IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY THE TWENTY NINTH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON’BLE MR JUSTICE B.CHANDRA KUMAR F.C.A.No.148 of 2009 Between: Pandi Rajeswari and another ..... PETITIONERS AND Pandi Vara Prasada Rao .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR F.C.A.No.148 of 2009 JUDGMENT: (per Hon’ble Sri Justice V.Eswaraiah) The 1st appellant is the mother of the 2nd appellant. The respondent is the husband of the 1st appellant, and father of the 2nd appellant. The respondent herein filed F.C.O.P.No.259/2008 on the file of the Judge, Family Court, Nellore seeking dissolution of marriage between him and his wife dated 25.05.1995 by passing a decree of divorce, and to handover his son, the 2nd respondent in the said O.P. to his custody. The said O.P. was allowed by order dated 04.02.2009, against which, the respondents therein i.e. wife and the minor son filed this appeal. 2. While admitting the appeal, the order of the Court below was suspended, by order dated 17.06.2009. To vacate the said order, the respondent/husband filed a vacate application. This Court by order dated 14.02.2011, directed both the parties to appear before this Court on 07.03.2011. On 07.03.2011 the respondent/husband alone was appeared, but the 1st appellant/wife did not appear, and her counsel sought time, and accordingly, this Court directed to list the matter on 06.04.2011 for their appearance and for orders. On 06.04.2011 the 1st appellant/wife did not appear and her counsel was also not willing to argue the matter, and therefore, this Court directed to list the matter “for dismissal” on 11.04.2011. On 11.04.2011 the respondent/husband appeared, but the 1st appellant/wife did not appear. In fact, the respondent/husband reported that he is ready and willing to take back his wife. Accordingly, the matter was adjourned again for the appearance of 1st appellant/wife to 18.04.2011. On 18.04.2011, the 1st appellant/wife did not appear and accordingly, the matter was adjourned finally to 13.06.2011 for final hearing. On 13.06.2011 this Court while making an order, prima facie, opined that the 1st appellant/wife is not interested in prosecuting the appeal, and in fact, from the perusal of the record, it is evident that the husband was willing to take her back to his conjugal fold, but she was not inclined to join, and accordingly, the matter was finally adjourned to 20.06.2011 for her appearance, while indicating that the appeal would be heard and disposed of on merits without giving any adjournments. On 20.06.2011 the 1st appellant/wife did not appear. 3. Heard both the counsel. The parties are hereinafter referred to as they are arrayed before the Court below. The respondent is hereinafter referred to as ‘petitioner’, and the 1st appellant is hereinafter referred to as ‘1st respondent’. 4. It is the case of the petitioner that his marriage with the 1st respondent was solemnized on 25.05.1995 at Nellore, as per their caste customs and usage under Hindu law, and both of them lived together for some time at Nellore and some time at Koyyur of Visakhapatnam District. While he was residing at Koyyuru, as it is tribal area, the respondent used to dislike living with him and insisting upon the petitioner to shift the family to Nellore, which is the native place of her parental house. It is stated that the petitioner is working in AWARE in a non-governmental organization and his job is to serve the people in tribal area. As the respondent disliked living with him, while she was conceived 5th month pregnancy, she left for her parents’ house and gave delivery to the 2nd respondent/son on 19.01.1997. Thereafter, she did not return to the matrimonial home along with the 2nd respondent/son in spite of repeated attempts by the petitioner to secure her company and in spite of making efforts through the mediators. All his attempts have become futile. The 1st respondent has voluntarily and willfully deserted and withdrawn from the company of the petitioner for no reasons from September 1996 onwards and chosen to stay in her parents’ house with the 2nd respondent/son. The petitioner deprived the company of the 1st respondent for about one decade. As the mediation was also failed, he got issued a legal notice to the 1st respondent on 04.05.2000, calling upon her to join the matrimonial home of the petitioner along with 2nd respondent/son, but she did not comply with the said lawful demand, but chosen to give reply with false and baseless allegations on 25.05.2000, expressing her desire to join the petitioner at Nellore, but she did not join. It is stated that in fact, the 1st respondent has chosen to file a false complaint under Sec.498-A IPC and Secs.3 and 4 of Dowry Prohibition Act and got him and his family members arrested, and ultimately the said criminal case in CC.874/2002 on the file of the II Addl.Judicial Magistrate of First Class, Nellore was ended in acquittal, by judgment dated 25.07.2006. It is further stated that in fact, the 1st respondent and her father gave evidence in the said criminal case, falsely stating that the petitioner was living in adultery with one Nookalamma, fully knowing that the said allegation was false. 