THE HONOURABLE SRI JUSTICE N.V. RAMANA AND THE HONOURABLE SRI JUSTICE P. DURGA PRASAD CIVIL MISCELLANEOUS APPEAL No. 1967 of 2001 JUDGMENT: (Per NVR, J) This civil miscellaneous appeal is directed against the judgment dated 31.01.2000 passed by the Family Court, Vijayawada, Krishna District, dismissing the petition in O.P. No. 98 of 1998 filed by the appellant for dissolution of his marriage with the respondent on the grounds of cruelty and desertion. Brief facts are that the appellant is the husband while the respondent is the wife. They got married on 10.05.1986 as per Hindu rites and customs at Kondapalli. Out of the wedlock, they were blessed with a son. The appellant and the respondent lived at Vizag till 1990. Thereafter, they have resided at Kondapalli for some time and at that point of time, it appears that the respondent filed a criminal case against the appellant for the offence punishable under Section 498-A I.P.C. and then the appellant filed O.P. No. 352 of 1992 on the file of II Additional Senior Civil Judge, Vijayawada, for dissolution of his marriage with the respondent. During the pendency of the said proceedings, it appears mediation took place, which resulted in both the respondent and the appellant withdrawing their respective cases filed against each other. Thereafter, the appellant and the respondent lived at Hyderabad for sometime and thereafter at Machilipatnam till 1997. According to the appellant, during their stay at the said places, the respondent disrespected him and his parents and treated them with cruelty; that at the instance of the respondent, he was forced to resign his job in Eenadu at Vizag and come down to Kondapalli to look after her father’s business; that he invested Rs.75,000/- in her father’s business, and when he demanded for return of that money, the respondent filed criminal case; that she has also got done abortion without informing him, and thereby caused mental agony to him, and ultimately she left his company in the year 1997 along with the child. The appellant, therefore, sought dissolution of his marriage with the respondent, on the grounds of cruelty and desertion. The respondent- wife resisted the claim of the appellant-husband for divorce and denied the allegations made by the appellant-husband. The Court below, having considered the stand of the parties and the oral and documentary evidence adduced by them, dismissed the O.P. filed by the appellant, by the judgment under appeal, while allowing the M.C. filed by the respondent for maintenance. We have heard the counsel for the appellant and perused the judgment under appeal. In spite of admission of the appeal and service of notice, none appeared for the respondent. Though the appellant contended that at the instance of the respondent, he was forced to resign his job in Eenadu at Vizag and come down to Kondapalli, where her father was residing, and that he had invested Rs.75,000/- in her father’s business and that when he insisted return of the money invested by him, the respondent filed criminal case, the fact remains, it is the specific case of the respondent that her father suffered heart problem, and that they came to see his father, and owing to the ill-health of her father, the appellant decided to shift to Kondapalli and look after her father’s business, that the appellant mismanaged the business affairs, and that after recovery from his illness when her father questioned the appellant about the mismanagement, the appellant grew wild and started harassing the respondent mentally and physically. Unable to bear the harassment, she was forced to file criminal case against the appellant for the offence punishable under Section 498-A IPC, and as a counter-blast, the appellant filed O.P. No. 359 of 1992 for dissolution of his marriage with her. Be that as it may, though the appellant contended that he had invested Rs.75,000/- in the business of the father of the respondent, and that when he insisted return of the said amount, the respondent filed criminal case, the fact remains, the Court below upon appreciation of the evidence held that the appellant, except adducing oral evidence, did not produce any material to show that he has invested Rs.75,000/- in the business of the father of the respondent and that he has been inducted as a partner in the business. In the absence of any material evidence produced by the appellant, the Court below disbelieved the stand taken by the appellant that he had invested Rs.75,000/- in the business, and that when he asked return of the said amount, the respondent filed criminal case against him. The Court below further held that if really the appellant had come down to Kondapalli at the instance of the respondent, the respondent would not have filed criminal case against him. At any rate, since both the appellant and the respondent withdrew the cases filed by them against each other earlier, and subsequently lived at Hyderabad and Machilipatnam for more than three years, the Court below refused to take into account the conduct of the respondent in filing criminal case against the appellant to hold that the appellant was treated by the respondent with cruelty. Though the appellant contended that the respondent, without informing him, has got abortion done, and that the same amounted to cruelty, the Court below considering the fact that the respondent filed M.C. seeking maintenance for herself and her minor son, held that when the appellant was not maintaining them, how can she expect to maintain the second son. The Court below, considering the recitals in the letter dated 22.02.1997- Ex.B5, said to have been addressed by the appellant to the respondent, further held that the appellant did not raise any objection to the respondent getting the abortion done. The fact that the respondent got pregnant while staying at Hyderabad itself showed that the appellant and the respondent led conjugal life, and as such, the stand taken by the appellant that the respondent was not co- operating for conjugal life with him, cannot be accepted. The appellant though pleaded that he was the only son to his parents and that his presence is required with them, but in cross- examination, he admitted that he got two brothers and one elder sister and that he never lived with his parents. The appellant though pleaded that the respondent insulted him and his parents, but in his cross-examination, he admitted that he did not issue any notice to the respondent. Hence, the Court below refused to believe the stand taken by the appellant that the respondent insulted him and his parents. So far as desertion is concerned, according to the stand taken by the appellant, the respondent left his company along with the child on 18.01.1997. However, the Court below found that the appellant did not issue any notice to the respondent calling upon her to join him. On the other hand, he issued notice under Ex.A3 on 08.03.1997, seeking divorce and requested the respondent to make joint application along with him for divorce. Considering this, the Court below felt that the appellant was bent upon taking divorce from the respondent, and that there was no desertion on the part of the respondent, for a period of two years preceding the filing of the petition by the appellant, for grant of divorce on the ground of desertion. The findings arrived at by the Court below, as noticed above, being based on proper appreciation of the evidence on record, we find no reason whatsoever to interfere with them in this civil miscellaneous appeal. The civil miscellaneous appeal is devoid of merit and the same is accordingly dismissed. No costs. __________________ JUSTICE N.V. RAMANA _______________________ JUSTICE P. DURGA PRASAD 19th December, 2011 IBL