IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY SIXTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE B.N.RAO NALLA C.M.A. No.2729 of 2002 Between: Smt.Lakkaraju Vijayalakshmi ..... PETITIONER/APPELLANT AND Lakkaraju Gopal Rao .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE B.N.RAO NALLA C.M.A. No.2729 of 2002 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) The appellant is the wife of the respondent, who filed the H.M.O.P.7/1999 on the file of the Senior Civil Judge, Khammam under Sec.13(1)(1a) of Hindu Marriage Act seeking dissolution of marriage with the petitioner/wife on the ground of cruelty. The said H.M.O.P. was allowed by order dated 10.04.2002, against which this appeal is filed. 2. The parties herein are referred to as “husband” and “wife” for the sake of convenience. 3. The marriage of the husband with the wife was performed on 19.10.1994 as per rites and customs prevailing in their community and both of them led marital life till 1996. During their wedlock, the wife gave birth to three daughters through the husband, by name, Anusha, Alekya and Akhila. It is stated that after the marriage the wife developed adamant and arrogant behaviour towards husband, his mother and brothers and she used to torture the husband, his mother and brothers physically and mentally. The wife used to pick up quarrels now and then with the husband, his mother and brothers unnecessarily. The wife always used to visit the house of late Purushothamarao, Advocate where her brother K.Ravindranath was working and used to spend much time in that house. Whenever the husband questioned, she used to give evasive replies and create nuisance in the house. At the instance of her brother, the wife used to demand the husband to transfer immovable and movable properties in her name. It is stated that in 1996 when the Civil Supplies employees came and asked to give family photos so as to issue ration card, the wife has given her photos only instead of family photos. On several occasions the wife used to abuse the husband and his family members in filthy language without any reason. While so, in November 1996 the wife left the company of the husband and her three daughters. At the advice of the elders, the wife joined the company of the husband, but there was no change in her attitude, and again she left the company of the husband and children, and hence the husband filed the OP for dissolution of marriage. 4. The wife filed counter denying all the averments made in the petition by the husband. 5. On behalf of husband PWs 1 to 5 were examined and Exs.A1 to A3 were marked. On behalf of wife, she herself was examined as RW 1. No documentary evidence is adduced on her behalf. 6. On appreciation of oral and documentary evidence available on record, the Court below rightly held that the cruelty on the part of the wife was not established. However, the Court below under an impression that there is no possibility for wife and husband to live together and lead marital life, and as marriage tie between the parties has been irretrievably broken down, allowed the O.P. granting decree of divorce. 7. Admittedly, the OP was filed on the ground of cruelty. The cruelty on the part of the wife was not established. The evidence adduced on behalf of the husband was not enough to come to a conclusion that the wife treated the husband with cruelty. The Court below allowed the OP on the ground of irretrievable break down of marriage, which is not a ground for grant of divorce under Sec.13 of the Hindu Marriage Act. 8. The learned counsel appearing for the wife contends that the ground on which the OP filed by the husband was allowed cannot be sustainable in view of the judgment of the Hon’ble Supreme Court of India in the case of Vishnu Dutt Sharma v. Manju Sharma[1]. The Hon’ble Supreme Court of India in the said judgment held as follows: “9. In this connection it maybe noted that in Section 13 of the Hindu Marriage Act, 1955 (for short “the Act”) there are several grounds for granting divorce e.g. cruelty, adultery, desertion etc., but no such ground of irretrievable breakdown of the marriage has been mentioned for granting divorce. Section 13 of the Act reads as under: “13.Divorce—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband of the wife, be dissolved by a decree of divorce on the ground that the other party— (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be a Hindu by conversion to another religion; or (iii) has been in curably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Xxx xxx xxx Xxx xxx xxx (iv) has been suffering from a virulent and incurable form of leprosy; or (v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.” 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. 10. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 3 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the Law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant.” 9. In view of the above observations made by the Hon’ble Supreme Court of India in the judgment, referred to above, we are of the opinion that the judgment under appeal is unsustainable and liable to be set aside, as the Court below allowed the OP filed by the husband on the ground of irretrievable breakdown of marriage, which is not a ground to grant divorce under Sec.13 of the Hindu Marriage Act. 10. Accordingly, the CMA is allowed. No order as to costs. ___________________ V.ESWARAIAH,J _____________________ B.N.RAO NALLA,J Dated: 26.04.2010 Dsr [1] 2009 SAR (Civil) 452