Sunday, July 7, 2013

husb say wife kick testicles, threat kill father, used goondas etc; wife say husb illicit relation ! still HC refuse divorce after 15year farcass !!

Husband says wife kicked testicles, threw chilli powder threated to kill dad and smear the dad's ashes on his forehead, making his mother a widow. Wife says husand has illicit relations and gets some one to testify .... after 15 years of farcass, the HIGH court STILL REFUSES divorce and says divorce petition BY THE HUSBAND is dismissed !!!!
 
LONG LIVE MATRIMONY
 
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HIGH COURT OF ANDHRA PRADESH
 
 
THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE B.N.RAO NALLA                
 
Civil Miscellaneous Appeal No.  636 of 2001

10-03-2010

K.S.V.V.L. Narasimha Rao 

Kamisetty Suguna 

Counsel for the Petitioner: Sri D.V. Seetharam Murthy

Counsel for the Respondent:  Sri Sarvabhovma Rao

:JUDGMENT:- (Per Hon'ble Sri Justice B.N.Rao Nalla)

 
01.             This Civil Miscellaneous Appeal is directed against the judgment and
decree dated 11.09.2000 passed in O.P. No.150 of 1998 by the learned Judge,
Family Court, Visakhapatnam, whereby the Original Petition filed by the
petitioner under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 ( for
brevity "the Act") for dissolution of the marriage on the ground of cruelty and
desertion for a continuous period of not less than two years immediately
preceding the presentation of the petition, was dismissed.
        For the sake of convenience, the parties are referred to as they are
arrayed in O.P.No.150 of 1998.
 
