THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.750 of 2000 JUDGMENT: (per the Hon’ble Sri Justice V. Eswaraiah) 1. Heard both the counsel. 2. The appellant is the wife and the respondent herein is the husband. The wife filed this appeal against the order, dated 28-01-2000, in O.P.No.16 of 1998, wherein and whereby the said O.P. filed by the husband seeking decree of divorce was allowed by the Family Court, Warangal. 3. The parties are, hereinafter, referred to as they are arrayed in the O.P. 4. The petitioner filed O.P.No.16 of 1998 seeking divorce under Section 13 (1) (ib) of the Hindu Marriage Act, 1955, on the ground of desertion. As per the averments made in the O.P., the marriage between the petitioner and the respondent was performed on 05-06-1994. At the time of marriage, the petitioner was studying B.Ed., and the marriage alliance was fixed against his will and desire and the betrothal ceremony was also arranged without his consent and contrary to his will. At the time of marriage, his parents presented three tolas of gold ornaments and clothes worth about Rs.8,000/- to the respondent. At the time of betrothal ceremony, the parents of the respondent as well as the elders and mediators represented to the petitioner that the respondent is highly literate, intelligent and has no mental or physical defects. But, later he came to know the truth that the respondent is mentally retarded girl and she is suffering from night blindness. Immediately, the petitioner questioned the parents of the respondent as well as the mediators for deceiving him. Few days thereafter, her parents took the respondent to their house to settle the issue. After a few days, the father of the respondent came and informed the petitioner that the respondent is carrying third month pregnancy. In October, 1995, she gave birth to a female child at Jaya Nursing Home, Hanamkonda, who was later named as Jhansi Rani. Three months thereafter, cradle ceremony was performed at the parental house of the respondent at Hanamkonda. A fortnight thereafter, the parents of the respondent have dropped the respondent and child in the house of the petitioner. On 06-05-1995, due to the negligence and innocence of the respondent, a fire accident took place in the house of the petitioner and while the house was being ablazed, the respondent has not even tried to save herself and the child and she behaved as if she did not know the consequences of such fire. On the next day, the respondent had left the child at the house of the petitioner and went to her parents’ house and brought her father. Few hours after her father leaving the house of the petitioner, the respondent has poured the entire kerosene stored in the house in the burning fire of the kitchen of the petitioner house, as a result of which, the kitchen caught fire and the respondent was found laughing. Thus, it is stated that the respondent was behaving madly and her behaviour was quite abnormal and dangerous to the lives of the inmates of the petitioner including his disabled parents. The father of the petitioner is a chronic paralytic patient and the mother of the petitioner is totally blind. As the acts and behaviour of the respondent are quite dangerous even to the lives of the petitioner and the child as well as to the respondent, the petitioner informed the same to her parents. On 08-05-1995, the brother and the mother of the respondent came to the house of the petitioner and took her and the child to their house. Thereafter, there was no response from the respondent’s side. As such, the petitioner has approached the brother and father of the respondent on several occasions and tried to settle the matter. But, they did not respond to the request of the petitioner. Finally, a panchayat was held on 19-10-1997 in the presence of the elders, but the parents of the respondent refused to participate in the panchayat. The petitioner is a physically handicapped, as his left leg is affected with polio since birth. The petitioner got issued legal notice on 08-12-1997, for which, a reply was sent on 10-12-1997. Thereafter, he filed the said O.P. seeking decree of divorce dissolving the marriage between him and the respondent. 5. A counter has been filed by the respondent denying all the allegations stating that the petitioner himself deserted the respondent and he never paid any maintenance amount and he himself refused to take her back to the marital house. 6. The petitioner himself was examined as PW.1 and he reiterated in his chief examination whatever is stated in the affidavit filed in support of O.P. He also stated that during pendency of the said O.P. the respondent also filed O.P.No.23 of 1998 for restitution of conjugal rights. He has admitted in the cross-examination that the respondent is living in her parents’ house since two and half years or three years. He has not provided any maintenance either to the respondent or to his daughter since they are living in the parents’ house of the respondent. He has no doctor certificate to prove that the respondent is mentally retarded. He admitted that for the first time he has deposed in the court that the respondent is mentally retarded. There is no medical certificate to show that the respondent has got night blindness. He has not mentioned in earlier notice Ex.A-1 that the respondent is suffering from night blindness. He never tried to take the respondent to the doctor for the treatment of night blindness. The suggestion that he filed the said divorce petition making false allegations that the respondent is suffering from night blindness with a view to obtain divorce is denied. The suggestion that on 23- 04-1996 he beat the respondent and necked her out from the house along with the minor daughter without any reasons by abusing in a filthy language was denied. It is stated that as the respondent did not like him, he has not gone to the respondent requesting to join his society and as such, he filed the divorce petition. He is ready to take the respondent. But, immediately, he stated that he does not want to take her as anything may happen due to her strange behaviour. The suggestions that the respondent never made any fire accident or poured any kerosene and that her mental condition is good are denied. 