HONOURABLE SRI JUSTICE V.ESWARAIAH AND HONOURABLE SRI JUSTICE B.CHANDRA KUMAR CIVIL MISCELLANEOUS APPEAL No.72 OF 2001 ORDER:(per Hon’ble Sri Justice B.Chandra Kumar) The appellant is the wife of the respondent. She filed this appeal challenging the judgment and decree passed in O.P.No.28 of 1993 dated 15.09.2000 by the Senior Civil Judge, Mahaboobnagar. The parties will be arrayed as shown before the lower Court for the sake of convenience. The petitioner filed a petition for decree of divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. His case is that he married the respondent in the year 1958 and, out of their wedlock, they were blessed with two sons. The petitioner alleged that the respondent harassed him since 1960 as she was mentally influenced by her father, who was working as Sub- Inspector of Police, and she deserted him in 1960 and again, for the second time, in 1964. When the petitioner got issued a legal notice asking the respondent to come and join him, then she filed O.P.No.12 of 1965 on the file of the Judicial Magistrate of First Class, Adoni, seeking maintenance and C.C.No.10 of 1966 on the file of the Judicial Magistrate of First Class, Goothi, for the offence under Section 494 IPC alleging that the petitioner married another woman. Subsequently, there was settlement between the parties and they lived together from 1971 to 1988. It is his case that, during that period, the respondent treated him with cruelty and used to quarrel frequently on petty matters. Since their children were staying at Mahaboobnagar, the respondent started living with them from 1988. It is also his case that when the respondent went to live with their children at Mahaboobnagar, then she necked out his mother. Thereafter, the respondent and her son filed M.C.No.30 of 1991 on the file of the Judicial Magistrate of First Class, Mahaboobnagar. So, the petitioner’s specific case was that he tried to live peacefully with the respondent, but she deserted him. Respondent filed a counter denying the material averments made by the petitioner. She denied that she treated the petitioner with cruelty and deserted him. Her specific case was that the petitioner himself harassed her, beat her and, since 1962, she bore all his ill-treatment. Her specific case is that the petitioner himself deserted her and there are no grounds to grant divorce. The trial Court framed only one point as to whether the petitioner is entitled to decree of divorce as prayed for. The petitioner himself was examined as PW.1 and one Kamdarji Naik was examined as PW.2 and Exs.A.1 to A.21 were marked on his behalf. Respondent herself was examined as RW.1. No documents were marked on behalf of the respondent. The trial Court, on considering oral and documentary evidence on record, came to the conclusion that the respondent filed O.P.No.12 of 1965 claiming maintenance and also C.C.No.10 of 1966 for the offence punishable under Section 494 IPC and there is correspondence to show that the petitioner had written letters to the respondent to come and join him and, subsequently, there was mediation and, that in spite of the efforts made by the petitioner, the respondent did not join him. The learned Judge also came to the conclusion that the cruelty may be physical or mental and the acts of the respondent would amount to mental cruelty and, therefore, the petitioner is entitled for a decree of divorce. Accordingly, the petition filed by the petitioner was allowed granting a decree of divorce. Challenging the same, the respondent filed this appeal. The main contention of the learned Counsel for the petitioner is that though there were differences between the petitioner and the respondent prior to 1971, admittedly they lived together from 1971 to 1988 and the respondent never deserted the petitioner and that the petitioner himself admitted that he married one Laxmamma in the year 1965 and, subsequently, he married Bhulaxmi of Kamareddy Village of Nizamabad District with whom he is now living. The only point that arises for consideration is whether the respondent treated the petitioner with cruelty and whether the impugned order is sustainable. The admissions made by the husband would go to show that he married another woman in 1965, who died in 1975 and, at that time, the petitioner was having two children and, later, he married another woman viz. Bhulaxmi. The respondent categorically deposed that the petitioner used to pick up quarrels with her, beat her indiscriminately and once she escaped from her house and went to her co-daughter-in-law’s house for shelter and, in fact, the police took her and got her treated in the hospital. She stated that though the petitioner was cruel and was behaving brutally, she neither left his company nor did any act which amounts to cruelty towards the petitioner. In her cross-examination, she had clearly stated that because of the cruel and brutal attitude of the petitioner, she was forced to leave the company of the petitioner along with her children. Therefore, the Court below relying on the stray admission of the respondent that due to the fear of her husband, she did not join her husband is not justified in granting the decree of divorce. Further, when the petitioner himself admitted that he married another woman in 1965 and, subsequently, another lady Bhulaxmi, the evidence of PW.2 that the respondent fought with the petitioner and refused to join him cannot be given any credence. However, PW.2 also accepted that the petitioner got three issues. A careful reading of the entire evidence on record gives an impression that, it is the petitioner, who married another woman and lived with her, who is solely responsible and compelled the respondent to live separately. Moreover when they lived together from 1971 to 1988, the incidents that occurred in 1960, 1964 and 1966 resulting in court litigation looses their importance. The incidents which occurred about 30 to 35 years back have no relevance when they lived subsequently for about 17 years. Therefore, We are of the opinion that, from the evidence on record, it is clear that, the petitioner is responsible and his conduct alone made the respondent to live separately. We are satisfied that the petitioner has not made out any grounds to seek divorce. He failed to establish that the respondent is guilty of cruelty. Each case has to be decided on the facts and circumstances of the case. Mere filing of the maintenance case would not amount to treating the husband with cruelty as she is entitled to claim maintenance for her sustenance. It is also clear that when admittedly he lived with another woman, though the said marriage might have been legally not proved, we cannot find fault with the wife for initiating criminal proceedings for the offence under Section 494 IPC. What is to be seen is whether a wife without any semblance of truth and only for the purpose of harassing her husband or close relatives of the husband filed criminal case, then, the Court may treat such an act amounting to cruelty. In view of the above discussion, the appeal is allowed and the judgment and decree passed in O.P.No.28 of 1993 dated 15.09.2000 by the Senior Civil Judge, Mahaboobnagar is set aside with costs. V.ESWARAIAH,J B.CHANDRA KUMAR,J Date:28.04.2011 usd