THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.M.A.NO.1964 OF 2000 JUDGMENT (Per the Hon’ble Sri Justice G.Chandraiah) Heard both the counsel. 2. This appeal is filed by the husband – M.Balasubrahanyam, against the order and decree dated 8.6.2000 passed by the Family Court – cum – V Additional District Judge Court, Tirupati in H.M.O.P.No.68 of 1997 in rejecting to grant decree for divorce under Section 13(1)(b) of the Hindu Marriage. 3. The case of the appellant is that his marriage with the respondent took place on 5.2.1992 according to Hindu rites and customs at Tiruchanoor. After their marriage, they lived as husband and wife for some time. His case is that from the date of marriage, the respondent used to insult him and expressed that she was not willing to marry him, but at the pressure of her parents, she accepted for the marriage. She was not allowing him to have conjugal happiness with her. He took her to Bangalore, Ooty and other places with a belief that she may allow him for conjugal happiness, but she has not allowed him to have conjugal happiness and threatened that if he forced for conjugal happiness, she will commit suicide. Therefore, he kept quiet and later, the respondent left to the house of the appellant and went to her parents’ house without informing any body and that she has been attending her job from the house of her parents. Since, May, 1992 onwards she never lived with him and deserted him. Though he sent mediators viz. Padmakumari and his father to convince her, she refused to common and join. He is suspecting her character, as she was having illicit intimacy with others even prior to marriage; she was not allowing him to have conjugal happiness. Later he filed O.P.No.55/1992 on the file of Principal Subordinate Court, Tirupati for nullity of marriage and the respondent also filed a petition in O.P.No.57/1992 for restitution of conjugal rights and that both were disposed of on 26.3.1996. It is stated that the respondent used to harass him and as there was no chance of reunion, the petitioner filed the present petition seeking divorce. 4. On the other hand, the case of the respondent in the counter while admitting the marriage between them, is that her father performed the marriage by spending Rs.60,000/- and also presented 10 sovereigns of gold jewels and other articles and also 2 kgs of silver and Rs.30,000/- to the father of the appellant towards dowry. The appellant spent the first night with the respondent happily and there was no occasion for disappointment for both of them. She was very sincere and obedient to the appellant and that the father of the appellant used to harass her for more dowry and other articles such as scooter etc., from her father. Though there was ill-treatment and cruelty on her by her father-in-law, her husband kept quiet. While she was pregnant, her husband went to Hyderabad for training and during that time, the father of the appellant treated her cruelly and assaulted her and threw her from his house in the month of June, 1992 without any kind of sympathy. After return of the appellant, though she tried to meet him, but in vain due to the adamant nature of the appellant’s father and the mediations with the elders also became futile. The appellant without any reasonable cause had withdrawn from the society of the respondent and deserted her. He also issued legal notice dated 12.7.1992 with false allegations. As the appellant did not give conjugal happiness, she filed O.S.No.55 of 1992 on the file of Principal Subordinate Judge, Tirupati for restitution of conjugal rights and the same was transferred to the court below and renumbered as O.P.No.24/1995 and the said petition was allowed directing the appellant to give restitution of conjugal rights to her. The appellant also filed O.P.No.55/1992 on the file of Principal Subordinate Court, Tirupati for annulment of marriage, and the said petition was also transferred to the court below and renumbered as O.P.No.23/1995 and the same ended in dismissal. During the pendency of the proceedings in Family Court, the respondent gave birth to a female child by name Panidivyasri and the appellant did not even come to see the child. As the appellant failed to come and join with the respondent as per the orders in O.P.No.24/1995, she filed E.P.No.6/1997 for executing the decree and the same is pending for disposal. It is stated that even now the respondent is ready to join the appellant to lead a happy married filed. As the appellant failed to maintain her, she filed O.S.No.4/1997 for maintenance and the same is pending. 5. Based on the above averments, the court below framed the following point for consideration: Whether the petitioner is entitled for granting decree of divorce against the respondent? 6. In support of the case of the appellant, he was examined as P.W.1 and he also examined his sister as P.W.2 and got marked Exs.A-1 and A-2, which are the certified copies of the decrees in O.P.No.23/1995 and O.P.No.24/1995. On behalf of the respondent, she got examined herself as R.W.1 and also examined her father as R.W.2 and she also got marked Exs.B-1 and B-2, which are the certified copies of the decrees in O.P.Nos.24 and 23 of 1995. 7. Appreciating the entire evidence, both oral and documentary, the court below held that the appellant failed to prove that the respondent subjected him to cruelty and also that she deserted him and accordingly dismissed the petition for divorce. 8. Aggrieved by the dismissal of the petition for divorce, the present appeal is filed by the husband. 