Husband has dozen complaints on wife. Husband claims that wife hardly lived with him. Even when she lived with he she did not cohabit with him. Wife used police on multiple occasions to force husband to leave his parents and set up separate house. Wife threatened dowry case, suicide etc etc. Wife has left him since 1997. Now there is NO chance to live together. Wife has many more complaints on the husband. Wife claims that husband was seeking dowry multiple times. Wife denies husbands allegations . BUT THE FACTs narrated in the case tell us that the couple have been separate since '97! Yes for approx 13 years they are separate by the time the case comes to the HC. Family cocurt allows divorce, but divorce DENIED by theh HC !!, because .....because "desertion" and the anumus to desert and cruelty is NOT proven by the husband !!!!!
Long live matrimony
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THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE B.N.RAO NALLA
Civil Miscellaneous Appeal No.3463 of 2000
18-06-2010
Adigarla Venkata Lakshmi
Adigarla Venkata Satya Sreenivasulu
Counsel for the Petitioner: Sri V.L.N.G.K. Murthy
Counsel for the Respondent: Sri M. Subba Reddy
:JUDGMENT:- (Per Hon'ble Sri Justice B.N.Rao Nalla)
This Civil Miscellaneous Appeal is directed against the order dated 30.10.2000 passed in O.P. No. 212 of 1992 by the learned I Additional Senior Civil Judge, Kakinada, East Godavari District, whereby the petition filed by the petitioner- husband under Section 13(1)(ia)(ib) and Section 10 of the Hindu Marriage Act, 1955 (for short "the Act") seeking divorce on the ground of cruelty and desertion was allowed. The wife preferred the present C.M.A.
For the sake of convenience, the parties are referred to as they are arrayed in O.P. No.212 of 1992.
The marriage of the petitioner-husband and the respondent-wife was solemnised on 28.05.1986 and consummated on 07.11.1987. On 10.01.1988, the father of the respondent-wife took her to his house for celebrating Pongal, and after the festival, she returned to the petitioner on 20.01.1988. Again, she left for her parents' house on 29.01.1988 without the petitioner's knowledge, but did not come back for about three years. In May 1990, the petitioner and his father sent one N.R.K.G. Haragopal and Ankamreddy Konda to persuade the respondent's parents to send her to live with the petitioner, but the respondent refused to come and live with the petitioner. On 25.06.1990, the petitioner and his grandfather requested the respondent to live with the petitioner, but she bluntly refused to join him.
On 15.06.1992, the respondent and her father, apprehending proceedings for divorce by the petitioner, influenced the Sub-Inspector of Police, Tuni Rural Police Station, and got sent two police constables to bring the petitioner and his father. The Sub-Inspector of Police threatened the petitioner and his father that if the petitioner would not set up separate residence and live with the respondent, they would be prosecuted and convicted and the petitioner would be deprived of his job. The police also threatened that the parents of the petitioner shall not visit the respondent. The police also directed that the respondent should be allowed to live in the petitioner's house at Hamsavaram where he is working as Teacher. Apprehending a false case and harassment by the respondent with the connivance of the police, the petitioner agreed to live as directed by the respondent-wife and the police, and on 22.08.1992, the respondent entered the petitioner's house at Hamsavaram.
Later, the petitioner was transferred to S.Annavaram where his parents were living. Because of the threat posed by the police and the respondent, the petitioner took a separate house on rent at Kankipati Vari Garuvu, Tuni and stayed there. Though they were residing under the same roof, there were no marital relations between them. The respondent, with the assistance of the police, always threatened that she could get the petitioner and his people convicted. Sometimes, she threatened that she would commit suicide so that the petitioner and his people would be convicted. Thus, the respondent has not only deserted the petitioner for a continuous period of three years but also subjected him to cruelty and torture.
