HON’BLE SRI JUSTICE B. PRAKASH RAO and HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A. No. 114 of 2002 DATED: 29.12.2009 Between: Ayyagari Visweswara Rao .. Appellant And Ayyagari Lakshmi Subhadra .. Respondent JUDGMENT:- (Per Hon’ble Sri Justice G.Bhavani Prasad) The dismissal of the appellant’s request for grant of divorce made in O.P. No. 46 of 1998 on the file of the Additional Senior Civil Judge, Srikakulam, by the order dated 29.04.2000, led the aggrieved husband to file the present appeal. The appellant approached the trial Court with a request for dissolution of his marriage with the respondent, which took place on 12.06.1993. He claimed that the marriage was consummated on the same day and the husband came to know that the wife was a chronic asthma patient which was suppressed till the marriage. When the couple lived together, a daughter was born to them in October, 1994 and her second pregnancy was aborted in the 3rd month. After such abortion, the wife continued to stay in her brother’s house for five months and failed to come back, and since her return later to the husband, the wife started behaving in an unruly manner with the husband, and she developed hatred against the husband and his parents for no reason. She was harassing the husband physically and mentally and was alleging that the husband had illicit intimacy with one Satyanarayanamma. The appellant further alleged that the wife was giving petitions against him to the higher officials and ultimately got a notice issued with false allegations on 03.05.1996. The husband also came to know that the wife took away cash, gold ring and other ornaments when she left the house and when he issued a telegraphic notice, it was not received by the wife. The husband attributed failure of the marital life to the conduct of the wife, and desertion, harassment and cruelty are the grounds for divorce. He filed the petition after exchange of notices between the couple. The wife contended in her counter that the termination of the second pregnancy was against her will and at the instance of the husband. Since then, her health deteriorated and she claimed that she was left unattended at her parents’ house and also alleged that the husband developed illicit intimacy with one M.Nirmala. She claimed the other members of the family of the husband also to be responsible for the harassment and separation and her being necked out of the marital home in 1996, and she also claimed that since then, she and her children were neglected and refused to be maintained by the husband. Hence, she desired the divorce petition to be dismissed. During the enquiry, the trial Court had examined PWs.1 to 4 and RWs.1 to 6 and marked Exs.A1 and A2, Exs.B1 to B3 and Ex.X1. The trial court rendered the impugned order observing that there was absolutely no evidence to prove that the wife behaved adamantly with the husband or that she was suffering from any disease or ill- health. The trial Court considered the evidence of PW2 about the purchase of medicines by the couple from the shop to be insufficient to prove any such sickness as alleged by the husband and further observed that the husband failed to give any details of the ornaments or cash said to have been taken away by the wife while going away from his house. The trial Court was of the opinion that when the husband failed to prove that the wife obtained key from the owner of the house and took away the cash, gold, etc. that aspect cannot be considered proved. In the absence of an iota of evidence, on any of the allegations made against the wife, the trial Court preferred to accept the evidence of the wife as corroborated by the evidence of RWs.2 to 6 about the harassment by the husband. It also referred to the clear statement made by the husband in his cross-examination that he was not willing to take back his wife even if she agreed to live with him as indicating that the desertion was by the husband and not by the wife. Therefore, the trial Court considered that the husband failed to prove his entitlement to a decree of divorce, and dismissed the petition with costs. The grievance of the husband in this appeal against the impugned order is about the approach of the trial Court to the facts and evidence before it and it is his contention that the desertion clearly probablized by the evidence on record made any continuance of the marital life impossible. The husband also contended that the subsequent events after filing the divorce petition like the filing of criminal case and a petition for maintenance also should have been taken into account, and the husband claimed that the trial Court should have therefore granted a decree for divorce. Sri E.V.S. Venu Gopal representing Sri P.V.S.S.S. Rama Rao, learned counsel for the appellant and the learned counsel for the respondent are heard. The only point for consideration is whether the husband had probablized any justification for the grant of divorce in his favour? The relationship between the parties, the consummation of the marriage and their living together for a considerable time during the course of which they had a daughter, are not in dispute. It is also not in dispute that the wife became pregnant the second time and that the second pregnancy was aborted in the 3rd month. It is, thus, clear that till then, this couple had apparently no disputes or differences between themselves and if the wife was found to be a chronic asthma patient immediately after the marriage, which was suppressed from the husband, the same would have led to consequential questioning of the suppression of such fact by the husband through some means which type of evidence was not alleged or proved. The unruly behaviour of the wife as against the husband since the return of the wife from the house of her brother after about five months was not alleged or shown to be for any specific reason, and in the ordinary and natural course of human events, it cannot be presumed that a rustic house-wife with a tender daughter to look after would have picked up a quarrel with the husband for no reason after living with him for a considerable time. The illicit intimacy between the husband and Nirmala alleged by the wife was attempted to be denied by the husband and it is true that the trial Court did not give any positive finding about the truth or otherwise of such complaint, but insofar as the finding of the trial Court about the absence of proof of the alleged incident during which the wife took away the cash, gold and other ornaments from the house of the husband between 3rd and 5th May, 1996 is concerned, it is clear that it was not probablized by any positive evidence. The mere failure of the wife to prove the alleged illicit intimacy of the husband with another lady will not be material on the facts and circumstances of this particular case in view of the fact that the husband positively expressed that he will not take back the wife even if she was ready to come back to him, during the evidence before the trial Court. The trial Court took into consideration the evidence adduced by both the parties and after seeing the witnesses in flesh and blood, had considered the evidence of PWs.1 to 4 to be not such as inspiring confidence of the Court about the truth of such version. The finding of the trial Court that there was absolutely not an iota of evidence about the allegations made by the husband against the wife cannot be deviated from under the circumstances, more so, in the light of the absence of positive corroboration to the claims of PW1 against the claims of RWs.1 to 6. In the absence of any proof of harassment or cruelty by wife against the husband and in the absence of any proof of desertion by the wife herself, the husband cannot be considered to be entitled to a decree of divorce from the wife and this Court has to concur with the trial Court in this regard. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs. ___________________ B. PRAKASH RAO, J 29th December, 2009 ____________________ G. BHAVANI PRASAD, J bcj