9. The learned counsel appearing for the appellant – husband contended that the court below failed to appreciate the evidence on record. He contended that the wife did not state either in her petition or in the evidence that the appellant ever demanded any articles or harassed her and she only made allegations against his father and from May, 1992 onwards, she has been staying away from the appellant without any justifiable cause. He stated that the respondent never allowed the appellant to enjoy conjugal happiness and made him to suffer and this also amounts to cruelty on the part of the wife. He further contended that the father of the appellant died on 6.2.1995 and sister of the appellant got married in December, 1996 and ever since the appellant is living alone and working at Hyderabad, but even then the wife did not join him. This shows that the wife had deserted the husband without any justifiable cause and, therefore the appellant is entitled for decree of divorce and as the court below failed to consider these issues, the impugned judgment needs to be set aside and decree for divorce be granted. The learned counsel also relied on the judgments reported in HIRACHAND SRINIVAS MANAGAONKAR v. SUNANDA[1], ADHYATMA BHATTAR ALWAR v. ADHYATMA BHATTAR SRI DEVI[2], GEETAJAGDISH MANGTANI v. JAGDISH MANGTANI[3] and SAVITRI PANDEY v. PREM CHANDRA PANDEY[4]. 10. On the other hand the learned counsel appearing for the respondent – wife supporting the impugned order and decree of the court below, sought to dismiss the appeal. 11. In view of the above rival contentions, the point that arises for our consideration is whether the impugned order of the court below refusing to grant decree for divorce under Section 13(1)(b) of the Hindu Marriage Act, warrants any interference? 12. The case of the appellant is that their marriage was performed on 5.2.1992 according to the Hindu Rites and Customs at Tiruchanor. After the marriage they lived as husband and wife for some time. The appellant spent the first night with the respondent. Here, the first complaint of the appellant is that the respondent never allowed him to have conjugal happiness with her. Subsequently, they went to honeymoon trip from 10.2.1992 to 17.2.1992 and visited Bangalore, Ooty, Mysore, Kodaikanal. The grievance of the appellant is that even during honeymoon, the respondent did not allow him for conjugal happiness. His further grievance is that the respondent threatened him that if he forced for conjugal happiness, she would commit suicide and that she went to her parents house without any justifiable cause and that when he was undergoing training at Hyderabad, she created troubles in his house at Tirupathi and that since May, 1992 she has been living with her parents and further he also suspects her character. It is his apprehension that as she was having illicit intimacy with others even prior to the marriage, she was not allowing him to have conjugal happiness. With these averment, he sought for divorce. 13. On the other hand, the case of the respondent is that her marriage was performed by her father by spending huge amount and that after the marriage, the appellant spent the first night with the respondent happily and there was no disappointment for both of them and they also went to honeymoon and spent happily and though she was obedient and faithful, the father of the appellant harassed her and that when she was pregnant, the appellant went to Hyderabad for training and the father of the appellant treated her cruelly and threw her from his house in the month of June, 1992 and after the return of the appellant though she tried to meet him, the efforts went in vain. Her case is that without any justifiable cause, the appellant had withdrawn from her society and now also she is willing to join him. 14. In order to see whether the appellant could prove his grounds of cruelty, desertion and unchastity against the respondent, certain admitted facts needs to be noted. It is admitted that the marriage between the parties was performed on 5.2.1992 and the case of the petitioner is that they lived as wife and husband for some time. The grievance of the petitioner is that the respondent did not allow him to have conjugal happiness in the first two nights after the marriage. But the specific case of the respondent is that they spent first two night happily and there was no occasion for disappointment for both of them. 15. The other admitted fact is that both of them went for honeymoon for about a week or ten days. As rightly found by the court below, if the respondent did not allow him to have conjugal happiness, definitely, the appellant would not have planned for honeymoon with her. 16. Even in the honeymoon, the grievance of the appellant is that she did not allow him to have conjugal happiness. The specific evidence of the respondent as R.W.1 is that both of them went for honeymoon on 10.2.1992 to the places like Bangalore, Mysore, Ooty and Kodaikanal for 10 days and for all those ten days they enjoyed the trip happily and there were no misunderstandings in honeymoon trip between them; that P.W.1 purchaser chudidar at Bangalore, but she never asked her husband to purchase mysore silk saree; that they lived as wife and husband in the honeymoon trip and they returned back on 20.2.1992 and she joined her husband in his house after coming from honeymoon trip; that even after honey moon trip, they have got consummation in her husband’s house and she was in her husband’s house up to May, 1992. Therefore, the specific case of the respondent is that they had consummation and they enjoyed the trip. 17. It is to be noticed that if there was really any inconvenience or disappointment to the appellant as alleged by him, either during the first couple of nights or during the honeymoon, definitely he would have shared this at least with his friends. In the evidence of P.W.1 it has come that during the honey moon no one had accompanied them and they spent at different places by staying at some lodges. He also admitted that he as also not informed to any of his relatives, his father or his friends to show that no consummation has taken place between himself and the respondent till he issued notice to the respondent. It is also an admitted fact that till May, 2005 the respondent lived with the appellant in his house. In the light of the these probabilities and in the absence of any positive evidence to show that there was no consummation, the court below rightly disbelieved the case of the petitioner with regard to non-consummation of the marriage. 