IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SEVENTH DAY OF JUNE 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.2992 of 2002 Between: Gandrethu Ganapathi Rao ..... PETITIONER/APPELLANT AND Gandrethu Suryakumari .....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.2992 of 2002 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) The appellant is the husband of the respondent, who filed the O.P.38/1999 on the file of the Senior Civil Judge, Tanuku under Sec.13(1)(a) of Hindu Marriage Act seeking divorce on the ground of cruelty. The said O.P. was dismissed by order dated 09.10.2001, against which this appeal is filed. 2. The parties herein are referred to as they are arrayed before the Court below in O.P.38/1999. 3. It is the case of the petitioner that his marriage was performed with the respondent in May 1995 according to Hindu customs and ceremonies and both of them belong to Eethakota village, Kothepeta Mandal of West Godavari District. The marriage was consummated and during their wedlock, the respondent gave birth to a male child in 1997. It is the case of the petitioner that after the marriage he realized that his wife is a termagant girl and not accustomed to abide by the social customs or advises of elders. The respondent/wife used to go to her parents house without informing to the petitioner or his parents and never returned on her own accord until and unless mediators are involved. The parents of the respondent having pampered her into an undisciplined girl, never cared to give proper counseling to her, and on the other hand blindly used to support her. The uncharitable attitude of her parents emboldened the respondent to defy the petitioner and his parents. The respondent never showed any respect to the petitioner and his parents. She lived only for 10 days within three years time after the marriage and her behaviour is unbearable which is nothing but legal cruelty. 4. It is stated that after coming to know that she gave birth to a male child, the petitioner went to his parents-in-law house, but he was obstructed and his brother-in-law beat him and therefore, the petitioner lodged a complaint before the Station House Officer, Ravulapalem, and at the intervention of the elders a settlement was reached and after the settlement, she agreed to live with the petitioner without raising any quarrels. Accordingly, the respondent joined the petitioner and stayed with him for one week and thereafter attempted to go to her parents’ place. Whenever the petitioner stopped the respondent to go to her parents’ house, she used to threaten that she would commit suicide by burning herself by setting fire or by hanging. Therefore, the petitioner apprehended danger to take back her to his matrimonial home. Thereafter, the respondent did not turn up, but she got issued Ex.A1 legal notice dated 29.04.1998 asking the petitioner to come and take her back to his house, for which the petitioner got issued Ex.A2 reply notice dated 14.05.1998 asking the respondent to come and live with him. Instead of complying with the said request, the respondent filed M.C.9/1998 on the file of the Junior Civil Judge, Kothapeta for maintenance under Sec.125 Cr.P.C. He stated that the conduct of the respondent towards him amounts to legal cruelty which entitles him to seek divorce. Though she voluntarily deserted him, but to cover up her latches she invented false allegation that she made an effort to join the petitioner. It is stated that with a view to file a maintenance case under Sec.125 Cr.P.C. only the respondent got issued the legal notice and the filing of the said maintenance case also amounts to cruelty. The petitioner has fed up with the recalcitrant behaviour of the respondent and he has no longer unable to bear with her tantrums. The threats given by the respondent to commit suicide in order to endanger the life and liberty of the petitioner amounts to legal cruelty and hence the petitioner filed the OP for divorce. 5. The respondent filed counter denying all the allegations made in the O.P. and states that she is the legally wedded wife of the petitioner and their marriage took place in May 1995. It is stated that at the time of marriage, her parents gave sarisamans worth about Rs.3,000/- and immediately after the marriage she joined with the petitoner and both of them lived together happily and during their wedlock she gave birth to one male child through the petitioner and after giving birth to a male child, the respondent again joined the petitioner with some other sarisamans. It is stated that the respondent used to be very obedient towards the petitioner right from the beginning. 