HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No. 3198 of 2001 DATED: 25.03.2010 Between: A. Ramanjaneyulu .. Petitioner And N. Padmavathi .. Respondent JUDGMENT: (Per Hon’ble Sri Justice V. Eswaraiah) This Civil Miscellaneous Appeal is directed against the order dated 13.12.2000 made in O.P. No.126 of 1998, whereby the learned Additional Senior Civil Judge, Anantapur, dismissed the petition filed under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for brevity “the Act”) seeking divorce on the ground of cruelty. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the O.P. The brief facts of the case are that the marriage between the petitioner-husband and the respondent-wife took place on 23.05.1991 as per Hindu customs and rites. After the marriage, the petitioner and the respondent lived together at Hindupur and Anantapur. Since the date of marriage, the respondent insisted the petitioner on setting up separate family. Due to the persistent insistence, he set up separate family leaving his old-aged mother and three unmarried sisters, but even then, the respondent did not stop harassing the petitioner for some reason or the other. The respondent is a Karate fighter, and on number of times, she assaulted him even in the presence of the neighbours and relatives. The respondent used to abuse him in filthy language and leave him without informing and would return home late in the night. The petitioner bore all these things hoping that better things would prevail, and she would change her behaviour, but in vain, as such, he states that it has become impossible for him to continue his matrimonial life with the respondent. Hence, the petitioner- husband filed the O.P. The respondent filed counter affidavit inter alia denying all the allegations made in the petition and stated that when the petitioner was transferred to Anantapur, he himself set up separate family to lead harmonious marital life, and a son, who was named as Kishore Kumar, was also born to them on 14.10.1995. It is stated that she never assaulted her husband as alleged, and in fact, they lived in Anantapur for about three years and there was no cause of action for the respondent to harass him. When the respondent went to her parents’ house at Bellary, the petitioner behaved in a sadist manner and went to the house of the respondent’s parents and attempted to murder her with a dagger, and therefore, she was forced to lodge a complaint against him on 20.01.1994 in Kowl Bazaar Police Station, Bellary. When the police questioned him, he did not give proper reply for his conduct and agreed to adjust with the respondent and lead harmonious life in future, but contrary to his assertion, he continued to harass her demanding gold, money to perform the marriage of his unmarried sisters and threatened her with dire consequences, and there was also harassment by the mother and sisters of the petitioner by instigating the petitioner to extract money and gold from her. It is stated that number of times, she brought money from her parents and gave it to him. In November, 1998, the petitioner himself beat her black and blue, necked her out of the matrimonial house without any reasonable cause. Therefore, out of fear, she went to her parent’s house and lived there for sometime. After a week, she went to Anantapur to join the petitioner, but she came to know that he vacated the house and living with his mother and sisters. She went there and requested the petitioner to live with her amicably, but he himself refused to do so. It is stated that the petitioner with false allegations issued a notice and a reply was given to it. To establish the averments made in the petition, the petitioner was examined as PW1. He stated that the respondent used to insist him on setting up separate family as a condition precedent for her to join him but he did not agree to it. Therefore, the respondent did not join him and got filed a false complaint under Section 498-A IPC at Gowrubazar P.S. of Bellary making false allegations. On the advice of the police, he set up separate family at Neeruganti Street in Anantapur. Eight months thereafter, he was again transferred from Anantapur to Kothacheruvu and till then he used to live along with the respondent at Anantapur. Even during that period, the respondent used to go to her parents’ house in spite of his protest. In 1994, his father expired, and he was transferred from Kothacheruvu to Anantapur to look after his mother and sisters. From the very beginning, the respondent had aversion to his parents and sisters. In 1997, one day, when he took his Tiffin carrier to his office from his mother’s house, the respondent came to the office, made nuisance and forcibly took away the carriage and threw it on the face of his mother at her house. The neighbours also witnessed the incident. In view of the same, he did not go to the house for three days and the office staff chastised the respondent and advised her to live respectably with the petitioner, and therefore, the petitioner lived with the respondent, but she prevented him from going to his mother’s house. It is stated that the respondent also threatened him to give divorce. As there was no change in the respondent’s attitude, he got issued Ex.A1 – Legal notice. In cross-examination, he admitted that they lived together at Anantapur from 1996 to 1998. In 1998, differences arose whereby the respondent went to her