HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.1438 OF 2002 Dt.27.4.2010 Between: S.Krishna Murthy ..Appellant And S.Kamalamma ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.1438 OF 2002 JUDGMENT: (Per Sri Justice V.Eswaraiah) Heard. Appellant is the husband of the respondent wife. He filed O.P.No.68 of 1995 on the file of the Senior Civil Judge, Miryalguda, seeking divorce by dissolving the marriage under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (for short, ‘the Act’) on the ground that the wife deserted him without any sufficient cause. The O.P. was dismissed by the court below by order, dated 15.4.2002. Against which, this appeal is filed. The appellant is now aged more than 70 years and the respondent is aged more than 56 years. The parties are hereinafter referred to as they are arrayed in the O.P. before the court below. It is not in dispute that their marriage took place somewhere in 1964 and they have four children – two sons and two daughters born out of wedlock and out of them one son expired at the age of 4 years while undergoing treatment at Hyderabad. The O.P. was filed by the petitioner husband on the ground that the respondent left his company on the plea that he married and kept one Shyamala Devi as mistress and developed illicit relations with her and therefore she filed M.C.No.48 of 1980 on the file of the Judicial First Class Magistrate, Miryalguda, against him for maintenance and subsequently, she also filed civil suit which was decreed. Against which, she filed A.S.No.3 of 1995 before the Subordinate Judge, Miryalguda, which is pending. It is stated that he is paying maintenance amount regularly. Since the respondent is living separately for the last 16 years and abusing the petitioner by picking up quarrel unnecessarily and filed criminal cases against him and his family members and the respondent herself voluntarily left the company of the petitioner without any sufficient cause and residing separately on her own volition, the petitioner is entitled for a decree of divorce. Though certain averments have been made alleging that the respondent was treating him with cruelty, but that was not a ground on which the O.P. was filed. The O.P. was filed only on the ground of desertion. Counter has been filed by the respondent stating that out of the wedlock they blessed with two sons and two daughters and out of them one son died at the age of 4 years while undergoing treatment. When the counter was filed in September, 1997, it is stated that all of them are now marriageable age and their marriages are yet to be performed and they have not settled in life. It is stated that the petitioner is living with one Shyamala Devi for the last several years keeping her as concubine and at the instance of the said concubine the petitioner has neglected the respondent and her children by ill-treating them and necked them out from the house and due to the said compelling reasons alone the respondent is living with her children. As she was unable to maintain herself and children, she was constrained to file M.C.No.48 of 1980 on the file of the Judicial First Class Magistrate, Miryalguda and obtained orders for maintenance of Rs.350/- per month. As the amount awarded in the said M.C. was not sufficient for maintenance of the respondent and her children, she filed O.S.No.53 of 1987 before the District Munsif, Miryalguda, for their maintenance and the same was allowed by granting maintenance amount of Rs.100/- to the respondent and Rs.200/- per month to each of her children and the said amount granted is independent of the amount awarded in M.C.No.48 of 1980. Against which, the respondent and her children also filed A.S.No.53 of 1987, which was pending. It is stated that the respondent never harassed the petitioner and the sad allegations about cruelty and harassment are false and incorrect and without any basis and on the other hand it is stated that the petitioner himself deserted the respondent and to get rid off the respondent alone, the O.P. is filed seeking divorce. It is stated that the respondent never ill-treated and deserted the petitioner, but the petitioner himself ill-treated the respondent and forcibly driven out of the house. Therefore, it is stated that the petitioner is not entitled to seek decree of divorce. The court below considered the questions as to whether the respondent deserted the petitioner without any justifiable cause and whether the marriage ties between the petitioner and respondent were irretrievably broken down so as to dissolve the marriage by a decree of divorce. In so far as the second issue is concerned, we are of the view that under Section 13 of the Act irretrievable break down is not a ground for granting a decree of divorce as held by the Apex Court in VISHNU DUTT SHARMA V. MANJU SHARMA[1]. Therefore, the only question that arises for consideration in this appeal is whether the respondent wife has deserted the petitioner without any justifiable reason. Desertion has been explained in explanation to Section 13 of the Act which means desertion of the petitioner by the other party to the marriage without reasonable cause and without consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. Therefore, desertion means it should be by the other party without any reasonable cause and without consent or against the wish of the petitioner. P.W.1 stated that the marriage took place in the year 1964 and four children born out of their wedlock and he was working as Driver in N.S.P Department and after the marriage he stayed at Hill Colony in Quarter No.B-751 and the sons and daughters were born at the time they were staying in the said quarter. His son Narayana Swamy was born in 1969, daughter Vijaya Laxmi was born in 1974 and Santhoshi Kumar another daughter was born in 1976. His wife stayed with him upto 1976 and thereafter she left the company and residing separately at Pylon colony along with children. It is stated that while the respondent leaving the company of the petitioner she took away the gold ornaments and silver and also cash of Rs.5000/-. The quarter in which she is residing is also belonging to the Government. The respondent was a troublesome lady and used to pick up quarrel and ill-treat him and she filed maintenance case towards maintenance. It is stated that he cannot lead marital life with the respondent and there is much harassment from the side of the respondent and her son. There is danger to his life from the hands of his son and therefore he seeks divorce. Much has been stated about the strained relations and cruelty. But, they were not the grounds on which the O.P was filed. Therefore, we are not inclined to consider the said issues except the evidence relating to desertion. It is stated that the petitioner did not know that Shyamala Devi had undergone tubectomy operation in K.N.Hospital, Nagarjunasagar and he did not know that sterilization certificate in her name was issued by the hospital authorities showing him as her husband. He also does not know that Shyamala Devi is having two children. It is stated that he did not know the court, which has passed decree in maintenance case on the basis of the evidence, found that he had kept Shyamala Devi and living with her and her children and deserted the respondent. It is accepted that the respondent has undergone tubectomy operation when she was with him in the year 1978. The suggestion that his wife’s brother and sister-in- laws convinced him not to live with Shyamala Devi, but to live with the respondent was denied. The suggestion that his wife never took gold and silver ornaments was also denied. P.W.2 resident of the same locality stated about relationship of the petitioner and the respondent and the children born to them. It is stated that the respondent has doubted the character of the petitioner and voluntarily escaped from the house of the petitioner and started living with her brother in another quarter. It is stated that he is a marriage broker with regard to inter-caste marriages and also a mediator to resolve family disputes. He has denied every suggestion made on behalf of the respondent with regard to strained relations and also as to the petitioner’s extra marital relationship with Shyamala Devi and the two children born to her through the petitioner and about their marriage prospects. His evidence does not inspire any confidence. P.W.3 was examined to show that the son of the petitioner used to abuse and insult the petitioner on the ground that the petitioner had kept mistress. Several things were allowed to be recorded by the court below outside the scope of the pleadings. Therefore, we are not inclined to deal with them in detail. P.W.4 was examined to establish that the respondent used to create nuisance and that the son of the respondent used to beat the petitioner. We are of the opinion that the issue in the petition is whether the petitioner deserted the wife or the wife deserted the petitioner. The respondent was examined as R.W.1. She deposed that after giving birth to the fourth child she has undergone family planning operation in K.N. Hospital, Nagarjunasagar and thereafter, he developed illicit intimacy with a woman Shyamala Devi and started beating and abusing her and not providing food for her and her children. He used to beat her and once she received bleeding injuries and the mother of the petitioner questioned him and scolded him stating that having developed illicit intimacy with another woman how he was inhuman in beating the respondent and causing difficulties to the respondent and her children. It is stated that brothers of the petitioner also advised him to mend his behaviour towards the respondent and her children and they too had chastened him like their mother. After the said incident, the petitioner took the respondent and children to Hyderabad to attend marriage of his elder sister’s daughter and left the respondent and children there and went away without intimating. They stayed there for one month and when her son felt ill she admitted him in the hospital and in spite of writing letters to the petitioner, he did not come to Hyderabad and in fact her son died in the hospital and cremation was also done at Hyderabad. Thereafter, again they joined the petitioner, but the petitioner was staying in the