*HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA +C.M.A.No.2404 OF 2002 % Date 3.6.2010 # M.R.Thulasi Kumari .. Appellant Vs. $ K.Krishnan .. Respondent <GIST: >HEAD NOTE: ! Counsel for petitioner: Sri P.V.Vidyasagar ^ Counsel for respondent: Sri K.S.Gopalakrishnan ? CASES REFERRED: AIR 2009 SC 2254 HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.2404 OF 2002 Dt.3.6.2010 Between: M.R.Thulasi Kumari ..Appellant And K.Krishnan ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.2404 OF 2002 JUDGMENT: (Per Sri Justice V.Eswaraiah) Heard both the learned counsel. The appellant is the wife of the respondent. The respondent filed O.P.No.59 of 1999 on the file of the Principal Senior Civil Judge, Chittoor, under Section 13(1) (ib) of the Hindu Marriage Act, 1955 (for short, the Act) seeking divorce by dissolution of marriage with his wife. The said O.P. was allowed by judgment and decree dated 31.1.2002. Against which, the wife filed this appeal. The parties hereinafter referred to as they are arrayed before the court below for the purpose of convenience. The petitioner filed the O.P. under Section 13(1)(ib) of the Act seeking divorce on the ground of desertion alone. The averments made by the petitioner in the O.P. are as follows: The petitioner states that the petitioner and respondent were married on 7.9.1978 as per Hindu rites and customs and they begot two children, namely, Navin and Ajay. They are 18 and 12 years of age respectively. The petitioner states that at present he is working as Lecturer and the respondent is working in Chittoor. The petitioner states that right from the beginning the ideas of the petitioner and the respondent differed though they have not come out expressly. The thoughts of the respondent were always illusionary and she always wants to enjoy unquestioned freedom. The petitioner being traditional different from it. This led to many disputes between the petitioner and respondent. The two sons are also living with the respondent and the respondent did not care for the minimum necessities of the petitioner. It all resulted in the petitioner filing an O.P.No.47 of 1995 in the same court seeking repudiation of the marriage of the petitioner and the respondent. The same was dismissed for default, for the petitioner could not prosecute it for some personal illness and difficulties. The petitioner states that the marriage between the petitioner and the respondent had broken down irretrievably since both are living separately and are not even in talking terms since 1994. By efflux of time the gap had widened and there is absolutely no chances of reconciliation or for second thought since the image of both have gone down in the eye of friends and close circle. The petitioner states that instead of keeping the marriage in subsistence it is better to dissolve the marital status. Hence the petitioner has come up with this application for dissolution of marriage of petitioner and respondent. The wife has filed counter denying all the allegations made therein. She admitted that the two sons are living with her and she is maintaining them and get them education, but the petitioner husband is not evincing any interest in their welfare. It is stated that the petitioner himself completely neglected the respondent and her children, who are still pursuing their studies. It is also admitted that the petitioner filed O.P.No.47 of 1995 on the file of the same court making indurate and scandalous allegations against her alleging that she has been living in adultery and denying all the allegations she filed a counter in the said O.P. But the said O.P. could not be prosecuted and the same was dismissed for default. The allegation that the marriage between the petitioner and respondent has broken down irretrievably since both are living separately and not even on talking terms since 1994 and that by efflux of time the gap had widened and there is absolutely no chance of reconciliation for second thought since the image of both have come down in the eyes of friends and close circles has been denied. It is stated that Door No.24-357, Bharat Nagar Colony near III Railway gate, Chittoor is the exclusive and absolute property of the respondent. It is stated that she found the petitioner having bad habits and a man of suspicious nature and right from the date of marriage she has treated the petitioner with love and affection. But, it is only the petitioner who changed his attitude and neglected her as well as children and causing mental agony and not taking any care of herself and her children. She is only maintaining her two sons, but the petitioner is not evincing any interest in their welfare. Few days after their marriage having come to know personally about his questionable life, she pleaded many times to correct himself, but there is no change in his attitude. The said attitude continued even after the birth of the two children. It is stated that the petitioner has been insisting to sell away her property and give the sale proceeds, but she never yielded his unlawful demands. It is stated that in fact the petitioner had been living in adulterous life, but not the respondent. It is stated that when she refused to sign blank papers and give the money as demanded by him, she was beaten in July, 1995 and he himself left the house taking away all his domestic articles such as T.V., L.P.G gas stove with gas cylinder, furniture, tape records, merit sewing machine and prestige cooker without any intimation and he himself deserted the respondent and her children. She brought the same to the notice of her parents and when they questioned about his illegal acts, he refused to talk with them and told that he has filed a petition for divorce against her and that he is no longer interested in the family. She being a dutiful wife has been tolerating all the illegal acts and assaults committed by him and in fact she did not take any steps either by approaching the police or the court of law to keep up the honour of the family. It is stated that the petitioner has filed the petition with false and frivolous allegations attributing reckless allegations. A careful perusal of the petition filed by the petitioner seeking divorce discloses that the grounds pleaded by him seeking divorce are that his ideas and the ideas of the respondent are