As the situation was unbearable, the petitioner came to Kakinada on 20.09.1992 for initiating proceedings for a decree for dissolution of marriage. Sensing the purpose for which the petitioner left for Kakinda, the respondent immediately reported to the police and got a notice dated 22.09.1992 served on the petitioner with a direction to appear before the police immediately in spite of the fact that examinations were going on in the school. When the petitioner along with Lagudu Chinnayya Naidu went to the police station, he was abused in vulgar language and was threatened of launching of prosecution and allowed to leave the police station in the mid-night. Thus, during the period from 22.08.1992 to 23.09.1992, she had no intention to return to the matrimonial home, but managed to stay in the house of the petitioner with the assistance and pressure from the police. Hence, the respondent is guilty of cruelty towards the petitioner, as such, he filed the petition for grant of decree for dissolution of marriage or alternatively for judicial separation.
The respondent-wife filed counter affidavit inter alia denying all the allegations made in the petition and stated that at the time of the marriage, the petitioner was given 20 tulas of gold ornaments, 100 tulas of silver wear and half tula of gold ring. A sum of Rs.3,000/- was paid towards Adpaduchu Katnam. The petitioner demanded more gold, jewellery and dowry. The parents of the respondent, out of affection, presented one Govardhanam Golusu weighing 14 tulas, one necklace weighing 4 tulas and a pearl chain weighing 2 tulas, thus making in all 20 tulas of gold ornaments. Immediately after consummation of the marriage, the respondent joined the petitioner along with sari samans worth Rs.15,000/-. After Pongal vacation, troubles started between them as the petitioner and his parents began harassing the respondent to bring more money from her parents. Immediately after she returned to her in-law's house, her mother-in-law took away the respondent's gold ornaments and necked her out of the house. Having no other way, the respondent returned to her parents' house. In fact, the petitioner and his parents took away Mangala Sutram from her neck. The allegations in the petition that the respondent left the house of the petitioner on 29.01.1988 without the petitioner's knowledge, is absolutely false. Never did N.R.K.G. Hara Gopal and Ankamreddi Konda come to the house of the respondent in May, 1990 and the respondent never refused to join the petitioner. After several mediations at the instance of Ankamreddi Konda, one R.Chinnayya Naidu, K.Nageswara Rao, Ch. Bhaskara Rao and R.Thatharao mediated the matter between the petitioner and the respondent, and on 25.06.1990, the respondent was taken to the house of the parents of the petitioner in Suravaram. The allegation that on 25.06.1990, the petitioner and his grandfather requested the respondent to come and live with the petitioner and she bluntly refused to do so, are absolutely false. The respondent joined the petitioner on 25.06.1990 at Suravaram and both of them led conjugal life and the petitioner treated her well for a few days, and thereafter, stated that he would see that her parents purchased a Scooter for him.
The respondent prevailed upon her parents and got an amount of Rs.20,000/- paid through G.Satyanarayan alias Bullabbai. During the period of her stay in the house of the petitioner's parents, the respondent was not happy. With the amount given by the respondent's parents a Spark moped was purchased and the remaining amount was utilised by the petitioner himself. Subsequently, the petitioner and his parents started demanding Rs.50,000/- stating that they will purchase a house. When, the respondent refused to comply with the demand, the petitioner harassed her both physically and mentally. The mother-in-law of the respondent used to threaten her that she would set her ablaze by pouring kerosene on her, if she failed to bring money. The petitioner also did not stop his mother from making such threats. The petitioner and his father obtained signatures of the respondent on some white papers threatening that they would put an end to her life.
