEAL NO.897 OF 2005 JUDGMENT: (Per SK,J) Aggrieved by the order dated 11.08.2005 passed by the Principal Senior Civil Judge, Nellore, decreeing the husband’s H.M.O.P. No.66 of 2002 for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955, the wife is in appeal. This Court, by order dated 26.09.2005, granted interim suspension of the said order and decree. Thereafter, upon the husband’s petition seeking early hearing of the appeal, on 27.06.2008 the matter was referred by this Court to the High Court Legal Services Committee for conciliation before the Lok Adalat. However, as these efforts met with failure, the matter was again restored to the file. The admitted facts are that the parties hereto, both Doctors by profession, got married on 04.10.1987 according to Hindu rites during their House Surgeoncy. It was a love marriage. They lived together at Tirupati till 1995 and thereafter shifted to Nellore. A daughter, Shreeja, was born to them on 03.07.1991 and a son, Shreetan, on 04.09.1997. The case of the husband before the trial Court was that since the date of the marriage the wife exhibited arrogance towards him and his family owing to the fact that her father was an Executive Engineer in the Panchayat Raj Department while his father was only a clerk in the Government I.T.I. at Nellore. He alleged that in spite of his patient tolerance towards her behaviour, the wife did not change her attitude which was aggravated further on account of her father’s promotion to the posts of Superintending Engineer and thereafter, Chief Engineer. He stated that the wife used to defy him and his parents, used abusive language and consumed alcoholic drinks at home. After the death of his father in January, 2001, the husband alleged that the wife started insinuating illicit intimacy between his mother and his father’s brother, in whose house they were residing. He further alleged that the wife also insinuated illicit sexual intimacy between him and his own mother causing him and his family members a lot of humiliation. He made reference to the wife threatening suicide and writing letters to that effect on 15.10.1996, marked in evidence as Exs.A.1 to A.4. He further alleged that the wife concocted a document as if it was a summons issued by the Assistant Sub-Judge, Prakasam District, in O.P.No.79 of 2001 purporting to be an application for divorce under Section 13(1) (ib) of the Act of 1955 and obtained his signatures. He claimed to have suffered a lot of mental agony on receipt of such summons, which thereafter proved to be a forged one as no such case was actually instituted. The husband further alleged that he was deprived of conjugal life since March, 2001. The husband stated that on 22.06.2002 the wife abused him in Telugu in the presence of the Jeep Driver and others when he was about to leave for a public rally on creating awareness of blindness. He further alleged that she came to the venue of the said rally a little later and again abused him in the presence of one and all. On the basis of these allegations, the husband submitted that the arrogant and irresponsible behaviour of the wife, apart from causing mental agony to him and his family members, also made him a laughing stock in society. Stating that the cause of action arose since March, 2001 when the wife refused to lead marital life with him and started abusing and ill-treating him, his mother and his uncle in a drunken state and thereafter, on 22.06.2002 when the wife insulted him in public in the presence of one and all, the husband sought dissolution of the marriage on the ground of mental cruelty exhibited by the wife. The wife filed a counter denying all the allegations made by the husband. She further alleged that the husband had prosecuted his studies and renovated his old house for setting up a clinic at Nellore with her money. She made allegations to the effect that the husband, belonging to a higher caste than hers, was being encouraged by his friends to insult and hoodwink her. She made specific allegations against one D.Venkata Seshagiri in this regard. She alleged that the husband was himself cruel in his deeds and thoughts. She further alleged that he was prepared to elope with a woman inducing her to divorce her husband who had himself filed a divorce O.P. She stated that to cover up his misdeeds, the husband had disconnected the telephone in the house saying that the telephone bills were high, while the fact was that he himself utilized the telephone for hours together talking to his paramour and his friends. She concluded by stating that it was the husband who had turned her marital life into hell and that he was responsible for all the misdeeds which she had tolerated with the hope that there would be a change in his attitude. She therefore prayed for dismissal of the O.P. Before the trial Court, the husband examined himself as P.W.1 and his mother as P.W.2. The Jeep Driver, who was allegedly a witness to the incident which took place on 22.06.2002 was examined as P.W.3 and the Vice President of the Rotary Club, Nellore, who was one of the organizers of the rally held on that