different and her thoughts are illusory and she always wants to enjoy unquestioned freedom and the traditions are different which led to many disputes between them. He admitted that the two sons are living with the respondent and the respondent did not care for the minimum necessities of the petitioner, which resulted the petitioner in filing O.P.No.47 of 1995 seeking repudiation of the marriage, but the same was dismissed for default as he could not prosecute the same for some personal illness and difficulties. It is stated that the marriage between the petitioner and the respondent had broken down irretrievably since they are living separately and the only ground taken by the husband is that they are living separately and not even in talking terms. The question that arises for consideration is who deserted whom, as there is no specific plea of desertion without any reason or right for the husband. We have to consider the evidence with regard to desertion alone, as the O.P filed seeking divorce is on the ground of desertion alone under Section 13(1)(i-b) of the Act. The petitioner has to establish that his wife has deserted him for continuous period of not less than two years immediately preceding the presentation of the petition. Desertion has been explained in the explanation to Section 13 of the Act. Desertion means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. Therefore, to consider the case of the petitioner for the grant of decree of divorce on the ground of dissolution of marriage, the petitioner has to establish that his wife has deserted him without any reasonable cause or without his consent and that such desertion by the wife is wilful and with a view to neglect to avoid marital life of the petitioner. There is no averment at all as to when the wife deserted him and what was the reason for such desertion. On behalf of the petitioner, he was examined as P.W.1. P.W.2 is the maternal uncle of the respondent wife. P.W.3 is the younger brother of the petitioner and P.W.4 is the brother of the respondent. The respondent alone was examined as R.W.1. P.W.1 the petitioner husband stated that their marriage was performed on 7.9.1978 as per Hindu rites and customs in the house of the respondent and they have two children out of the wedlock, namely, Navin and Ajay. On the date of marriage he is working as Typist, Agriculture Department in Chittoor. There were no disputes between them and after 1984 only some misunderstandings arose. It is stated that she did not show any respect towards him and she is always expected him to follow her advise. Her attitude changed completely after 1984. She wants to be away from him and harassed him in many ways. She used to exercise unquestionable freedom. Earlier, he filed O.P.No.47 of 1995 against her, which was dismissed for default. In 1995, mediation was held at his instance by his brother and her parents and her brothers. Her maternal uncle was also mediated. In the mediation, she told that she does not want to live with him. Since more than 5 years prior to his deposition (which was recorded on 28.11.2000) they are living separately and they are not in talking terms. The O.P. was filed in July, 1999. It is stated that she is alone responsible for living separately and she harassed him and left without any reason and in spite of mediation she refused to join him. Therefore, he filed the petition seeking divorce. In the cross-examination he has stated that it is incorrect that the address, which has been given by him in the petition, is not the absolute property of his wife and that he never insisted her to dispose of the said house and give the sale proceeds to him or transfer the house on his name. The suggestion that he himself deserted his wife was denied. But he has categorically admitted that he is not prepared to take his wife even she is willing to join him. The suggestion that he has completely neglected his wife and children and not taking care or looking after them is also denied. He also admitted that he has taken all the domestic articles viz., T.V., L.P.G Gas stove with cylinder in the presence of elders. It is stated that no mediation took place in 1995 at the instance of the respondent. The suggestion that he himself refused to talk with them and told that he has filed a divorce petition and he is no longer interested in them is denied. The suggestion that she is dutiful wife and she bore all ill-treatment is also denied. But, he has admitted that his wife did not approach court of law or lodged any police complaint against him with fond hope that he would join her. The suggestion that having an earlier O.P filed by him was dismissed and no cause of action arise in the present O.P. was also denied. What has been deposed by P.W.1 is only that there was some mediation, but the respondent does not want to live with him and therefore they are living separately since 1995 and she herself deserted him. But the evidence available on record goes to show that he himself went away by taking household articles. When she was deserted and what was the reason was not at all indicated. Therefore, any other evidence adduced on his behalf is only for the purpose of corroboration and no part of their evidence, which is not pleaded in the O.P. or stated by P.W.1, cannot be considered or looked into. The perusal of the entire O.P. and the evidence of P.W.1 does not disclose in any way about the adulterous life of the respondent wife. But, P.Ws.2, 3 and 4 stated about the adulterous life of the respondent with one Agricultural Officer and they did not know his name. Admittedly, the O.P. is not filed on the ground of adultery. Therefore, their evidence is of no avail for the purpose of considering the case of the petitioner, which was filed seeking divorce only on the ground of desertion. They did not speak specifically anything about desertion. But, the court below erroneously gave finding by taking into consideration the evidence of P.Ws.2 to 4 that the wife is living in adultery and therefore the petitioner is entitled to divorce on the grounds of adultery and desertion. There is no specific plea of desertion in the O.P and none of the witnesses have stated as to when the wife deserted and the reason for such desertion. On the contrary, the tenor of the cross-examination of P.W.1 and the