IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : AT HYDERABAD TUESDAY THE 20th DAY OF OCTOBER, 2009 PRESENT: THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1326 of 2002 BETWEEN: Kuppa Prasada Rao …. Appellant AND Kuppa Lakshmi …. Respondent THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1326 of 2002 JUDGMENT: (Per Hon'ble Sri Justice G.Bhavani Prasad) The appellant is aggrieved by the dismissal of Hindu Marriage O.P.No.5 of 2000, on the file of the Senior Civil Judge’s Court at Bobbili by the order dated 9-5-2001. The appellant/petitioner filed the petition before the trial Court for dissolution of the marriage between him and the respondent alleging that after their marriage on 18-6-1986 the marriage was consummated and they led conjugal life for 6 years happily at Makkuva where the appellant was employed. The appellant alleged that the respondent developed a negative attitude towards him since six months after the marriage and used to beat the husband and refused to prepare food for him. The appellant also alleged that they adopted a boy by name Pradeep Kumar, at the age of one year, and by the time of the petition he became nine years old, but the respondent was preparing food for herself and the adopted son only and not for the husband. In spite of the intervention of the parents of the respondent, the respondent did not change and ultimately she deserted the appellant along with the adopted son after some incidents, in which the respondent insulted the appellant and also beat him till Dasara in 1997. The respondent refused to join the appellant in spite of the disputes raised by him and hence he sought for relief of divorce. The respondent denied the allegations and contended that the appellant was given dowry at the time of the marriage and the parents of the respondent tried their best to satisfy the appellant. The appellant got addicted to vices such as womanizing and drinking within two years after the marriage and started neglecting the respondent even without giving proper food to her. She was not even referred to any gynaecologist in spite of her ailments, and Pradeep Kumar was only a foster son and not adopted son. The respondent further alleged that the appellant developed illicit intimacy with one Ramanamma of Salur about 5 years prior to the petition and due to that the appellant beat the respondent and drove her away from the marital home about two years earlier. In spite of request of the parents of the respondent, the appellant did not take her back. The appellant had in fact secured employment for the mistress also and when the respondent’s brother gave a report to the police against the appellant, the respondent out of love and affection towards the husband got the case withdrawn without the police filing any case before the Magistrate’s Court. The allegations of the appellant about demanding for divorce are untrue as there was no necessity for the same due to the presence of customary divorce prevalent in their community. The respondent claimed that the appellant never chose to file any petition for restitution of conjugal rights and in fact the appellant subjected her to cruelty and therefore sought for dismissal of the petition. On such conflicting pleadings, the parties adduced their evidence before the trial Court through PWs.1 to 4, and RWs.1 and 2, but no documentary evidence was placed before the trial Court. The trial Court rendered the impugned order on such evidence concluding that the appellant failed to prove the alleged cruelty and desertion by the respondent and therefore dismissed the petition. The appellant contended that the very allegations made in the counter affidavit filed by the respondent about the appellant being womanizer and being addicted to vices itself amounts to cruelty as held in Mukesh Kumar Gupta Vs. Smt.Kamini Gupta[1]. The appellant also contended that the respondent never raised any demands before the Panchayatdars and that the trial Court was wrong in concluding that the appellant did not make any attempts to get back the respondent. Though the appellant proved his claim for dissolution of marriage through credible evidence, the trial Court went wrong in dismissing the petition. The learned counsel for the appellant and the learned counsel for the respondent are heard at length. The point for consideration is whether the petitioner/appellant proved his entitlement to the dissolution of the marriage through the evidence placed before the Court? It is seen from a close perusal and consideration of the evidence on record that the self-serving evidence of the appellant as PW.1 did not inspire confidence due to the various contradictions between his petition and the evidence. As noted by the trial Court, the appellant stated in his chief-examination itself that the respondent had treated the boy who is called as either adopted son or foster son very well for two years and that for 6 years there were no incidents between him and the respondent. The appellant also did not furnish any reason as to why suddenly the respondent started harassing him or abusing or beating him or throwing whatever article that came to her hand after living happily with him for about 6 years. The appellant was not corroborated by any direct evidence, and as noted by the trial Court, the appellant himself stated about PW.2, who is the husband of his junior maternal aunt being the landlord of the house in which they were living only for one year, and it is only during that period that PW.2 could have had any personal knowledge about disputes between the couple, but by that time, even according to the appellant, there were no disputes between the couple. Whatever information the witness could have after the couple left his house could not have been from the personal knowledge of the witness. Similarly, the claim of the appellant during chief-examination was that only he was being starved by the respondent, while in the cross-examination he stated that even his foster son or adopted son was also being starved by the respondent. PW.2 tried to claim that the couple lived in his house for four years contrary to the claim of the appellant himself and PW.2 admitted that his wife did not know about the disputes between the couple and that he also did not tell his wife about the same. If really the couple were living in the house of PW.2 for 4 years and the disputes were there by that time, the wife of PW.2 also could have known about such disputes as much as PW.2. PW3 also is a witness who does not know about his own sister or their family and PW.4 is related to the appellant being the son of his cousin. Neither PW.3 nor PW.4 were able to specify any particular incident of altercation between the appellant and the respondent, which could have amounted to instances of cruelty to the appellant. PW.4 claimed to have questioned the respondent about her behaviour, which was not even the specific claim of PW.1. The allegations of desertion by the respondent cannot be said to have been probablised by such evidence of PWs.1 to 4 as rightly discarded by the trial Court. The appellant alleges that the respondent after desertion did not come back to him in spite of his efforts, but if she really deserted the appellant without any reasonable cause, and if really panchayats were held before the elders, any of such elders could have been examined. The trial Court noticed that no such elder was examined and the appellant also did not explain as to why he could not take recourse to the customary divorce, which is admittedly prevalent in the community. The attribution of desertion and cruelty to the respondent allegedly only on the ground that she expressed her un-preparedness to live with him does not appear natural, more so, after the husband was living happily with her along with a foster son for 6 years after the marriage and the reasons attributed by the appellant do not appear convincing, while the causes attributed by the respondent for the marital disputes appear to be more in tune with the ordinary and natural course of human conduct . Under the circumstances, the trial Court has not gone wrong in concluding that the petitioner failed to prove the necessary ingredients for the grant of divorce under the Hindu Marriage Act. In the result, the appeal is dismissed without costs. __________________ B. PRAKASH RAO, J ____________________ G.BHAVANI PRASAD,J 20th October 2009. Grk THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD (Judgment of the Bench delivered by Hon’ble Sri Justice B.Prakash Rao) C.M.A.No.1326 of 2002 Dated: 20th October 2009 [1] AIR 1984 DELHI 363