02.             The brief facts of the case are that the marriage of the petitioner
with the respondent took place on 22.12.1974 and was consummated.  The 
petitioner-husband was working in the State Bank of India, Visakhapatnam and
both of them lived together in the house of the petitioner's father as joint
family members.  It is averred that soon after joining the petitioner, the
respondent started harassing him to set up separate family, and as he did not
pay any heed to her words, she did not attend the house-hold chores, abused his
parents, insulted them on every occasion and disrupted the mental peace of the
petitioner.  It is also stated the respondent-wife used to leave for her
parents' house very often without his consent and the petitioner had to get her
back from her parents' house.   After she was blessed with two daughters, the
petitioner expected that the respondent would continue to stay with him along
with his children, but on 02.06.1979, the respondent left the matrimonial home
along with her children and a suitcase containing 15 tulas of gold belonging to
his mother, and the petitioner went to his in-laws' house and requested her to
join him, but she bluntly refused to do so and abused him in filthy language.
Then, the petitioner-husband filed O.P. No.211 of 1979 on the file of II Addl.
District Judge, Visakhapatnam for restitution of conjugal rights and the same
was decreed.  In spite of the decree in his favour, she did not join him for one
year.   The respondent preferred C.M.A. No. 468 of 1990 against the order, dated
18.02.1990 made in
O.P. No.211 of 1979, but the same was dismissed.  He further stated that as a
result of mediation effected by the petitioner on the advice of the elders, the
respondent joined the petitioner at his parents' house, but again started
insisting him on setting up separate family and continued her cruel behaviour
towards him.  At last, he set up separate residence in other portion of his
father's house.  When she became pregnant in the year 1981 for the third time,
on the pretext of delivery she went to her parents' house without his consent,
and was blessed with a baby-girl by name Lakshmi in the year 1982, and when the
respondent came to take her to matrimonial home, she refused to join him and her
parents pushed him away from the house forcibly.  In June, 1996, he was
transferred to Toopran of Medak District, where he came to know that his mother
and brother were arrested by the Police based on a report lodged by the
respondent for an offence punishable under Section 498-A IPC in II Town Police
Station, Visakhapatnam and the same was numbered as   
C.C. No.42 of 1990, and by the time the report was lodged, according to the
petitioner, she was not residing with him for a continuous period of 7 years
preceding 03.10.1989.  On 11.10.1989, he was transferred to Visakhapatnam and
having become vexed with the criminal attitude of the respondent and desertion
for more than two years, he filed O.P. No.422 of 1989 for divorce and O.P.
No.130 of 1989 for custody of the minor children.   According to the petitioner,
on 10.05.1992, the respondent, with the help of her goondas, broke open the
locks of the house constructed by him at Paradesipalem, forcibly entered the
house and took away the household articles, in respect of which, he gave a
report to the police under Ex.A4, but of no avail.  It is further stated that at
that stage, the respondent herself approached him and offered to join him for
restitution of conjugal life with a promise that she would stay and would not
desert him and prevailed upon him not to press the petitions filed by him on
condition that she would withdraw C.C. No.42 of 1990.  Believing her words, and
in the interest of his minor children, both of them filed a joint memo before
the Family Court and both the petitions were dismissed on 14.02.1994.
Thereafter, the respondent joined him at his newly constructed house, at
Paradesipalem, but failed to withdraw C.C. No.42 of 1990.   At that time, he was
working in Chittivalas Branch, State Bank of India and used to shuttle between
Chittivalas and Paradesipalem.  Whenever he returns after office work, he used
to find the house locked forcing him to go to her parents' house and bring her
back along with the children.   While so, C.C No.42 of 1990 ended in acquittal.
Enraged with this, the respondent increased her cruel attitude by locking the
house at Paradesipalem and going away somewhere.  The respondent's parents did 
not furnish her whereabouts several times and he had to wait at the doorstep of
her parents' house till 09.00 P.M. and return to his house.  On some occasions,
she used to say that dinner is ready, but he will be served only after she takes
food.  After taking food, she used to say that food was exhausted and even did
not allow him to go out for dinner, thereby made him go to bed without food.
She used to say that she would pour kerosene on his body and set fire to him and
his house, and would make him lose his job and get the same published in new
papers, and would see his father killed and would apply the ashes of his father
on his forehead, thereby derive pleasure by seeing his mother as widow.  She
used to sprinkle chilly powder in his eyes and kick him on his testicles.  On
15.01.1996, she tore off her "Mangala Suthrams" and was proclaiming that he is
no more her husband, and therefore, being afraid of the respondent, he has been
living separately since then.  On 06.03.1998, during his absence, the respondent
and her children forcibly trespassed into the house of his parents, beat their
cook by name T.Rama Devi with scissors, sprinkled chilli powder, caused bleeding
injuries, and on 24.03.1998, filed a false report before Mahila Police Station
and thereupon, he was detained by Sub-Inspector of Police, Mahila Police Station
for two days.  On 19.04.1998, while the petitioner was on his way to Makkuva,
she way-laid him with goondas and threatened to kill him.  In view of the
threat, he was afraid of attending his duties, and hence, he applied for leave.
The cruel attitude of the respondent caused reasonable apprehension in his mind
that it would be harmful and injurious for him to continue the marital tie with
the respondent, and hence, prayed the Family Court to dissolve the marriage on
grounds of cruelty and desertion for a period of more than two years.
 
03.             The respondent-wife filed three counter affidavits denying her
leaving the house on 02.06.1979 with a suitcase consisting of 15 tulas of gold
and her refusal to join the petitioner.  She denied the allegation that she
demanded the petitioner to set up separate family, abused her in-laws, broke
open the doors of the house constructed by the petitioner and forcibly took away
the belongings of the petitioner and his parents.  She stated that she joined
the petitioner along with their children at Paradesipalem.  She admitted in the
counter that II Town Law & Order Police Station registered a case in Cr.No.61 of
1998 against herself and her children, but stated that she never threatened nor
abused the petitioner and his parents.  She further stated that after the
marriage, both of them lived in the house of the petitioner's parents, during
which time, the petitioner used to harass her physically and mentally in order
to get her gold ornaments to meet his vices like gambling, drinking, etc.   In
the light of the decree passed in O.P. No.211 of 1979 for restitution of
conjugal rights, and at the instance of the elders, the respondent joined her
husband by the end of the year 1980 and gave birth to a female child in June,
1982, and after the birth of the third child, both of them lived together till
June, 1986.  While the trial in O.P.Nos.422 of 1989 & 130 of 1989 was in
progress, the petitioner was living with one Ms.Tatavarthi Ramadevi in the house
bearing D.No.3064 at Paradesipalem, and both of them visited several places on
pilgrimage and there is ample evidence to substantiate that they lived together
as husband and wife, and thus, the petitioner is guilty of matrimonial offence
of living in adultery with Ramadevi with the active support of his parents,
sisters and brothers.  After the O.Ps. were dismissed as settled out of Court
i.e. on 14.02.1994, the petitioner took the respondent and the children to the
newly constructed house at Paradesipalem and started living with them.
Subsequently, the petitioner was transferred to Chittivalasa and from there to
Makkuva in October, 1997, and in November, 1997, the petitioner took the
respondent and the children to Makkuva and both of them lived there till
01.03.1998 while children were allowed to pursue their education at
Visakhapatnam.  After making the respondent believe his outward goodness in
connivance with his family members, the petitioner surreptitiously inducted his
kept mistress, Thatavarthi Ramadevi in his parental house bearing D.No.29-10-53,
Visakhapatnam, thereby the respondent and her children were neglected and
subjected to inhuman and cruel treatments.
 
