THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD C.M.A.No.1342 of 2002 TUESDAY THE 20th DAY OF OCTOBER, 2009 Between: Kola Venkata Satyanarayana s/o Ramarao .. Appellant and Kola Achyutamba w/o Venkata Satyanarayana .. Respondent THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD C.M.A.No.1342 of 2002 JUDGMENT: (Per the Ho’nble Sri Justice G.Bhavani Prasad) The dismissal of O.P.No.55 of 1999, on the file of the Senior Civil Judge’s Court, Amalapuram by the order dated 15-10-2001 led the aggrieved husband to file the present appeal. The appellant’s claim is that after their marriage on 31-1-1991, he and the respondent led the marital life at Cheyyeru Agraharam, during the course of which they got a daughter Satya Mohini and a son Ganesh Ramkumar. The appellant alleged that the respondent left for her parental house for Sankranthi festival in January 1994 and did not return back in spite of mediation by Vanga Venkata Satyanarayana Murty and Chavatapalli Venkateswara Rao. The appellant got notice issued on 20-6- 1996 demanding the respondent to join him back along with the children for which a reply with false allegations was given. Then, the appellant filed O.P.No.59/1996 for restitution of conjugal rights, in spite of which, the respondent refused to rejoin him. As the respondent deserted the appellant since January 1994 and subjected him to legal cruelty, he sought for divorce. The respondent denied the allegations of the appellant in her counter and contended that it was the appellant who ill-treated and harassed her, and in 1996 the appellant himself sent away the respondent and the children from the marital home and deserted her. She claimed that she filed M.C.No.10/1996, on the file of the Judicial First Class Magistrate Court, Kothapeta for maintenance after waiting for a considerable period and the learned Magistrate granted maintenance. She also filed a case under the Dowry Prohibition Act and contested O.P.No.59/1996, which was dismissed after enquiry. Therefore, she desired that the relief of divorce should not be granted. The appellant examined himself as PW.1 and his father as PW.2 during the enquiry before the trial Court and marked Exs.A.1 and A.2, which are the certified copies of the Decree and Order in O.P.No.59/1996 and calendar and Judgment in C.C.No.184/1996. The respondent examined herself as R.W.1 during the enquiry. The trail Court rendered the impugned order analyzing the oral and documentary evidence placed before it, and concluding from the various circumstances elicited in the order that the alleged desertion of the appellant by the respondent and alleged legal cruelty by the respondent to the appellant are not proved, and consequently, the appellant is not entitled to a decree of divorce. The appellant challenges the said order in this appeal contending that O.P.No.59/1996 was dismissed on the ground that a criminal case was instituted under Section 498-A of the Indian Penal Code, but not on merits. He also contended that C.C.No.184/1996 instituted by the maternal uncle of the respondent ended in acquittal, and as the respondent never showed any interest in rejoining the appellant since 30-5-1996 at the instance of her father, the request of the appellant for divorce could have been conceded. The appellant further contended that the respondent did not produce any evidence against the parents of the appellant about any responsibility for their separation, and merely because the respondent broke-down during the evidence, the petition of the appellant could not have been dismissed. The appellant therefore desires that the order of the trial Court be reversed and divorce be granted Sri E.V.V.S Ravi Kumar, the learned counsel for the appellant and Sri C.S.Venkatesh, the learned counsel for the respondent are heard. The only point that arises for consideration in this appeal is whether the appellant has established any ground for grant of divorce? The only evidence on record before the trial Court is the interested evidence of the appellant and his father and the respondent and there was no independent oral evidence produced by either side in the petition. The alleged elders Vanga Venkata Satyanarayana Murty and Chavatapalli Venkateswara Rao, who mediated after the respondent allegedly left for her parents’ house were also not examined during the enquiry. No neighbour to the marital home of the parties was also examined and they could have thrown some light on the reasons for the separation of the couple. Ex.A1, certified copy of the order in O.P.No.59/1996 shows that the petition filed by the appellant for restitution of conjugal rights was not dismissed solely on the ground of filing of the criminal case under Section 498-A of the Indian Penal Code. The trial Court had extracted the evidence adduced by both parties in that matter in the order ExA.1, had analysed the same and found that even before the issuance of Ex.A.1 notice by the husband, calling upon the respondent to come back to him, the maternal uncle of the respondent has already initiated action under criminal law by giving a report to the police about the conduct of the husband. The trial Court also found that the maintenance case was already pending before the Magistrate’s Court and C.C.No.213/1996 for the alleged offence committed by the appellant was pending much before the petition for restitution for conjugal rights was filed. The trial Court further found in Ex.A.1 that PW.3 examined as one of the mediators himself indicated through his evidence that there was reunion between the parties on the advice of the elders. Therefore, the evidence of PW.3 does not suggest the respondent to be intolerable as alleged by the husband. The conclusions of the Court in O.P.No.59/1996 are therefore not in corroboration with the claims of the appellant in the present petition. The mere acquittal of the appellant in C.C.No.184/1996 does not lead anywhere as the standard of proof required in a criminal case is altogether different in as much as the offences have to be proved beyond all reasonable doubt, while the civil causes have to be decided on the preponderance of broad human probabilities. The evidence of PW.1 and PW2 is a repetition what the court noticed in O.P.No59/1996 and what the respondent had reiterated about her defence and the appreciation of the evidence of both the parties before the trial Court does not appear in any manner to be faulty. The trial Court rightly concluded that the alleged incident on 30-5- 1996, which was stated to have led to the separation was indicative that because of that incident the respondent was sent away to her parents’ house by the appellant himself. The grant of maintenance by the learned Magistrate was also noted, and the trial Court further noted that the respondent did not file any execution petition for recovery of the maintenance awarded by the Magistrate’s Court only due to her desire to go back to the appellant as claimed by her. The trail Court also noted that the families of the appellant and respondent are very closely related. The allegations of the respondent about the appellant and her parents not agreeing to receive back the respondent received credibility from the admitted refusal by the appellant and his father to receive back the respondent when the matter was referred to the Lok Adalat and when the Lok Adalat Committee tried to reconcile. It was solely on the ground that the respondent gave evidence against the appellant in the trial Court and the attitude of the appellant and his father therefore did not appear to be congenial to have the marital tie restored between the parties. The alleged desertion and cruelty are rightly considered by the trial Court as not being proved by the appellant and any of the grounds, which are valid and germane for grant of divorce under the Hindu Marriage Act cannot be said to have been proved by the appellant. The impugned order therefore does not call for any interference. In the result, the appeal is dismissed without costs. _________________ B.PRAKASH RAO,J ____________________ G.BHAVANI PRASAD,J Dt: 20-10-2009 Grk *