HONOURABLE MR. JUSTICE B.PRAKASH RAO AND HONOURABLE MR. JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL NO.1578 OF 1998 JUDGMENT: (Per Hon’ble Sri Justice G.Bhavani Prasad) Aggrieved by the dismissal of H.O.P.No.13 of 1994 on the file of the Court of Subordinate Judge, Bobbili, by order dated 11/03/1997, the unsuccessful husband filed the present appeal. The factual background to the appeal is that the husband sought for dissolution of the marriage with the wife alleging that after the marriage on 26/06/1983 they lived together happily only till 13/08/1985, after which the respondent desired that the appellant should send away his mother and sister from the house and live separately and exclusively with her. As his mother was old and his sister was unmarried, the appellant refused the request of the respondent and then when the appellant was away, the respondent’s brother took away the respondent on 13/08/1985 from the appellant’s house. In spite of efforts through elders, telegrams and letters requesting to send back the respondent, the respondent’s brother or the respondent did not respond. Then the appellant filed O.P.No.150 of 1985 for restitution of conjugal rights and the same was dismissed after hearing in O.P.No.21 of 1987 after transfer to the Subordinate Judge’s Court at Bobbili. In the meanwhile, the respondent gave birth to a son Ravi Kumar and then the respondent filed M.C.No.20 of 1986 under Section 125 of the Code of Criminal Procedure in which monthly maintenance of Rs.250/- to the respondent and Rs.100/- to the son was awarded by the trial Court. Thereafter, the respondent’s brother filed C.C.No.88 of 1988 against the appellant and two others under Section 498-A IPC in which the trial Court convicted the appellant which was set aside in Crl.A.No.85 of 1991 by the Additional Sessions Judge, Vizianagaram. The appellate Court positively held that the complaint was filed only to harass the appellant and the respondent deserted the appellant for more than eight years without any reasonable or ostensible cause. Hence, the appellant sought for divorce. The respondent contested the request contending that her brother bore the marriage expenses and also deposited cash of Rs.10,000/- in the State Bank of India and gave gold ornaments and saare samanulu as per caste custom at the time of the marriage. The respondent alleged that the appellant was harassing her at the instance of his mother and sister and was beating her and was also demanding to withdraw the amount deposited from the bank. The appellant was not satisfied with the monies being given by the respondent’s brother and the ill- treatment continued. Under such circumstances, in view of the attempts of the appellant to cause abortion to the respondent, the respondent had to live with her brother. The appellant, in fact, brought another lady who was living with him and that woman gave birth to a female child and a male child. Hence, the respondent desired the petition to be dismissed. During the enquiry, before the trial Court, P.Ws.1 to 3 and R.Ws.1 to 3 were examined and Exs.A-1 to A-5 and Exs.B-1 to B- 5 were marked. The trial Court rendered the impugned order duly considering the oral and documentary evidence placed before it and found that the petition filed by the appellant for restitution of conjugal rights was dismissed in O.P.No.21 of 1987 and M.C.No.20 of 1986 was allowed by the Judicial Magistrate of First Class, Parvatipuram. The trial Court also found that the appellant was initially convicted for the offence punishable under Section 498-A IPC though he was acquitted by the Court of Session, against which the respondent preferred Crl.A.No.995 of 1993 before the High Court, but failed. The trial Court further found that the appellant had developed illicit intimacy with one Gouramma, who were living as husband and wife and also begetting two children during the course of their cohabitation. The trial Court further found that O.P.No.240 of 1994 filed by the appellant for the custody of his son from the respondent was also dismissed. All these conclusions of the trial Court are corroborated by the certified copies of the orders in the various proceedings filed and marked before it and the trial Court further found that the alleged readiness and willingness of the appellant to take back the respondent always was not probablised by the facts and circumstances on record. The trial Court also concluded that from the admitted facts though the parties are living separately, the respondent cannot be considered to be the cause for the same as the appellant himself was probablised to have sent away the respondent from the marital home after harassing her for more dowry. The trial Court also noted that the material on record showed that the concubine also appeared to have died somewhere in 1992 and by openly keeping the concubine, it was the husband who was guilty of cruelty and not the wife. She also cannot be accused of desertion under those circumstances. The trial Court further concluded that the appellant did not prove that he made any attempts to get back the respondent to the matrimonial home and as it cannot be said that the respondent left the matrimonial home without any reasonable cause, the petition was considered liable to be dismissed and accordingly the trial Court dismissed the petition without costs. Learned counsel for both sides are heard at length. The only point for consideration is whether the appellant was successful in establishing any valid ground for grant of divorce in his favour. While it is needless to replicate the entire oral and documentary evidence on record in considering the appeal, the trial Court had in fact extracted all the material portions of such evidence relevant for consideration and determination in the impugned order. The very fact that the attempt by the appellant to have restitution of conjugal rights failed on merits and that order had become final itself is a pointer to the justification for the respondent to live separately from the appellant. The further fact that the respondent and her minor son were awarded maintenance by the Magistrate under Section 125 of the Code of Criminal Procedure on merits and that order also had become final is a further pointer to the probability of the justification for the respondent to live separately from the husband, as otherwise, the learned Magistrate could not have granted such maintenance to the wife, even if he could have granted maintenance to the minor son irrespective of the causes for separation of the parents. The further fact that the appellant was found guilty of the offence punishable under Section 498-A IPC by the trial Court also strengthens the probability of the causes for separation being with the husband himself, though he was acquitted in appeal, which may be because the standard of proof required for establishing the offence in criminal case is too wide and such proof has to be beyond reasonable doubt. But while deciding this civil case in which only preponderance of probabilities is the guiding factor, the failure of the appellant in all the judicial proceedings is undoubtedly a factor adverse to accept his claims about the respondent herself deserting him. If the respondent had been as cantankerous as the appellant stated, she probably would not have lived in the joint family along with mother-in-law and sister-in-law for two years after the marriage and she would not destroy her marital home without any ostensible and reasonable cause, more so, after she became pregnant, in the ordinary and natural course of human events. The alleged conduct of the appellant in having developed illicit intimacy with another lady, living with her and having two children through her is also probablised by the evidence on record and that itself amounts to cruelty to the respondent which entitles her to live separately from the husband as a matter of right. Any desertion of the husband was not probablised by the evidence on record while the contrary appears more probable from the material placed before this Court. Hence, the trial Court cannot be considered unjustified in coming to its decision. Consequently, the Civil Miscellaneous Appeal fails and is accordingly dismissed. No costs. _________________ B.PRAKASH RAO, J ____________________ G.BHAVANI PRASAD, J Date: 21-10-2009 SKM