THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 413 of 2000 Judgment: (per Hon’ble Sri Justice B. Chandra Kumar) Aggrieved by the orders, dated 15th November 1999, passed in O.P. No. 38 of 1996 by the Additional Senior Civil Judge, Ongole, dissolving the marriage of the respondent herein with the appellant herein by a decree of divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955, the appellant-wife has preferred this appeal. The parties hereinafter will be referred to as they are arrayed before the lower Court for the sake of convenience. The petitioner is the husband of the respondent. Their marriage was solemnized on 15.08.1990 as per the Hindu rites and custom. After the marriage, they lived at Ongole for some time. They are blessed with a female child on 27.10.1992. The specific case of the petitioner is that after the marriage, they lived together in Ongole for about 1 ½ years and when the respondent became pregnant she went to her parents house Surareddipalem for the first delivery as per custom. After the delivery, the respondent refused to join him. His further case is that he has got only Ac.2-00 of dry and grazing lands towards his share in his native place Kattavaripalem and, therefore, he joined as a casual driver in APSRTC and was shifted to Markapur Depot. His further case is that the respondent got Ac.5-00 of wet and dry lands towards her share in her father’s properties at Surareddipalem. It is also his case that though he had sent Gutlapalli Ramaiah and Angalakurthi Ramabhotlu as mediators to the respondent, but she refused to join him and, thus, she deserted him for more than three years without any reasonable cause. It is also his case that the respondent filed M.C. No.5 of 1995 when she suspected that he was filing the petition for divorce and subsequently she has also filed a complaint for the offences under Sections 498-A and 494 IPC with all false allegations and that the said complaint was forwarded to the police, Tangutur and that in the said criminal case he was arrested and subsequently he was released on bail. Alleging that the respondent treated him with cruelty and deserted him without any reasonable cause, the petitioner sought divorce. The respondent filed a counter and denied the material allegations made by the petitioner. Her specific case is that at the time of marriage her parents presented 10 sovereigns of gold and cash of Rs.75,000/- towards dowry. After the marriage, they lived happily at Ongole at the house of the petitioner for a period of one year. At that time, the petitioner purchased a tractor. However, subsequently, he addicted to vices like drinking, gambling and debauchery and was harassing her and her minor daughter. He used to beat her frequently for no fault of her. Her father and village elders interfered and compromised the matter. Then, they started living at Kattavaripalem and lived there for about one year. Later on, as she became pregnant, she was brought to her parents house for delivery. After delivery, they lived together at Ongole but again the petitioner started harassing her and beat her mercilessly and subsequently neglected and refused to maintain her and her minor daughter. As there was no other go, she had to seek shelter in her parents house with her minor daughter. It is also her case that subsequently her parents tried for mediation, but in vain. In the circumstances, she had filed M.C. No.5 of 1995 seeking maintenance. It is also her case that she came to know that the petitioner married one Krishnaveni and was living with her at Kattavaripalem. It is also her case that to avoid maintenance, the petitioner has filed this petition for divorce. The learned Additional Senior Civil Judge has framed the following points for consideration. 1. Whether the petitioner is entitled to divorce from the respondent under Section 13(1)(ia) of the Hindu Marriage Act? 2. Whether the petitioner is entitled to divorce from the respondent under Section 13(1)(ib) of Hindu Marriage Act? On behalf of the petitioner, the petitioner himself was examined as PW.1 and PWs.2 to 4 were examined and Exs.A1 to A4 were marked. On behalf of the respondent, the respondent herself was examined as RW.1 and RWs.2 to 4 were marked, but no documents were marked on her behalf. The lower Court held that it is for the respondent to adduce evidence that after delivery she had joined the petitioner at Ongole and that she was neglected by the petitioner and was forced to leave the marital home and that the respondent failed to discharge her burden. The lower Court also held that the contention of the respondent that she was forced to live separately from the petitioner cannot be accepted and that the petitioner has proved that the respondent has treated him with cruelty. It was also held that filing of criminal cases by the respondent amounts to treating the petitioner with cruelty. The lower Court also held that there is no possibility of reunion between the parties and therefore felt that it is proper to allow the petition and, accordingly, allowed the petition granting divorce to the petitioner. The main contention of Sri M.V.S. Suresh Kumar, learned counsel for the appellant herein/respondent before the lower Court, is that the lower Court failed to consider that the petitioner himself treated the respondent with cruelty and that he did not provide basic requirements to the respondent and to her daughter and that he was not visiting the house. It is also submitted that when their daughter was sick for two days the petitioner did not visit their house and in the above circumstances the father of the respondent came to Ongole, provided medical treatment to the daughter of the respondent and thereafter he had taken the respondent and her