18. The other fact to be noted is that the appellant earlier filed a petition for annulment of marriage on the grounds of non-consummation of marriage in O.P.No.24/1995. The said O.P. was dismissed holing that there was consummation of marriage and the female child is born to him. The said order has become final. In spite of a specific finding operating against him with regard to consummation, again the appellant taking the very same ground is not tenable. 19. As per the case of both the parties, up to May, 1992 both the appellant and the respondent lived in the house of the appellant as wife and husband. As already noted above, the non-consummation of the marriage is negatived by the court below and based on the evidence, this court also did not find any contra evidence to interfere with the same. 20. The case of the appellant is that the respondent expressed her that she is not willing to marry him and only at the pressure of her parents she accepted for the marriage and that she was not allowing him to have conjugal happiness and that she had insulted him and also threatened him that if he touches her body, she would commit suicide and thus subjected him to cruelty and that without informing any body she left the house of the petitioner in May, 1992 and thus she deserted the petitioner and though he made mediations, the same ended in futility. The appellant also alleged that the respondent harassed him. On the other hand the case of the respondent is that she was thrown out of the house of the petitioner by her father-in-law and that even now she is ready and willing to join her husband and that she never subjected the appellant to cruelty and deserted her and on the other hand, the petitioner had deserted her from withdrawing from her society without any justifiable cause. 21. The evidence adduced by both the sides on the aspect of harassment is like oath against oath and hence cannot be given due weightage. But certain facts, which are record by way of legal proceedings needs to be noted. 22. The case of the appellant is that the respondent went to her parents house without informing him and deserted her. But to have her company, the petitioner did not move any legal proceedings like petition for restitution of conjugal rights. On the other hand, he filed petition for annulment of marriage and the wife filed petition for restitution of conjugal rights. Further the petition filed by the husband for annulment of marriage on the ground of non-consummation of marriage in O.P.No.24/1995 was dismissed holding that there was consummation of marriage and the female child is born to him. This finding has become final. Further the O.P.No.23/1995 filed by the wife for restitution of conjugal rights was decreed. When the appellant did not comply with the decree, she has filed execution petition in E.P.No.6/1997 and the same is pending execution. The efforts undertaken by the respondent, prove that she had not deserted the petitioner and on the other hand, she was always ready and willing to join her husband. On the other hand, without any justifiable cause, the husband filed two petitions on the self same grounds and the conduct of the husband cannot be appreciated. For these reasons, the contention of the counsel for the appellant that the father of the petitioner died on 6.2.1995 and sister of the petitioner got married in December, 1996 and ever since the appellant is living alone and working at Hyderabad, but even then the wife did not join him, is without any merit and the said ground is liable to be rejected. 23. Further in the petition, the appellant stated that he is suspecting the character of the respondent and that as she was having illicit intimacy with others even prior to the marriage, she has not allowed the apellant to have conjugal happiness. This allegation of the appellant is very vague. As already found in the earlier proceedings it was found that there was consummation between the parties. Further the petitioner did not lead any positive evidence in support of his allegation. In his cross-examination, he categorically admitted that he did not know personally whether the respondent was in adultery by the date of the said O.P. and he had no suspicion over the respondent till receipt of the reply notice sent by the respondent stating that she was pregnant. The case of the respondent is that she was thrown out of the house of the petitioner, when she was pregnant. In the earlier proceedings, a categorically finding was recorded that the female child was born to him. In these circumstances and in the light of his own admission in the evidence, the conduct of the petitioner is making allegations suspecting her character, cannot be sustained. 24. As the appellant has failed to prove his three grounds of cruelty, desertion ad unchastity against the respondent, the court below rightly rejected the petition for divorce and we do not find any ground to interfere with the impugned order of the court below. The citations relied on by the counsel for the appellant are not applicable to the present set of facts and circumstances and in fact, they support the case of the respondent. 25. For the foregoing reasons, we do not find any merit in the appeal and the same is dismissed. No costs. ---------------------------------- B.PRAKASHA RAO,J ------------------------------------- G.CHANDRAIAH,J DATE:21.4.2010 AVS [1] (2001)4 SCC 125 [2] (2992)1 SCC 308 [3] (2005)8 SCC 177 [4] (2002)2 SCC 73