HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.3016 OF 2001 Dt.17.3.2010 Between: Teki Maheswara Rao ..Appellant And Teki Malleswari ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO.3016 OF 2001 JUDGMENT: (Per Sri Justice V.Eswaraiah) Heard both the counsel. This appeal is directed against the decree and order in O.P.No.16 of 1999, dated 19.4.2001 on the file of the Senior Civil Judge, Narsipatnam. The petitioner/appellant herein filed O.P.No.29 of 1998 on the file of the Senior Civil Judge, Chodavaram, which was transferred and renumbered as O.P.No.16 of 1999 on the file of the Senior Civil Judge, Narsipatnam. The said O.P. was filed under Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955 seeking divorce for dissolution of marriage of the petitioner with the respondent on the grounds of cruelty and desertion. The O.P. was dismissed by order, dated 19.4.2001. Aggrieved by the same, this appeal has been filed. The parties are hereinafter referred to as they are arrayed before the court below. It is the case of the petitioner that the marriage between the petitioner and the respondent was performed on 24.11.1993 as per Hindu rites and customs in Lagarai village. Soon after the marriage the respondent wife joined the petitioner for conjugal life at Vajragada village, Makavarapalem Mandal, Visakhapatnam District, and lived together for about four months and the respondent wife used to go to her parents house on some pretext or the other and the petitioner used to get her back to his house. It is stated that the respondent during her stay with the petitioner used to insist to go over to her parents house for their livelihood and when the petitioner did not heed to her demand she did not lead conjugal life with him. The petitioner declined for the said demand. It is stated that in the last week of March, 1996 the respondent’s brother and some of her close relatives came to the house of the petitioner and demanded to send the respondent stating that she has to attend the marriage of their relative. When the petitioner declined to send her, they grew wild and beat the petitioner and took away the respondent. Thereupon, the petitioner lodged a complaint with the S.H.O., Makavarapalem and as a counter blast the respondent also gave a report to the S.H.O., Makavarapalem, with false allegations against the petitioner. On the said complaints, the S.H.O., Makavarapalem advised both of them to effect a compromise since the matter relates to matrimony. The village elders of both Vajragada and Lagarai along with the relatives of both parties intervened and effected a compromise between the petitioner and the respondent. In that compromise the respondent specifically pleaded that she has no liking towards the petitioner and she would not join the petitioner for conjugal life under any circumstances and that she is prepared to give divorce to him provided the petitioner returns back the aranam samans given to her by her parents and pay Rs.25,000/- which includes Rs.20,000/- towards marriage expenses and Rs.5,000/- towards permanent alimony. The petitioner agreed for the same and in the presence of elders the said amount was given to the respondent on 6.4.1996 and the terms of compromise were reduced into writing and both of them signed the agreement in the presence of attestors and the scribe, which was marked as Ex.A-1 divorce deed. Thereafter, the respondent with a view to harass the petitioner on the evil advice gave a police complaint alleging that the petitioner attempting to remarry while the earlier marriage is subsisting. On the said complaint, the Inspector of Police, Narsipatnam advised the petitioner to get a decree of divorce from the competent court since there is no caste custom to obtain a decree of divorce outside the court. Therefore, the petitioner filed the said O.P. seeking divorce. Counter has been filed by the respondent wife denying all the allegations and stated that at the time of the marriage her parents gave Rs.20,000/- in cash, 3 tulas of gold ornaments apart from 2 tulas of gold which she was wearing and she was subjected to lot of harassment in the hands of the petitioner and his family members both physically and mentally and that she was treated as servant in the matrimonial house of the petitioner and she bore all sorts of harassment with a fond hope of getting change in the attitude of the petitioner and his family members, but in vain. That, at the instance of the family members of the petitioner, she was beaten mercilessly by him even without providing food and he used to demand her for additional dowry and used to torture her mentally and physically. In fact, she joined the matrimonial house after mediation by elders, but the petitioner again started harassing her and on 6.4.1996 the petitioner himself brought the respondent to her parents’ house at Visakhapatnam and left her there and he never came to take her back to the matrimonial house in spite of repeated requests and mediations made by her. It is stated that the petitioner got issued a lawyer’s notice with false allegations, for which reply was given denying all the allegations. It is further stated that the petitioner obtained signatures on some blank white papers and stamp papers and took her gold ornaments and beat her mercilessly and when the respondent demanded the petitioner to return the blank papers signed by her, he did not return the same. It is stated that the petitioner himself neglected her and he refused to take her back and also to maintain her and the petitioner himself wilfully deserted her since 6.4.1996. To establish the averments made by the petitioner with regard to cruelty and desertion, he examined himself as P.W.1 and stated that there was a settlement to take divorce before the elders advising him to pay Rs.20,000/- towards the value of lanchanam samans and Rs.5000/- towards permanent alimony on 6.4.1996 and accordingly he paid the said amount in the presence of village elders and he also returned aranam articles to her. It is stated that both of them are living separately from 1996. He tried to marry again in 1998, but the respondent gave a report to the Superintendent of Police, Visakhapatnam, which was forwarded to the Inspector of Police, Narsipatnam. The Inspector of Police, Narsipatnam, has enquired into the matter and he showed Ex.A-1 agreement to the Inspector of Police and the genuineness of Ex.A-1 was also verified and advised him to get decree of divorce from the competent court of law. The suggestions that he did not pay the said amount and Ex.A-1 agreement is not genuine were denied. It is stated that he has not forged Ex.A-1 divorce deed. In the cross examination it is admitted that he is not willing to take the respondent to lead family life though she was ready and willing to come and join with him. The suggestion that he has filed the said O.P. with a view to get more money by contracting another marriage was denied. P.W.2, the scribe of Ex.A1, stated that he scribed Ex.A-1 document between the parties in 1996 and the amount was paid under Ex.A-1 to the respondent. P.W.3 is attester of Ex.A-1 divorce deed. He also supported the case of P.W.1. P.W.4 also supported the contents of Ex.A-1. P.W.5 is father of the petitioner. He too supported the case of the petitioner. We have perused Ex.A-1 the so-called divorce deed. Admittedly, the said divorce deed is not admissible in law and therefore it cannot be relied upon. The only question that arises for consideration in this appeal is whether the allegations of cruelty and desertion are established. The petitioner solely relied on Ex.A-1 divorce deed. Admittedly the same is not admissible in evidence and any divorce said to have been obtained before the elders is not binding on the parties. According to the petitioner there is no caste custom prevailing in the caste of the petitioner seeking divorce before elders. Ex.A-1 is not admissible in evidence and cannot be relied upon. There is no evidence to show that the respondent treated the petitioner cruelly either physically or mentally. The petitioner himself admitted in the cross-examination that he is not willing to take back his wife/ respondent herein. On the other hand, the respondent got herself examined as R.W.1 and stated that the petitioner himself tortured and was cruel towards the respondent and he himself left her in her parents’ house and in spite of several mediations and requests he never took her back and the so- called Ex.A-1 is not executed by her and on obtaining her signatures on blank papers only the said Ex.A-1 was brought into existence. In so far as Ex.A-1 is concerned, it is stated that there is no truth or otherwise and the said document was brought into existence and the respondent never agreed for divorce as alleged in Ex.A-1. R.W.1 has stated that the said O.P. was filed with a view to remarry after obtaining divorce for getting dowry once again. As Ex.A-1 divorce deed itself is not binding and has no force of law, we are of the view that the petitioner failed to establish cruelty and desertion on part of the respondent. In the absence of any caste custom prevailing in the caste of the petitioner, Ex.A-1 divorce deed has no force and therefore it cannot be looked into. There is no other independent evidence adduced with regard to the said allegations. Therefore, we do not see any infirmity legal or otherwise in the order impugned warranting interference of this Court and the court below rightly dismissed the O.P. filed by the petitioner. The C.M.A is accordingly dismissed. There shall be no order as to costs. ________________ V.ESWARAIAH, J. __________________ B.N.RAO NALLA, J. 17.3.2010 kpr