5. It is stated that in so far as the custody of the 2nd respondent/son is concerned, the 1st respondent is not allowing him to meet the 2nd respondent/son. The petitioner wants to provide excellent education to his son to the extent possible and provide him a good and decent living and create a good environment for the well being of his son. It is stated that the father of the 1st respondent is an alcoholic addict and he is not in a position to give proper advice to his daughter to lead happy marital life with the petitioner, and in fact, the 1st respondent’s father is instrumental in breaking down the marriage. It is further stated that in fact, the 1st respondent also filed a suit in O.S.412/2007 on the file of the 1st Senior Civil Judge, Nellore along with the 2nd respondent/son seeking maintenance. Thus, it is stated that as the 1st respondent deserted the petitioner, he suffered mental and physical agony and suffered great loss in the eye of the society and suffered loss of conjugal rights, and therefore, he filed the said petition for divorce on the ground of desertion and cruelty. 6. The 1st respondent/wife filed counter admitting the marriage. She disputed the allegations of cruelty and desertion on her part, and denied the other averments made with regard to the 2nd respondent seeking custody and for his well being. The factum of filing of maintenance case in O.S.412/2007 on the file of the 1st Senior Civil Judge, Nellore and also filing of criminal case is also admitted. The allegation that she deserted the petitioner and treated him with cruelty is denied. It is stated that while the petitioner was working in a non- governmental organization, she was blessed with a male child at Nellore, and her parents only looked after her welfare and child, but the petitioner and her parents never looked after her and her child, and the petitioner never bothered to take back both of them to his house. It is further stated that the petitioner used to say that the dowry of Rs.1,00,000/- paid to them is only meager. The petitioner himself has tried to get rid of her pregnancy and all his attempts to get her aborted failed. Though the petitioner was informed about the birth of the 2nd respondent/son, he never turned up and he never cared and bothered to look after herself and her son. The petitioner never attempted to take back the respondent to his matrimonial home. Therefore, the petitioner is not entitled to seek divorce throwing the blame on the 1st respondent. 7. The petitioner was examined himself as PW 1 by filing chief affidavit and marked Ex.A1 marriage photograph, Ex.A2 office copy of the legal notice, Ex.A3 reply notice and Ex.A4 copy of the judgment in CC.874/2002. In the cross-examination, the petitioner stated that while he was working at Koyyur village, the 1st respondent became pregnant and for medical treatment, she came to Nellore. He never harassed her either for additional dowry or subjected her to cruelty. The 1st respondent gave birth to the 2nd respondent at Nellore. He denied the suggestion that his parents did not take care of the welfare of the 1st respondent while she was pregnant, and even after gave birth to the 2nd respondent. It is stated that he never deserted her. The 1st respondent left his company and she was not willing to lead the marital life with him. No doubt, no petition for restitution of conjugal rights was filed by either of the parties. It is the case of the petitioner that he is having sufficient means to look after the 1st respondent and he never deserted her. On the other hand, the 1st respondent deserted him, and he is having love and affection towards respondents. 