IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY SECOND DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE B.N.RAO NALLA C.M.A. No.3101 of 2001 Between: Kathimanda Nageswara Rao ..... PETITIONER/APPELLANT AND Kathimanda Vijaya Kumari .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE B.N.RAO NALLA C.M.A. No.3101 of 2001 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) The appellant is the husband of the respondent who filed the O.P.37/1995 on the file of the Senior Civil Judge, Narsapur seeking divorce under Sec.13(1)(1a) and (1b) of Hindu Marriage Act. The said O.P. was dismissed by order dated 17.08.1999, against which this appeal is filed. The O.P. was filed alleging that their marriage took place in the month of January, 1983 as per Hindu Religious and Caste Custom and the marriage was solemnized and both of them lived together, as a result of which, the respondent gave birth to a male child by name Kishan, aged about 10 years as on date of filing of the O.P.in 1995, that means the boy was born in 1985. It is stated that they lived amicably till August 1985 and at the time of marriage, the petitioner was studying M.A. at Srikakulam, and after completing the M.A., the petitioner remained unemployed till 1989 and secured a job in the month of June, 1989 in Indian Railways. It is stated that after the marriage both of them lived together only for a period of two years, and as he did not secure any job the respondent and her parents illtreated him and finally the respondent deserted him intentionally without any proper reason and her parents necked out him from their house in the month of August, 1985. It is stated that the respondent joined in Nurse Training Course and completed the course and began working as Nurse in a private hospital by name “Reliance Nursing Home, Palakol”. The petitioner, his parents and other close relatives made several attempts to pacify the differences arose in between the petitioner and respondent, and convince them to lead conjugal life, but their attempts made become futile because of the adamant attitude and behaviour of the respondent. Event after securing the job, the respondent did not join him. On the other hand, the respondent filed M.C.32/1990 on the file of the Judicial 1st Class Magistrate, Bhimavaram, against which the petitioner filed appeal before the District Court, West Godavari, Eluru. It is stated that from the beginning, the respondent developed hatredness towards the petitioner and she never treated him with love and affection, and he was subjected to severe mental agony by her and her parents during his stay in the house of her parents. It is stated that without informing him, the respondent had gone to Gulf countries to work as Nurse in the year 1993 for a period of two years and returned to India recently. It is stated that there is no possibility for reconciliation or reunion of the petitioner and respondent in near future and therefore, sought for a decree of divorce on the ground of cruelty as well as desertion. The respondent filed written statement denying all the allegations except their marriage. At the time of marriage, the petitioner was having no job and she gave birth to a male chilled and afterwards only, the petitioner secured a job. It is stated that at the time of marriage, her parents gave cash of Rs.40,000/- and ten sovereigns of gold ornaments and other valuable articles towards “Pasupukumkuma” and when she joined the petitioner, she has taken all the said items and cash to the house of the petitioner. But the petitioner spent all the said things and cash lavishly for himself. It is stated that the petitioner himself used to harass her and her parents to bring more money and valuable articles. When she expressed her inability, he used to beat her indiscriminately. The petitioner himself never entertained any marital relations as husband, and he never looked after her with love and affection, on the other hand, he always used to demand her to bring more money from her parents. The petitioner filed the said petition with all concocted and untruthful allegations. It is stated that when the petitioner used to live in her parents house, they treated him with utmost love and affection and at no time they necked him out either in August 1985 or at any time. On the other hand, the petitioner himself used to treat the respondent cruelly even before her parents while he was living in the house of her parents. It is stated that when she refused to part with some more amounts, the petitioner voluntarily deserted her from his conjugal society, and later on at the intervention of the elders, the petitioner has again joined with the respondent. It is stated that the respondent never worked as a Nurse in a private hospital and she never worked in Reliance Nursing Home, Palakol. It is stated that because of the illegal and unlawful acts of the petitioner only, she filed M.C.32/1990 on the file of the Judicial First Class Magistrate, Bhimavaram, and to drag on the said maintenance case, the petitioner filed the O.P. after five years. It is stated that the respondent always behaved with love and affection towards the petitioner and she never developed any hatredness towards the petitioner and she being the dutiful Hindu wife, she bore all the criminal acts of the petitioner with a fond hope that one day or