In fact, during the period of her stay in the house of the petitioner's parents, they refused to provide food to the respondent and her mother-in-law used to place her feet in the plate whenever food is served to her and thereby deprived her of having food. On one occasion, the petitioner-husband and his mother tried to kill the respondent-wife by placing a pillow on her face while she was asleep, but with great difficulty she could survive. Finally, the petitioner and his parents caught hold of her tuft and warned her that unless and until she brings Rs.50,000/-, she should not return to their house. Again, the elders, G.Satyanarayana, G.Nookaraju, R.Chinnayyanaidu intervened and made the petitioner agree to set up a separate residence at Hamsavaram. Even though the petitioner was not willing to put up separate residence, but at the instance of the elders and with a view to harassing the respondent, set up separate residence at Hamsavaram and lived with her. Because the respondent joined the petitioner against his wishes, the petitioner failed to bring provisions for cooking. The allegation that on 15.06.1992, the respondent influenced the Sub- Inspector and sent for the petitioner and his father to the Police Station, is false. Never did the police intervened in the matter on 15.06.1992 as alleged in the petition. At the instance of mediators only the petitioner and the respondent lived together, and in fact, the petitioner had cohabitation with the respondent during their stay at Hamsavaram.
The petitioner's parents, having influenced higher authorities, got the petitioner transferred from Hamsavaram to Suravaram to make the respondent live with the parents of the petitioner. The elders, having got knowledge of the illegal activities of the petitioner, advised him to have a separate residence at Tuni. Then, the petitioner took on lease a house belonging to Madireddy Atchayamma in Kankipativari Garuvu where the petitioner and the respondent lived together and had marital relations. On 02.12.1992, the petitioner and his parents forcibly obtained signatures of the respondent and threatened that if only she brought Rs.50,000/-, she would be allowed to stay with the petitioner, but the respondent knowing fully well that it is not possible for her to live with her parents, bore the ill-treatment meted out to her, and finally, the petitioner, by filing the O.P., made the respondent leave for her parents' house. Even on the date of filing the petition, the respondent was with the petitioner as could be seen from the address given in the petition.
In view of the attitude of the petitioner towards the respondent and the harassment meted out to her by the petitioner and his parents, she lodged a complaint in Tuni Rural Police Station in December, 1992. The petitioner never came to Kakinda on 20.09.1992, nor did the respondent ever give a complaint to the police either on 20.09.1992 or 22.09.1992. To the knowledge of the respondent, the police never called the petitioner to the police station and the petitioner never approached the police along with L.Chinnayyanaidu.
Anticipating that the respondent will take action against the petitioner under Section 498-A IPC, he approached the Court with false allegations. On the report of the respondent, the police registered a case against the petitioner.
The respondent filed M.C. No.4 of 1993 on the file of the Judicial First Class Magistrate, Narsipatnam.
Thus, the petitioner and the respondent lived together till December, 1992 and had marital relationship. The petitioner, having suppressed the facts, came to the Court with unclean hands. The respondent is always ready and willing to lead conjugal life with the petitioner, provided the petitioner and his parents give an unconditional undertaking before the Court that they would not harass her. The petitioner and his parents should be directed to return all the gold jewellery and silver wear to the respondent.
On the premise of the aforesaid pleadings of the parties, the trial Court framed the following points for determination:
(i) "whether the respondent-wife voluntarily deserted the petitioner-husband for a continuous period of not less than two years immediately preceding the presentation of the petition and has been staying away from him without any just and reasonable cause?"
(ii) Whether the respondent treated the petitioner with cruelty?
(iii) Whether the petitioner is entitled to divorce on the grounds of desertion and cruelty or in the alternative for judicial separation?
(iv) To what relief?
Before the Family Court, the petitioner-husband got examined himself as PW1 and three others as PWs.2 to 4 and got marked Exs.A1 to A11, on his behalf. The respondent-wife got examined herself as RW1 and another as RW2 and got marked no documents on her behalf. Ex.X1 was marked by consent.