day, was examined as P.W.4. The wife examined herself as R.W.1 and a neighbour and a nurse as R.Ws.2 and 3 respectively. The husband marked Exs.A.1 to A.5 while the wife adduced Ex.B.1 in evidence. Exs.A.1 to A.4 are the letters said to have been written by the wife on 15.10.1996 in contemplation of suicide. Ex.A.5 is the alleged notice of summons in O.P.No.79 of 2001 said to have been concocted by the wife. Ex.B.1 is the letter dated 28.11.2003 addressed by the Andhra Bank stating to the effect that the husband had availed a loan against the security of the wife’s property. The trial Court, based upon the pleadings, framed eight issues: 1) Whether the petitioner/husband was subjected to cruelty due to the arrogant behaviour of the respondent/wife? 2) Whether the respondent/wife demanded the petitioner/ husband to set up a separate family? 3) Whether the respondent/wife was subjected to ill-treatment and harassment by the petitioner/husband as alleged in para-14 of her counter? 4) Whether the petitioner/husband has been disposing the properties and encashing the amounts, without the consent or knowledge of the respondent/wife? 5) Whether the petitioner/husband had exhibited cruel behaviour towards the respondent/wife? 6) Whether the petitioner/husband had a paramour, as alleged by the respondent/wife in para-17 of the counter? 7) Whether there was a reasonable cause for the respondent/wife in living away from the petitioner/ husband? 8) Whether the petitioner/husband has established sufficient grounds to pass a decree of divorce dissolving the marriage between him and the respondent/wife? After considering the material on record including the evidence, the trial Court held against the wife on all the issues. The correctness of these findings is called in question before us in this appeal. The husband in his affidavit filed in lieu of chief-examination reiterated the contents of his petition. In his cross-examination, for the first time it was put to him that he had illegal contact with one Vijaya Durga. Relevant to note, no such name finds mention in the counter filed by the wife though an allegation was made therein that the husband had a paramour. The husband’s mother, speaking as P.W.2, affirmed the allegations made by her son against the wife. It is relevant to note that P.W.2’s cross-examination did not touch upon the allegations of illicit intimacy supposedly made by the wife against P.W.2, referred to in her chief-examination. Though the wife denied having made such allegations in her counter, her studied silence in this regard while cross-examining her mother-in-law requires to be noted. Though Sri P.Gangaiah Naidu, the learned senior counsel representing the wife contended that no such allegations had been made by the wife against the mother-in-law and that P.W.2 had deposed falsely only to support her son, it is difficult to believe that the mother would have stooped to the level of falsely accusing the wife of alleging illicit intimacy between herself and her own son. Even if P.W.2 wished to support her son’s case, it is incredible that she would go to the extent of ruining her own reputation with such lowly allegations. P.W.3, the Jeep Driver, was examined in the context of the incident which took place in his presence on 22.06.2002. He spoke of the abuses in Telugu heaped upon the husband by the wife in the presence of passersby and himself. He also spoke of how the wife came to the venue of the rally and loudly asked the husband to come aside, otherwise she would use the mike to scold him. He stated that this incident took place in the presence of many colleagues of the husband. P.W.4, the Vice President of Rotary Club, Nellore, which organized the rally on 22.06.2002, affirmed the evidence of P.W.3 as to what had happened at the rally. He stated that the wife rushed into the venue and asked the husband to come aside threatening that she would otherwise use the microphone to scold him, by raising her voice loudly to the hearing of all present, including himself. This evidence stood firm in cross-examination. In rebuttal, the wife speaking as R.W.1 reiterated her counter allegations against the husband. She blamed his friends for his alleged cruel behaviour towards her. She imputed further acts of cruelty against him such as disconnection of the telephone and deprivation of water. She echoed the allegations made against the husband in respect of their caste differences. In her cross-examination she admitted having written the letters, Exs.A.1 to A.4, but denied having concocted Ex.A.5. She stated that the husband used to say that he had illegal contact with one Vijaya Durga since 1995. She however stated that she did not enquire about the said Vijaya Durga till date. She again affirmed in cross-examination that the husband insulted her because of her lower caste. R.W.2, a neighbour, spoke of the events in connection with the writing of the letters, Exs.A.1 to A.4. R.W.3, a nurse and an employee of the wife, stated to the effect that there were no differences between the parties. However, in her cross-examination, she stated that