THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL MISCELLANEOUS APPEAL No.1385 of 2008 Dated:- _______ October, 2010 Between:- Rangineni Sailaja …Appellant AND R.V.S.S.Ramakrishna …Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL MISCELLANEOUS APPEAL No.1385 of 2008 JUDGMENT:(per Hon’ble Sri Justice B. Chandra Kumar) This appeal is directed against the order and decree dated 15.02.2008 passed in HMOP No.41 of 2006 by the Senior Civil Judge, Srikalahasthi, whereby and whereunder, the petition filed by the appellant herein under Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking dissolution of her marriage was dismissed. For the sake of convenience, the parties will be referred to as they were arrayed before the Court below. 1. The brief facts of the case are as follows:- The petitioner is the wife of the respondent. Their marriage was solemnized on 03.06.1996 at Tiruchanur, Chittoor District, and they are blessed with a female child on 13.12.1998. They lived in Mogappair, Chennai, and also for some time at Sriram Nagar Colony, Srikalahasthi. Their daughter was studying in 3rd standard in SBOA School at Annanagar, Chennai, when the petitioner filed this petition to dissolve her marriage with the respondent. It is the case of the petitioner that at the time of marriage, an amount of Rs.1,25,000/- was given to the respondent as dowry besides 60 sovereigns of gold and other household articles worth Rs.50,000/- and that on the very first night itself, the respondent came in a drunken state and behaved in ugly manner with her. It is also her case that the respondent and his parents had misrepresented that the respondent was a post graduate with MBA degree and that he had Acs.20.00 of wet land but, in fact, the respondent is not a post graduate and he does not possess any land and thus, she was cheated. It is also alleged that the respondent is addicted to consume liquor regularly day in and day out and that he used to beat her indiscriminately and torture her like an animal. It is also her case that the respondent used to harass her demanding additional dowry and that her parents gave him an amount of Rs.2,00,000/- to purchase a house apart from investing Rs.6 to 7 lakhs on him expecting a happy married life. It is also her case that she had tolerated the assaults of the respondent expecting a change in his attitude, but in vain. It is also her case that elders intervened and as suggested by them, respondent came to Srikalahasthi and they lived in a portion of the house belonging to her parents at Sriram Nagar Colony in Srikalahasthi, but subsequently, he went to Chennai on the pretext of securing employment and did not return. It is also her case that it is not possible to her to join and live with the respondent. 2. The respondent field counter and denied the material allegations made by the petitioner and his case is that he hails from a decent family and that he had treated the petitioner with utmost love and affection providing adequate needs and necessities to her as well as to their child and that, in fact, they lived together happily in Mogappair, Chennai, for almost six years and that he got admitted his daughter in a reputed school i.e. SBOA School at Annanagar, Chennai, wherein the girl studied up to 3rd standard. His main case is that it is the parents of the petitioner who wanted the petitioner to live with them after the death of their only son, and that they are responsible for the troubles between himself and his wife. It is also his case that in the second week of June, 2006, the petitioner went to her parents house at Srikalahasthi, but, though she returned back for some short period, again she left her matrimonial house on 21.07.2006 without any reason and on 26.07.2006, she got issued a lawyer’s notice with all false allegations. It is also his case that on 31.07.206, petitioner filed a criminal complaint against him and then in the middle of August, 2006, she filed present petition seeking divorce. It is also his case that during the pendency of the petition, the petitioner returned to her matrimonial house and stayed with him till 08.09.2006 and only on 09.09.2006 she left his house without informing him. It is his further case that the present petition has been filed by the petitioner at the instance of her parents. 3. On behalf of the petitioner, the petitioner herself was examined as P.W.1, her father was examined as P.W.2, her minor daughter was examined as P.W.3 and Ex.A.1 – Wedding Card and Ex.A.2 – Photograph showing tying of tali, were marked. On behalf of the respondent, expect the respondent examining himself as R.W.1, no other oral or documentary evidence has been adduced. 4. The Senior Civil Judge, Srikalahasthi, on appreciation of oral and documentary evidence, came to the conclusion that the version of the petitioner is not believable and that she did not inform anybody that the respondent had behaved in ugly manner with her on their first night itself and that P.W.2 is interested witness and P.W.3 is a minor who deposed at the instance of the petitioner. It was also observed that the circumstances show that even on the date of filing of the petition for divorce i.e. on 31.07.2006, the petitioner was staying at Chennai. The learned Judge observed that P.W.3 left the school only in September, 2006 and this circumstance show that the petitioner was with the respondent till September 2006, and, therefore, the version of the petitioner is not correct. It is also observed by the Court below that the P.Ws.1 and 2 are interested witnesses and there is no independent evidence to substantiate the contentions of the petitioner. The Court below also opined that since the parents of the petitioner, after the death of their son – Vishwanath, wanted the petitioner to be with them, they are responsible for the disputes between the petitioner and the respondent and holding so, the Court below dismissed the petition filed by the petitioner. Aggrieved by the same, the petitioner has preferred this appeal. 