HON’BLE SRI JUSTICE V. ESWARAIAH and HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A. No. 2101 of 1997 DATED: 28.04.2010 Between: Chinta Venkata Krishna Reddy .. Appellant And Chinta Kanaka Ratnam .. Respondent JUDGMENT:- (Per Hon’ble Sri Justice B.N.Rao Nalla) This Civil Miscellaneous Appeal is directed against the order dated 30.04.1997 passed in O.P.No.10 of 1992 by the learned Subordinate Judge, Ramachandrapuram, East Godavari District, whereby the petition filed by the appellant-husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short “the Act”) seeking divorce on the ground of cruelty, was dismissed. The husband preferred the present C.M.A. For the sake of convenience, the parties are referred to as they are arrayed in O.P. No.10 of 1992. The marriage of the petitioner-husband with the respondent- wife was solemnized in 1974 as per Hindu rites and customs. After consummation of the marriage, they were blessed with two children, a son and a daughter. On 25.10.1990, the respondent-wife without informing her husband left the house along with the daughter and the petitioner-husband came to know that his wife was residing at Rayavaram village in her brother’s house. The respondent-wife is now residing at Rajahmundry where she has no relatives and leading a happy life. The respondent-wife filed counter affidavit inter alia denying all the allegations made in the petition and stated that at the time of the marriage, her parents gave Ac.0.50 cents of land, 25 sovereigns of gold and furniture worth Rs.50,000/- to the petitioner-husband as gift. The petitioner-husband used to stay at Pasalapudi with his parents, sister and brothers, who used to create disputes between the petitioner-husband and the respondent-wife. Thereafter, they lived at Ramachandrapuram and the petitioner-husband was running a coffee hotel. Till the birth of the elder child, the petitioner looked after the respondent well, and thereafter, started harassing her to bring additional dowry alleging that the amounts, etc. given at the time of marriage are not sufficient, and he also beat her. He sold away Ac.0.50 cents of land, gold and jewellery of the respondent on the pretext of constructing a house in her name, but he did not do so. After selling away the land, he forced her to bring Rs.50,000/- from her parents, and when she satisfied him with his demand, he purchased a building under a registered sale deed dated 07.11.1988 with that amount. She further stated that he developed illegal intimacy with one woman by name Pushpa, who is his family friend. He expressed his intention to live with her by alienating his entire property in her favour. On one occasion, when the respondent-wife was hospitalised, the petitioner-husband took liberties with Pushpa in the presence of the petitioner’s daughter. He threatened his daughter with dire consequences. He intensified his cruel nature in such a manner as to force the respondent-wife to commit suicide. He kept his son with his brother, Harinath Reddy at Hyderabad to cause mental agony to the respondent-wife. In August 1990, the respondent and her daughter were necked out of the house with their wearing apparel. Then, the respondent rushed to her mother, who is staying at Rayavaram, and later came to Rajahmundry and lived with her brother and on his advice, she filed M.C. No.35 of 1990 on the file of III Additional Judicial First Class Magistrate, Rajahmundry, which was disposed of on 18.06.1990. But, the petitioner-husband filed O.P. No.10 of 1992 on 23.03.1992 as counterblast by mentioning wrong address of the respondent in the petition and with dishonest motive to marry another girl by name Dwarampudi Padmavathi, and obtained ex parte divorce on 23.06.1993. On 19.08.1994, he married that girl and begot a child. After coming to know of the ex parte decree, the respondent-wife filed I.A. No. 1087 of 1994 for setting aside the ex parte decree, which was allowed. The petitioner-husband necked out the respondent and her daughter out of his house without mercy and threatened them to kill if they were to reside in Ramachandrapuram. After the death of the respondent’s brother, the respondent-wife left for Rayavaram and is presently residing at the mercy of her mother and brother-in-law. On the premise of the aforesaid pleadings of the parties, the trial Court framed the following point for determination: “whether the respondent-wife is guilty of cruelty, and if so, the petitioner-husband is entitled to the grant of decree for divorce as prayed for?” Before the Family Court, the petitioner-husband got examined himself as PW1 and two others as PWs.2 and 3 and got marked Exs.A1 to A4, on his behalf. The respondent-wife got examined herself as RW1 and two others as