HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.3328 OF 2000 AND CRL.R.C.NO.153 OF 2003 Dt.1.6.2010 C.M.A.No.3328 of 2000 Between: Bellamkonda Laxmi ..Appellant And Bellamkonda Srinivasa Raju ..Respondent CRL.R.C.NO.153 OF 2003 Between: Bellamkonda Laxmi and another ..Petitioners And Sellamkonda Srinivasa Raju and another ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.3328 OF 2000 AND CRL.R.C.NO.153 OF 2003 COMMON JUDGMENT: (Per Sri Justice V.Eswaraiah) Respondent in both the cases is the husband of Bellamkonda Laxmi, appellant in C.M.A.No.3328 of 2000 and 1st petitioner in Crl.R.C.No.153 of 2003. 2nd petitioner in the revision case is the son of appellant and respondent. The respondent filed O.P.No.64 of 1999 on the file of the Judge, Family Court, Visakhapatnam, under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter for short referred to as ‘the Act’) seeking dissolution of marriage by a decree of divorce. The appellant wife filed M.C.No.28 of 1999 in the same court seeking maintenance for herself and her son. The court below by common order dated 31.10.2000 allowed the O.P. on the ground of cruelty and partly allowed the M.C. filed by the wife granting maintenance at the rate of Rs.400/- per month to the son alone and no maintenance amount was awarded in favour of the appellant wife. Aggrieved by the same, these two cases have been filed. The parties hereinafter are referred to as wife and husband for the purpose of convenience. The wife filed M.C.No.28 of 1999 on the file of the Judge, Family Court, Visakhapatnam, under Section 125 Cr.P.C. seeking maintenance for herself and her minor son at the rate of Rs.500/- each contending that the marriage was solemnized on 16.2.1997 at Railway Institute Vadlapudi, Railway Quarters, Visakhapatnam, as per Hindu customs and traditions prevailing and at the time of the marriage her parents gave dowry worth Rupees one lakh and Rs.20,000/- to the sisters of the husband towards ‘adapaduchu lanchanalu’ i.e., Rs.5,000/- to each apart from nine tulas gold consisting of six tulas mangala sutra and other ornaments. Apart from this, Rs.7,000/- worth sarees and dress material was also delivered to the husband and his sisters. It is stated that necessary household articles for setting up of matrimonial home, a double cot bed, gas stove was taken by the wife to his residence for fulfillment of marital obligations. It is stated that at the residence of her husband, she was harassed and ill-treated by the joint family members of the husband. It is stated that as a duty bound wife, she served her husband and his family members, confining herself to the four walls of the kitchen doing regular service by cooking, cleaning, washing clothes and other household works. But her husband never cared nor heard the problems which she was facing. As her husband is working in Visakhapatnam Steel Plant, a Central Government organization, and engaged in shift duties A, B and C and the rest of the time he is to be in toxic stages as he is addicted to alcohol. The husband harassed the wife to the maximum extent by torturing physically and mentally and her request to send her to her parents house in ‘ashadamasam’ as per Hindu traditions and customs was not accepted. But she was sent to the house of second sister of her husband wherein she was allotted a single room on the first floor and at times she used to be kept in the said room by locking from outside. It is stated that she was not allowed to go to her parents’ house even in ‘sravanamasam’. It is stated that all the family members of her husband harassed her and they used to scold her as ‘lanja’ and further they used to threaten her that they would kill her. It is stated that when the younger sister of her husband came for delivery she was necked out by all the family members of her husband and one Pudi Venkatamma has helped her to go to her parents house and at that time all the gold ornaments along with mangala sutra were snatched by the elder sister and mother of her husband. In her parents house, she was blessed with a son on 23.8.1998. While she was in the house of her husband, no proper care and treatment was provided. Even after delivery neither the husband nor his mother or any family members visited her and she was left to her fate and she was facing difficulty in maintaining herself and her son. When she approached the elders and requested for reconciliation and in that reconciliation she came to know that the employees of the Steel Plant are provided with medical facility in super speciality hospital of the Steel Plant and for that purpose medical books are also issued, but no such facility was extended to the wife and son and therefore the elders insisted the husband for extension of medical facility to the wife and child by entering their names in the medical books and accordingly an agreement was written on 26.12.1998 under the title ‘puchikathu’ and the same was signed by the husband and his mother in which they have committed that on or before 25.1.1999 the names of the wife and her son will be incorporated in the dependants list and she will be taken to her matrimonial house. But the husband sent a registered notice on 29.1.1999 seeking dissolution of marriage by mutual consent in a court of law. Therefore, she was constrained to approach the management of the Steel Plant authorities for extension of medical facilities for herself and her son. But the management after verification informed that the mother and sister’s son of her husband were incorporated as dependants and she was instructed to make an application and accordingly she made an application on 13.2.1999. Thereafter, she also