IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : HONOURABLE SRI JUSTICE V.ESWARAIAH AND HONOURABLE SRI JUSTICE P.DURGA PRASAD C.M.A.No.1989 OF 1998 Date:17.06.2011 Between:- Mangam Prasad .. Appellant. A N D Mangam Swarna and another .. Respondents. The Court made the following: THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A.No.1989 of 1998 JUDGMENT: (per the Hon’ble Sri Justice P.Durga Prasad) This is an appeal directed against the Order and decree passed in O.P.No.931 of 1993 by the District Judge, East Godavari at Rajahmundry on 27.03.1998. The appellant herein is the petitioner in the said O.P.No.931 of 1993 and he has filed the said petition under Section 10 of Indian Divorce Act for dissolution of marriage between the petitioner and 1st respondent. According to the petitioner he married the 1st respondent on 05.06.1992 at Pithapuram according to Christian rites and customs. After the marriage, on the first night the 1st respondent behaved in a most peculiar and rude manner towards the petitioner, when the petitioner questioned about the same, she replied that the marriage was performed against her will. On the next day morning, the petitioner’s mother saw the 1st respondent sitting on the lap of her brother-in-law by name Gandham Satyanarayana and talking to him and ridiculing the petitioner. When the mother of the petitioner admonished the 1st respondent about her behaviour, she grew wild and did not care even to talk to the mother of the petitioner. The petitioner and 1st respondent came to Malkipuram on 15.06.1992 where the petitioner working in L.I.C. of India. The 1st respondent used to quarrel very often with the petitioner and most of the time she refused to give conjugal bliss to the petitioner and she also used to ridicule the petitioner as he is having a black complexion and she does not want any children through him as the children will be born black. The petitioner used to go out of station as his job requires touring and mobilizing business for the L.I.C., and used to go in the morning and returning on the evening. On one day, when the petitioner came from camp, he saw the 1st respondent in a compromising position with the 2nd respondent and later when he questioned the 1st respondent, she kept mum without answering him and thereafter the petitioner sent the 1st respondent to her parents’ house. On 22.12.1992 the father of the 1st respondent came and took away the 1st respondent with him saying that they are leaving the house of the petitioner. The petitioner asked the father and 1st respondent to come to Pithapuram on 04.01.1993 so that the matter can be sorted out. On 04.01.1993 the father of the 1st respondent came to Pithapuram without brining the 1st respondent and when he questioned about for not bringing the 1st respondent, the father of the 1st respondent abused him with vulgar language and threatened him with dire consequences by implicating him into a criminal case. The mother of the petitioner is residing at Pithapuram and working as a teacher. After creating a scene the parents of the 1st respondent went away shouting that they would see the end of the petitioner and his family members. On 16.06.1993, the 1st respondent came to Malkipuram. In the meanwhile, the petitioner learnt that the 1st respondent is leading immoral life with the 2nd respondent and living in adultery with him. When the petitioner questioned the 1st respondent about her living in adultery with the 2nd respondent, she admitted her adulterous life with the 2nd respondent. On 17.06.1993, the 1st respondent also gave a letter admitting that she was living in adultery with the 2nd respondent. Subsequently, on the ill advice of her people, the 1st respondent gave a false complaint to the police as if the petitioner and his mother were demanding dowry and harassing her. On the false complaint, the petitioner and his mother were put to untold mental agony and suffering and they could finally secure anticipatory bail. On 24.07.1993, the parents of the 1st respondent came to Malkipuram and when the petitioner questioned about the letter dated 17.06.1993 written by the 1st respondent admitting her adulterous illicit intimacy with the 2nd respondent, the parents of the 1st respondent started shouting at the petitioner and threatened him with dire consequences and false implication in criminal cases. The father of the 1st respondent has admitted before one Kadali Satyanarayana Murthy that his daughter is living in adultery with the 2nd respondent and if the petitioner is willing to allow the 1s t respondent to join him, she will not continue her illicit relationship with the 2nd respondent, for