THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL Nos.1620 and 106 of 2002 28th October 2009 1. C.M.A.NO.1620 OF 2002 Between: Smt.Mudimadugu Prabhavathi. …APPELLANT AND Mudimadugu Narasimhulu …RESPONDENT 2. C.M.A.NO.106 OF 2002 Between: Mudimadugu Narasimhulu …APPELLANT AND Smt.Mudimadugu Prabhavathi. …RESPONDENT THE HON'BLE SRI JUSTICE B.PRAKASH RAO And THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL Nos.1620 and 106 of 2002 COMMON JUDGMENT: (Per the Hon’ble Sri Justice G.Bhavani Prasad) The judgment in O.P.No.91 of 1998 on the file of the Senior Civil Judge, Madanapalle, Chittoor District, dated 31.01.2001 directing judicial separation between the couple led both the husband and wife to file these two appeals. The factual background of the appeals is that the marriage between the parties took place on 26.05.1973 at Madanapalle and though the marriage was consummated, the couple had no children. The wife filed the petition for divorce on the ground of desertion as well as addiction of her husband to vices like gambling, alcoholism and debauchery. The wife complained that the husband attempted on many occasions to kill her by lighting the gas stove and about three years prior to the petition, he came home in a heavily drunken state and beat her severely and throttled her neck. The wife claimed that she narrowly escaped being killed due to the intervention of the neighbours and that the husband was compelling her to transfer her properties in his name. The husband claimed that three months after the marriage, he took his wife to Pune, where he was working and lived there for about four months in the Military quarters. The wife returned to her parents’ house thereafter and was residing there, as he was on duty in Assam for about three years. The husband denied that he ill-treated or deserted his wife and contended that he was living with his wife in the house constructed by him at Sivajinagar, Madanapalle, after his retirement since 1991. He also claimed that he purchased a house site in the name of the petitioner and constructed the house in question in 1983 by spending more than Rs.2,00,000/-. He also claimed to have purchased another house site in the name of the petitioner in 1991, apart from two kuntas house site at Nakkaladinne in 1992. The wife made uncharitable allegations against him in spite of purchasing house sites and constructing houses in her name out of love and affection and he never even entertained the idea of marrying again, though they had no children. In fact, they were bringing up the daughter of the wife’s sister and it was the wife, who was picking up unnecessary quarrels and was trying to knock away the properties purchased in her name worth Rs.12,00,000/-. On such pleadings, the trial Court framed issues about the entitlement of the wife to the decree of divorce and examined P.Ws.1 to 3 and R.Ws.1 to 6 during the enquiry, while marking Exs.A1 to A3, Exs.B1 to B3 and Exs.X1 to X7 (a). The trial Court rendered the impugned judgment noting that the allegation of desertion was admitted to be not established by the evidence on record and therefore, the trial Court concluded that the wife is not entitled to divorce on the ground of desertion as the husband and wife were visiting each other and lived together during the relevant period. The trial Court, however, referred to the evidence of the wife as P.W.1, the close relation of the wife as P.W.2 and the Civil Assistant Surgeon, Government Hospital, Madanapalle, as P.W.3. The allegations of the wife about the cruelty meted out to her in the hands of the husband were found to have been corroborated by the independent evidence of the doctor, who certified about finding six {6} injuries on the person of the wife on 22.06.1998 for which Exs.A1 and A2 are the wound certificates. The trial Court referred to the evidence of the husband as R.W.1, who was attempted to be supported by R.Ws.2 to 6 and noted that R.W.2 is the senior paternal uncle of R.W.1. The trial Court also noted that R.W.2 admitted about the complaints given by the wife against her husband to the police and also about the existence of the differences between the couple since eight or nine years. The trial Court further noted that the evidence of R.W.3 was contrary to the evidence of R.W.2 concerning the husband and wife living together or ownership of the house in which they were living. The trial Court also observed that the evidence of R.W.4, through whom Exs.X1 to X4 were marked, was no way helpful in determining the questions in issue and the trial Court also referred to the admission by R.W.5 that he knew about the complaint given by the wife against the husband to the police. The evidence of the Deputy Tahsildar as R.W.6 and Exs.X5 to X7 marked through him were also considered not helpful as the said evidence was only with reference to the residential house in which the couple were living. The trial Court, hence, concluded that R.Ws.1 to 6 disclosed the existence of differences between the couple for about 8 or 9 years and the very averments in the written statement of the husband show that there were serious disputes with regard to the properties. The trial Court also noted that the beating of the wife by the husband proved by P.W.3 and Exs.A1 and A2 established cruelty on the part of the husband. Still the trial Court held that instead of granting decree of divorce to them, it would be expedient to grant a decree of judicial separation and the couple may live together in future. Consequently, the trial