she did not know the relationship between the parties from 2003 onwards or the disputes between them. Sri P.Gangaiah Naidu, learned senior counsel, contended that Exs.A.1 to A.4 were concocted and that, even if they were taken to be true, they did not constitute grounds of ‘cruelty’ for a petition filed in the year 2002, in the light of the intervening circumstances. He pointed out that the parties had a son in the year 1997 and therefore, these letters being prior to that date could not be reason enough for seeking a divorce. The argument that Exs.A.1 to A.4 are concocted does not hold water in the light of the admission by the wife during her cross- examination that she had herself written them. It is true that the effect of these letters is watered down to a great extent owing to the rapprochement between the parties evidenced by the subsequent birth of a son in the year 1997. However, the husband only referred to these letters in his petition and did not cite them to be the ‘cause of action’ for the filing of the O.P. His case is founded on the acts and actions of the wife over a period of time to indicate her attitude and approach towards him which allegedly constituted grounds for cruelty under Section 13(1)(ia) of the Act of 1955. These letters, addressed to her parents, the husband, the superior Medical Officer and the Police Commissioner, District Collector & Magistrate respectively, can therefore be looked into for this limited purpose and not as the substratum for the husband’s petition. Further, these letters are of crucial relevance for another reason. It is noticed from the wife’s deposition that she alleged that her husband had illicit intimacy with one Vijaya Durga since 1995 and that he himself had stated this. If that be so, it is difficult to believe that the wife would not have mentioned this aspect in her letters dated 15.10.1996 which were written at a time when she was supposedly contemplating suicide. On the other hand, in Ex.A.2 the wife stated to the effect that she was unable to adjust with the husband as she was secondary to him which she could not tolerate. She further stated that she knew that he would look after their daughter, Shreeja, better than her. Such would not have been the tone and tenor of the letter, had the wife contemplated suicide because of the paramour in the husband’s life. Further, the lack of mention of a name in the counter filed by the wife indicates that the case was built up thereafter and the name ‘Vijaya Durga’ was put to the husband for the first time only in his cross-examination. There is no evidence worth the name to corroborate the wife’s allegation of adultery by the husband. However, as regards Ex.A.5 there is no evidence to indicate that the said summons was concocted by the wife. Therefore no reliance can be placed on it one way or the other. In so far as the incident on 22.06.2002 is concerned, the wife denied the same in toto. However, no valid explanation is forthcoming as to why both the Jeep Driver (P.W.3) and the Vice President of the Rotary Club, Nellore (P.W.4) would concoct such an incident. Both these witnesses are disinterested and independent. However, their identical evidence is that the wife came to the venue of the rally and threatened the husband to come aside failing which she would use the microphone to scold him. There is no reason to doubt the veracity of these witnesses or the truth of their evidence, as rightly pointed out by Sri L.Nandakishore, learned counsel representing the husband. Another crucial aspect demands attention. Pursuant to the order of this Court when the matter went before the High Court Legal Services Committee, the daughter, Shreeja, was examined in chambers. The Secretary of the Andhra Pradesh High Court Legal Services Committee by letter dated 18.07.2008 said that the daughter could not control her feelings stating that her mother did not behave like a mother and that she had attributed illegal intimacy between her and her father. The young daughter would hardly make up such an atrocious allegation. It is relevant to note that the wife in her pleadings made certain counter allegations against the husband. She accused the husband’s friends and more particularly one D.Venkata Seshagiri. She also alleged that the husband had used her money not only for his studies but also for renovating his house. She further alleged that the husband was disposing of the properties and encashing the amounts and raising debts keeping her and her brothers as sureties and not repaying the loans. She said that the husband was hoodwinking her with the encouragement of his friends like D.Venkata Seshagiri. She accused the husband of disconnecting the telephone though it was he himself who worked up huge bills by talking for hours together with his friends and his paramour. In her deposition she reiterated these allegations and also stated that the husband created problems so that she could not get water. Except for making these allegations, the wife did not choose to substantiate them by way of independent evidence. No material is placed on record to support her