RWs.2 and 3 and got marked Exs.B1 to B4, on her behalf. PW1, the petitioner-husband, deposed that his marriage with the respondent-wife was performed in 1974 at Pasalapudi. After the marriage, both of them lived in Pasalapudi till the end of the year 1983. Thereafter, they shifted their family to Ramachandrapuram, where he purchased a house both in his name and in the names of his wife and children, but the respondent-wife started creating troubles for him and went to her parent’s house at Rayavaram. When he sent mediators, namely Chinta Appareddi and Pothamsetti Basivireddy to Rayavaram to convince the respondent-wife to join matrimonial home, she refused to join him. The respondent-wife filed M.C. No. 35 of 1990 and two other cases against him, but they were dismissed. He sent maintenance awarded to his daughter to the address at Rajahmundry. He stated that as the respondent-wife deserted him without any reasonable cause, he has no intention to live with her, as such, he filed O.P. No.10 of 1992. In cross-examination, he stated that he did not harass and drive the respondent out of his house with an intention to marry another girl. He deposed that he married a girl on 19.08.1994 in Bhimeswaraswamy temple, Someswaram and begot children though the second wife. He denied a suggestion that the respondent-wife gave Ac.0.50 cents of land to him as dowry and that he and the respondent jointly sold away that land on 31.03.1988. He also denied a suggestion that he purchased a house containing four portions in the names of the petitioner, his son and the respondent with the sale proceeds of Ac.0.50 cents of land. PW2, who acted as mediator to the marriage of the petitioner- husband and the respondent-wife, deposed that he went to Rayavaram where the mother of the respondent-wife is residing and requested the respondent to come and live with PW1, but she refused to live with him. He deposed that PW1 has no properties. He denied a suggestion that PW1 has a house containing four portions and agricultural lands at Pasalapudi. PW3, the son of the petitioner-husband, deposed that he is staying with his junior paternal uncle, who has been looking after his welfare and giving him education and he is staying with him. He further deposed that when he lived with his parents at Ramachandrapuram prior to 1984, there were differences between his parents, due to which, he left for his junior paternal uncle’s house at Hyderabad. He denied a suggestion that PW1 used to harass the respondent without any reasonable ground and he has been studying at Hyderabad from VI standard onwards. RW1, the respondent-wife, deposed that at the time of the marriage, Ac.0.50 cents of land, cash of Rs.50,000/- and 20 sovereigns of gold ornaments were given to PW1 by her parents as gift. After the marriage, they lived in Pasalapudi. PW1 used to ill-treat and harass her to extract money from her. She deposed that PW1 has illegal contact with one Pushpa. He used to beat the respondent and her daughter due to his illegal contact with Pushpa. He sold away the land given to her by her parents and purchased a house at Ramachandrapuram. In 1990, PW1 brought Pushpa to her house, and when the respondent-wife objected to it, he beat her and drove her out of the house in 1990. She went to the house of her elder brother at Rajahmundry. She came along with an elder by name Abbulu to the house of PW1 for mediation, but PW1 demanded her to bring Rs.2.00 lakhs from her parents as his brother got Rs.15.00 lakhs as dowry. She deposed that she is ready and willing to join her husband. She has no property of her own. PW1 is running a coffee hotel by name Sri Venkateswara Vilas, at Ramachandrapuram. She filed an application in I.A. No. 435 of 1996 for interim maintenance at Rs.1500/- per month for her and Rs. 500/- p.m. for her daughter. PW1 has been realising the rents from the tenants residing in her house situated at Ramachandrapuram and doing money-lending business. Ex.B3 is the copy of the plaint in O.S.No.103 of 1996 filed by her against PW1 and the son. Ex.B4 is the Photostat copy of the sale deed dated 03.11.1988 in favour of PW1. Ex.B5 is the Photostat copy of the sale deed, dated 07.11.1988 in favour of PW1, herself and her son. In cross-examination, she deposed that M.C. No.35 of 1990 filed by her was dismissed. She stated that when PW1 sent her out of the house in August 1990, for the first time, she filed M.C. No.40 of 1995. She denied a suggestion that she used to give the earnings of PW1 to her brother and parents without the knowledge of PW1. After the marriage, they lived with the parents of PW1 for about 6 years, and thereafter, herself, her husband and their children lived separately. She denied a suggestion that PW1 sold away