got issued a reply notice to her husband on 17.2.1999 denying all the allegations mentioned in the notice. As she was unable to maintain herself even after birth of the son for a period of six months, she was constrained to file the M.C. as the husband failed to maintain her and her son. Counter affidavit has been filed by the husband denying the allegations made in the M.C. and it is stated that no dowry, gold and other adapadachula lanchanamulu were given and he made allegations against the wife stating that her behaviour was abnormal, hysterical, irritable and impulsive and on the first night itself the true colours of the wife were exposed. It is stated that the wife used to take extreme delight by indulging in vulgar conversations with him constantly to every one is hearing and her behaviour was not narratable thing because it is an ashamable act of a wife. She was rude and rough during the personal conversation with him. She used to abuse him for no fault and used to insist him to become illetam son-in-law. She used to abuse the husband and the family members and also used to threaten that she would take steps to get them arrested by implicating all of them in false cases. It is stated that she never used to assist his parents or family members in day- to-day household duties. It is stated that she used to create quarrels stating that another son-in-law of her parents one Satyanarayana Raju who is also an employee of Steel Plant became illetam son-in-law and used to avail all the facilities provided by the company. She never used to cook or attend to household works and she never evinced any interest towards him to live a peaceful life. It is stated that during the pregnancy period of his wife he and his family members have taken maximum care about her health and they used to consult a specialist for medical checkup by spending an amount of Rs.3000/- and therefore it is incorrect to state that she was not given any care while she was pregnant in his house. It is stated that instead of taking the wife by her parents for delivery, an auto was sent to his house and the lady who came in the auto waited on the road without coming into the house and she voluntarily without observing the auspicious days and without intimation in the matrimonial house entered into the auto and went away to her parents house. It is stated that the wife carried away from the matrimonial house all the gold ornaments, sarees and belongings which were given to her by his family at the time of marriage. When he made efforts to contact her, she wilfully and deliberately avoided talking with him without any cause or reason. The other averments that the marriage took place on 16.2.1997 and she has gone for delivery on 6.7.1998 and the son born on 23.8.1998 and the settlement took place by way of an agreement on 26.12.1998 and the notice sent by the husband on 29.1.1999 and the reply sent by the wife on 17.2.1999 were not denied. It is stated that the wife was not interested to join with him and with that motive only she had carried gold ornaments etc., with her and she refrained from returning to her matrimonial house after delivery without any reason or cause and she voluntarily withdrawn from the company of the husband and matrimonial society and she in turn neglected and refused to join her husband. It is stated that at the instance of his wife, the police disturbed him and his family members systematically and the investigating agency without applying their mind obtained signatures of himself and his mother on blank papers. It is stated that he never neglected his wife and his son and made maximum efforts to lead family life and therefore the wife is not entitled for maintenance under Section 125 Cr.P.C. The husband filed O.P.No.64 of 1999 seeking divorce under Section 13(1)(ia) of the Act on the ground of cruelty alone. The averments made in the O.P. are that his marriage was performed on 16.2.1997 as per Hindu rites and caste customs and on the first night itself the true colours of his wife were exposed and she scandalously and deliberately told that she got licence to do anything and he was shocked for that unpleasant situation and his expectations went wrong in view of the irascible behaviour of his wife. It is stated that she used to speak in vulgar conversations with him constantly to every one hearing in the house. It is stated that the wife used to leave the matrimonial house without any intimation to the petitioner or his family members. She was not at all cooperative and she was unresponsive and endlessly hostile to the husband and his aged parents. She used to dislike the suggestions and used to throw him from the bed and he missed the love, sharing and comfort that are expected from a life partner. It is stated that she instigated him to come as illetam son-in-law and to live with her parents to which he is not agreed, as he being the elder son he had to take care of his parents and other family members. It is stated that his wife is in the habit of leaving the matrimonial house either unannounced or on the pretext of going outside on a routine basis. It is stated that he is mild in nature and principled person and was subjected to mental and physical cruelty with the indecent and improper behaviour of his wife. It is stated that he married his wife without taking any dowry and his parents gave 15 tulas gold to her and they gave a dinner by spending Rupees one lakh towards marriage expenses. He got married her with a fond hope that she will take care of him and his aged parents. When he went to his in-law’s house after the marriage, they also insisted him to come as illetam son-in-law, but he did