PW1, the petitioner-husband, deposed that his marriage with the respondent-wife was performed on 28.05.1986 and consummated on 07.11.1987. After consummation ceremony, the respondent-wife was not willing to lead marital life with him. On 10.01.1988, the respondent's father came and took the respondent for "Sankranti Festival". He did not go to their house as he was not invited. Five days after the festival, the respondent joined him. On 29.01.1988, when he was not in the house, the respondent left for her parent's house without his knowledge. He further deposed that in December 1988, he secured a job as Teacher and was posted in Gadarada village and worked there about six months. Later, his father went to the house of the respondent's parents to bring the respondent, but she refused to come. Then, they sent one N.Harigopal and Ankamreddy Konda in May, 1990 to the respondent to request her to come and join the petitioner and also in June 1990, they sent one Amkamreddy Ramanna Patrudu to the respondent with similar purpose, but she refused to join with the petitioner. Later, the petitioner was transferred to Hamsavaram near Tuni and worked there till 1992. The respondent did not send any notice to the petitioner till 1992 for restitution of conjugal rights, as such, he thought of giving divorce in April, 1992. In June, 1992, his father-in-law sent for him, his mother and father to Tuni Police Station and the Police threatened them with dire consequences of getting his job removed and the pension of his father stopped unless he agrees to live with the respondent. Thereupon, he put up separate family at Hamsavaram and stayed with his wife in August 1992. At that time also, the respondent did not agree to lead marital life with him and threatened him that she would commit suicide if he touched her. The respondent stayed with him for about two months in Hamsavaram. He was transferred to Sooravaram and shifted his residence to Ammajipeta, Tuni in September 1992 and was residing with his wife. Even at that place, the respondent continued to behave in the same manner and did not allow him even to touch her. Then, the petitioner contacted Sri S.Satyanarayana, Advocate and wanted to file divorce petition, but at that time, he was again called to the Police station. In September, 1992, he came to Kakinada for filing divorce petition. The respondent went to her parents' house and gave a report to the police. The petition filed for divorce in Kakinada which was registered in November, 1992. The respondent joined him at the instance of police so as to nullify his efforts to maintain divorce petition. The respondent received the notice of the petition on 02.12.1992 and went away from his house after keeping it under lock. Later, on 18.12.1992, the respondent gave a report to the police alleging the offence under Section 498-A IPC. Ex.A2 is the certified copy of the report. In February 1992, the respondent had filed M.C. No.4 of 1993 on the file of the Judicial First Class Magistrate, Narsipatnam, and during its pendency, the matter was referred to Lok Adalat and they were advised to live together once again. Even then, the respondent repeated her previous behaviour and did not co-operate with him in leading family life. Again in January, 1997, the respondent went away.
In cross-examination, he denied a suggestion that his version in this regard is not true and that they sent away the respondent by harassing her. He denied a suggestion that on 29.01.1988, they drove out the respondent from their house after taking her gold jewellery. He also denied a suggestion that on 25.06.1990, respondent's cousin and some others along with Ankamreddy Konda came to his father for mediation. He also denied a suggestion that T.Satyanarayana, who is the relative of the respondent, came to his house and paid him cash of Rs.20,000/-. He stated that by the time of filing divorce petition, and by 02.12.1992, on which date, the notice in this case was received by the respondent, she was living with him. He brought his wife to his house in the last week of July or 1st week of August, 1992. He himself went to the house of the parents of the respondent and brought her at that time. In September, 1992, they resided in Kankipativari Garuvu. By 22.08.1992, he was transferred to Sooravaram where his parents were residing. The respondent stayed with him in Hamsavaram and Sooravaram. He further deposed in cross-examination that in Maintenance Case he gave evidence to the effect that himself and his wife lived together till 02.12.1992 and he looked after her well, and he has no objection to leading marital life with his wife. He never gave any notice from 1988 to 1992 alleging that the respondent harassed him. He further deposed that from 1988 till June 1992, his wife did not harass him.