parents’ house at Bellari. It is stated that in 1994, when he made an attempt to kill her, he was apprehended. It is stated that his son is 4 years old and is in the custody of the respondent. In the last part of the cross-examination, he vehemently stated that he is not willing to receive the respondent even if she is prepared to join him. PW2 spoke about the nuisance created in the office by the respondent-wife, but as there was no pleading in O.P. we are of the opinion that the evidence of PW2 is of no avail to the case of the petitioner-husband so far as the ground of cruelty is concerned. Except notice and reply notice, no other documents were filed on behalf of the petitioner. No other witness in support the version of the petitioner was examined. On the other hand, the respondent-wife, who was examined as RW1, denied all the allegations made by the petitioner and stated that she was not at all cruel towards her husband, and in fact, the petitioner himself used to harass the respondent. She stated that at no point of time after their marriage, the petitioner’s mother and sisters lived with them though they would visit them occasionally. It is stated that when she was at her parents’ house, the petitioner, being armed with a dagger, visited her in wild mood with an intention to kill her, and used foul language against her, thereby, her parents lodged a complaint against him with Kowl Bazaar P.S., Bellary, and even he went to the extent of calling her parents’ house as brothel house, but the police convinced him to live with the respondent amicably, and accordingly, she joined the petitioner at Anatapur. It is stated that the family members of the petitioner also used to harass her. In or around 23.11.1998, the petitioner beat and drove her out of the house, and therefore, she went to her parents’ house at Bellary, and thereafter, she returned to Anatapur to live along with her husband, but found the house vacated and she alone lived in Anantapur till February, 1999 waiting for the petitioner to join him, but he did not turn up, and ultimately, she lodged a police complaint in Mahila Police Station at Anantapur. Based on the complaint, the police apprehended the petitioner, but in spite of negotiations, the petitioner refused to live with the petitioner, but filed the O.P. The tone and tenor of the cross- examination of RW1 is that the respondent-wife learnt Karate to assault the petitioner and she was a black-belt holder of Karate fighter. The suggestion made to her that she studied at the expense of her husband was denied. She stated that she never lived with her in- laws and ever since the date of marriage the petitioner never gave any money for her maintenance, on the other hand, she used to get the money from her parents towards her maintenance. She denied the suggestion that she never used to adjust with his family members and on account of that they had to set up separate family. It is stated that she never lodged any false complaint against the petitioner. The learned counsel for the petitioner contends that even though cruelty was established on the part of the respondent, the trial Court erroneously dismissed the petition in view of the false allegations made in the counter affidavit. As already stated, the allegations made in the affidavit in O.P.No.126 of 1998 seeking divorce, are only vague and without any material particulars. The ground mentioned in paragraph No.4 of the petition is that the respondent used to harass the petitioner only with a view to setting up separate family, but the evidence on record goes to show that the petitioner set up a separate family owing to his transfer from place to place, and they used to live together amicably, and a son was born to them, and at the time the O.P. was filed, he was four years old. According to the respondent, the petitioner himself necked her out of the house, and she is always read to join her husband, but he went to the extent of stating in the cross-examination that even if she is willing to come, he is not ready to accept her for the reason that the respondent used to leave the house and come late in the nights, but this was not all stated in his chief-examination. The nature of the alleged harassment by the respondent is not at all narrated in the O.P. The nature of cruelty as stated in the depositions is not all reflected the O.P. Therefore, we are of the opinion that without there being any pleadings, any amount of evidence is of no avail. The pleadings coupled with the evidence have to be established. Even assuming that some contradictory statement is made in the reply and counter affidavit, but the petitioner never took any steps to amend the pleadings. Further, the so-called sadistic mentality of the petitioner with regard to his attempt to kill the respondent is not without any basis because he himself admitted that the respondent gave a complaint at Bellary, based on which, the police apprehended him and advised him to live amicably. Therefore, we are of the considered opinion that the Family Court is justified in holding that the petitioner could not establish that he was treated by the respondent cruelly, and we do not see any grounds to interfere with the order impugned in this appeal. Hence, the C.M.A. is devoid of merits, and the same is, accordingly dismissed. No costs. _______________ V. ESWARAIAH,J 25th March, 2010 ________________ B.N.RAO NALLA, J bcj