HONOURABLE SRI JUSTICE B.PRAKASH RAO AND HONOURABLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.3691 of 2002 JUDGMENT: (per the Hon’ble Sri Justice G.V.Seethapathy) This appeal is directed against the common order dated 27/04/2000 in O.P.No.196 of 1998 on the file of the Family Court, Vijayawada, wherein the said petition filed by the appellant under Section 10 of the Indian Divorce Act seeking dissolution of marriage with the first respondent herein, was dismissed. Heard the learned counsel for the appellant. None appeared for the first respondent though served with notice. The second respondent is stated to be no more and no steps were taken to bring his legal representatives on record. The appeal against the second respondent is dismissed for default for non-payment of process on 18/09/2002. The admitted facts of the case are that the marriage between the appellant and the first respondent took place in 1963 and during the wedlock, they were blessed with two daughters and a son and the marriages of both the daughters have been performed and they are living elsewhere with their respective families. It is also admitted that since 1995, the appellant and the first respondent are living separately. Earlier, the first respondent filed O.S.No.38 of 1995 seeking maintenance and the Court awarded maintenance of Rs.200/- per month. The appellant filed appeal against the said order and the said appeal was also dismissed by this Court. Subsequently, the appellant filed the present O.P.No.196 of 1998 seeking dissolution of marriage on the ground that the first respondent has been living in adultery with the second respondent. He also vaguely alleged that the first respondent left his matrimonial company and deserted him and subjected him to cruelty. The first respondent filed a counter denying the allegation of adultery and also the other allegations and she also filed M.C.No.131 of 1998 claiming maintenance of Rs.500/- per month. The appellant filed a counter opposing the claim of maintenance on the ground that the earlier judgment in O.S.No.38 of 1995 granting maintenance at Rs.200/- per month operates as res-judicata. During the enquiry, the wife was examined as P.W.1 and Ex.A-1 was marked on her behalf. The husband was examined as R.W.1 and two other witnesses R.Ws.2 and 3 were examined and Exs.B-1 to B-5 were marked on his behalf. Based on the pleadings, the trial Court framed the following points for consideration: 1) Whether the respondent/husband is entitled to seek dissolution of the marriage with his wife? 2) Whether the wife is entitled for maintenance @ Rs.500/- p.m., 3) Whether M.C.No.131 of 1998 is barred by the principles of res-judicata? On a consideration of the evidence available on record, the learned Judge, Family Court, Vijayawada, dismissed O.P.No.196 of 1998 filed by the appellant for dissolution of marriage and allowed M.C.No.131 of 1998 granting maintenance of Rs.500/- per month. Aggrieved by the dismissal of the application filed by him for dissolution of marriage, the husband preferred the present appeal. As stated supra, the appeal against the second respondent was dismissed for non-prosecution on 18/09/2002. The judgment of the trial Court has, therefore, become final in so far as the second respondent is concerned. That apart, the learned Senior Civil Judge on a perusal of the entire evidence available on record held that the appellant/husband miserably failed to prove the allegation that his wife/the first respondent was having illegal intimacy with the second respondent, and therefore, he is not entitled to seek divorce. It is significant to note that when the first respondent filed O.S.No.38 of 1995 claiming maintenance at the first instance, the appellant/husband did not raise any defence to the effect that the wife was leading adulterous life and therefore, she is not entitled to claim maintenance. No such plea was raised either during the trial proceedings in O.S.No.38 of 1995 and while the appeal was pending before this Court. The judgment of the trial Court in O.S.No.38 of 1995 granting maintenance of Rs.200/- is confirmed by this Court by dismissing the appeal filed by the appellant herein. In view of the conduct of the appellant in not raising any such allegation of adultery on the part of the first respondent/wife in the earlier round of litigation, the lower Court has rightly observed that the said ground is now pressed for the purpose of filing the application for divorce, as otherwise, the appellant have not failed to raise the said ground at the earliest opportunity if it were to be true. The record also shows that the appellant herein could not establish the plea of adultery and could not establish the allegation that the first respondent was leading adulterous life with the second respondent. The said finding of the learned Judge, Family Court, does not call for interference by this Court. Secondly, the learned counsel for the appellant contends that the application is filed for divorce on two other grounds of cruelty and desertion. A perusal of the application filed by the appellant does not disclose that any specific allegation or any specific ground have taken to the effect that the wife subjected the appellant/husband to any acts of cruelty or she deserted him without any valid or justifiable reason and no evidence was also let in in support of such allegations. The only allegation made by the husband is that the wife extracted Rs.15,000/- from the husband through the daughter and the same amounts to cruelty. It bases once a comprehension as to how the extraction of any money by the wife through the daughter from the husband would amount to cruelty. No other act amounting to cruelty alleged in the petition nor established during the trial. Under the above circumstances, the other two grounds viz., cruelty and desertion also alleged by the appellant/husband apart from being made also remain totally unsubstantiated. It is stated that the appellant and respondent are now aged more than 65 years. Viewed from any angle, it is considered that having regard to the age of the appellant and the first respondent and also on the material available on record, there are no valid or justifiable grounds for dissolution of their marriage by granting divorce. The impugned order passed by the learned Judge, Family Court, dismissing the application in O.P.No.196 of 1998 does not, therefore, warrant any interference by this Court. In the result, the Civil Miscellaneous Appeal is dismissed. No costs. _________________ B.PRAKASH RAO, J ___________________ G.V.SEETHAPATHY, J 29th January, 2010 SKM