6. It is stated that the petitioner’s mother by name Satyavathi is independent and termagant lady and the petitioner is the puppet in the hands of his mother and his mother used to illtreat and harass the respondent and used to abuse her and insult her very often without any rhyme or reason. The petitioner used to beat the respondent at the instance of his mother alone. The respondent is an innocent lady and she never communicated these facts to her parents with a hope that the petitioner and his mother would change their attitude. It is stated that the respondent’s father went to the petitioner’s house one week prior to Telugu New Year Day of the year 1997 and taken the respondent to his house with the permission of the petitioner, but thereafter the petitioner did not try to take her back to his house. Therefore, the father of the respondent raised a dispute before the elders but the petitioner was adamant and refused to take back the respondent to his matrimonial home at the instigation and evil advice of his mother alone. Thereafter, she got issued Ex.A1 notice for restitution of conjugal rights, for which the petitioner gave a reply with untenable allegations. After receipt of the reply notice, the father of the respondent went to the house of the petitioner and requested him to take his daughter and her son back to his house, but the petitioner and his mother abused him and refused to take back the respondent and her child to their house and lead marital life. It is stated that in fact the petitioner is guilty of legal cruelty, desertion and abandonment of the respondent and therefore, the petitioner is not entitled for a decree of divorce. 7. On behalf of petitioner PWs 1 and 2 were examined and Exs.A1 and A2 were marked. On behalf of respondent, RWs 1 to 3 were examined and no documentary evidence was adduced on her behalf. 8. The petitioner/husband himself was examined as PW 1 and deposed what he has stated in his OP and further stated that the respondent alone left the house of the petitioner. He has not stated anything as to how the respondent subjected him to cruelty. It is stated that they lived together for 10 days alone after marriage and thereafter she left for her parents’ house and she used to tell him that she was not interested in him and her parents performed the marriage without her consent and she intended to marry some other person. After the respondent left for her parents’ house, she gave birth to a child who is no more. He is no way concerned for the pregnancy of the respondent. After the respondent gave birth to a child, he went to her parents house, then the respondent, her brother and her father beat him. The petitioner never stated in the OP about the said incidence and the dislike of the respondent for the marriage with the petitioner. It is not in dispute that the respondent filed a maintenance case. In the cross examination he stated that he started to live with the respondent separately from other family members in the house of Matta Ramakrishna. Again he stated that Matta Ramakrishna has no house in their village and he is resident of Morta. He does not have any specific house in the village and he does not know where his parents are living. When the divorce petition was filed, he was living in Morta village. It is stated they never harassed the respondent at any time. 9. PW 2 is the close relative of both parties and he stated about the performance of marriage between petitioner and respondent. He acted as one of the elders for the dispute raised between the petitioner and respondent one year prior to giving his evidence. His village is three kilometers away from Eetakota. 10. The respondent herself examined as RW 1 and stated that immediately after the marriage, she joined the company of the petitioner and led happy marital life for about one year and she became pregnant. In the 9th month pregnancy, she was taken to her parents’ house and she gave birth to a male child. After delivery, though they have sent a word to the petitioner, he did not come to her parents house to see her and her son. After five months of the delivery, she along with her son went to the house of the petitioner, joined him and lived with him. She stated that her mother-in-law was having illegal connections with others and she used to ask her to have illegal connections with others for which she did not agree, due to which, her mother-in-law used to instigate the petitioner to beat her. It is stated that herself and her husband used to live in the house of her mother-in- law. Her parents took her to their house for the festival of Ugadi in 1997. Her husband did not come to her parents’ house for the said festival. After the festival, the petitioner did not try to take her back to his house and allowed her to his house. Her father raised a dispute before the elders in whose presence the petitioner stated that he has no interest in her and if she entered his house against his wish, he would commit suicide by consuming pesticides. Therefore, she got issued a legal notice for restitution of conjugal rights requesting the petitioner to take her back to his house and lead marital life, but the petitioner got issued a reply notice and he never tried to take her back to his house and lead conjugal life. Therefore there is other go to file maintenance case for her sustenance. It is stated that her brother and father never beat the petitioner. She stated that she is prepared to go and live with the petitioner. 