THE HON’BLE SRI JUSTICE N.V. RAMANA and THE HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A. Nos. 2619 and 3056 of 2003 Common Judgment: (Per NVR,J) Both these appeals are preferred by the husband, against the orders dated 26.11.2002 passed by the Judge, Family Court, Visakhapatnam, dismissing O.P. No. 370 of 1999 filed by the appellant-husband for grant of decree of divorce from the respondent- wife on the ground of cruelty, and allowing O.P. No. 312 of 1999 filed by the respondent-wife, for grant of decree of restitution of conjugal rights. Learned counsel for the appellant- husband contends that the Court below erred in disbelieving the evidence of the appellant- husband on the ground that he is an interested witness. He further contends that the Court below failed to take into consideration the evidence of other witnesses examined on behalf of the appellant- husband and also failed to consider the fact that the criminal case instituted at the instance of the respondent-wife, for the offence punishable under Section 498-A of I.P.C., ended in compromise. He also further contends that the Court below erred in holding that there is no cruelty on the part of the respondent-wife and refusing grant of decree of divorce as sought by the appellant-husband. Learned counsel for the respondent-wife, on the other hand, supported the order under appeals and prayed for dismissal of both the appeals. Heard the learned counsel on either side and perused the order under appeals. As can be seen from the order under appeals, the appellant- husband made an allegation that the respondent-wife was instigated by her elder brother namely Srinivasa Rao, and she used to give money to him from the pocket of the appellant, for his vices, and on one occasion, the appellant also lent Rs. 5,000/- to the said Srinivasa Rao, which was not repaid. Except the evidence of the appellant, who was examined as P.W.1, the evidence of other witnesses i.e. P.Ws. 2 to 4, who acted as mediators to the mediations held between the parties, does not contain any substance to prove the allegations made by the appellant against the respondent. On the other hand, the said Srinivasa Rao, brother of the respondent-wife, who was examined as R.W.2, has categorically denied the allegations made by the appellant- husband. Having considered the evidence on record and in the absence of any legal notice issued by the appellant, demanding R.W.2 to repay the alleged loan amount of Rs. 5,000/-, the Court below found that the appellant-husband failed to establish the above allegations made by him. The other main allegation made by the appellant-husband is that the respondent-wife, by spreading rumors that she is going to marry her brother-in-law who is working in Hindusthan Aeronautics Limited, tortured him mentally. It is clear from the order under appeals that P.W.1 in his evidence did not state that the wife spread that rumor. It is his evidence that one S.S. Prakasa Rao, who was examined as R.W.3, informed him that there is such a proposal of giving the respondent in marriage to her widower brother-in-law, but however R.W.3 did not support this version of the appellant-husband. In that view of the matter, the Court below opined that the above allegation was invented by the appellant only for the purpose of the petition for divorce. If really the wife had such an intention to marry another person, she would have consented for divorce and would not have asked for restitution of conjugal rights. Even during the conciliation proceedings before this Court, the respondent-wife expressed her willingness to join the appellant-husband, at least for the sake of her daughter’s marriage, who is now aged about 13 years and is staying with her. The other allegations made by the appellant-husband that when he went to the house of the parents of the respondent-wife, after she went there for delivery of child, he found the door locked and on information by the neighbours, when he went to the house of the respondent’s junior maternal aunt, he found the respondent playing cards and she did not speak to him, is concerned, the appellant, except making such allegations, did not prove the same by producing any evidence to that effect. Thus, from the evidence, as discussed above, it is clear that the appellant utterly failed to prove his case that the respondent treated him with cruelty, justifying him to seek dissolution of his marriage with the respondent and grant of divorce, and while the respondent, by examining herself as R.W.1 and others as R.Ws. 2 to 4, could establish that after the delivery of the child, the appellant-husband, in spite of mediations, did not take her back to his house. That being so, we are of the considered opinion that no interference is warranted by this Court with the order under appeals, refusing to dissolve the marriage of the appellant with the respondent and grant divorce, and allowing the petition filed by the respondent-wife for restitution of conjugal rights. The appeals are accordingly dismissed, but, in the facts and circumstances of the case, without costs. __________________ JUSTICE N.V. RAMANA ___________________ JUSTICE K.S. APPA RAO Dated: 11th April, 2011 IBL