IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT HON'BLE MR JUSTICE B. PRAKASH RAO AND HON’BLE MR JUSTICE G. BHAVANI PRASAD C.M.A. NO. 3217 OF 2000 Between: Mallipudi Nehru Naidu S/o Somaraju ..... APPELLANT AND Mallipudi Varalakshmi W/o M. Nehru Naidu .....RESPONDENT JUDGMENT : (per Sri Justice G. BHAVANI PRASAD) Aggrieved by the order dated 16.6.2000 passed in H.M.O.P.No. 53 of 1997 on the file of Senior Civil Judge, Narsapur, West Godavari District, the unsuccessful husband filed the present appeal. The husband alleged in his petition for dissolution of marriage with the respondent-wife that their marriage was solemnized on 3.3.1991 and they begot a daughter and a son through the marriage. But since the date of the marriage, the wife was short tempered and was using indecent and abusive language in her interactions with the husband. The husband further alleged about an incident that happened during Ugadi festival immediately after marriage and also about some clandestine letters received by her and her tearing them away. He further alleged about the refusal of the wife to have conjugal relationship with him due to his being physically handicapped. The husband further stated about the refusal of the wife and her father and brother to send his wife with him after the delivery of a child. He claimed that it was only on 9.5.1992 she came to the house at Laxmaneswaram. He further stated that the wife behaved rudely and indecently towards him when his daughter was admitted in Janaki Nursing Home at Narsapur, for treatment. He specified an incident that happened on 12.8.1992 when suddenly the wife ran away leaving the child in the hospital after abusing him and had thrown him out when he tried to stop her. He claimed to have got a mediation held through elders on which the wife returned to him very reluctantly. After he got a job in the Social Welfare Department as a Typist at Hyderabad and he joined duty on 5.11.1992 and the wife joined him in a rented house, she started the same ill treatment. The husband referred to an incident, which happened in January 1993 during which he was abused and refused to be given food and even subsequently it was alleged that the wife was insisting on the husband giving up his job and returning to the native place of the parties; and that on 15.2.1993 the wife refused to accompany him to Hyderabad by train and several letters addressed by the husband were not responded. On 26.3.1993, the husband ultimately got a notice issued, seeking divorce with consent due to the cruel behaviour of his wife, for which a false reply was given and counter allegations were made in the reply. When the husband filed HMOP No. 205 of 1993 before the II Additional Judge, City Civil Court, Hyderabad, the wife appeared through a counsel and on the intervention of the brother of the wife and another elder on 24.11.1993, the petitioner-husband withdrew HMOP No. 205 of 1993 in the interest of children after the wife executed an affidavit dated 7.12.1993 admitting her earlier mistakes and promising not to repeat the same. But even thereafter, the behaviour of the wife did not change and on 17.2.1994 on the birth day of their daughter, the wife again refused to accompany her husband to his brother’s house and when the husband and the daughter went and came back, she closed the doors from inside and did not allow him for more than three hours, and when the doors were opened with force, the wife pretended to be sick for which she was shifted to Osmania Hospital at mid night and there she did not wake up till a swab with spirit was put at her nose and when asked she replied that she was sleeping comfortably. It is stated that the house owners who experienced the cruel nature of the respondent- wife demanded the husband to vacate the premises forthwith. Hence, he changed his house and shifted to another house and again all the neighbours there also were vexed with the rude behaviour of the wife. The neighbours raised a dispute on 28.4.1984 and the husband was not even allowed in to the house and had to sleep on the steps. On 25.9.1994 another incident was alleged to have happened, and the husband also alleged that the wife suddenly disappeared from the house for quite some time without stating as to where she had gone. Earlier in the day when the husband requested the wife to serve food she replied that she did not cook. The husband alleged that thereafter suddenly he received a demand draft for Rs. 20,000/- drawn in favour of State Bank of Hyderabad, Palakol, without specifying the name of the sender and he kept the amount in deposit on the advice of elders on 24.9.1994. He also alleged about the incident that happened in 1994 during which the wife and her father were at his office and the wife was alleged to have reported to the police resulting in the husband being detained in the police station and being compelled to obtain anticipatory bail to avoid unnecessary harassment by the police. The husband therefore, prayed that the marriage be dissolved. The wife-respondent denied the allegations made by the husband and contended that since the marriage with the husband, he was harassing her to extract more dowry not being satisfied with the land of 30 cents and cash of Rs. 20,000/- given as dowry during the marriage apart from several other things towards pasupu kunkuma, when she expressed her inability to secure any money from her parents. In view of the harassment, the father of the respondent paid 40,000/- by selling land but even then the husband filed O.P.No. 205 of 1993 and he himself had withdrawn the petition representing that he would take back his wife. The respondent himself threw away the wife after the birth of a female child on 25.6.1994 and his notice was replied with all the facts. The wife therefore, contended that in the absence of any bonafides in the petition, the petition may be dismissed. During the enquiry PWs 1 to 3 