contention that the friends of the husband, and more particularly D.Venkata Seshagiri, played any role in creating a rift between the couple. Similarly, no material is placed on record to show that the husband indulged in any financial irregularities to the detriment of the wife or her brothers. The mere fact that the wife’s property was kept as security for the loan availed by the husband at a time when the parties were in a more amicable frame of mind would not lend support to the allegation of the wife in this regard. The further allegation that the husband had extramarital relations with one Vijaya Durga remains unproved. These counter allegations made by the wife being fresh accusations against the husband and his friends indicate the bend of mind of the wife. A Division Bench of this Court in JAYAKRISHNA PANIGRAHI v. SMT.SUREKHA[1] had occasion to deal with a similar situation. It was observed therein that the material available on record would eloquently point to the fact that one spouse deliberately hurled allegations against the other, may be as a counter blast to the proceedings initiated by the spouse seeking divorce. It was further observed that the pleadings together with the depositions of the parties, if they are capable of maligning the other party would undoubtedly fall within the ambit of ‘mental cruelty’. It was also observed that such allegations made in the written statement or counter, as the case may be, shall be treated as additional particulars for granting the relief sought. Therefore the fresh allegations made by the wife in her counter and during the course of her deposition add fuel to the fire and can be taken note of by this Court as constituting fresh material to substantiate the husband’s imputation of mental cruelty to the wife. Sri P.Gangaiah Naidu, learned senior counsel, placed reliance on the Judgment of a Division Bench of this Court in USHA RANI v. N.SRIDHAR[2]. It is however to be noticed that in that case the trial Court held on evidence that the alleged grounds of cruelty and desertion had not been established. Therefore, the Division Bench was of the opinion that the trial Court ought not to have granted the divorce on the ground of irretrievable breakdown of the marriage. This Judgment is of no avail to the wife. I n VINITA SAXENA v. PANKAJ PANDIT[3], the Supreme Court dealt at length with the aspect of cruelty in the context of Section 13(1)(ia) of the Act of 1955. The Court observed that mental cruelty could cause even more serious injury than physical harm and that to amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of the spouses harmful or injurious having regard to the circumstances of the case. The Supreme Court took note of the fact that ‘cruelty’ had not been defined but the term had been used in relation to human conduct/human behavior. It was pointed out that the cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and the human values to which they attach importance. The Supreme Court further observed that each case depends on its own facts and must be judged on these facts. It pointed out that the concept of cruelty varied from time to time, place to place and individual to individual in its application, according to the social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a ‘cruel act’ had to be determined from the whole facts and the matrimonial relations between the parties. The general rule in all cases of cruelty was to consider the whole matrimonial relations. This rule was stated to be of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In the light of the obtaining legal position extracted supra and the facts and circumstances of the case, the conduct of the wife in making allegations of incestuous intimacy between the husband and his mother and thereafter, during the pendency of these proceedings, between the husband and her very own daughter leaves no doubt as to her callous and cruel attitude. The public humiliation of the husband by the wife on 22.06.2002, clinchingly proved by independent evidence, fortifies our conclusion in this regard. The unfounded allegations made by her against the husband’s friends and the husband himself also support this opinion. Such acts and actions undoubtedly constitute mental cruelty on her part and amply satisfy the requirements of law. The cogent and well-reasoned order of the trial Court holding so and decreeing the dissolution of the marriage by granting a divorce to the husband under Section 13(1)(ia) of the Act of 1955 does not call for any interference by this Court in appeal. The order and decree dated 11.08.2005 are accordingly confirmed. In the light of the final order passed on the basis of the material on record, CMAMP No.1129 of 2008 filed by the husband seeking to adduce additional evidence in this appeal shall stand dismissed. The appeal is dismissed but in the circumstances of the case, without any order as to costs. ________________________ JUSTICE D.S.R.VARMA __________________________ JUSTICE SANJAY KUMAR _________ SEPTEMBER, 2010. VGSR [1] 1995 (3) ALT 207 (DB) [2] 2003 (5) ALD 803 (DB) [3] (2006) 3 SCC 778