not agree for the same. It is stated that her elder sister’s husband became illetam son-in-law who is an employee in Steel Plant, used to avail all the facilities of the company to their entire family. She lived in the matrimonial house as a stranger. He has tolerated the harassment of his wife and his aged parents were terribly upset with the behaviour of his wife. It is stated that during the pregnancy period of his wife he and his family members have taken maximum care about her health and they were used to consult a specialist for medical checkup and spent an amount of Rs.3000/- and more towards medical checkup and her parents never came to his house to see her and they never enquired about her health condition. Her brother-in-law used to visit his house to see and to talk with his wife and he cautioned her that he did not like her conduct and behaviour with her brother-in-law. It is stated that in the month of June, 1998 her parents without coming to his house to take her for delivery sent an auto and the lady who came in the auto waited on the main road and the respondent herself voluntarily without following the customs entered into the auto and went away to her parents house for delivery. She carried away from the matrimonial home all the gold ornaments, sarees etc., which were given to her at the time of marriage. When he made efforts to contact her, she had deliberately avoided the same without any reasons. In the month of August, 1998 she was blessed with a son, but the same was not informed to him and when his family members went to see his wife and the child, her parents did not permit them and created a galata. It is stated that she is not interested on her husband and matrimonial life and not agreed to return to his house and she refrained from returning to her matrimonial house after delivery without any reason or cause. It is stated that in the month of December, 1998 the wife gave a false complaint against him and his family members in Gajuwaka police station and he and his family members were constantly and systematically disturbed by the Gajuwaka police and he wanted to ensure that he does not fall in the trap of being implicated in a false case that may be foisted by his wife. Therefore, he got issued a legal notice dated 21.1.1999 for which a reply notice was issued implicating him and his family members in false cases. She ventured to make unfounded and untenable allegations against him. She also sent the police constables to his house when he was out of station to secure his presence and the police entered into the house without any power or authority and the acts committed by his wife itself constitute cruelty for which he is entitled for decree of divorce. Counter has been filed by the wife denying all the allegations meticulously sentence by sentence. It is stated that at the time of marriage on 16.2.1997 her parents gave dowry worth Rupees one lakh and Rs.20,000/- to the sisters of her husband towards ‘adapaduchu lanchanalu’ i.e., Rs.5,000/- to each sister and further nine tulas of gold consisting of six tulas mangalasutra and other ornaments were taken by her apart from giving all household articles to lead comfortable marital life. It is stated that while she was in the matrimonial house she has undergone harassment and ill- treatment by the family members of her husband and as a duty bound wife, she served her husband and his family members, confining herself to the four walls of the kitchen doing regular service by cooking, cleaning, washing clothes and other household works. That her husband never cared nor heard of her problems she was facing, her husband being an employee of Steel Plant used to be in toxic condition and used to harass her to the maximum extent by torturing physically and mentally. It is stated that when she was pregnant the younger sister of her husband came for delivery to her parents’ house and if she stayed in the house the younger sister will not be comfortable for delivery and that she was necked out by her husband and his family members and one Pudi Venkatamma a neighbour has helped her to go to her parents house and at that time all the gold ornaments along with mangala sutra were snatched by the eldest sister and mother of her husband and the same was witnessed by Pudi Venkatamma. The said incident has taken place on 6.7.1998 and after a month she gave birth to a male child on 23.8.1998. After the delivery neither the husband nor any family member of the husband came to see her. Therefore, she approached the elders of the society and requested for reconciliation and in that reconciliation she noticed about not extending medical facility in the service record of the husband and therefore an agreement was entered into on 26.12.1998 under title ‘puchikathu’ and the same was signed by her husband and his mother and they gave a commitment that on or before 25.1.1999 their names will be incorporated in the dependants list. But her husband got issued legal notice with false allegations seeking dissolution of marriage by mutual consent in a court of law. She approached the authorities of the Steel Plant to enter their names in the medical books. It is stated that she never harassed the husband and she never went to the police station and no complaint has been filed and she is ready and willing to join the husband. The said puchikathu dated 26.12.1998 was marked as Ex.B-1 and the legal notice issued by the husband was marked as Ex.A7 and the reply was marked as Ex.A-8. The medical records for getting treatment while she was in the matrimonial house were marked as Exs.A-7 to A-8. The husband was examined as P.W.1 and his mother was examined