HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.Nos.1822 of 2000 and 3184 of 2004 DATED:20.04.2010 Between: Dasari Saroja .. Petitioner And Dasari Raghu .. Respondent COMMON JUDGMENT: (Per Hon’ble Sri Justice B.N.Rao Nalla) As the point involved in these two Civil Miscellaneous Appeals is one and the same, they are taken up together for disposal by this common judgment. C.M.A.No.1822 of 2000 is directed against the order dated 10.03.2000 made in O.P. No.12 of 1997, whereby the learned Senior Civil Judge, Asifabad, allowed the petition filed by the respondent- husband under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (for brevity “the Act”) for divorce, whereas C.M.A. No.3184 of 2004 is directed against the order dated 30.08.1999 made in O.P. No.62 of 1997, whereby the learned Judge, Family Court, Warangal, dismissed the petition filed by the appellant-wife under Section 9 of the Act for restitution of conjugal rights. These two C.M.As. are filed by the wife aggrieved by the said orders. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in O.P.No. 12 of 1997 i.e. the petitioner-husband and the respondent-wife. The brief facts of the case are that the marriage between the petitioner-husband and the respondent-wife took place on 13.09.1994 at Warangal as per Hindu customs and rites. After the marriage, she used to instigate the petitioner to set up separate family by getting the properties partitioned by his father, pick up quarrels with the parents of the petitioner on very petty matters and abuse them in filthy language, for which, he took a residential house on rent at Tandur and started residing with the respondent. He was running Poultry business there. She did not know how to cook and never prepared even tea for the petitioner. After setting up separate family, when he asked her to prepare food, she would answer that whenever she is hungry then only she could prepare food, but not otherwise, and he had to prepare food for himself. It is stated that upon the instructions of the respondent and her parents, the petitioner and his parents came to the house of G. Satyamma where G. Dayanandam, G. Niranjan and the parents of the respondent were present, and in their presence, the respondent made several false allegations against the petitioner that he was beating her with an ulterior intention to get rid of the petitioner. When the respondent became pregnant, she went to her parent’s house for delivery. After she was blessed with female child, the petitioner went to the respondent’s house to take her back to Tandur, but her parents did not allow him to take her back, as such, he stayed with her for five days. Thereafter, the petitioner took her with him and planned to visit Tirupati along with her, and also wanted her elder brother to accompany them, as such, asked her to phone her brother to come to Bellampally, to have a trip to Tirupati, but the respondent refused to phone him, on the other hand, she expressed her intention to proceed to Warangal personally to invite him, for which, the petitioner expressed his inability, upon which, the respondent became furious, went into a room along with the small child, bolted from inside, and never came out for the entire day. On 2.11.1995, when the petitioner celebrated the birth day of the respondent neither her parents nor her brothers visited the house on the eve of her birthday in spite of the invitation from the petitioner. When the respondent became pregnant for the second time, she expressed her desire not to have any child at that time, and thought of getting abortion, to which, the petitioner and his parents did not agree, and took her to Dr.Malathi on 03.11.1995 at Warangal and had the medical check-up of the respondent, and when she expressed her desire to stay for a week with her parents at Warangal, the petitioner left her with her parents and came back to Bellampally. On 24.11.1995, when the petitioner went to Warangal to take back the respondent, she expressed that her parents are discussing the matter to effect divorce and she is also ready to give divorce to him as he failed to buy golden nallapusala golusu for her. The respondent expressed her unwillingness to lead marital life any further and threatened that even if she happens to come to the house of the petitioner, definitely, she would consume poison or commit suicide and blame him, his parents and in case she is forced to join the company of the petitioner, she would lodge a complaint with the police against him and his parents on false grounds of demanding dowry. Therefore, it has become highly impracticable for the petitioner to lead marital life with her, because her actions of cruelty. The respondent also deserted the petitioner since 04.11.1995 without any reasonable and probable cause and the petitioner was never allowed to see the faces of the children at