HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE G.V. SEETHAPATHY C.M.A.No. 2536 of 2001 DATE:19.02.2010 Between: K. Venkata Narasimha Reddy … Petitioner And Sudha Rani … Respondent HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE G.V. SEETHAPATHY C.M.A.No. 2536 of 2001 JUDGMENT (Per Hon’ble GVS,J): This appeal is directed against the order dated 15.03.2001 in O.P.No.321 of 1999 on the file of the Family Court, Secunderabad, wherein the said petition filed by the appellant herein under Section 13(1)(ia) of the Hindu Marriage Act, 1955 for dissolution of marriage, by a decree of divorce, was dismissed. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent and perused the records. 3. The appellant herein filed the petition for divorce against his wife, the respondent herein, on the ground of cruelty. The marriage of the appellant-husband with the respondent-wife took place on 24.11.1985, as per Hindu rites and customs, and out of the wedlock, two daughters were born to them by name Bhavani and Deepika. The husband alleges that since two months after the marriage, the wife started quarrelling with him and also other family members stating that the marriage was performed against her wish and will. It is also alleged that the wife started demanding the husband to set up a separate residence, and accordingly, he took up a separate residence at Malakpet, leaving his parents at Chikkadpally. But however, the wife continued misbehaviour and refused conjugal rights to the husband and she used to go to her parents’ house without informing the husband. It is further alleged that the wife is a lazy woman and she never provided food and subjected the husband to mental harassment. Due to which, the husband left the matrimonial house on 07.07.1990. The wife filed M.C.No.21 of 1993 before the XVI Metropolitan Magistrate Court, Hyderabad, for maintenance. The husband filed O.P.No.528 of 1992 before the V Additional Judge, City Civil Court, Hyderabad, for divorce. Subsequently, the appellant’s father died on 19.01.1995. At that time, the elders advised the appellant and the respondent to live together. Accordingly, having given an undertaking that she would cooperate with the appellant, the respondent lived amicably with the appellant for two months and again started harassing him. The appellant’s mother left the house of the appellant and started living with her daughter. During that period, the second child was born. The respondent stayed in her parents’ house for nine months and returned to the appellant’s house one year prior to filing of the petition. The respondent was always quarrelling with the appellant and was denying him matrimonial happiness. Since April 1997, the appellant is living separately in the ground floor and the respondent is residing in the first floor. There is no possibility of the appellant and the respondent living together. At the instance of the respondent’s father, on 18.06.1996 some unsocial elements came to the house of the appellant and abused him in filthy language and beat him. The police called the appellant and his mother and threatened to book a case under Section 498-A IPC, and also confined the appellant in police custody illegally. The appellant is prepared to take the custody of the minor children. 4. The respondent filed a counter denying the allegations made against her in the petition and contending that the appellant himself left the matrimonial home without any information or any reason and without providing anything for the wife and children, and subsequently, filed O.P.No.528 of 1992 against her for divorce. The respondent was constrained to file M.C.No.21 of 1993, as she was unable to maintain herself and the children. After the death of the appellant’s father and at the intervention of elders, the respondent joined the matrimonial home abiding by the advice of the elders. However, the appellant and his mother and sisters started harassing the respondent, on the ground that she gave birth to a female child. The respondent went to her parents’ house only for purpose of delivery. The alleged attack on the appellant by unsocial elements is totally false and is invented for purpose of filing of the petition. The respondent is staying in the same house, which is her matrimonial home, and it is only the appellant, who is not interested in the respondent or the children, filed the petition with false allegations, with a view to get rid of the respondent. 5. During enquiry, P.Ws. 1 to 3 were examined and Exs.A.1 to A.18 were marked on behalf of the appellant- husband. R.Ws. 1 to 3 were examined and no documents were marked on behalf of the respondent-wife. 6. On a consideration of the evidence available on record, the learned Judge, Family Court, Secunderabad, held that the claim of the appellant-husband is not bona fide and the allegation of cruelty is not made out and it is not a fit case for grant of divorce, and accordingly, dismissed the petition. Aggrieved by the same, the appellant-husband filed this appeal. 7. It is not disputed that the marriage of the appellant with the respondent was performed on 24.11.1985, and during the lawful wedlock, two daughters were also born to them. The appellant filed the petition for divorce only on the ground of cruelty. The acts of cruelty alleged in the petition are that since two months after the marriage, the wife started quarrelling with the husband and the other inmates of the house, and that she demanded the husband to set up a separate residence, and even though the husband obliged her and took up a separate residence at Malakpet leaving his parents at Chikkadpally, the wife continued her misbehaviour. The alleged misbehaviour, as pleaded in the petition, is that she denied him conjugal rights. It is, however, admitted that two children were born to them during the matrimonial life. The further cruelty alleged by the husband is that the wife used to go to her parents’ house without informing the husband and she was not preparing food in the house and unable to bear the mental torture, the husband left the house on 07.07.1990. A bare perusal of above allegations made in the petition, apart from the question as to whether or not the said allegations are true and are substantiated, on the face of it cannot be construed as acts constituting cruelty. The allegation of the appellant that the respondent denied him conjugal happiness can straightaway be rejected, as two children were born to them, during the period of nearly 10 years of married life. The marriage took place in 1985 and the first daughter was born in 1987 and the appellant-P.W.1 admitted that himself and the respondent lived together happily till 1989. Admittedly, he himself left the house at Malakpet on 07.07.1990 on his own, and it is not his allegation that his wife went away deserting the matrimonial home on 07.07.1990. On the other hand, P.W.1 admitted that even after he left the house, the wife continued to stay alone in the same house at Malakpet, and it is only the appellant- husband who returned to his parents’ house at Chikkadpally leaving the wife and daughter alone at Malakpet house. P.W.1 admitted that he left the house at Malakpet without paying any rent to the house and did not even provide any maintenance to his daughter. It was only on 18.10.1992 the appellant-P.W.1 sent a notice to the respondent demanding divorce. Prior to that, there was admittedly no complaint made by him against his wife, on the ground that she was denying him conjugal happiness or that she was not attending to domestic chores or that she was frequently going away to her parent’s house. It is to be noted that he never issued any notice to his wife calling upon her to rejoin him. But, he straightaway gave a notice demanding divorce. The alleged acts of cruelty are vague and they remain totally unsubstantiated. 8. It is also not disputed that previously, the appellant filed O.P.No.528 of 1992 for divorce on the same ground of cruelty, and subsequently, he did not pursue the matter. It is also not disputed that after the death of the appellant’s father, there was re-union between the appellant and the respondent, and thereafter, the second daughter was born in 1995. It is also not disputed that the mother of the appellant was residing in the ground floor and the respondent was staying in the first floor. 9. The appellant alleges that the respondent continued the harassment, and therefore, he shifted to the ground floor to stay with his mother. Towards the end of cross- examination, the appellant-P.W.1 declares that he is not ready to take the respondent back, even if she is ready to join him. The petition as well as the evidence of the appellant-P.W.1 do not make any specific allegations, as to the definite and specific act of cruelty, with reference to any date or event, on the part of the respondent and are bereft of any details. The allegations pertaining to the alleged cruelty are vague and they remain totally unsubstantiated. It is well settled that petty quarrels, occurring in the course of managing day-to-day affairs of matrimonial home, can never be construed as acts of cruelty by one spouse against the other. In other words, the incidents or events happening in the course of domestic life, on account of differences of opinion or differential perceptions, are normal and usual phenomenon, being part of matrimonial life and the same can never be construed as constituting acts of cruelty. 10. The conduct of the appellant, in leaving the matrimonial home by himself on 07.07.1990 and without paying rent for the house and without providing anything for the wife and child and shifting back to his parents’ house at Chikkadpally leaving the wife and the child all alone at Malakpet, itself amounts to cruelty on his part apart from being an act of utter irresponsibility. The appellant filed the earlier O.P.No.528 of 1992 for divorce on the same ground of cruelty making vague allegations, and when the respondent filed M.C.No.21 of 1993 for maintenance, he did not pursue the said O.P. After the death of the appellant’s father, there was admittedly re- union between the two, and subsequently, the second child was also born. Even assuming that there was any cruelty on the part of the respondent-wife, as alleged by the appellant-husband, the subsequent re-union between them in 1995 and birth of the second child as a result of the resumed cohabitation, would amount to condonation by the husband of the previous acts of cruelty, if any, on the part of the wife. 11. The learned counsel for the appellant relied upon a decision in Ramesh jangid @ Rameshwar Jangid V. Smt. Sunita[1] wherein a Division Bench of the Rajasthan High Court held that the demand of the wife that the husband shall leave his parents and live separately from them, is unreasonable, and the wife living separately for 13 years and denying physical relationship, amounts to cruelty. The above decision is not applicable to the facts of the present case wherein firstly the mother of the appellant is residing in the same house in the ground floor, whereas the respondent is residing in the first floor, and secondly, the appellant filed the present O.P. in 1997, shortly after the birth of the second child, and it is not a case where the respondent-wife has been residing away from the appellant-husband for many years leading to any inference of the marriage being irretrievably broken. 