the house at Ramachandrapuram for discharging the debts of her brother. She denied a suggestion that PW1 sold away his coffee hotel. She also denied a suggestion that she has no brothers in Rajahmundry. RW1 has stated that she is living at Rajahmundry. She denied a suggestion that PW1 has no illegal contacts with Pushpa and due to the harassment made by the respondent-wife, PW3 – (her son), is living at Hyderabad. RW2, the daughter of PW1, deposed that her father harassed her and her mother - RW1 and sent them out his house in August 1990 and kept one lady with him by name Pushpa in his house. As PW1 sent them out of the house, she and her mother went to Rajahmundry and are living with her maternal uncle. The petitioner-husband sold away Streedhana properties of her mother and purchased a house in Ramachandrapuram. She further deposed that she is ready to live with her father along with her mother. Her father has a Coffee Hotel in Ramachandrapuram and is doing money-lending business. When her mother lived with her father, he used to ill-treat her. She was aged 12 years and studying 6th Class when his mother was driven out of the house. When her senior paternal uncle advised PW1 to take them into matrimonial fold, he refused to do so. When she attained the age of 9 years, her father was addicted to vices. He used to stay in hotels from 6.00 a.m. to 11.30 a.m. and 5.00 p.m. to 9.00 p.m. One month prior to the dispute, PW1 used to bring Pushpa to his house during nights and one month thereafter, she and her mother were driven out of the house. She denied a suggestion that her father did not sell away the house situated in Ramachandrapuram, and he is not living with Pushpa, and that RW2 and her mother used to leave the house without the permission of PW1, and that PW1 never ill-treated them and he was not addicted to any vices. RW3, Sanitary Inspector, Ramachandrapuram Municipality, deposed that as per the record produced by him before the Court, PW1 has been running a coffee hotel since 1993. For 1997-98, PW1 paid renewal fee of Rs.400/- and he is still running the hotel. In cross-examination, he stated that the licence stands in the name of PW1. On the basis of the aforesaid evidence of the parties, both oral and documentary, the Family Court dismissed O.P. No.10 of 1992 by order and decree dated 30.04.1997. Challenging the order of dismissal, the petitioner-husband has preferred the present C.M.A. The learned counsel for the petitioner-husband contended that the allegation made by the respondent-wife that the petitioner-husband moved with one Pushpa is not proved by the evidence and Exs.A1 to A4 prove the cruelty inflicted by her on the petitioner-husband. But the trial Court erred in refusing to grant divorce, and hence, he prays this Court to set aside the impugned order. Having heard the learned counsel for both the parties, the only question that arises for determination in this appeal is whether the dismissal of O.P. No. 10 of 1992 filed by the petitioner-husband is justified in the facts and circumstances of the case? The petitioner filed O.P. No.10 of 1992 seeking dissolution of the marriage between the petitioner and the respondent mainly on the ground of cruelty of the respondent. As regards the term “Cruelty”, it is observed in V.Bhagat Vs. Mrs. D.Bhagat[1], to the following effect: “Mental cruelty in Section 13(1) (ia) of the Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made”. In the light of the above legal position, we have to examine the pleadings and the evidence of the parties to determine the point. The case of the respondent-wife is that the petitioner-husband is addicted to vices and has illegal intimacy with one woman by name Pushpa. When the petitioner alleges cruelty on the part of the respondent-wife, burden lies on him to prove the cruelty. Coming to the allegations in the petition, the details of nature of cruelty or the manner in which acts amounting to cruelty are not mentioned in the petition. The petitioner-husband as PW1 deposed that after he and his family members came to Ramachandrapuram, the respondent-wife started creating troubles for him, but the nature of the alleged troubles are not spoken to by him either in the petition or in his evidence. He further deposed that even though he sent mediators namely, Chinta Appareddy and Pothamsetti Basivi Reddy to the respondent-wife at Rajahmundry, she refused to join him. But neither the alleged mediation nor the names of the above two persons found place in the petition. PW2 deposed that he acted as a mediator at the instance of PW1 either before or after Dasara in the year 1990, but the respondent-wife refused to live with PW1. Except evidencing the same, PW2 has not stated anything about the