Warangal. The petitioner, in O.P. No.62 of 1997 filed by the wife, averred in his counter that the respondent started ill- treating him and his parents for five months after the marriage. As all the attempts made by the petitioner and his parents in reuniting the respondent with her husband, became futile, he filed O.P. No. 12 of 1999 for divorce on the ground of cruelty and desertion. The respondent filed counter affidavit inter alia denying all the averments made by the petitioner and stated that neither the father of the petitioner transferred his properties to the petitioner nor the petitioner started poultry business at Tandur, and the petitioner insisted her on getting abortion of the second pregnancy, in which case, the respondent refused. The petitioner harassed the respondent by beating her with an ulterior motive to get more dowry from her parents. On 03.11.1995, the petitioner took the respondent for medical check-up at Warangal, but she never expressed her desire to stay for a week at her parents’ house at Warangal, and in fact, she went to Bellampally along with the petitioner on that day. The respondent- wife in O.P. No. 62 of 1997 filed by her, averred that immediately after the marriage, both of them lived together for some period at Bellampalli in the house of the petitioner. On 03.11.1995, the petitioner and the respondent came to Warangal for medical check-up, and thereafter, went to the house of the respondent’s parents and stayed there for two days. Later, the petitioner left for Thandur in Adilabad District without informing the respondent, and without taking her along with him. Therefore, since 03.11.1995, the respondent is forced to stay in her parents’ house. The respondent tried to join the petitioner through mediators, but he refused to take her to matrimonial fold. PW1, who is the petitioner-husband, reiterated the averments made in the O.P. filed by him. He further stated that he left the respondent on 03.11.1995 at Warangal, for medical check-up, but later she did not join his company, as such, she deserted him from 03.11.1995 till date. He further stated that the respondent filed a false case against him and his parents under Sections 498-A and 494 IPC under the impression that the petitioner, having got frightened with the initiation of the criminal proceedings might take her to his company. He further stated that as the petition filed by the respondent for restitution of conjugal rights against him before the Family Court, Warangal, was dismissed, there is no alternative left for her at this juncture, she is pretending to be ready to join his society, as such, he is not inclined to take the respondent to the matrimonial fold at this juncture. In his cross-examination, he stated that at about 6 or 7 times, the respondent came to his house from her parents’ house. RW1, the respondent-wife, deposed that after the second pregnancy, herself along with her husband went to Warangal on 03.11.1995, and he stayed with her at her parents’ house for two days, and he left for Tandur, but did not take any steps to name his son for three long months, as such, her parents arranged naming ceremony of her son and invited the petitioner and his parents to attend it. When her husband and her in-laws attended the function, the petitioner and his parents promised to take back her to Bellampally within three months, but failed to do so. When her parents themselves took her to Bellampally, they did not allow them into their house and closed the front door. One Dayanandam and Shanthamma, who are mediators to the disputes between the petitioner and the respondent, found fault with the petitioner only. She further stated that her husband developed illegal intimacy with one Suvarna, as such, he filed the O.P. No. 12 of 1997 for divorce with an intention to get rid of the respondent. She denied a suggestion that she remained at her parents’ house since 03.11.1995. She also denied a suggestion that her husband came after four days as promised for taking her back to the conjugal society and she bluntly refused to join him. She further denied a suggestion that PW1 has neither developed any illegal intimacy with Survarna at any time nor married her. One Rajamouli, who was examined as PW2 on behalf of the respondent-wife in O.P. No.62 of 1997 filed by her, deposed that he was panchayatdar to decide the disputes between the petitioner and the respondent and when he called the father of the petitioner to attend the panchayat, he did not turn up, as such, he opines that the petitioner is at fault for the differences between them. Heard the learned counsel for both the parties and perused the material placed on record. The main contention of the learned counsel for the appellant, who is the respondent-wife, in both the appeals, is that the facts and evidence on record do not at all disclose acts of cruelty on the part of the respondent-wife, as such, the learned Judge erred in granting divorce on the ground of the alleged cruelty on the part of the respondent, and prays that the impugned orders may be set aside. 