THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE R.KANTHA RAO C.M.A.No.3248 of 2002 JUDGMENT: (Per the Ho’nble Sri Justice B.Prakash Rao) This is an appeal purportedly under Section 19 of the Family Court Act by the husband aggrieved against the Judgment and Decree in O.P.494 of 1999, dated 26-9-2002, on the file of the Family Court at Visakhapatnam dismissing the petition filed by him against the respondent/wife under Section 13 (1) (ia) of Hindu Marriage Act, 1955 seeking for decree of divorce. The facts in brief, giving rise to this present proceedings are, that in the said petition it is alleged that the marriage between the appellant and the respondent took place on 21-11-1993 at Peda Gantyada as per the Hindu Customs and rites and it was consummated, and they lived at Visakhapatnam. However, the respondent/wife herein was counting everything in terms of money and is adamant and is suspicious. She never lived with the appellant continuously for a period of more than two months. She used to go to her parents house and the appellant had to bring her back. Even though the appellant has set up a separate residence as per her wishes and for the welfare, the respondent/wife did not mend her ways. They were blessed with a son on 28-5-1995 and a daughter on 2-7-1996. In view of the aforesaid acts on the part of the respondent/wife and the attribution of illicit intimacy against the appellant with other woman, threatening the appellant with her relatives who are working in the police, forcing the appellant to go to gulf country and trying to come out with all false tales, including her romance with one broker in the passport office and one Venkatesh, who is an attender in the house of the appellant’s father, has caused mental agony to the appellant and he has become absent minded and it has resulted in an accident whereby he suffered a fracture to the right little finger. In view of her typical attitude and there being no change, the appellant sought for divorce. Contesting the case, the respondent in the counter affidavit totally denied each and every allegation and further attributed the allegation of beating her brutally and her sister-in-law Ramanamma and others. That apart, she referred to several other instances and intervention of the elders. It is the appellant, who had been creating nasty scenes and nothing as such can be attributed against the respondent herein, and therefore, having regard to the facts and circumstances stated in the counter affidavit, she sought for a decree for restitution of conjugal rights. Subsequently, the Court below framed the points for consideration to the following effect: 1. Whether the petitioner is entitled to a decree of divorce prayed for? 2. Whether the respondent is entitled to a decree of restitution of conjugal rights? 3. To what relief? After framing of the above issues, the parties went into trial. On behalf of the appellant, he himself was examined as PW.1 apart from other two witnesses PWs.2 and 3 and Exs.A.1 and A.2 were marked. On behalf of the respondent, she herself was examined as RW.1 and Exs.B.1 was marked. Considering the entire material on record, the Court below did not accept the version of the appellant herein and held that the appellant had failed to establish that the respondent herself behaved in such a way that the petitioner cannot reasonably expected to live with her, and therefore, the allegations in the petition even presumed to be true did not satisfy the conscience to grant a decree of divorce, and ultimately dismissed the petition. Hence, the appeal. Though, it is contended on behalf of the appellant that having regard to the typical facts and circumstances and attitude of the respondent there is no other go except to seek for divorce, especially, due to the mental agony which is caused, this submission was repelled on behalf of the respondent herein. Taking into consideration, the relevant submissions from both sides and on perusal of the entire material on record, the point which arises for consideration is “whether the appellant had made out any case to warrant grant of decree of divorce? For convenience sake, Section 13 of the Hindu Marriage Act, 1955 is extracted below: “13. Divorce. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- 1 (i) has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse ; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] 1 (ii) has ceased to be a Hindu by conversion to another religion; or 1 (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.” As already stated, the main allegation made in the petition is about the attitude of the respondent herein in frequently going to Visakhapatnam to her parents’ house and making several attributions and her more interest towards money and harassment. For a proper appreciation, the contents of main petition succinctly read as follows: (i) The marriage between the petitioner and the respondent took place on 21-11-93 in the house of the petition at Peda Gantyada as per the caste custom and Hindu rites. The marriage was consummated and they lived at Visakhapatnam. The respondent is estimates every thing in terms of money. She is adamant and suspicious. She did not live with the petitioner continuously for 2 months. She used to go to her parents house and the petitioner used to bring her back after persuasion. (ii) Six months after the marriage the respondent insisted for separate residence in the house of paternal aunt of the petitioner by paying monthly rents of Rs.200/-. Even though the petitioner set up the residence in the said house, the respondent did not choose to live with him. (iii) Out of their lawful wedlock, they were blessed with a son on 28-5-1995 and a daughter on 2-7-96. The respondent caused mental agony to the petitioner by attributing illicit intimacy to the petitioner with other women. The cousins of the respondent are working as sub- inspector. Head constable and Tahsildar in East and West Godavari Districts and they used to threaten the petitioner. (iv) The respondent’s mother is mad after money, and she