12. The learned counsel for the appellant also relied upon a decision in Chiranjeevi V. Lavanya @ Sujatha[2] wherein a Division Bench of this Court, in a case filed for divorce on the grounds of cruelty and desertion, held that there was no love and affection between the parties and there is no guarantee that they would be able to live together as husband and wife, and in those circumstances, the Court cannot compel them to live together, and hence, divorce was ordered. The above decision was rendered following the decision of the Karnataka High Court in Roopa Reddy V. Prabhakar Reddy[3] wherein it was found that there was complete destruction of the essence of marriage between parties and it has reached the stage of irretrievable breakdown which is not the situation in the case on hand. In fact, the Apex Court has very recently held in Dutt Sharma V. Manju Sarma[4] that a decree of divorce cannot be granted on the ground of irretrievable breakdown of marriage. It was held as follows: “On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.” 13. The learned counsel for the appellant also relied upon a decision in Satish Sitole V. Smt. Ganga[5] wherein the Apex Court was dealing with a case where out of 16 years of marriage, the appellant and the respondent had been living separately for 14 years and it was held that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably and in exercise of powers under Article 142 of the Constitution of India, the Apex Court directed the marriage be dissolved. Thus, it can be seen that in the above case, the Apex Court ordered dissolution of marriage in exercise of powers under Article 142 of the Constitution of India. That apart, in a subsequent decision i.e., Dutt Sharma’s case (4th supra) the Apex Court declared that no such ground of irretrievable breakdown of marriage is provided by the legislature for granting a decree of divorce under Section 13 of the Act. 14. In the present case, the appellant and the respondent have lived together for most part of their matrimonial life and gave birth to two children, and though there has been a temporary estrangement between them, there was again re-union which led to the birth of second child, and even subsequently it is not as though there is a total estrangement, and in fact, the appellant is staying with his mother in the ground floor and the respondent- wife with her daughters is staying in the first floor of the same house. The petition and the evidence of the appellant-P.W.1 are not clear as to what exactly is the cause of the dispute subsequent to their re-union. 15. The appellant alleges that on 18.06.1996 some unsocial elements came to his house at the instance of the respondent’s father and abused him and beat him. He also alleges that himself and his mother were called to the police station. If really there was any attack on him by the unsocial elements, he ought to have given a complaint against them to the police. But, there is no such complaint. Further, the petition and also the evidence of P.W.1 do not disclose as to why the attack on him was perpetrated by the respondent or her father, when according to him, there was nothing wrong on his part. The only allegation made by the appellant is that the respondent was refusing him the conjugal life and was quarrelling with him and she was not properly taking care of the children. The said allegation remained unsubstantiated. Admittedly, the appellant himself again left the company of the respondent and started living with his mother in the ground floor, since three months prior to filing of the petition, and thereby repeating his earlier conduct of deserting the respondent-wife at will. The appellant can never be permitted to take advantage of his own misconduct and irresponsible behaviour towards his wife and children. It is obvious that having failed in his first attempt to get a decree of divorce in O.P.No.528 of 1992, he filed the present petition with equally vague and unsubstantiated allegations, only with a view to get rid of the wife and the children which inference is fortified by his own admission in the cross-examination that he is not prepared to take back the wife, even if she is ready to join him, and there being no valid or justifiable reason for adopting such fixation. The learned Judge, Family Court, Secunderabad, has, on proper appreciation of the evidence on record, held that there are absolutely no grounds made out by the appellant for dissolution of marriage by a decree of divorce and it is only a case of petty differences which are natural in any family. 16. In Shyam Sunder Kohli V. Sushma Kohli alias Satya Devi[6] the Apex Court held as follows: “On the ground of irretrievable breakdown of marriage, the court must not lightly dissolve a marriage. It is only in extreme circumstances that the court may use this ground for dissolving a marriage. In this case, the respondent, at all stages and even before us, has been ready to go back to the appellant. It is the appellant who has refused to take the respondent back. The appellant has made baseless allegations against the respondent. He even went to the extent of filing a complaint of bigamy, under Section 494 IPC against the respondent. That complaint came to be dismissed. As stated above, the evidence shows that the respondent was forced to leave the matrimonial home. It is the appellant who has been at fault. It can hardly lie in the mouth of a party who has been at fault and who has not allowed the marriage to work to claim that the marriage should be dissolved on the ground of irretrievable breakdown.” 17. In the circumstances, it is held that the impugned order dismissing the petition filed by the appellant for divorce, does not call for any interference by this Court. 18. In the result, the civil miscellaneous appeal is dismissed. There shall be no order as to costs. __________________ B. PRAKASH RAO, J ________________ G.V.SEETHAPATHY, J ..02.. 2010 CBS THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No. 2536 of 2001 (Judgment of the Bench delivered by Hon’ble Sri Justice G.V. Seethapathy) .2010 cbs THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No. 2536 of 2001 (Judgment of the Bench delivered by Hon’ble Sri Justice G.V. Seethapathy) [1] 2008(1) HLR Page 8 [2] 1999 (2) ALD 508 (DB) [3] 1993(2) DMC 274 [4] 2009(3) ALT 12 (SC) [5] 2008 (5) SCJ 967 [6] (2004) 7 S.C.C. 747