THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL NO.4662 OF 2003 JUDGMENT: (Per the Hon’ble Sri Justice G.V.Seethapathy) This appeal is directed against the order dated 30.09.2003 in O.P.No.262 of 1999 on the file of the Family Court, Visakhapatnam, wherein the said application filed by the appellant herein seeking dissolution of marriage by and divorce was dismissed. Heard the learned counsel for the appellant. None appears for the respondent. Perused the records. The appellant filed O.P.No.262 of 1999 seeking divorce on the grounds of dissolution and cruelty. The marriage of the appellant with the respondent took place on 05.11.1989 at Visakhapatnam, as per Hindu rites and customs. A female child was born through the wedlock on 23.12.1990. On the date of filing, the child was aged about 17 years. It is stated that she is now a major. The appellant alleges that in January 1995, the respondent withdrew from the conjugal society of the appellant without any justifiable cause and left to her parents’ house. He would further allege that in spite of making several attempts and efforts to bring her back, the same proved futile. Subsequently, the respondent joined the appellant and again in June 1995 she left the house of the appellant leaving the child with the appellant. The appellant also alleges that the respondent has no justifiable reason to stay away from the matrimonial home and she deserted him for no valid cause. The respondent filed counter opposing the application and contending that the appellant was the person who deserted her and also subjected her to physical and mental cruelty. She further alleges that as per the advice of the parents and other family members, she joined the appellant but the appellant continued his cruelty towards her and unable to bear with the same, she got mentally depressed. She would further contend that in spite of ill treatment and harassment meted out to her, she continued the marital tie with the appellant with a fond hope that he would change some day. She further alleges that with great difficulty, she was able to cope along with him till June 1995 and thereafter; she was forced to leave the matrimonial home, unable to bear the harassment and cruelty. The pleadings also disclose that the wife gave a complaint to the police alleging the offence punishable under Section 498-A of the Indian Penal Code, 1860, against the appellant-husband, but the same was referred by the police as ‘Mistake of Fact’. The pleadings also disclose that the husband filed O.P.No.660 of 1995 for restoration of conjugal rights and after full- fledged trial, the same was allowed on 30.07.1997 and he filed E.P.No.29 of 1997 to execute the decree. The wife has preferred an appeal against the decree for restoration of conjugal rights and she contends that she was prepared to lead marital life with the petitioner for the sake of her daughter and for social status. She, therefore, pleaded for dismissal of application for grant of divorce. The husband also filed an application for custody of the minor child in G.O.P.No.464 of 1998 and the same was also resisted by the wife. Both the petitions were tried together. During the enquiry, P.Ws.1 to 4 were examined on behalf of the husband and Exs.A1 to A37 were marked. R.Ws.1 to 6 were examined on behalf of the wife and Exs.B1 to B8 were marked. On a consideration of the evidence available on record, the learned Judge of the Family Court dismissed O.P.No.262 of 1999 filed for grant of divorce and also G.O.P.No.464 of 1998 filed for custody of child. Aggrieved by the same, the accused filed C.M.A.Nos.4661 and 4662 of 2003. C.M.A.No.4661 of 2003 is dismissed, as the matter has become infructuous, since the child has attained the age of majority. The present appeal C.M.A.No.4662 of 2003 is confined only to the question as to whether the impugned order of the learned Judge, Family Court, refusing to grant divorce, is liable to be interfered with. The only ground on which the husband sought decree of divorce is that the respondent-wife deserted him without any valid or justifiable cause. It is not disputed that the marriage of the appellant and the respondent took place on 05.11.1989 and a child was also born to them on 23.12.1990 through the wedlock and they lived together till January 1995. The evidence on record, particularly, the testimony of the wife, who was examined as R.W.1 and the daughter, who was examined as R.W.3, disclosed that the husband subjected the wife to continuous mental and physical harassment resulting in the wife occasionally getting into depressive mood. The evidence of R.Ws.1 and 3 and also the facts and circumstances establish that the wife and the husband were having common keys for the house and they were locking off the door or opening the same as per their requirement and convenience with the key each of them was having and on 16.11.1997, the husband, with an ulterior motive, has changed the lock of the house and the wife and the child could not enter the house because of change of the lock and they had to spend all the night underneath the stair case and on the next morning, the wife, having no alternative, had to go to her parents’ house along with the child. The evidence of the neighbours also corroborated the version of the wife and the child regarding the above incident. It is, therefore, not a case of the wife wantonly abandoning matrimonial home and going away to her parents’ house on her own, but it is a case where she was virtually driven out of the house and having no other go, she had to return to her parents’ house for taking shelter. As rightly observed by the learned Judge, Family Court, the acts of physical and mental cruelty perpetrated by the husband on the wife might have resulted in occasional depression but the same does not afford a valid ground for divorce. The evidence on record clearly establishes that it is only the appellant-husband, who has continuously subjected the wife to physical and mental cruelty and he did not even bother to take the child to a medical expert when she was suffering from severe ailment, in spite of repeated requests by the wife. The appellant-husband, therefore, failed to establish that the wife has left his company and reached her parents’ house without any valid or justifiable reason. On the other hand, the evidence on record establishes that having no other option and unable to bear the physical and mental harassment from the appellant any more, the wife along with her child had to leave the matrimonial home and take shelter in parents’ house. In fact, she was virtually driven out of the house by the appellant- husband himself by locking the door and changing the lock, so as to prevent his wife from entering into the house, which resulted in her spending the whole night along with the child outside underneath the staircase. Such conduct of the husband certainly amounts to cruelty and the wife cannot be found fault with for leaving the company of such husband. Under those circumstances, it is obvious that in order to cover up his own latches, the husband has come forward with the present application seeking grant of divorce alleging as if the wife left the matrimonial home and deserted him without any reason. Under those circumstances, it is held that the impugned order of the learned Judge, Family Court, refusing to grant divorce and consequentially dismissing the application filed by the husband, does not call for any interference. In the result, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _________________ (B.PRAKASH RAO, J) ___________________ (G.V.SEETHAPATHY, J) 11th February 2009 RRB