other he may mend from his ways and lead conjugal life with her. It is stated that the respondent is always ready and willing to join the petitioner to lead conjugal life with him. The petitioner himself was examined as PW 1 and stated that after marriage, they lived together in the house of the respondent at Palakol till August 1985, and his son is residing in the house of his maternal grand parents. He sent the mediators to get his wife- respondent to his marital fold, but she did not agree to join him. He secured job as Assistant Station Master in Indian Railways in June 1989, and even after securing the job, the respondent did not come and join him. After he was sent out from the house of parents of the respondent, the respondent underwent Nurse Training Course in 1985 and after August, 1985 they never lived together. The allegation that at the time of marriage, her parents-in-law gave Rs.40,000/- and 10 sovereigns of gold is denied. The allegation that he used to harass the respondent to bring money from her parents is denied. It is stated that he never deserted her voluntarily and in fact, he made efforts and sent mediators to get her back for his marital fold. No documentary evidence is adduced to show that the respondent worked in Reliance Nursing Home, Palakol. It is stated that he also complained to the elders in the neighbourhood about the dislike expressed by the respondent and harassment meted out to him by his wife. It is further stated that he also intimated the harassment meted out to him by his wife to one Peethani Tatarao since he was only the village elder in 1985 and he did not remember the date and month. It is stated that he was necked out from the house of the respondent’s parents in 1985. PW 2 Peethani Tatayya, elderly man of the village, stated that after the marriage, the respondent did not come to the house of the petitioner and they lived together about 2 years in the house of the respondent’s parents and they begot one son. There were disputes between them as the petitioner had no avocation and he was taking meal in their house. It is stated that the family of the respondent did not treat the petitioner properly and subsequently disputes arose and the petitioner came out of the house of the respondent in 1985. Prior to 1985, he tried twice or thrice to resolve the disputes, but after 1985 the elders did not go for mediation after the petitioner secured a job. He did not know when he approached the respondent and advised her to join the petitioner. PW 3 who is also resident of the same village stated that both the petitioner and respondent lived together and they used to quarrel with each other and the same was intimated to him by the petitioner and his family members, and in 1985 the petitioner came out of the house of the respondent in view of the disputes. PW 4 who is also resident of Palakol village stated that both the petitioner and respondent lived together for about five years, whereas the petitioner, PWs 2 and 3 stated that they lived for two years only. He further stated that the petitioner secured a job in 1989, but even after securing the job the respondent did not join the petitioner though he asked them to live together. It is stated that the petitioner intimated him that the respondent is not willing to lead marital life with the petitioner, but he did not remember in which year and month he was informed. The respondent did not enter into the box and no documentary evidence is adduced on her behalf. The question that arises for consideration is whether the petitioner is able to establish the cruelty on the part of the respondent- wife as well as desertion, and whether he is entitled for grant of divorce? PWs 2 and 3 themselves stated that the petitioner himself left the house of the parents of the respondent. It is not in dispute that the petitioner used to live in the house of the respondent’s parents when he was not having any job. Even according to the witnesses examined on his behalf, the petitioner himself left the house of the respondent’s parents. In so far as the cruelty is concerned, nobody spoke anything about the nature of the cruelty he was subjected to by his wife or her parents, but on the other hand, a suggestion was made on behalf of the respondent that the petitioner himself subjected her to cruelty and she was able to bear all the torture, illtreatment and cruelty of the petitioner with a fond hope that the petitioner would change his attitude and join her on one day. It is not in dispute that they have blessed with a son aged 10 years at the time of filing of the O.P. in 1985 and the son was looked after by the wife alone. The petitioner has no care either to his wife or his son and therefore, there was no other go for her to file maintenance case. After five years of the filing of the maintenance case alone, the O.P. seeking divorce was filed. Therefore, we are of the opinion that the petitioner was unable to make out any grounds with regard to cruelty as well as desertion on the part of the wife, the respondent, and therefore, the Court below rightly dismissed the divorce petition filed by him. We do not see any grounds to interfere with the judgment of the Court below. Accordingly, the CMA is dismissed. No order as to costs. ___________________ V.ESWARAIAH,J _____________________ B.N.RAO NALLA,J Dated: 22.03.2010 Dsr