daughter to their village and when the respondent returned to her house there were no articles (Saamaans) in the house and therefore the respondent had to go to her parents house. It is further contended that the respondent had categorically deposed that the petitioner had married one Krishnaveni and further categorically stated that if he is prepared to disconnect his connections with Krishnaveni, she was ready to join him and these circumstances are not taken into consideration by the lower Court. His main submission is that the lower Court ought to have considered as to who is responsible for the trouble and under what circumstances the respondent was compelled to live separately. It is also his submission that merely because the respondent has not examined her neighbours at Ongole, it cannot be said that her version is false. It is also his submission that even according to the case of the petitioner they lived together for about 1 ½ years at Ongole after their marriage and only for the purpose of delivery she went to Surareddipalem and that the petitioner himself admitted that subsequently they lived at Kattavaripalem i.e., at the house of the petitioner. It is argued that all the above referred circumstances go to show that the respondent did not intend to live at Surareddipalem at her parents house or that she never claimed that she had sufficient properties at her parents village or that the income of the petitioner is not sufficient and for that reason she refused to join the petitioner. It is also his submission that the lower Court feeling that there is no possibility of reunion between the parties and that marriage has been irretrievably broken down granted divorce to the petitioner. His main submission is that no divorce can be granted on the ground of irretrievable break down of the marriage and that such ground is not available under the provisions of the Hindu Marriage Act, 1955 and that except the Supreme Court no other Court can declare a marriage between the parties as irretrievably broken down and in support of his contention he has relied on a judgment of this Court reported in M. Pushpalatha v. M. Venkateswarlu[1]. Per contra, Sri K. Ananda Rao, learned counsel for the respondent herein, submitted that the petitioner was having only Ac.2- 00 of dry land and as there was no sufficient income the petitioner joined as a casual driver in APSRTC and that he was working at Markapur. It is also his submission that the respondent went to her parents house for the purpose of delivery and after delivery when the petitioner requested the respondent to join him at Markapur she bluntly refused to join at Markapur mainly on the ground that the income of the petitioner was not sufficient. It is also his submission that since the parents of the respondent gave her Ac.5-00 of land she was having sufficient income from the agriculture and that she was insisting the petitioner to come and join her at her village and that the main reason for their separation is the attitude of the respondent. It is submitted that the contention of the respondent that she joined the petitioner at Ongole after delivery and lived there for some time was not believed by the lower Court and that there is no evidence to show that the respondent joined the petitioner at Ongole after delivery. It is also his submission that the respondent had initiated maintenance proceedings and made false allegations in the criminal complaint alleging that the petitioner had harassed her demanding dowry and also married another woman during the subsistence of his first marriage and that the police after investigation found that there is no truth in the allegations made by the respondent and accordingly no charge sheet was filed for the offence under Section 494 IPC. It is also his submission that the petitioner was unnecessarily arrested in a criminal case and that the initiation of criminal case itself shows that the respondent had treated the petitioner with cruelty. It is also his submission that the very allegation of the respondent that the petitioner had married another woman is false. He further submitted that even making malicious, wild, baseless, scandalous and false allegations amounts to treating the spouse with cruelty and in support of the said contention he has relied on a judgment reported in Kanchanapalli Lalithakumari v. Kanchanapalli Ramaprasada Rao[2]. He has also relied on a judgment of the Apex Court reported in A. Jayachandra v. Aneel Kaur[3], wherein it was held that when a wife made false allegation of adultery against her husband that is sufficient to show that she has treated the husband with cruelty. Reliance is also placed on the judgment reported in Samar Ghosh v. Jaya Ghosh[4], wherein what amounts to mental cruelty has been explained in detail. The points that arise for consideration are whether the respondent has deserted the petitioner and treated him with cruelty and whether the petitioner is entitled for divorce. It is not in dispute that the marriage of the petitioner and the respondent was solemnized on 15.08.1990 at Tirumala Hills as per the Hindu rites and custom. It is the case of the petitioner that after the marriage the respondent joined him and both of them lived at Ongole happily for about 1 ½ years. His specific case is that when the respondent became pregnant she went to her parents house at Surareddipalem for first delivery as per custom. Admittedly, the respondent gave birth to a female child on 27.10.1992 who is named after as Vyshnavi. The petitioner’s main case is that he secured a job as casual driver in APSRTC at Markapur, and when he requested the respondent to come and join him at Markapur she refused to join him. His further case is that she got a share of Ac.5-00 of