which the petitioner refused and stating that he does not wish to live with a woman of loose virtues. Thereupon, the father of the 1st respondent said that they would discuss the matter before the elders at Pithapuram on 31.07.1993. On 31.07.1993 in the presence of Kadali Satyanarayana Murthy, the father of the 1st respondent who came along with two elders without brining the 1st respondent to Pithapuram and when they questioned about not brining the 1st respondent, they replied that they would come again on 02.08.1993. But they did not turn up. On 05.08.1993 the Sub- Inspector of Police, Malkipuram asked the petitioner to come along with her mother on 07.08.1993 to compromise the matter. Accordingly, the petitioner went to the police station, but the Sub- Inspector of police took sides with the 1st respondent and foisted a false case against the petitioner and his mother. The 1st respondent besides living in adultery with the 2nd respondent, by falsely implicating the petitioner and his mother in criminal case subjecting them to severe cruelty, as such the marriage between him and 1st respondent is liable to be dissolved. The 1st respondent has filed counter denying the allegations made in the petition by the petitioner and according to her after the marriage they lead happy marital life for about 20 to 25 days. Thereafter, the petitioner and his mother started troubling the 1st respondent to bring more money from her parents. The petitioner also addicted to all sorts of vices like smoking, gambling, drinking and womanizing etc. The mother of the petitioner has cheated 1st respondent by performing her marriage with the petitioner though she know fully well about the vices of the petitioner. The petitioner also keeping a concubine by name Nalli Jayalakshmi at Antarvedipalem, and her husband is working in Gulf. The petitioner used to lock the door outside while going to his office by keeping the 1st respondent in the house and whenever his mistress came to the house, he used to keep the 1st respondent outside the house. The mother of the petitioner used to come frequently and instigate the petitioner to get more money from her parents’ house and harassing her. On the advice of the petitioner’s mother, the petitioner left the 1st respondent for about six months at her parents’ house without brining her and did not allow the 1st respondent to his house at Malikipuram. The mother of the petitioner used to say that unless and until the 1st respondent brings money and samans as stipulated by them, they would not allow her to live with the petitioner. Though the 1st respondent’s mother and father requested several times after 22.12.1992 to take back the 1st respondent, the petitioner refused to take her in spite of that the 1st respondent and her mother gone to the house of the petitioner at Malkipuram, but he did not allow her to come into the house even though there is heavy down pore on that day. On 21.07.1993 the petitioner at the instigation of his mother, starved the 1st respondent without providing food locked in a room and tortured her both mentally and physically by attributing false imputations on her character and thereby coerced her to write an antedated letter as dictated by them as if she has illicit intimacy with the 2nd respondent. When the 1st respondent protested for writing that letter, the petitioner and his mother tried to kill her. The above said letter was taken from the 1st respondent under coersion and threat of being killed when she was in a perplexed and agitated mental condition. One Kadali Satyanarayana is a thick friend and L.I.C. agent of the petitioner. He played a prominent role in getting the said letter written forcibly by the 1st respondent. The petitioner gave a telegram on 24.07.1993 to the parents of the 1st respondent as if it was given by the 1st respondent without informing her. Immediately after receipt of the telegram, the father of the 1st respondent came to Malkipuram and after knowing the situation, the 1st respondent and her father went to police station and lodged a complaint against the petitioner and his mother about their atrocities and thereafter came back to Kakinada. Thus, the allegations made about her living in adultery is false and the present petition is filed only as a counter-blast to the police complaint filed by the 1st respondent against the petitioner and his mother under Sections 498-A and 384 read with Section 34 IPC. The 2nd respondent remained ex-parte. Before the lower Court, on behalf of the petitioner he examined himself as P.W.1 and examined P.Ws.2 and 3 on his behalf and marked Exs.A.1 to A.23 on his behalf. The 1st respondent examined