house of Paper Subba Rao with Shyamala and he was not at all visiting the respondent and in fact he beat her again and snatched away the post office passbook in the name of her daughter Vijaya Laxmi where she was depositing Rs.60/- per month. R.W.1 narrated several instances stating that the petitioner ill-treated the respondent time and again and he himself created the atmosphere to left his house. It is stated that the respondent never taken any cash or gold or silver ornaments as alleged by the petitioner and she has not voluntarily left the company of the petitioner along with the children, but all the allegations were created and made with a view of get a decree of divorce alone and she was always ready and willing to join the petitioner along with her children. She was cross-examined on several days which runs into 21 pages, but nothing has been elicited from her to establish that she was deserted the petitioner. On the other hand, her assertion goes to show that the petitioner himself deserted the respondent. R.W.2 is wife of the petitioner’s elder brother. It is stated that the petitioner and respondent lived amicably till the birth of four children. Out of them one son died and then he started beating and harassing the respondent for no fault of her and he used to beat the children also. The respondent was driven out of the house by the petitioner himself along with their children and therefore they have started living in the house of elder brother of the respondent in Pylon colony. The petitioner did not look after his mother and the petitioner mother died in the house of R.W.2 and the petitioner is living with his kept mistress and in fact she was already married and begot two sons and the petitioner is looking after them. The petitioner used to visit the respondent and he used to beat her and forcing her to give him divorce. Since the petitioner used to beat the respondent and he necked out his mother also, her mother came to the house of R.W.2 and she also saw the petitioner beating his mother when she questioned the petitioner that he was not looking after his wife and children. She was also present when the petitioner beat the respondent and the mother of the petitioner chastened him. The other evidence relating to the disputes and the strained relations among the parties with regard to children and marriages is not necessary. R.W.3 is the junior paternal uncle of the petitioner also stated about the cruel behaviour of the petitioner, which goes to show that the petitioner himself deserted the respondent. The point that arises for consideration is whether the petitioner was able to establish that the respondent deserted the petitioner without any reasonable cause. The only ground that was taken in the O.P. by the husband was that the respondent left the company on the plea that he kept one Shyamala Devi as mistress and developed illicit intimacy with her and on that pretext only she left the company. No particulars have been given in the petition under Section 13(1)(ib) of the Act with regard to the date of leaving and the circumstances which led for the respondent to part with the company of the petitioner. The petitioner has not stated that the respondent left the company without his consent and against his wish and will. The evidence adduced on behalf of the petitioner is not clear. On the other hand, the evidence adduced on behalf of the respondent corroborating her evidence by examining the elder brother’s wife of the petitioner and the paternal uncle of the petitioner which goes to show that the petitioner himself was ill-treating, beating and cruel towards the respondent and he himself deserted the respondent without any reasonable cause and he never took any interest for the welfare of the respondent and her children. In fact, R.W.2 clearly stated that the petitioner used to beat the respondent causing bleeding injuries and the mother of the petitioner intervened and chastened him and advised him to change his attitude and take care of his wife and children and on that he grew wild and beat his own mother. It is also stated that the petitioner driven out his mother and she took shelter in the elder son’s house and she died there only. Having regard to the facts and circumstances of the case and in the light of the evidence available on record, we are of the view that the O.P. filed by the petitioner is only to get rid-off the respondent for getting a decree of divorce and to give legal status to the kept mistress Shyamala Devi. The court below rightly disbelieved the evidence adduced on behalf of the petitioner and rightly appreciated the evidence adduced on behalf of the respondent and dismissed the O.P. We are of the opinion that in fact no grounds have been made out in the petition filed by the petitioner, but the court below permitted to adduce evidence beyond the relief and the averments made in the O.P. We do not see any ground to interfere with the order under appeal. The appeal is liable to be dismissed and the same is accordingly dismissed with costs. _________________ V.ESWARAIAH, J. _________________ B.N.RAO NALLA, J. 27.4.2010 kpr [1] AIR 2009 SC 2254