04.             On the premise of the aforesaid pleadings of the parties, the trial
Court framed the following issue for determination:
        "whether the respondent is guilty of cruelty and desertion of the
petitioner and the marriage between the petitioner and the respondent is liable
to be dissolved?"
        Before the Family Court, the petitioner-husband examined himself as PW1
and his mother as PW2 and T.Ramadevi as PW3 and got marked Exs.A1 to A13.  The    
respondent-wife examined herself as RW1 and six others as RWs.2 to 7 and got
marked Exs.B1 to B29.  Ex.C1 and Exs.X1 to X3 were marked on behalf of the 
Court.
 
05.             PW1, who is the petitioner-husband, deposed that the marriage
between him and the respondent took place on 22.12.1974, and for one and a half
months they led peaceful life in the petitioner's joint family, and thereafter,
she began picking up quarrels on petty matters and pestered him to set up
separate family.  On 12.09.1976, their
first daughter was born, in 1978, their second daughter was born and even then,
she pestered him to set up separate family.  In June, 1979, in his absence, and
when his parents were not in the house, his wife went away along with 15 tulas
of gold with two kids to her parental house, and the petitioner had to rush to
her in-laws' house to bring her back, but their in-laws, suppressing the fact of
her arrival, abused him stating that the respondent went away because of his
harassment and they did not know anything about her.  When he insisted on
revealing the truth of her whereabouts, her brothers and friends threatened to
kill him.  Then, he complained to the police about her missing of the
respondent, and the police after investigation, told that his wife is with her
parents.  Then, he filed a petition in O.P. No.211 of 1979 for restitution of
conjugal rights, and the same was decreed in his favour.  Even after the
petition was decreed, she did not join him and preferred an appeal against the
order in O.P., but it was dismissed.  In the interest of the children and with
the help of elders he brought back his wife and children and lived with them
jointly with his parents, but again she resorted to the old game and stayed with
him up to December, 1981.  Ultimately, he set up separate family by taking
separate portion of his father's house in Visakhapatnam.  Again, she got
pregnancy in December, 1981 and went away to her house stating that she had some 
problem, and on 12.06.1982, third daughter was born to them.  Thereafter, she
did not join him in spite of the petitioner going and requesting her to come and
lead matrimonial life.  After getting promotion, he was transferred to Tupran,
Medak District, and on 3.10.1989, he knew that his mother and brother were
arrested by II Town Police, Visakhapatnam based on a complaint lodged by his
wife.  In 1981, she filed a case against him for the offence punishable under
Section 498-A IPC and made number of complaints to his superiors.  There was 7
years of estrangement between them.  Hence, he was constrained to file O.P.
No.422 of 1989 seeking divorce and O.P. No.139 of 1989 for custody of his
children, and the police filed charge sheet against him in C.C. No.42 of 1990.
When he was transferred to Chittivalsa in 1994, she began to visit him and
caused lot of disturbance to him.  She proposed to withdraw the criminal case
only if he withdraws the divorce petition and guardian petition against her.  In
1994, on her persuasion and on the advice of elders, he withdrew both the O.Ps.,
but she did not withdraw the criminal case, however, on 06.02.1995, the criminal
case ended in acquittal, by which date, they were living together.  Contrary to
his expectation, she was harassing him and not providing even food, and by the
time he returned from office, she went away to her parents' house and during
night times, she was disturbing his sleep by putting on lights and hiding the
keys of his Branch Office and caused much difficulty.  Ultimately, on
15.01.1996, during Pongal, she took off her "Mangal Sutrams", threw them on his
face claiming that the house is not his and threatened him with dire
consequences.  In November 1997, he was transferred to Makkuva and on 
06.03.1998, when he was in office, the respondent along with three daughters
entered the house of his parents with the help of goondas and caused physical
harassment and bleeding injuries with knives to his parents and their cook
Ramadevi.  A complaint in II Town Police Station was lodged by his parents with
the help of neighbours and cook, and that criminal case is pending against his
wife.  On 23.03.1998, his wife complained against him, and based on her
complaint, he was detained by the police at Mahila Police Station, for two days,
as such, there is absolutely no possibility of leading married life with her
because of her cruel behaviour.  Hence, he filed the O.P.No.150 of 1998 seeking
divorce on the grounds of cruelty and desertion, and he is prepared to pay
maintenance and also willing to perform the marriages of their daughters as a
dutiful father.  In the cross-examination, he denied a suggestion that he lived
with one Tatavarthi Ramadevi, who worked as cook in his parents' house.  He
stated that in 1997, when he was working at Makkuva, he used to stay alone.  He
denied a suggestion that he took the respondent and the first child to Makkuva
and lived happily for five months, and on 22.02.1998, they returned to
Visakhapatnam and Ramadevi abused the respondent in the house of his mother, and 
therefore, the respondent also retorted and later returned to Visakhapatnam, and
he harassed the respondent on the ground that she questioned the attitude of
Ramadevi. He further deposed that Exs.B5
(a to d) are photos with the corresponding negatives taken in Shiridi, but he
did not know by whom they were taken.  Exs.B6(a to f) are another set of photos
with corresponding negatives, while some of which contain his photographs, some
others contained the photographs of Ramadevi.  In the cross-examination, he
stated that Ramadevi was staying in the house of his parents in Visakhapatnam as
Cook and filed a Criminal Case for the offence punishable under Section 354 IPC
against the respondent and their children on the file of the Court of Mahila
Sessions Judge, Visakhapatnam. 
 