PW2, who is the father of PW1, deposed that after consummation of the marriage of PW1 and the respondent, the petitioner and the respondent lived in their house for about two months. Later, the respondent went to her parents' house for "Sankranti" festival. Ten days thereafter, she returned to the petitioner. At that time, she lived in their house with the petitioner for one week and thereafter left for their house without informing them. He came to know through the petitioner that even during the two months' period of her stay, she did not live with the petitioner amicably. In 1992, the petitioner told him that he wanted to file divorce O.P. since the respondent did not return from 1988 to 1992. He worked at Suravaram from 1989 to 1992. In August, 1992, the petitioner and the respondent put up separate family in Tuni. In November, 1996, the petitioner and the respondent lived together due to intervention of Lok Adalat. At that time also, the respondent lived with the petitioner for few months and went away in January, 1997. Now, there is no possibility for them to live together. In cross-examination, he deposed that he did not know whether the petitioner and the respondent lived together in Tuni till 02.12.1992. He further deposed that when the matter was placed before Lok Adalat, PW1 stated that he had no objection to living with the respondent, who also stated that she did not have any objection to living with her husband. With the suggestion made in Lok Adalat, the petitioner and the respondent put up separate family at Rekhavanipalem. They lived there for about two months. He did not know whether they led marital life or not, but they stayed together there. From 25.09.1992 onwards, the respondent lived with the petitioner in Kankipativari Garuvu. PW3, who is the relative of PW2, deposed that he attended the marriage of PW1 and the respondent. He cannot say whether there is any possibility for the petitioner and the respondent to live together. In cross-examination, he deposed that from June, 1992 to till December, 1992, the petitioner and the respondent lived together in Hamsavaram and Tuni.
PW4, the house-owner of the petitioner, deposed that the petitioner took a portion of his house on rent and the respondent lived with the petitioner in his house for about three months. After three months, the respondent went to her parents' house.
RW1, the respondent-wife, deposed that when she returned to her in-laws' house from her parents after celebrating Sankranti festival, the petitioner-husband and his parents demanded her to bring Rs.50,000/- as they intended to purchase a house. When she did not agree to that, they took her gold and silver jewellery and sent her to her parents' house. Then, her parents got mediated the matter and arrived at a settlement through Ankamreddy Konda, Rayapureddy Chinnayyanaidu, G. Nageswara Rao and R.Tatarao, and she was sent to her husband on 25.06.1990. But, the petitioner and his parents again sent her out demanding her to bring Rs.50,000/- stating that if she failed to bring the dowry, she should not come to their house. Later, her husband put up residence in the house of M. Atchayyamma where they lived as wife and husband. During that time, her husband got issued a notice to her in the divorce petition, and her parents reported the matter to the police and the respondent filed Maintenance Case, and she was granted maintenance. The petitioner preferred an appeal against the orders passed in M.C. and during its pendency, he took her to Rekhavanipalem where they led marital life, and the Court directed both of them to attend the Court for every adjournment. She never left her husband and went away on her own accord. She is always willing to live with her husband. In her cross- examination, she deposed that she lived in the house of the petitioner till she left for her parents' house for Sankranti Festival of 1988. After the festival, she returned to her husband along with her younger brother, Kanna Babu. She lived with the petitioner for 15 days and later she was sent out by her husband after her gold jewellery were taken away by her mother-in-law. Subsequently, on 25.06.1990, she joined her husband after mediation through elders viz. Ankamreddy Konda. She denied a suggestion that she did not join the petitioner till June,1992. This mediation was not fruitful till the mediators tried for settlement for four or five times. She got mediated the matter as she was harassed by her in-laws by demanding her to bring Rs.50,000/- for purchasing a house. Even without paying the amount, she joined her husband after mediation. She asked her father to get the matter mediated as she was interested to lead conjugal life with her husband. Then, her father approached Ankamreddy Konda who conducted mediation. After the mediation, the mediators brought her husband to her parents' house and she was sent along with him on 25.06.1990 and one Bhyragi accompanied them. From 25.06.1990 till August, 1990, she lived with the petitioner in Suravaram. During the period, the petitioner led marital life with her, but did not look after her well, and her in-laws again started pressurising her to bring Rs.50,000/- and though she informed the same to her husband, he did not pay any heed to her words and that was the only reason for her leaving her husband's house. One year thereafter, the petitioner got mediated the matter through the elders and she joined her husband. She informed the elders that in August, 1990, she was sent out by the petitioner on the ground that she did not bring Rs.50,000/-. For the second time mediation, she sent G.Satyanarayana, who is senior paternal uncle of her mother and G.Nookaraju, who is the son of her junior paternal grandfather. This mediation took place on 24.06.1992. She further deposed that in Hamsavaram, she lived with the petitioner only in one room as tenants for about three months, and during this period, she brought all the provisions from her parents' house and maintained her family, so there was no necessity for her husband to purchase the provisions during the period. She denied a suggestion that after she went to her parents' house for Sankranti festival of 1988 and till the divorce O.P. was filed by her husband, she never intended to live with her husband and lead marital life with him. She also denied a suggestion that she has no intention to join her husband.