8. The 1st respondent filed affidavit in chief, stating that the petitioner only deserted her and he never came to her parents’ house to take her back to his matrimonial home. She has reiterated the averments made in the counter, stating that the petitioner only deserted them. But in the cross examination, when she was asked as to whether she is interested to join the petitioner, she bluntly refused to join him. 9. In fact, PW 2, the elderly person stated that he knew both the parties and he requested the 1st respondent and her parents to send the respondents to the house of the petitioner at Koyyur, but the family members of the 1st respondent did not care and insisted the petitioner to come back to Nellore and reside there only. Therefore, Ex.A2 legal notice was issued, for which, Ex.A3 reply was given. For the first time, in the reply notice, the 1st respondent alleged that the petitioner demanded her to bring additional dowry and that he himself voluntarily deserted her. There was no any prior correspondence or communication with regard to desertion and other averments made in the reply notice and the counter. 10. It is not in dispute that the 1st respondent filed a criminal case against the petitioner and his parents and got them arrested making certain allegations. The said criminal case was ended in acquittal. It is stated that the averments made in the report which lead to filing of the charge sheet in CC.874/2002 for the offence under Sec.498-A IPC and Secs.3 and 4 of Dowry Prohibition Act are without any basis, and from 1996 onwards the 1st respondent did not choose to join the petitioner. Not only the wife got the petitioner and his father arrested in the said criminal case, which was ended in acquittal, but also filed a suit for maintenance. In fact, the 1st respondent, in her cross examination, stated that she is not prepared to join the petitioner till four years, even though the husband is interested to take her back to his conjugal fold. Thus, it is the case of the petitioner that his wife alone separated and deserted him. She is not inclined to resume the conjugal rights and she herself deprived the conjugal rights of the petitioner. The Court below held that as the said desertion of the 1st respondent amounts to cruelty and the contention of the respondents throwing the blame on the petitioner was not established. As the wife did not file any other documents and examine any other witnesses, except examining herself, the allegation about the additional dowry and harassment are not at all been established. In view of the undisputed fact that the 1st respondent is not prepared to join the petitioner, as admitted in her cross examination and bluntly refused to join him, the 1st respondent is guilty of desertion, as well as cruelty. 11. In spite of our best efforts to mediate and conciliate the matter, the 1st respondent did not appear before this Court, and therefore, the attitude and conduct on the part of the 1st respondent appears that she is not interested to join the petitioner to lead conjugal life with him. It is not the case of the 1st respondent that she was necked out or deserted by the petitioner. Admittedly, the 1st respondent went to Nellore for delivery and thereafter, she never turned back to join the company of her husband. 12. To establish the averments made by the petitioner that the 1st respondent alone deserted him without any reasonable cause and without the consent of the petitioner and against the wish of the petitioner, and that the 1st respondent willfully neglected the petitioner and declined to join the conjugal fold of the petitioner, he got issued Ex.A2 legal notice and also examined PW 2, an independent person, who is said to have been the mediator and who requested the 1st respondent to join the company of the petitioner. Though the 1st respondent filed criminal case against the petitioner and his family members and got them arrested, the petitioner is still interested in his wife and is ready and willing to take back her to his matrimonial home. But the 1st respondent, when a question was put in her cross examination as to whether she is interested to join the petitioner, stated that she is not prepared to join the petitioner. Except examining herself as RW 1, she did not adduce any oral or documentary evidence on her behalf to prove her contentions that the petitioner himself deserted her. Therefore, we have no hesitation to hold that the 1st respondent alone not only deserted the petitioner, but also resorted to file false criminal case against the petitioner and his family members and got them arrested, which ultimately resulted in acquittal. We are of the view that the said conduct and acts of the 1st respondent would come under purview of ‘cruelty’. The Court below has rightly granted divorce on the grounds of desertion and cruelty on the part of 1st respondent. We do not see any grounds or infirmities, legal or otherwise, to interfere with the impugned order. The appeal is accordingly dismissed. No order as to costs. ___________________ V.ESWARAIAH,J ___________________________ B.CHANDRA KUMAR,J Dated: 29.06.2011 Dsr