06.             PW2, the mother of the petitioner, deposed that the respondent did
not return after having gone to her parents' house for the
second delivery, and the petitioner had gone to bring her back to his house.
 
After the disposal of the appeal filed by the respondent against the order in
O.P.No.211 of 1979 filed by the petitioner for restitution of conjugal rights,
there was compromise at the instance of some elders, and the respondent joined
the petitioner at his house and stayed only for one and a half years.  She
further deposed that after the third delivery, the petitioner joined the
respondent at their house and stayed for sometime, and later she left the place.
She further deposed that after the petitioner left for Tupran, there was nobody
to look after her, as such, her husband engaged one Ramadevi to do all domestic
works in the house including cooking.  Whenever they go to Shiridi, Hyderabad
and Tirupathi they used to take Ramadevi along with them, but the petitioner
never accompanied them to those places.
 

07.             PW3, Ramadevi, deposed that her father and the father of PW1 are
friends and after her father expired, she used to stay in her sister's house.
While so, in January, 1989, PW2 asked her to come and assist her and her husband 
in her house at Visakhapatnam as they are old, as such, she went and stayed in
her house by doing domestic works including cooking.  She stated that except
along with PW2, she did not visit any pilgrim centres with the petitioner.  She
deposed that she does not remember the places covered in Ex.B6(c to e), Ex.B7(b
to d), Ex.B8, Ex.B9(a, b), Ex.B10(c, d), Ex.B11(a to d), which are her
photographs.  She denied the suggestion that on 10.05.1992, she and the
petitioner lived together as wife and husband and visited pilgrim centres when
the respondent and her children visited the house at Madhurawada.  In cross-
examination, she admitted that the petitioner has been working in Visakhapatnam
and living in the house of PW2 and she has been staying in the same house.
 