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. 12 of 1997 filed by the petitioner-husband is justified in the facts and circumstances of the case? From a careful scrutiny of the pleadings and the evidence on record, it is obvious that the petitioner himself deserted his wife for the reason that the petitioner did not file the petition after two years from the date of the alleged desertion i.e. on 03.11.1995, but filed it within a period of two years i.e. on 23.04.1997, and hence, the ground “desertion” is not proved, and more over, the factum of separation and the intention to bring cohabitation to an end permanently on the part of the respondent, have not been established. Therefore, we are of the opinion that the learned judge has rightly ruled out the ground “desertion”. As regards “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”. It is alleged in the petition that the respondent treated him cruelly for various reasons, such as, she used to pick up quarrels with the parents of the petitioner on very petty matters, abuse them in filthy language, and unable to bear the same, the petitioner set up a separate family on rent at Tandur, and that she did not know how to cook and never used to prepare even tea for the petitioner, and that when the petitioner asked her to prepare food, she used to answer him that whenever she is hungry, then only, she would prepare food, and otherwise not, and he himself had to prepare food, and that when the respondent was at her parents’ house, the petitioner went to take her back to Tandur, but her parents did not allow him to take her back and he stayed with her for five days, and that after the delivery, the petitioner took the respondent with him and planned to visit Tirupati and wanted the elder brother of the respondent to accompany them and asked the respondent to phone him to come to Bellampally, to have a trip to Tirupati, but the respondent refused to phone him, on the other hand, she expressed her intention to proceed to Warangal personally to invite him for which the petitioner expressed his inability, upon which the respondent became furious, and went into a room along with the child, bolted from inside and never came out for the entire day, and that the respondent expressed her unwillingness to lead marital life any further and threatened that even if she happens to come to the house of the petitioner, definitely, she would lodge a complaint with the police on false grounds of demanding dowry and she would consume poison or commit suicide. None of the aforementioned grounds of cruelty does attract the ingredients of cruelty as contemplated under the provisions of the Act. It is to be noticed that naturally, minor skirmishes and differences of opinion mostly depending upon the socio-economic conditions, from time to time, are expected of the wife and husband. Further, the respondent-wife stated both in her pleadings and in her evidence that the petitioner had illegal intimacy with one Suvarna at Thandur, and with an intention to marry her, he filed O.P.No.12 of 1997 to get rid of the respondent, and the same has not been denied by the respondent. More so, the petitioner himself admitted that the wife filed complaint against him for the offence punishable under Sections 498- A and 494 IPC only in order to frighten him not to breakdown conjugal life with her, which means that the wife has no cruel intention to file criminal cases, but filed the complaint only to strengthen the matrimonial tie with the petitioner. Therefore, none of the grounds as pleaded in the petition nor as deposed in his evidence against the wife can be taken as basis for cruelty on the part of the wife, inasmuch as the alleged grounds of cruelty attributed to the wife do not attract the ingredients of cruelty as defined under Section 13(1)(ia) of the Act. In the light of the above discussion, we are of the opinion that both the learned Senior Civil Judge, Asifabad, and the learned Judge, Family Court, Warangal, in O.P. Nos.12 of 1997 and 62 of 1997, respectively, erred in arriving at the conclusion that the respondent- wife treated the petitioner-husband cruelly and also dismissing the petition filed by her under Section 9 of the Act seeking restitution of conjugal rights, and the impugned orders are liable to be set aside. Hence, C.M.A.Nos.1822 of 2000 and 3184 of 2004 are allowed setting aside the order, dated 10.03.2000 made in O.P. No.12 of 1997 and the order dated 30.08.2009 made in O.P. No.62 of 1997. O.P. No. 62 of 1997 stands allowed. No order as to costs. _______________ V. ESWARAIAH, J 20th April, 2010 ________________ B.N.RAO NALLA, J bcj [1] AIR 1994 SC 710