as P.W.2 and the friends of P.W.1 were examined as P.Ws.3 and 4. The wife was examined as R.W.1 and her mother was examined as R.W.2. The said Venkatamma, who came to her rescue when she was necked out, was examined as R.W.4. R.W.3 is the brother-in-law of the husband, who married the second sister of the husband. As already stated the Family Court, Visakhapatnam allowed the O.P. seeking divorce. In so far as the M.C. is concerned, the court below denied the payment of maintenance to the wife, but her son was awarded a sum of Rs.400/- per month towards maintenance. Heard elaborate arguments of both the learned counsel. The points for consideration is whether the evidence available on record is sufficient to establish that the wife subjecting her husband to cruelty entitling him for a decree of divorce and whether the wife is entitled for payment of maintenance amount. The court below has considered the point whether the wife is guilty of deserting the husband without any reasonable cause or excuse and treated him with cruelty. Admittedly, the wife went for delivery on 6.7.1998, but whereas the O.P. had been filed on 3.3.1999 and desertion is not taken as a ground for divorce. Any such divorce application filed within two years of desertion is not maintainable. We are of the opinion that the learned Judge, Family Court has committed an error in framing the following points for determination: 1. Whether the respondent is guilty in deserting the petitioner without reasonable cause or excuse? 2. Whether the petitioners are unable to maintain themselves and are entitled to claim maintenance from the respondent? If so, to what amount? The court below erroneously believed the version of the husband that the wife used to insist him to come as illatum son-in-law to her parents house, that the evidence goes to show that the husband has got ten members as dependents and he is only the earning member in the family and except his salary there is no other source of income, that being unable to adjust in the joint family through she is provided a room in the upstair of the house for comfortable living and when he refused to become an illatum son-in-law, she started leaving the house by picking up quarrels with the family members of the husband and thereby creating troubles in the domestic life and his in-laws also assisted her by behaving in an indecent manner and when she was pregnant and subsequently after her delivery by giving a complaint to the police as well as to the Department officials and thus the wife subjected the husband to cruelty both mentally and physically and on that ground the O.P. filed by the husband was allowed. Whether the said findings of the court below are supported by any material evidence on record are to be considered by going through the relevant evidence. The husband was examined as P.W.1. He stated that on the first night ceremony itself she expressed that she got licence by virtue of the marrige to move as she wanted as per her will and wish and when he questioned about her attitude she revealed that she did not want to marry him and she wanted to marry her brother-in-law viz., Satyanarayana Raju. She is the youngest daughter of her parents and one brother-in-law Satyanarayana Raju and another brother-in-law are staying in the house of her parents at Gajuwaka as illetum sons-in-laws and therefore she also insisted him to live as illetum son-in-law. She used to call him as ‘vedhava’ and also ‘ore’ while they were in personal room. It is stated that his sister Laxmi and brothers are not yet married and the wife used to quarrel with them frequently without any reason to find ways to leave the joint family along with him and live in her parents house. It is stated that he is working in Visakhapatnam Steel Plant on a salary of Rs.5,000/- per month which is being spent for the family expenses. It is stated that his wife never used to attend household works and when he used to question, she used to scold him. The distance between his house and her parents house is about 3 K.Ms. It is stated that the father of his wife abused him in filthy language indiscriminately for talking to Suribabu in a drunken condition. It is stated that he spent Rs.3,000/- towards medical check up of his wife. She left the matrimonial house in June, 1998 along with her belongings without informing him along with one Ramanamma. After one week later he went to his in-laws house to ask her to come back, but she refused to do so. Thereafter, she gave birth to a child on 23.8.1998. He also sent his mother to his wife’s house to take her back for Balasara ceremony, but she informed them that she is not going to join the matrimonial house. Later no mediations took place for their reunion. On 24.12.1998 she gave complaint against him in Gajuwaka Police Station and the police took their signatures on blank paper and he got anticipatory bail in that regard from High Court, but no case was registered on the basis of the complaint. He got issued legal notice Ex.A-7 dated 21.1.1999 for which she gave Ex.A-8 reply notice dated 21.1.1999. Two brothers and two sisters and parents are depending on him for their livelihood. It is stated that his father is an agriculturist having Ac.2.00 of wetland at Duvvada village. He has got four sisters and three out of them got married and they are living with their husbands. His third sister came for delivery to his house when his wife was also pregnant. It is accepted that he did not mention the names of his wife and son in the official medical book for necessary treatment. P.W.2, the mother of the husband, stated that after the marriage they lived together for two years along