RW2, who is the relative of RW1, deposed that initially, the petitioner looked after the respondent well, but subsequently, the respondent demanded her to bring Rs.50,000/-, and when she refused to do so disputes between her and her in-laws arose, as such, the petitioner and his parents sent the respondent out of the matrimonial home after taking away her gold jewellery. He further deposed that in 1990, the respondent joined the petitioner in Suravaram. Once she went to the house of the petitioner and found the respondent living with her husband and in-laws. RW2 talked with the respondent in the presence of her in-laws and felt that she was living happily. One year six months thereafter i.e. in 1992, he saw the respondent in her parents' house at Jogompeta and thereafter, the respondent was sent to Suravaram for mediation, which took place for the reason that again her husband and in-laws were demanding her to bring dowry of Rs.50,000/-. He denied a suggestion that the petitioner and his parents never demanded the respondent to bring Rs.50,000/- and that the respondent was not willing to live with the petitioner.
On the basis of the aforesaid evidence of the parties, both oral and documentary, the learned I Additional Senior Civil Judge, Kakinada allowed O.P. No.212 of 1992 by order and decree dated 30.10.2000. Challenging the order of dismissal, the respondent-wife has preferred the present C.M.A. Having heard the learned counsel for both the parties, the only question that arises for determination in this appeal is whether the allowing of O.P. No. 212 of 1992 filed by the petitioner-husband is justified in the facts and circumstances of the case?
Insofar as the ground of desertion is concerned, this Court, in Kosuri (Chandana) Dhanum Kumari Vs. Kosuri Venkata Vara Prasad1 held that mere living apart by the parties is not desertion. The desertion indicates a state of mind in which a party is guilty of the act must indicate either in express words or by conduct to put an end to the relationship. The Court further held that that burden of proof of the fact of desertion lies on the person who alleged it. The essential ingredients of the offence in order that it may furnish a ground or relief are;
i) the factum of separation;
ii) the intention to bring cohabitation permanently to an end - animus deserendi;
iii) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period of two years immediately preceding presentation of the petition for divorce.
Thus, though the expression "desertion" is to be widely interpreted and understood, these essential conditions have to be established.
In the light of the above legal position, we have to examine the pleadings and the evidence of the parties to determine the point.
From a careful analysis of the pleadings and the evidence on record, it is obvious that the petitioner made several allegations against the respondent-wife such as she used to leave him on several occasions for her parents' house without informing him, and in spite of his best efforts to take her back to make her lead matrimonial life, she did not agree to join him. It is further stated that even though he shifted his residence from one place to another for reason of his employment, she lived with him occasionally, but did not continue to stay with him nor did she cohabit with him or lead marital life. Even according to the petitioner, the respondent lived with him after December, 1992, the alleged period of desertion, and the petitioner himself is willing to live with her amicably. The evidence of PW2, the father of the petitioner, is on the same lines as that of the petitioner.