were examined and Exs A1 to A33 were marked on behalf of the husband and the wife examined herself as RW- 1 and marked Exs. B1 and B2. The trial Court rendered the impugned order elaborately dealing with the oral and documentary evidence placed before it and came to a conclusion that neither the desertion nor cruelty was proved by the evidence of the petitioner-husband and accordingly dismissed the petition. The husband filed the present Miscellaneous Appeal contending that the trial court ought to have appreciated all the contentions raised by him and should have seen that the withdrawal of O.P. No. 205 of 1993 was only due to the wife tendering unconditional apology for her behaviour. While repeating all his contentions raised before the trial court, he relied on the circumstances under which he had to obtain anticipatory bail and his acquittal in a criminal case by the Court holding him not guilty and contended that all these ought to have resulted in grant of divorce. Sri A.V. Sesha Sai, learned counsel for the petitioner-husband and Sri Y.V. Srinivasan, learned counsel representing Sri K. Chidambaram, learned counsel for the respondent-wife, reiterated their respective contentions and also referred to certain judgments, which will be referred to, in due course. The only point for consideration herein is the entitlement of the husband for divorce. The evidence, which was produced by the petitioner-husband before the Court was that of himself as PW-1, a mediator, as PW-2 and a Compounder at Janaki Nursing Home, as PW-3 about the incidents, which allegedly happened there. The evidence of PW-1, who is the husband is necessarily self serving and interested and is not open to acceptance at face value without satisfactory independent corroboration as a rule of prudence. The evidence of PWs 2 and 3, who do not consistently speak much about such cruelty as to justify dissolution of the marriage between the couple is of no help. PW-2 an elder who interfered in the matrimonial dispute at the request of the parties stated about the intervention in August 1992 by himself and also by Sri P. Vasudevarao, B. Nageswararao and D. Rama Rao, during which the wife was also involved. PW-2 also spoke about another intervention on second or third of December 1993, when the respondent-wife and her father approached him and requested him to compromise the matter on the ground that the husband filed a divorce petition and then all of them went to Hyderabad and they went to Sri K. V. Subbarao, advocate and an affidavit was prepared to which the wife subscribed her signature and agreed to the contentions therein. The evidence of PW-2 about these two mediations did not elaborate as to the causes which led to the differences between the husband and wife and as to what were the reasons for such conflicts between the husband and wife. Though it was baldly stated that the wife was at fault for the differences between them, no specific reasons are stated. It may be that PW-2 might have presumed that the wife was at fault but he did not state specifically in his evidence about the actual reasons for the differences between the parties. Similarly the evidence of PW-3, who worked as Compounder at Janaki Nursing Home, Narsapur from 1988 to 1996 is with regard to an incident that happened on 12.8.1992. To prove the employment of PW-3 in Janaki Nursing Home, Narsapur or the alleged incident on 12.8.1992, there was no other evidence and his evidence was that the daughter of the disputed couple was admitted in their hospital. He is also a resident of the same village of the parties and cannot be considered to be totally independent. The alleged pushing down of the husband by the respondent-wife and leaving the hospital spoken to by PW-3 did not appear to be natural. Whatsoever grievance a wife might have had against her husband, leaving her sick child in the hospital and going away abusing the husband is not in tune with the ordinary and natural course of affection which a mother would have towards her child, uninfluenced by any other considerations in her personal life. The evidence of PWs 2 and 3 did not in any manner corroborate the acts of cruelty and desertion and various incidents alleged by the husband about the absolute cruelty meted out to him and the allegations levelled against the wife are not corroborated by any other independent evidence. No neighbours, who were witnesses to the incidents that happened in rented houses at Hyderabad from time to time as described by the husband in the petition were examined nor their names have been specified by the husband in his evidence. Either the petition or the evidence adduced on record did not specify any particular cause for the aversion of the wife towards the husband due to his physical deformity or otherwise and the allegations of depriving the husband of conjugal happiness were not proved. If the same was true, giving birth to two children by the wife during the subsistence of wedlock would not have happened. The couple lived together for a long time even after the very incident on 12.8.1992 spoken to by PW-3. Apart from various incidents claimed by the husband being uncorroborated by any independent evidence, even the acquittal of the husband in the Criminal case and confirmation of the same in Criminal RC.No. 682 of 2000 by this Court could not substantiate the claim of the husband that the offences under Section 498-A IPC and Sections 4 and 6 of Dowry Prohibition Act alleged against him are false. It is specifically held by this court that only due to non examination of any independent witness to prove such harassment and interestedness in the testimony of PWs 1, 2 and 3 it was unsafe to hold the accused guilty of the offence, as the evidence is not free from reasonable doubt. It is only in consequence of such a scenario that this Court concurrently held that the trial Court rightly extended the benefit of doubt to