cruelty on the part of the respondent-wife. PW3, the son of the PW1 stated that there were differences between his parents and due to those differences, he left for Hyderabad, but he did not state that his mother behaved cruelly towards his father. He simply stated that there were differences between his parents, his evidence cannot be construed that there is cruelty on the part of his mother. Ex.A1 – contradictory statement in the deposition of PW1 in M.C. No.40 of 1995 on the file of III Additional Judicial First Class Magistrate’s Court, Rajahmundry, does not prove the guilt of the respondent-wife. Ex.A2 is the copy of petition (incomplete) in M.C. No.35 of 1990 on the file of II Additional Judicial First Class Magistrate’s Court, Rajahmundry. Ex.A3 is the copy of the petition in M.C. No.40 of 1995 and Ex.A4 is the copy of the order in M.C. No.35 of 1990. A careful perusal of the Exs.A1 to A4, discloses that it is not the respondent-wife as alleged, but the petitioner-husband himself necked his wife out of his house cruelly in August 1990. RW2, the daughter of PW1, clearly stated that her father had illegal intimacy with Pushpa, and RW2 deposed that she is ready and willing to live with her father along with her mother. She further deposed that when her mother was living with PW1, he used to ill-treat her, and when she attained the age of discretion in her 9th year, his father was addicted to vices. One month prior to the family disputes, PW1 used to bring Pushpa to his residential house during nights, and one month thereafter, he drove RW2 and her mother out of the house mercilessly. The son of the petitioner has not stated anything against the parents except deposing that there are differences between his parents. It is to be noticed that he has not attributed any acts of cruelty to his mother, alleged to have been inflicted upon his father nor did he state that due to cruel conduct of his mother, he left for Hyderabad. The evidence of the daughter of the petitioner is to the effect that her father used to bring one Pushpa to his house during nights and ill-treat her and her mother. The petitioner-husband also admitted in his evidence that he married a girl on 19.08.1994 at Bhimeswaraswamy Temple, Someswaram and begot children through her. In the natural course of things, the children do not speak against their parents, and in the instant case, the evidence of PW3 – son of the petitioner, and RW2 – daughter of the petitioner, appears to be not influenced by any other person and their evidence is natural, trustworthy and reliable and cannot be brushed aside. Thus, the evidence on record clearly shows that the respondent-wife is not guilty of any cruelty, but on the other hand, the petitioner-husband caused mental cruelty to the respondent- wife. For the foregoing reasons, we are of the opinion that the position of law is well-settled in the edict of the Apex Court (1st supra) that levelling disgusting accusation of unchaste and indecent familiarity with a person outside the wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. PW1 has alleged in the petition that the respondent, by doing mischievous things and residing outside for days together, caused heavy damage to his reputation in the vicinity as well as in the public. The aspersion of infidelity of the husband, an educated man, as deposed by RWs.1 and 2, would amount to insult, adding to injury of the worst kind, and sufficient to substantiate cruelty on his part. The allegation of the petitioner-husband made in the claim petition which is not adverted to by the Family Court while recording the finding that it would not tantamount to cruelty on the part of the respondent-wife, is perverse. The petitioner-husband appears to have persisted in his endeavour to hurt the feelings of the wife so as to cause reasonable apprehension in the mind of the wife that it would be dangerous for her to live with the husband. On an appreciation of the entire evidence on record as well as the findings of the Family Court, we are of the opinion that the petitioner-husband miserably failed to establish the cruelty alleged to have been meted out by his wife by adducing substantial legal evidence. Therefore, the contentions urged by the learned counsel for the petitioner-husband do not merit consideration and are rejected. The findings recorded by the Family Court, in our considered opinion, are justified and there appears to be no infirmity therein and they are not vitiated calling for interference from this Court. Hence, the Civil Miscellaneous Appeal inevitably fails, and the same is accordingly dismissed. No order as to costs. ________________ V. ESWARAIAH, J. 28th April, 2010 ________________ B.N. RAO NALLA, J. bcj [1] AIR 1994 SC 710