7. PW.2, who is a neighbour, stated that a year after the marriage, on one midnight on hearing the cries, he came out of his house and found the house of the petitioner was on fire and he helped in extinguishing the fire. He found the respondent at the spot and, therefore, he concluded that she set the fire. Before the fire accident, the respondent was sleeping inside the house and other inmates were sleeping outside. When he enquired with the respondent about the cause of fire, she kept mum. Few days thereafter, the kitchen caught fire and he went and extinguished the fire. 8. In the cross-examination, it is stated that the parents of the petitioner and the petitioner raised hue and cries from the house of fire. He did not inform about the said fire accident to the police patel. The suggestions that no such accident took place and he is deposing falsely to help PW.1 are denied. 9. The respondent, who was examined herself as PW.1, stated that she filed O.P.No.23 of 1998 before the same court for restitution of conjugal rights. At the time of marriage, two and half tolas gold and clothes worth Rs.10,000/- were given to her by her parents. She is not suffering from any night blindness. Her in-laws have not behaved with her well. It is stated that a kerosene lamp fell on the ground and for the so-called fire accident she is not responsible. During the period of pregnancy, the petitioner did not visit or enquire about her health and she did not have any night blindness. Since four years, she is residing along with her daughter in her parents’ house and the petitioner did not spend a single paise either on her or on her daughter. The petitioner is a Government teacher. Her father is a retired teacher and he is not in a position to maintain the respondent. She never left to her parents’ house without informing either to the petitioner or her in-laws. She never left the child at the house of the petitioner. She never poured any kerosene in the burning fire as alleged. Her behaviour is normal. She is ready to join with the petitioner to lead a marital life. All the suggestions made on behalf of the petitioner were denied. She is not suffering from any defective vision. In April, 1996, she was necked out from the house of the petitioner. She gave birth to a female child one year three months after the marriage. 10. RW.2, who is the mother of the respondent, stated that no panchayat was held with regard to the disputes between the petitioner and the respondent. The petitioner himself was not treating the respondent well and she was treated as a maidservant. The respondent is not suffering from any night blindness. The petitioner alone used to harass the respondent. She stated that there was no fire accident in the house of the petitioner and her daughter is not suffering from any sought of disorder. 11. PW.3, who is a close relative of the respondent, stated that once he visited the house of the petitioner on 11-12-1999. At that time, the petitioner called some villagers alleging that the respondent does not know cooking and when she was asked to cook the food, she was able to cook the food properly to their satisfaction. At the time of settling the marriage, Rs.80,000/- was paid to the petitioner and he himself handed over the said cash. It is stated that in his presence only the settlement of marriage took place. 12. A perusal of the impugned order goes to show that the Court below granted divorce only on the ground that the petitioner and the respondent were living away from each other for the last four years and on the attempt made by the Court for reconciliation of the matter, they lived together for sometime but again they separated from each other. Therefore, by the conduct of both the parties, it can be said that the marriage is irretrievably broken as the effort made by the Court for uniting them is failed. 13. Initially, they lived together at the instance and intervention of the Court but again they were separated and, therefore, further evidence was let in by the respondent and the Court came to a conclusion that they cannot live together and make the marriage success and, therefore, there cannot be any point in forcing them to live together. Accordingly, the marriage was dissolved on the ground of desertion. 14. The court below has not recorded any finding with regard to the desertion on the part of the respondent but only came to the conclusion that as the effort made by the Court to lead conjugal life together failed, the marriage was broken irretrievably. 15. The question that arises for consideration is as to whether the petitioner was able to establish that the respondent was cruel towards him and deserted him without any reasonable cause entitling him for a decree of divorce. 16. A perusal of the impugned order goes to show that the court below did not record any finding stating that the respondent deserted the petitioner without any reasonable cause. The court below also did not record any finding that the respondent was cruel towards the petitioner entitling him to a decree and without recording such a finding the decree of divorce was granted on the ground of desertion. 17. As the court below did not record any finding stating that the respondent treated the petitioner cruelly or deserted the petitioner without any reasonable cause, the court below ought to have dismissed the petition. However, if any grounds are made out during the course of the evidence with regard to desertion, it is always open to the court below to consider grant of divorce on the ground of desertion, if it is established that the respondent deserted the petitioner two years immediately preceding the presentation of petition without any reasonable cause. 18. Even, according to the Court below, during pendency of the O.P., they lived together at the instance of the Court, but thereafter, they separated and the efforts made by the court below failed and, therefore, it cannot be said that the petitioner was able to establish desertion on the part of the respondent. 19. Insofar as the finding recorded by the court below that marriage was broken irretrievably is concerned, we are of the opinion that the same is not a ground for granting divorce under Section 13 of the Hindu Marriage Act, 1955, as held by the Hon’ble Supreme court in ANIL KUMAR JAIN Vs. MAYA JAIN[1]. Therefore, we are of the opinion that the petitioner is not entitled for a decree of divorce. 20. Accordingly, the appeal is allowed setting aside the order passed by the Court below in O.P.No.16 of 1998, dated 28-01-2000. There shall be no order as to costs. ________________ V.ESWARAIAH, J _________________ B.N.RAO NALLA, J Dated: 18-03-2010 Prv [1] (2009) 10 SUPREME COURT CASES 415