evidence goes to show that the petitioner husband himself has deserted and seems to have taken away all the household articles from the house in 1984 itself and chosen to file O.P.No.47 of 1995 seeking divorce on the ground of adultery alleging that his wife seems to have developed illicit intimacy with one Dasa Kumar about few years ago. According to the evidence of P.W.1, they lived happily up to 1984 and thereafter her attitude has been changed completely. Admittedly, the petitioner filed O.P.No.47 of 1995 seeking repudiation of their marriage. However, the said O.P. was dismissed for default. In the present O.P. no ground of adultery has been taken and the so-called adulterer is not pleaded either in the petition or in the deposition about the adultery of his wife. Therefore, the evidence of P.Ws.2 to 4 cannot be relied or considered as the same is irrelevant and outside the scope and ambit of the pleadings as well as evidence of P.W.1. It appears that the petitioner having aware of the earlier O.P. filed seeking divorce on the ground of adultery and after filing of the counter denying all the allegations therein which was dismissed for non-prosecution and therefore he has chosen to file the present O.P. on the ground of desertion alone. Therefore, we are of the opinion that the court below ought not to have considered the evidence of P.Ws.2 to 4, which is irrelevant for considering the case of the petitioner for grant of divorce, which was filed on the ground of desertion. In so far as the so-called mediation is concerned which is said to have been mediated by P.Ws.2 and 3, they have only stated that when there was mediation, the respondent refused to join the husband on the ground that she had an illicit intimacy with one Agricultural Officer. On the other hand, it is the case of the respondent that in the first week July, 1995 the petitioner brought one woman to the house and she questioned her husband, a quarrel took place between them and her husband throttled her throat to kill her and she raised cries and then the neighbours came and rescued her and her husband deserted her and took away all the valuable articles like Gas Cylinder, T.V., tape recorder, sewing machine, pressure cooker, gas stove and bank pass book etc., and in spite of mediation he refused to join her and told that he does not like her and her children and he filed O.P seeking divorce which was dismissed for default. It is stated that even now she is ready to live with him. It is stated that eldest son is studying graduation and she has been educating her children and right from the beginning the petitioner never contributed anything for the family. It is stated that the house property came to her from her father and it is self acquired property. It is stated that the respondent and her husband never lived in H.No.24-357 of Bharath Nagar Colony, Chittoor, which is her property. She denied the allegation that she had illegal contacts with anybody. She specifically stated that the said house belongs to her and she acquired the same from her father. May be for that reason the brother of the respondent was jealous in shifting the said property by his father in favour of the respondent. On other hand, it is suggested that P.W.4, the brother of the respondent has also got the habit of drinking with the friends of petitioner. But, however, their evidence with regard to the adulterous life cannot be looked into as no such ground has been taken in the petition. The pleadings and evidence of P.W.1 are not specific with regard to desertion. The evidence of other witnesses goes to show that what they have stated is outside the ambit of the pleadings and evidence of P.W.1. The court below erroneously relied upon the evidence of P.Ws.2 to 4 and recorded in the judgment stating that the case of the petitioner as seen from the evidence and also from the pleadings that the respondent developed illicit intimacy with another person, which led them to live separately. We have extracted the pleadings in the O.P. But, there is no such averment about the respondent developing illicit intimacy with any other person. Likewise, the learned Senior Civil Judge erroneously considered irrelevant and inadmissible evidence of P.Ws.2 to 4 particularly with regard to the allegation of adultery against the respondent wife. The learned Judge has coupled with the grounds of adultery and desertion. Therefore, we are of the opinion that the petitioner has failed to establish the ground of desertion on the part of the respondent. In so far as adultery is concerned, as already stated, there is no specific pleading and the so-called adulterer is not impleaded and he was not even made a party. The High Court of Andhra Pradesh framed rules to regulate proceedings under the Hindu Marriage Act in Roc.No.422/56-B1, which were published in A.P. Gazette Rules Supplement to Part-II, dated 28.11.1957, page 358, and under Rule 6(1)(i) in case of adultery, the specific acts of adultery and the occasion when and place where such acts were committed together with name and address of the person with whom such adultery was committed, shall be contained in the petition. Therefore, the court below ought not to have allowed P.Ws.2 to 4 to speak about adulterous life of the respondent as the so-called adulterer is not at all made a party and no particulars have been furnished in the evidence. In so far as the irretrievable break down of the marriage is concerned, the Apex Court in the case of Visnu Dutt Sharma v. Manju Sharma[1] held that no such ground of irretrievable break down of the marriage is provided by the legislature for granting a decree of divorce, but the Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. Therefore, the only ground taken by the petitioner husband that the marriage has been broken down irretrievably cannot be considered at all for grant of divorce. In view of the aforesaid facts and circumstances of the case, we do not see any justification in granting divorce on the aforesaid pleadings of the petitioner and accordingly the judgment and decree in O.P.No.59 of 1999, dated 31.1.2002 is set aside. The appeal is accordingly allowed with costs through out. ________________ V.ESWARAIAH, J. ________________ B.N.RAO NALLA, J. 3.6.2010 Note: L.R copy to be marked B.O. kpr [1] AIR 2009 SC 2254