herself as R.W.1 and also examined her father as R.W.2 and got marked Exs.B.1 and B.2. By taking into consideration of the said oral and documentary evidence, the lower Court has found that the petitioner has failed to establish that the 1st respondent is living in adultery and treated the petitioner with cruelty and thereby dismissed the petition. Aggrieved by the said Order, the present appeal is filed. Now, the point that arises for consideration is: Whether the appellant-petitioner is entitled for dissolution of marriage between him and 1st respondent on the ground that the 1st respondent is living in adultery with the 2nd respondent and treating the appellant-petitioner with cruelty? P O I N T: Learned counsel for the appellant has pleaded that the lower court has accepted that the letter dated 17.06.1993 was written by the 1st respondent voluntarily, but disbelieved the version of the petitioner that the 1st respondent is living in adultery with the 2n d respondent even though the 1st respondent has admitted about her living in adultery with the 2nd respondent in the said letter. The appellant’s counsel has further pleaded that from the date of marriage the 1st respondent has treated the petitioner with cruelty by lodging a false complaint against the petitioner and his mother. Since the appellant seeking for dissolution of the marriage on the ground of adultery and cruelty, the burden is on him to establish the same. Learned counsel for the appellant mainly relied upon Ex.A.1, which is the letter said to have been written by the 1st respondent on 17.06.1993. The 1st respondent has admitted about the execution of the said letter, but she pleaded that it was obtained by coercion and threat of killing her by the petitioner and his mother on 21.07.1993 with an antedate. The petitioner as P.W.1 has narrated the same facts as mentioned by him in the petition with regard to the 1st respondent living in adultery with the 2nd respondent and about his seeing the 1st respondent in a compromising position with the 2nd respondent on 19.12.1992 at 12.00 noon in his house. The petitioner did not disclose the date and time as stated by him with regard to his witnessing the 1st respondent with the 2nd respondent in a compromising position in his house, in the petition. Therefore, the said evidence of P.W.1 is not supported by the pleadings of the petitioner. Even if, the said contention of P.W.1 is accepted that he has seen the 1st respondent and 2nd respondent in a compromising position in his house on 19.12.1992, he did not take any action against the 1st respondent immediately. According to him, when he questioned the 1st respondent about the same, she kept mum and on 22.12.1992 her father came and took her away from his house. Admittedly 1st respondent lived with the petitioner till 22.12.1992 even though the alleged incident has taken place on 19.12.1992 and according to the petitioner, he sent a word to the 1st respondent’s father on 22.12.1992, upon which he came and took her along him, but whereas the 1st respondent as R.W.1 has stated in her evidence that her father came to her house on 22.12.1992 to inviting the petitioner to his house for Christmas festival. If really, the incident as alleged by the petitioner has taken place on 19.12.1992, he would not have kept quiet nor allowed her to continue to live with him in his house and moreover the petitioner has not mentioned the said date and time of the said incident in his petition. Further, the evidence of P.W.1 that he used to go on camps in the morning and used to return on the evening only, but he could not explain why he came back to his house on 19.12.1992 at 12.00 noon. Therefore, in the above said circumstances, it is highly doubtful such alleged incident has taken place on 19.12.1992. The next plea of the petitioner is that the 1st respondent admitted about her living with the 2nd respondent in adultery by her letter dated 17.06.1993 and the said letter is marked as Ex.A.1. R.W.1 admitted about the writing of the said letter, but she pleaded that the she did not voluntarily write the said letter and it was obtained by force under threat of killing her by the petitioner and his mother. The lower Court has observed that the 1st respondent voluntarily wrote the said letter as she has lived with the petitioner after execution of the said letter till 24.07.1993 i.e. for more than one month. With regard to the execution of said letter by the 1st respondent, the petitioner has examined P.W.2 to speak about the factum of petitioner showing the letter to him and his father-in- law coming to his house on 23.07.1993 and demanding for return of the