THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.1158 of 2001 ORDER: (per the Hon’ble Sri Justice V. Eswaraiah) The appellant herein is the husband and the respondent is the wife. On 11-06-1993, the husband filed O.P.No.118 of 1993 on the file of the Court of the I Additional Subordinate Judge, Kakinada, against his wife, under Section 13 (1) (ib) of the Hindu Marriage Act, 1955, seeking decree of divorce. The Court below dismissed the said O.P. vide its order, dated 27-03- 1997, against which, the present appeal has been filed by the husband. 2. The parties are, hereinafter, referred to as they are arrayed in the O.P. 3. It is the case of the petitioner in the O.P. that the respondent is his legally wedded wife and their marriage took place on 11-04-1979 as per Hindu rites and customs. They gave birth to three sons viz., Murali Krishna aged about 13 years, Ramesh aged about 10 years and Nagasiva aged about 4 years respectively. The said O.P. was filed on 11-06-1993. At the time of marriage, the petitioner was in Defence service and retired in the year 1989. Thereafter, he joined the service of the State Bank of India under the Ex-Servicemen category. 4. It is further stated that during the month of December, 1989, differences arose between himself and the respondent with regard to mis- utilization of money sent to the respondent and she started quarrelling with the petitioner causing mental agony. The petitioner, out of love and affection towards the respondent and his children, tolerated the torture caused by the respondent. But, however, there is no change in her behaviour. It is stated that the petitioner had tolerated the torture since 1989 but there was no change in her attitude and the respondent deserted the petitioner and stayed with her parents along with children. 5. It is stated that all the attempts made since 1992 onwards for amicable settlement and to bring the respondent to the marital home have failed. It is stated that the attempts were also made till 1992 to bring back the respondent to the marital house, but the respondent, who has been living separately since December, 1989 has not changed her attitude. Therefore, the said O.P. was filed on 11-06-1993 seeking dissolution of the marriage. 6. The respondent filed a counter affidavit denying all the allegations made in the O.P. and stated that the respondent was kept with the mother, brother and the sister of the petitioner at Rajendranagar. It is stated that at the time of marriage, the respondent was given ten sovereigns of gold, Rs.10,000/- in cash and Ac.1-50 cents of land in Panduru towards Pasupukumkuma by her parents, but the petitioner utilized the said amount towards his vices and the respondent was sent to her parents house for 2nd delivery with a demand to sell away the landed property situated at Panduru. As the respondent expressed her inability to meet the demand, the petitioner refused to take her back and left her with her parents at Panduru since 1986. Thereafter, the petitioner often used to visit Panduru and create nuisance at her parents house. The petitioner has not provided proper food and clothing to the respondent and her children and as such, the respondent sent her second son to her 4th sister to look after the child and he is staying with her 4th sister. The petitioner retired from Military service in the year 1986 and thereafter, she and the petitioner resided at Rajendranagar. The petitioner started harassing the respondent to bring more money and also to bring back the second son from her fourth sister and used to send her back after fulfilling his demand. He extracted nearly Rs.30,000/- from her 4th sister Padmavathi. It is stated that the petitioner only used to beat the respondent brutally whenever she expressed her inability to bring money from her parents. In fact, it is stated that harassment is on the part of the petitioner but not on the part of the respondent. She gave birth to third child at her parents house alone and while taking her back, the petitioner again demanded Rs.10,000/- to build a new house at Bhavannarayanapuram. The parents of the respondent with great difficulty met the said demand. It is stated that the petitioner himself pledged all the gold ornaments for the purpose of constructing house. The petitioner and his mother along with respondent shifted to the new house on 27-04-1992. Two months thereafter, the petitioner and his mother beat the respondent brutally and poured kerosene on her and tried to set fire. But, under the timely intervention of the neighbours, she was able to escape. It is stated that the petitioner and his mother only necked out the respondent from the house along with children and having no other alternative, she went and joined her parents and living there at their mercy. It is stated that the respondent got issued a legal notice- Ex.B-1, dated 15-09-1992 stating all the facts claiming maintenance, for which the petitioner gave a reply-Ex.B-2, dated 23-09-1992. It is stated that the respondent never deserted the petitioner on her own accord and on the other hand, the petitioner himself has necked out her from the house along with the children and, therefore, the petitioner is not entitled for any divorce. 7. The petitioner himself examined as PW.1 and stated that he filed O.P.No.209 of 1992 on the file of the I Assistant Sessions Judge, Kakinada, seeking restitution of conjugal rights, but the same was withdrawn. It is stated that the respondent filed a criminal case under Section 498-A IPC, which was registered as C.C.No.499 of 1993 on the file of the Court of the IV Additional District Munsif, Kakinada and the same was ended in acquittal, which is marked as Ex.A-1. It is stated that while he was in Military service, he got three children and he and the respondent resided together at Gaigolapadu, and when he retired from Military service, the respondent joined her parents and he resided in Borodacolony for sometime and later he took up residence in Sarpavaram. In the year 1989, disputes arose between himself and the respondent and the respondent gave her second son to her sister against his will. 8. The petitioner has not stated anything as to when the respondent deserted him. On the other hand, in the cross-examination, he has admitted that in the year 1992, the respondent lived in his house for a period of four months. Therefore, the averments made in the counter that the petitioner and the respondent shifted to the new house on 27-04-1992 appears to be true and correct. Even, if they lived in April, 1992, the date on which the O.P. filed was only 11-06-1993. That means, only 14 months after living separately, the O.P. was filed. For seeking a divorce, the minimum period of two years immediately prior to filing of O.P. is required under Section 13 (1) (ib) of the Hindu Marriage Act, 1955. 9. The learned counsel appearing for the petitioner submits that the respondent filed a case against the petitioner under Section 498-A IPC and the same was dismissed. Therefore, he submits that filing of the said criminal case itself constitutes cruelty. 10. Admittedly, the O.P. was not filed seeking divorce on the ground of cruelty but it was filed only on the ground of desertion. 11. As the petitioner himself admitted in his evidence that he and the respondent lived together in the year 1992 for a period of four months, we are of the opinion that the Court below rightly held that no ground was made out seeking divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955 and, therefore, the O.P. filed by the petitioner seeking divorce was rightly dismissed. 12. We are also of the opinion that there is no evidence available on record that the respondent deserted the petitioner and mere filing of a criminal case under Section 498-A IPC does not amount to “cruelty”. If anybody files any case, the appropriate legal course has to be taken into account. But, merely because the criminal case was ended in acquittal for not proving the case beyond all reasonable doubt, it cannot be said that filing a criminal case amounts to cruelty. Therefore, we do not see any ground to interfere with the impugned order. Hence, the appeal is devoid of merits and the same is liable to be dismissed. 13. Accordingly, the C.M.A. is dismissed. There shall be no order as to costs. ________________ V.ESWARAIAH, J _________________ B.N.RAO NALLA, J Dated: 23-02-2010 Prv