Court granted a decree of judicial separation while directing the parties to bear their own costs. The wife and the husband, in their respective appeals, questioned the conclusions of the trial Court on fact and also the propriety of exercising judicial discretion in favour of granting a decree for judicial separation. Sri R.Ramakrishna Reddy, learned counsel appearing on behalf of the wife and Sri D.Kodandarami Reddy, learned counsel appearing on behalf of the husband, are heard at length. The point for consideration in these appeals is as to whether the wife is entitled to a decree of divorce on the proved facts. The trial Court in its judgment had rightly referred to the decision reported in Chiranjeevi v. Lavanya[1] but considered the same to persuade the trial Court to grant a decree for judicial separation only. The Division Bench, in fact, granted a decree of divorce in the said case on the facts proved by the parties. In that case also desertion was not established but cruelty was established on the part of the husband and the Division Bench referred to the earlier precedents wherein, it was held that the Court would draw inferences and decide on the basis of preponderance of probabilities having regard to the nature of the conduct of the other spouse and its impact on the complaining spouse in the context of their standard of life. The Division Bench also noted that it is not necessary to prove that the cruelty was of such a nature as to cause injury to the health of the petitioner and it is suffice to be proved accordingly that the parties cannot reasonably be expected to live together. The Division Bench, therefore, noted that when whatever love and affection existed between the couple was lost due to the misunderstandings and even if there was re-union, there was no guarantee that the couple would live together, it would be proper to grant separation than to compel them to join together. It is in that context that the earlier observations of one of the learned Judges in another case were extracted by the Division Bench and the petition filed by the husband was ordered on those facts. The Apex Court had in fact dealt with this question in Mayadevi v. Jagdish Prasad[2], wherein it was pointed out that cruelty need not be physical and in delicate human relationship like matrimony, one has to see the probabilities of the case. The Apex Court pointed out that legal cruelty has to be found out not merely as a matter of fact but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Even if there is no direct evidence, the Court shall be required to probe into the mental process and act upon the same. The evidence in matrimonial disputes was directed to be considered in that light. The Court dealing with the petition for divorce was advised to keep in mind the problems of human behaviour and human minds and weigh the gravity of the allegations of the aggrieved spouse. Mere troubles that happen in day-to-day life may not amount to cruelty. The Apex Court in the case before it found that the instances of cruelty proved in that case clearly established that the husband was subjected to mental and physical cruelty and therefore, found the decree to be based on a sound foundation. Keeping these principles in view, the facts proved before the trial Court justified the relief requested for by the wife. The matrimonial disputes were proved to be existing since about 8 to 9 years prior to even the petition for divorce and even after the petition for divorce in 1998 and after grant of judicial separation by the Court below, the couple never lived together again nor there is any attempt by either of the parties to have the matrimonial life restored. The analysis of the evidence by the trial Court clearly shows that the evidence of R.Ws.1 to 6 itself proves the existence of serious disputes between the couple since about a decade prior to the petition and the complaints by the wife against the husband were admitted by different witnesses examined on behalf of the husband. The independent evidence of the witnesses coupled with Exs.A1 and A2 proved the beating by the husband and the injuries found on 22.06.1998 might be one of such instances where the seriousness of the injuries made the wife approach the doctor for treatment. If the wife was physically assaulted as one of the instances had clearly proved and if her allegation about the husband attempting to do away with her life on a number of occasions thus, stood probablised, there is no purpose in compelling the couple to continue to maintain the marital tie. In view of the proof of cruelty as found by the trial Court and in view of there being no reasons to continue the matrimonial bond, the request of the wife should necessarily be granted, as the conduct of the husband was what it was, before or after granting judicial separation. Consequently, while agreeing with the conclusions of the trial Court otherwise, the relief has to be granted to the wife as pleaded by way of allowing the petition. In the result, the judgment and the decree in O.P.No.91 of 1998 dated 31.01.2001 on the file of the Senior Civil judge, Madanapalle, are set aside to the extent of the relief of judicial separation granted without costs and the said original petition is allowed without costs. Accordingly, C.M.A.No.1620 of 2002 is allowed and C.M.A.No.106 of 2002 is dismissed without costs. _________________ (B.PRAKASH RAO, J) ___________________ (G.BHAVANI PRASAD, J) 28th October 2009 RRB [1] 1999 (2) ALT 493 (D.B.) [2] 2007 (5) ALT 21 (SC)