same. According to P.W.2, on 23.07.1993 he went to Narsapuram to attend a function and on his return he dropped at Malkipuram to see P.W.1 and when he went to the house of P.W.1, he saw a gathering and in-laws of P.W.1 hurling abuses against him, on that P.W.2 called P.W.1 and enquired him, he told that his father-in-law insisted to return the letter written by 1st respondent and he did not oblige to return the same and he advised the father of the 1st respondent to admonish his daughter and not to abuse P.W.1 and asked them to come to Pithapuram for settlement on 31.07.1993. But the evidence of P.W.2 is only hearsay evidence and he has not witnessed the said letter written by 1st respondent and moreover he has not spoken about the 1st respondent’s father demanded the petitioner for returning of the letter in his presence. The other witness examined on behalf of the petitioner is P.W.3, who also spoken about the holding a mediation between 1st respondent and petitioner on 24.07.1993 and he also spoken about the 1st respondent’s father abusing P.W.1 for not returning the letter written by the 1st respondent. But in the cross-examination, he admitted that he does not know personally the family affairs of petitioner and 1st respondent. Therefore, the evidence of P.W.3 is not at all useful for deciding the issue of execution of Ex.A.1 by 1st respondent. On the other hand, even though the 1st respondent has pleaded that the said letter was obtained by force, except her oral evidence there is no other evidence in support of her contention and R.W.2 father of the 1st respondent was not present at the time of execution of alleged letter by the 1st respondent. The next point to be considered is whether the Ex.A.1 letter would establish the 1st respondent living in adultery with 2nd respondent. Ex.A.1 is certified copy of the letter dated 17.06.1993, wherein the 1st respondent has stated that she wants disclose some true facts about her previous life and wherein she has mentioned that one G.Prakash living in Kakinada and working in Port as Fitter and she is having intimacy with him and the said intimacy has developed into sexual intercourse and the said fact has not been disclosed all these days and she has disclosed the said facts as the petitioner will understand the position and accept her as his wife. The reading of the said letter only discloses about the sexual intimacy between the 1st respondent and 2nd respondent prior to the marriage and the said letter does not confirm about their living in adultery on 19.12.1992 as alleged by the petitioner. Therefore, the conduct of the petitioner clearly shows, even though the alleged letter was written by the 1st respondent, he condoned the past conduct of the 1st respondent and allowed her to live with him as his wife and the said admission made by the 1st respondent in Ex.A.1 does not establish that the 1st respondent is living in adultery with the 2nd respondent after solemnization of her marriage with the petitioner. The past conduct of the 1st respondent is not a ground for dissolution of marriage between the petitioner and the 1st respondent. Thus, the petitioner has failed to establish that the 1st respondent is living in adultery with 2nd respondent after solemnization of his marriage with the 1st respondent. With regard to the cruelty, the petitioner has pleaded that because of filing a complaint against him and his mother for an offence under Sections 498-A and 384 IPC by the 1st respondent, she treated them with cruelty. According to the 1st respondent as she was harassed by the petitioner and his mother for bringing money and samans from her parents and as she could not tolerate the harassment made by the petitioner, she has filed the complaint, moreover the police has took up the investigation and filed the charge sheet against the petitioner and his mother for the said offences. Simply filing a complaint by the 1st respondent against the petitioner and his mother cannot be termed as cruelty on her part towards the petitioner and his mother. Therefore, the petitioner has failed to establish that the 1st respondent is living in adultery with the 2nd respondent and she is treating the petitioner with cruelty after the marriage. Thus the lower Court has rightly held that the petitioner is not entitled for dissolution of his marriage with the 1st respondent on the ground of adultery and cruelty and the said finding does not warrant any interference in this appeal. In the result, the Civil Miscellaneous Appeal is dismissed without costs. ________________________ JUSTICE V.ESWARAIAH _____________________________ JUSTICE P. DURGA PRASAD Dated:17-06-2011 Ksp