5. As seen from the record, this case was referred by this Court to Lok Adalat for mediation and settlement, but unfortunately, the report dated 22.03.2010 filed by the Secretary, Andhra Pradesh High Court Legal Services Committee reveals that in spite of sending several notices, there was no response from the respondent and as such, failure report was sent stating that the respondent had no interest to settle the matter. 6. Smt B. Vijayalakshmi, learned counsel, representing Sri T.C.Krishnan, learned counsel for the petitioner, submitted that the Court below failed to consider the evidence in proper perspective and committed an error in disbelieving the evidence of P.Ws.2 and 3. It is also argued that the respondent, in his evidence, alleged illicit intimacy between the petitioner and one Kartikeya and making such allegation amounts to cruelty and the Court below ought to have taken these circumstances into consideration and allowed the petition. It is also argued that incidents between the husband and wife normally happen within the four corners of a house and no independent witnesses may be available and that it is the victim or her near relatives who are expected to know about such incidents and in the above circumstances, the observations of the Court below that no independent witness has been examined, is not justified and reasonable. 7. Per contra, Sri P.Sampath Kumar, learned counsel for the respondent, supported the order of the Court below and argued that except the self-serving evidence of the petitioner and interested testimony of her father and minor daughter, there is no other evidence to substantiate the allegations made by the petitioner and in the above circumstances, there is nothing to interfere with the order of the Court below. 8. Having considered the above rival contentions, the only point that arises for consideration in this appeal is whether the petitioner – wife is entitled to seek a decree of dissolution of marriage. 9. It is not in dispute that the petitioner and the respondent were married on 03.06.1996 and they are blessed with a female child on 13.12.1998, who was examined as P.W.3. It is the case of the petitioner that the respondent came in a drunken state on the first night itself and behaved with her in an ugly manner. Admittedly, the petitioner did not inform this incident to her parents or to any other person. The Court below found fault with the petitioner for not informing her parents about this incident. It all depends upon several factors such as nature and attitude of a woman and her closeness with her mother and other relatives available at that time. Merely because the petitioner did not inform her parents or others about the behavior of the respondent on the first night, on that ground alone, the evidence of the petitioner cannot be discarded. It is also the case of the petitioner that the respondent had made misrepresentation that he is a post graduate with MBA degree and got Acs.20.00 of wet land. Even upon such allegation by the petitioner, the respondent did not produce any document to disprove the same. The cruel treatment by the husband or wife normally occurs in their house and even neighbours may not be knowing about the same except in few cases. Therefore, the Court may not expect or insist for independent witnesses in such circumstances. While appreciating the evidence, the Court must see as to the nature of the incident, place of incident and the probable witnesses to the incident and appreciate the evidence in proper perspective. Of course, the finding of the Court below that the parents of the petitioner were insisting on her to stay with them and that they are partly responsible for creating gap between the petitioner and the respondent and that the evidence of a child witness need not be given much credence appears to be correct, but, the Court below seems to have not considered the entire evidence and all the facts and circumstances of the case. 10. Whatever it may be, the fact remains that the respondent herein had categorically stated in his evidence that there is illicit intimacy between the petitioner and one Kartikeya and that the petitioner has been suffering with psychosomatic decease. Admittedly, the respondent did not adduce any evidence or any document in support of his contention that his wife has been suffering from psychosomatic disease. Recently, a Division Bench of this Court (presided over by one of us – Hon’ble Sri Justice D.S.R.Varma), in case between Kamma Damodar Rao Vs. Kamma Anuradha (F.C.A.No.246 of 2008, judgment dated 03rd August, 2010) had categorically held that making wild allegations that a woman is leading immoral life or has illicit intimacy with another person or a Psychic person amounts to treating her with cruelty. Whatever may be the motive of the parents of the petitioner and irrespective of the fact whether the petitioner has proved the other allegations or not, the above referred wild allegations made by the respondent against the petitioner in his evidence, in our considered view, amounts to treating the petitioner with cruelty. Therefore, we are of the view that the petitioner is entitled for decree of dissolution of marriage as prayed for. 11. Accordingly, the Civil Miscellaneous Appeal is allowed. Consequently, the petition filed by the petitioner before the Court below under Section 13(1)(ia) of the Hindu Marriage Act, 1955, stands allowed dissolving the marriage of the petitioner and the respondent. However, there shall be no order as to costs. ________________________ JUSTICE D.S.R.VARMA _______________________________ JUSTICE B.CHANDRA KUMAR 21st October, 2010 Bvv