wet and dry lands in her father’s properties in addition to a house and, therefore, she refused to join him at Markapur, in spite of his efforts through mediators Gutlapalli Ramaiah and Angalakurthi Ramabhotlu. His next case is that the respondent filed maintenance case and criminal case and made false allegations against him and that he was arrested in the criminal case and thus the acts of the respondent amounts to treating him with cruelty. As stated supra, the respondent has denied those allegations. As seen from the averments of the petition, it is not the case of the petitioner that the respondent lived with him at his village Kattavaripalem. His simple case is that they lived together at Ongole for about 1 ½ years and the respondent went to her parents house for delivery and subsequently she did not return. The respondent’s specific case is that after the marriage they lived together at Ongole for about one year and when the petitioner started harassing her, her father and elders compromised the matter and thereafter they lived at Kattavaripalem for about one year. It is also her case that though she went to her parents house for delivery subsequently they lived together at Ongole, where the petitioner again started harassing her and beat her and he refused to maintain her and in the circumstances she was compelled to go to her parents house. The subsequent filing of maintenance case and criminal case and even arrest of the petitioner etc., are not in dispute. Of course, filing of a criminal case and arresting the petitioner might have been caused mental agony to him and there cannot be any dispute about the same. But, it has to be seen who is responsible for the same. If at all the husband refused to maintain his wife and children, they have every right to seek maintenance from the Court of law. Similarly, when a person harasses his wife demanding dowry, then the wife has every right to file a complaint and the consequences would certainly follow. Therefore, mere initiation of maintenance case or filing of a police complaint under Section 200 Cr.P.C cannot be treated as the acts of cruelty. Where in a case if the husband is acquitted in a criminal case, by that itself, it cannot be said that the allegations made by the wife are utterly false or she initiated malicious proceedings against the husband. It is settled law that standard of proof in criminal cases and in civil cases is different. In a criminal case the burden lies on the prosecution to prove the case beyond reasonable doubt. The accused may be acquitted for various reasons such as there may be lacunae in the investigation or sometimes the material witnesses may turn hostile. In a civil case the controversial issues have to be resolved basing on the probabilities of the case put forth by the parties. Thus, the appreciation of evidence in civil and criminal cases is not similar and different yardsticks have to be used. Therefore, basing on the findings in a criminal case, it cannot be said that all the allegations made by the wife are false. The Family Court or a Civil Court has to appreciate the evidence available on record i.e., basing on the oral and documentary evidence adduced by both the parties before it. It is also settled law that a marriage cannot be dissolved or a divorce cannot be granted merely on the ground that there is irretrievable break down of marriage. I n M. Pushpalatha v. M. Venkateswarlu (1 supra) the earlier Division Bench of this Court, in which my learned Senior Brother Hon’ble Sri Justice V. Eswaraiah is a party, held that irretrievable breakdown is not a ground available for granting a decree of divorce. In the said judgment, it was also held that filing of criminal cases per se cannot be treated as an important ground for granting divorce since the same does not amount to cruelty. In the said judgment, this Court has relied on the judgment of the Apex Court in Vishnu Dutt Sharma v. Manju Sharma (I (2009) DMC 515 (SC). Coming to the facts of this case, the petitioner was examined as PW.1. His case is that after the marriage they led marital life at Ongole for about 1 ½ years. Then, they shifted to his native place Kattavaripalem and that while they were residing at Kattavaripalem the respondent became pregnant and she went to her parents house for delivery and subsequently she did not join him. The evidence of PW.1 is not in consonance with the averments made in his petition. When he deposed before the Court, he stated that they lived at Ongole for about 1 ½ years and subsequently they shifted to his native place Kattavaripalem and this is not his version as per the petition averments. The petitioner has stated in his petition that the respondent has got a share of Ac.5-00 of dry and wet lands in addition to a house and that she refused to join him on the ground that his income is not sufficient to maintain the family, but there is no such averment in his petition that the respondent refused to join him on the ground that the daily wages of the petitioner were not sufficient for maintenance. The evidence of PWs.2 to 4 is also to the effect that they separately went to Surareddipalem and requested the respondent to join the petitioner, but she refused to join the petitioner mainly on the ground that the income of the petitioner is not sufficient to maintain the family. If at all the said version of the petitioner is true, he would have certainly mentioned the said fact in his petition averments. Further, it has to be seen that even according to the evidence of PW.1 they lived together at Ongole for about 1 ½ years and subsequently they lived at Kattavaripalem till the respondent became pregnant. Thus, it appears that for about 2 years or 2 ½ years they lived together either at Ongole or at