11. The father of respondent was examined as RW 2 and he stated that since the petitioner did not take the respondent and her son to his house, he placed the matter before elders. The petitioner appeared before the elders and demanded him to settle Ac.0.30 cents of land in favour of respondent and also to present a gold chain to the petitioner and accordingly, he settled Ac.0.30 cents of land in favour of respondent and also presented a gold chain to the petitioner. At the same time a dispute arose between the petitioner and his son for which a complaint was lodged in Ravulapalem P.S. At the intervention of the police, he took the respondent along with the gold chain and settlement deed to the house of the petitioner and the respondent stayed with the petitioner for four days and thereafter the petitioner sent her back to his house. The child died due to ill health in the year 1998. 12. RW 3 is the relative of both parties and he stated that he acted as one of the elders for the dispute arose between the petitioner and respondent and in the Panchayat the petitioner demanded to settle Ac.0.30 cents of land in favour of respondent and to present him a gold chain for which RW 2 has agreed. He stated that immediately after the marriage the respondent joined the petitioner and both of them lived for one year. He stated that the respondent never used to visit her parents house frequently, but she used to go once in a week or 10 days to her parents house. 13. On appreciation of oral and documentary evidence available on record, the Court below rightly held that the cruelty on the part of the respondent was not established and accordingly dismissed the OP filed by the petitioner. 14. Admittedly, the OP was filed on the ground of cruelty. The cruelty on the part of the respondent was not established. The evidence adduced on behalf of the petitioner was not enough to come to a conclusion that the respondent treated the husband with cruelty. In the case of Samar Ghosh v. Jaya Ghosh[1] the Hon’ble Supreme Court of India held that no uniform standard can ever be laid down for guidance and it enumerated some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated below are only illustrative and not exhaustive; (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. 15. The averments made in the OP and oral evidence of the PWs 1 and 2 does not make out any case of subjecting the petitioner to any cruelty by the respondent. Merely because they are living separately for long time, it cannot be said that the marriage has been broken down irretrievably. However, irretrievable break down of marriage is not a ground for grant of divorce, as held by the Hon’ble Supreme Court of India in the case of Vishnu Dutt Sharma v. Manju Sharma[2]. The Hon’ble Supreme Court of India in the said judgment held as follows: “10. 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. 16. In the case of Anil Kumar Jain v. Maya Jain[3] the Hon’ble Supreme Court of India in the same issue also held as under: “28. It may, however, be indicated that in some of the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution, this question had arisen and it was held in most of the cases that despite the fact that the marriage had broken down irretrievably, the same was not a ground for granting a decree of divorce either under Section 13 or Section 13-B of the Hindu Marriage Act, 1955. 29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955 for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable breakdown of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955.” 17. The evidence available on record goes to show that the averments made by the petitioner that the respondent lived with him only for 10 days is not at all established, but on the other hand it is the case of the respondent that she lived with the petitioner for a period of one year, and after one year only she got pregnant and while she was 9 months pregnancy, she was taken to her parents house for delivery. After delivery also she came along with child and lived with the petitioner. The respondent has only grievance against the mother of the petitioner, but she has no grievance against the petitioner/husband. It is the case of the respondent that the petitioner used to live with her happily and there was no occasion to have any dispute with the petitioner. On the other hand, the respondent is always ready and willing to join the petitioner, but the petitioner was in the fold of his mother, and at the instigation of his mother alone, he used to beat the respondent at times and did not come forward to take back the petitioner to his matrimonial home. The petitioner himself deserted the respondent. As a matter of fact, the respondent got issued notice requesting the petitioner to take her back to his house and lead conjugal life. On his failure, the respondent herself along with her 5 months old child went to the house of the petitioner and joined him and led marital life. Therefore, it cannot be said that the respondent subjected the petitioner to cruelty. 18. We are of the opinion that the Court below properly appreciated the oral and documentary evidence and rightly rejected to grant divorce. We do not see any infirmity legal or otherwise to interfere with the said judgment. 19. In the result, the CMA is dismissed. No order as to costs. ___________________ V.ESWARAIAH,J _____________________ B.N.RAO NALLA,J Dated: 07.06.2010 Dsr [1] (2007) 4 Supreme Court Cases 511 [2] AIR 2009 Supreme Court 2254 [3] (2009) 10 Supreme Court Cases 415