tried to go to Gulf Countries without the knowledge or consent of her family members. She could not get clearance due to health. Therefore, she wanted the respondent to go to Gulf Countries. In order to achieve the said object, she used to instigate the respondent to obtain divorce from the petitioner. The brothers of the respondent used to support her. To achieve the said object, the respondent used to tell tales to the petitioner about the love and romance of the respondent with one Prakash who is a broker in Passport Office and one Venkatesh who is a tenant in the house of the petitioner’s father. Thus she caused mental agony to the petitioner. The petitioner lost mental peace and became absent minded and therefore in 1997 Dasara Festival, he met with an accident resulting in fracture of right little finger. The respondent did not mend her behavior and continued to harass the petitioner. (v) The petitioner approached Palla Simhachalan, Ex.M.L.A. He suggested the parents of the respondent not to interfere in the family affairs of the petitioner and the respondent, though agreed before the said elder, there was no change in his attitude. (vi) The respondent never allowed friends and colleagues of the petitioner into the house. On 12-10-1999, she left the family house and went to Kakinada along with her brother on the pretext of Dasara festival. After reaching Kakinada a Telegram notice was issued through one Eluri Subramanyam, Advocate at Kakinada. On 27-10-99 the son of the petitioner Avinash was admitted in Sagar Durga Nursing Home due to Lung infection. It was informed to the respondent and she came to Visakhapatnam on 1-11-99. However, there is no change in the behaviour and attitude of the respondent. Therefore, the petitioner is entitled to a decree of divorce on the ground of cruelty.” In Smruti Pahariya v. Sanjay Pahariya[1] the Hon’ble Supreme Court held as follows: “Marriage is an institution of great social relevance and with social changes, this institution has also changed correspondingly. However, the institution of marriage is subject to human frailty and error. Marriage is certainly not a mere “reciprocal possession” of the sexual organs as was philosophized by Immanuel Kant (The Philosophy of Law, p.110, W.Hastie translation 1887) nor can it be romanticized as a relationship which Tennyson fancied as “made in Heaven” [Alymer’s Field, in Complete Works 191, 193 (1878)]. In many cases, marriages simply fail for no fault of the parties but as a result of discord and disharmony between them. In such situations, putting an end to this relationship is the only way out of this social bondage. But unfortunately, initially the marriage laws in every country were “fault oriented’. Under such laws marriage can be dissolved only by a court’sdecree within certain limited grounds which are to be proved in an adversarial proceeding. Such “fault” oriented divorce laws have been criticized as “obsolete, unrealistic, discriminatory and sometimes immoral” (Foster, Divorce Law Reform; The Choices before State, p.112).” This version was reiterated by the appellant as PW.1 in his evidence. Except such sweeping allegations, no other incident or any specific allegation is made against the respondent herein in the petition nor a valid ground, as required. PW.2 is a neighbour, who only reiterates that in their caste there is a custom that after marriage the bride and bridegroom should live separately. PW.3 is another witness, who was examined on behalf of the appellant. However, neither PW.2 nor PW.3 had mentioned anything about the other details as spoken to by PW.1 as mentioned in the petition. Thus, the entire version as contended by the appellant spoken to as PW.1 did not get any support from other two witnesses. The documents filed on behalf of the appellant herein are inland letter and postal card dated 24-8-1999 and 25-8-1999 respectively, which have been marked as Exs.A.1 and A.2 are much later in its time. Even these letters do not in any way come to the rescue of the appellant herein. There is not even an attempt to show either by pleadings or evidence, a seriousness or bonafides on the part of the appellant. In supporting her case, the respondent was examined as RW.1 and she made total denial and pointed out several other facts and circumstances blaming the appellant himself. Therefore, even by taking into account the entire case as sought to be placed on behalf of the appellant seeking for such a recourse to annul the marriage relations by divorce, it cannot be said that the appellant has really made out any case either in the main petition or even by any evidence to warrant any such exercise. The provision in Section 13 of the Hindu Marriage Act, 1955 names specific grounds only, on the establishment of which only, the relief of divorce can be granted in a Court of law, but not for mere disagreements or dislikes. None of the grounds stated therein are referred to nor any averment is made in support. The Court below rightly appreciated the entire evidence from both sides to come to such a conclusion. In fact, the reasoning as given by the Court below is perfectly sound and nothing has been pointed out even during the course of the arguments in this appeal as to any perversity or that the same is not based on any cogent evidence and material. In fact the petition as has been framed and filed totally lacks a base or valid ground as required under the law to seek a decree for divorce. Thus, we are in entire agreement with the findings as arrived at by the Court below. Therefore, we do not find any merits in the appeal and it is accordingly dismissed. No costs. _________________ B.PRAKASH RAO,J ________________ R.KANTHA RAO,J Dt: 20-04-2010 Grk Note: L.R Copy to be marked. THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE R.KANTHA RAO The P.D Judgment In C.M.A.No.3248 of 2002 THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE R.KANTHA RAO (The order of the Bench delivered by Hon’ble Sri Justice B.Prakash Rao) C.M.A.No.3248 of 2002 Date: -04-2010 [1] (2009) 13 SCC 338