Kattavaripalem. This circumstance also shows that the respondent did not bother about the income of the petitioner till she became pregnant and as a custom she was brought to her parents house when she was in 5th month pregnancy. It is the case of the respondent that after delivery, when their daughter became 9 months old, she again joined the petitioner at Ongole and that she was sent along with “Sare” in a tractor to Ongole and that after one month the petitioner used to come in drunken state, picked up quarrels and beat her. It is also her case that the petitioner was not regularly coming to their house and he did not look after her needs and the needs of her daughter. It is also her case that when her daughter was suffering from fever the petitioner did not come to the house continuously for two days and then her father came there and took her child to Dr. Ramadevi and at the request of her father she went to Surareddipalem and after four days when she returned back to Ongole and when they opened the lock of their house at Ongole all the Saamaans, cots and clothes were kept in a room and the said room was locked by the petitioner. As the entire remaining house was vacant, the respondent returned back to her parents house. The respondent has examined RWs.2 to 4. RW.2 deposed that he has also accompanied the respondent when she was brought to Ongole in a tractor. RW.4 is the father of the respondent. He has also deposed the above incident. According to him, when he went to Bhagyanagar, Ongole, where the petitioner and respondent were residing, the petitioner was on duty and that the daughter of the respondent was suffering from fever and therefore he took the child to the hospital and after treatment he brought his daughter and her child to their village. It is also his case that after four days when they went to Ongole and on opening the doors, they found that all the Saamaans were kept in a room and it was locked, and in the circumstances, they returned to their village. The lower Court disbelieved the version of the respondent that she again joined the petitioner at Ongole after delivery mainly on the ground that the respondent did not make any specific plea in her counter with regard to said fact and that the respondent did not examine any neighbour of their house at Ongole. As seen from the counter averments, the respondent had specifically pleaded that after she gave birth to a female child, they lived together at Ongole and even then the petitioner continued to live in bad habits and used to beat the respondent mercilessly and neglected to maintain the respondent and drove her out from his house and having no other go she reached her parents house along with her female child. Thus, it appears that the finding of the lower Court that there is no specific plea that both of them lived together at Ongole after the respondent gave birth to a female child is not correct. The lower Court has observed that the burden lies on the respondent to prove that she was at Ongole after delivery and that she failed to discharge that burden. It has to be seen that according to the respondent, the house at Bhagyanagar, Ongole, belongs to the petitioner and his elder brother. Of course, the case of the petitioner is that the said house exclusively belongs to his elder brother. Whatever it may be, admittedly, it is the house wherein the petitioner and his elder brother were living together. Admittedly, the petitioner did not examine his elder brother or any one of his family members to show that the petitioner and the respondent never resided together in Bhagyanagar, Ongole, after the respondent gave birth to a female child. In fact, when the petitioner has specifically pleaded that the respondent refused to join him, it was obligatory on his part to examine any of the witnesses from Bhagyanagar, Ongole. The respondent has specifically deposed that nine months after the delivery, she joined the petitioner at his house at Bhagyanagar, Ongole. Her evidence is corroborated by the evidence of RWs.2 and 4. The evidence of RW.2 shows that when the daughter of the respondent was suffering from fever, there was nobody in the house and that the father of the respondent (RW.4) came there and took their child to a Doctor. RW.1 has specifically given the name of the Doctor, who treated her daughter. The evidence of the respondent and her father appears to be natural. The lower Court has also commented that the respondent ought to have issued a legal notice requesting the petitioner to take her back. It has to be seen that the petitioner also did not issue any such legal notice. When the petitioner has approached the Court seeking divorce, the initial burden lies on him to prove that the respondent has deserted him or that she had treated him with cruelty. This initial burden does not shift to the respondent. It is argued that since the petitioner has been acquitted on the criminal charge under Section 498-A IPC and no charge sheet is filed for the offence under Section 494 IPC, the allegations leveled by the respondent-wife have to be treated as false and baseless. As we have already observed, mere acquittal from a criminal charge does not mean that all the allegations made by the wife have been proved to be false. Of course, the respondent alleged that the petitioner had addicted to vices and he had been living with one Krishnaveni and she failed to adduce any evidence to show that the petitioner has remarried, but it has to be seen that the respondent has categorically deposed that if the petitioner disconnects his relationship with the said Krishnaveni, she is prepared to join him. It appears that this aspect was not taken into consideration by the lower Court. It appears that in spite of ill- treatment, the