Even the pleadings averred both in the counter affidavit and in the evidence of the respondent-wife are to the effect that she lived with the petitioner for a certain period of time though not incessantly, and the main ground for her deserting her husband and living with her parents on several occasions is that her in-laws and her husband demanded her to bring Rs.50,000/- in spite of the fact that at the time of marriage, the petitioner was given dowry and gold articles. The learned Judge held that even the living together of the petitioner and the respondent is established as is evident from the admission made by PW3 in his cross-examination, she did not cohabit with him. This finding is not a justifiable conclusion for the factum of separation. As prescribed in law, desertion means living separately for a period not less than two years preceding the date of filing the O.P. Even according to the legal position laid down in the case (cited as supra), mere living apart by the parties is not desertion. The desertion indicates a state of mind in which a party who is guilty of the act must indicate either in express words or by conduct to put an end to the relationship. But in the instant case, the petitioner and the husband lived together for a considerable period of time and even now they are willing to live together as is evident in the testimony of PW1 and RW1.
In the light of the above discussion, we are of the opinion that though the factum of separation of the petitioner and the respondent was occasionally proved, there are instances when the petitioner and the respondent lived together as is clear from the evidence both oral and documentary, and at that juncture, there is not even an inclination of animus deserendi on the part of the wife to permanently cease the cohabitation and marital relation, and these facts and circumstances would also probablize that there is no love lost between the spouses.
Moreover, the petitioner-husband appears to have stuck to his nature not to cause hurt to the feelings of the wife, but so as to cause reasonable apprehension in the mind of the wife to live with him peacefully.
As regards the term "Cruelty", it is observed in V.Bhagat Vs. Mrs. D.Bhagat2, to the following effect:
"Mental cruelty in Section 13(1) (ia) of the Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made".
In the light of the above legal position, we have to examine the pleadings and the evidence of the parties to determine the point.
The case of the petitioner-husband is that even though the respondent lived with the petitioner occasionally she did not live in cohabitation with him. He further stated that at the time of filing the divorce petition the respondent was with him but did not allow him even to touch her, as such it amounts to cruelty. When the petitioner and the respondent lived together, it cannot be proved whether they lived in cohabitation with the each other and the respondent allowed the petitioner to touch her or whether they led marital life or not. No doubt, there may be minor quarrels between the couple from time to time during the martial relationship, and the respondent may be reluctant to cohabit with the petitioner in a fit of anger, but such instances cannot be taken as basis for cruelty. Their living together itself indicates that they are willing to live together. Even in cross-examination, PW1 deposed that he never gave any notice from 1988 to 1992 alleging that the respondent harassed him during that period. The ingredients of mental cruelty as stated supra are not all attracted to grant divorce on the ground of cruelty on the part of the respondent. On an appreciation of the entire evidence on record as well as the findings of the trial Court, we are satisfied that there is no evidence on the part of the petitioner-husband to establish the ground of desertion within the aforesaid three essential ingredients, and in fact, the very establishment of animus deserendi on the part of the wife is absent in the present case. Further, the petitioner-husband miserably failed to establish the other ground "cruelty" alleged to have been meted out by his wife, by adducing substantial legal evidence. Therefore, the contentions urged by the learned counsel for the respondent-wife, who is the appellant herein, merit consideration and are sustainable.
The findings recorded by I Additional Senior Civil Judge, Kakinda, in our considered opinion, are not justified and there appear to be legal infirmities therein and they are vitiated calling for interference by this Court, and the impugned order is liable to be set aside.
Hence, the Civil Miscellaneous Appeal is allowed setting aside the order dated 30.10.2000 made in O.P.No. 212 of 1992 on the file of I Additional Senior Civil Judge, Kakinada. However, if the parties are aggrieved by any events subsequent to filing the O.P. by the petitioner, they are at liberty to work out their remedies before the trial Court as may be available to them under law. No order as to costs.
?1 1997 (5) ALT 805 (D.B.)
2 AIR 1994 SC 710
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