the accused but not on account of any positive conclusion of falsity of the version of the wife. The acquittal of the accused in the Criminal case by itself cannot be a ground for presuming any cruelty in the conduct of the wife. Even in GAJJALA SHANKAR VS. MRS. ANURADHA[1], relied on by the learned counsel for the appellant, the Division Bench specifically observed that in normal course, mere filing a case for the offence under Section 498-A IPC by itself may not be a ground sufficient to hold that the said act amounts to cruelty. On the facts and circumstances of that particular case, where a criminal case was lodged against not only the husband but also his parents and sister, as a result of which, the husband and other three people suffered imprisonment for some time initially, it was held that the same would naturally prevail upon the social status of anybody, including the persons who are not really guilty of the said offence. It was a case where the criminal Court clearly held that the alleged offences have not been proved as per paragraph 13 of the Division Bench Judgment. Therefore, the acquittal herein cannot be a ground to act upon the allegations of the husband. Similarly, in PARVEEN MEHTA VS. INDERJIT MEHTA[2], the Apex Court dealing with the provisions of Section 13(1) (ia) of the Hindu Marriage Act, 1955, held that cruelty includes mental cruelty also and it is difficult to establish mental cruelty by direct evidence and it has to be inferred from the circumstances of each case taking into account their cumulative effect. The Apex Court after referring to the case reported in DASTANE VS. DASTANE [3] observed that the Court has to examine whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner reasonable apprehension that it will be harmful or injurious to live with the respondent. It was further observed that ‘cruelty’ contemplated is conduct of such type that a spouse cannot reasonably be expected to live with the other. The treatment accorded to him or her must be such as to cause apprehension in the mind of the spouse that it is unsafe for him or her to continue matrimonial relationship with the other. The mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty, it is difficult to establish mental cruelty by direct evidence . Whether the cruelty alleged is ‘mental cruelty’ or ‘physical cruelty’ depends upon facts of each case and the evidence that may be adduced on record. It will not be a correct approach to take an instance of misbehavior in isolation and treat it as mental cruelty. The approach should be to take cumulative effect of the facts and circumstances emerging from the evidence on record and then to draw a fair inference whether the spouse has been subjected to mental cruelty due to the conduct of the other. In the instant case, the cumulative effect of the facts and circumstances emerging from the evidence on record do not establish that the appellant has been subjected to mental cruelty. The decision reported in CHIRANJEEVI VS. LAVANYA @ SUJATHA[4], is with reference to a situation where on the facts and circumstances therein, the court refused to compel the couple to live together, in the light of the past events that happened between them and it has no application to the present controversy in this case. It is true that in the judgment of the trial Court in CC No. 188 of 1996 for the alleged offences under Section 498-A of IPC and Sections 4 and 6 of the Dowry Prohibition Act, the trial Court referred to the various inconsistencies in the version of the prosecution, which persuaded it not to convict the accused on the evidence placed before it. But the trial Court ultimately referring to the various precedents cited before it, considered the evidence adduced on record and came to the conclusion only that the prosecution could not prove the guilt of the accused for the alleged offences but not that the allegations made against the accused were positively found to be false. The trial Court obviously gave the benefit of reasonable doubt to the accused and had not positively come to the conclusion that the prosecution case was untrue. Ex. A2 letter was referred to by the learned counsel for the appellant as positively admitting the culpable conduct of the wife, but it is seen from the letter that the wife apologized for her conduct towards her husband when he visited the house of her parents for the first time and the entire tenor of the letter shows that she was very much interested in having her matrimonial life continued and requested her husband to excuse her for her earlier mistakes. This letter Ex. A-2 thus is not indicative of any cantankerous attitude of the wife towards her husband and her readiness to own her mistakes may indicate that the very serious allegations made against her by the husband are not probably dependable. Another letter said to have been received by the husband from some unknown persons leading to suspicion in his mind cannot be assumed to be proving any questionable conduct of the wife herself. As already stated all other incidents claimed by the husband about the circumstances leading to suspecting the wife are not corroborated by any other independent evidence nor were the incidents illustrated by the husband supported by any independent oral or documentary evidence. In such circumstances and on a detailed analysis of the evidence the alleged desertion and cruelty cannot be believed as also reiterated by the convincing reasoning adopted by the trial court. Therefore, the reasons stated by the trial Court have to be confirmed and the appeal has to fail. In the result, the appeal is dismissed. There shall be no order as to costs. ___________________ B. PRAKASH RAO ,J _________________​______ G. BHAVANI PRASAD,J DATE: 09.12.2009. KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies [1] 2005 (6) ALT 565 (D.B) [2] 2002 (5) ALD 6 (SC) [3] AIR 1975 SC 1534 [4] 1999 (2) ALD 508 (DB)