08.             RW1, who is the respondent-wife, deposed that after her marriage
with the petitioner, three daughters were born to them in 1976, 1978 and 1982
respectively and on 06.06.1979, the petitioner filed a petition on the file of
II Additional District Judge, Visakhapatnam, for restitution of conjugal rights
against her, and after the petition was decreed, and on the advice of the
Presiding Officer, both the petitioner and the respondent compromised the matter
in 1981 and started living together up to Septemper, 1987, and in which year,
the petitioner was transferred to Tupran and lived with the respondent and his
third child while the first two daughters were studying in St. Joseph Convent in
Visakahpatnam.  She further stated that on one occasion, she came to know that
her parents-in-law forced the petitioner to marry again leaving her to her fate,
and when she questioned, the petitioner and his brother, Satyanarayana harassed
and beat her.  In November,1989, when she came to Visakhapatnam in connection 
with the marriage of his sister, she received a notice from the petitioner
claiming that she deserted him.  When she questioned her mother-in-law as to why
the notice was issued to her, then her brother-in-law beat her.  To avoid
further disputes the petitioner took her to Tupran.  She further deposed that on
10.05.1992, herself and the children visited the newly constructed house of the
petitioner at Paradesipalem and found PW3 (Ramadevi) living with the petitioner.
She further deposed she and the petitioner along with the children lived in
Paradesipalem up to November, 1997.  Thereafter, the petitioner got transfer to
Makkuva and the petitioner took her and the children to that place and lived
with them.  She deposed that she was having Type Institute at Suryabagh,
Visakhapatnam with 6 typewriters.  On 01.01.1998, while she was at Makkuva,
there was theft of all the typewriters, and in that connection, she came to
Visakhapatnam and found her husband at his parents' house with Ramadevi and she 
did not know when her husband came to Visakhapatnma.  At Makkuva, the petitioner 
looked after her well and ever since she and her children have been residing in
the house at Paradesipalem, the petitioner has been living in adultery with
Ramadevi in the house of his parents at Dabagardens, Visakhapatnam.  The
petitioner filed I.A. No.359 of 1998 in O.P. No.422 of 1989 seeking to prevent
the respondent from going to the houses at Makkuva and Dabagardens.  After
obtaining the injunction order, he joined his office on 07.05.1998 at Makkuva.
When she and the children visited their house at Makkuva, he stayed in the Bank
for one and a half days without coming out and opening the doors of the house,
therefore they could not collect their belongings and suffered with hunger.  In
December, 1998, the petitioner got transfer to Visakhapatnam and she went to her
in-laws' house, but on enquiry, it came to light that the petitioner instigated
Ramadevi to give complaint against her and the children, and on 21.01.1999, she
was arrested by the police.  She further deposed that on 06.07.1999, at
Dabagardens, Visakhapatnam her father-in-law died and she went to see his dead-
body, but the doors of the house was closed and she was not allowed to see the
dead-body.  She further deposed that she saw the petitioner and Ramadevi going
by car on several occasions.  She performed the marriage of their first daughter
by taking loan from Margadarsi Chit Fund Company and her sister, Revathi.  In
cross-examination, she deposed that since 10.05.1992, she has been residing at
Paradesipalem with the petitioner.  She denied a suggestion that on 10.05.1992,
Ramadevi was not in the house at Paradesipalem.  She denied a suggestion that
she committed theft of Exs.B20 and B27 from the house in Visakhapatnam on 
06.03.1998 when she went there.  She denied a suggestion that she went to her
husband's house at Paradesipalem on 10.05.1992 along with goondas and looted all
the belongings of the petitioner.  She stated that the petitioner beat her in
Hyderabad and in that regard and also with regard to other aspects, she gave a
police complaint, and Ex.A13 is the certified copy of the deposition in C.C
.No.42 of 1990.
 

09.             RW2, who is the Sarpanch of Paradesipalem, Maruthivalsa and 
Boravanipalem villages, deposed that he was invited by the petitioner to the
house-warming ceremony and the person shown in Exs.B6(c & d) - photographs is 
called "Pantulamma" and he did not know her actual name, and as the petitioner
and she were moving closely and sat for house-warming ceremony, he thought that
she was his wife, but later the respondent told him that the respondent herself
is the actual wife.  Then, the petitioner and that lady left the place and the
respondent and the children started living in that house.  The petitioner and
"Pantulamma" came from Makkuva and exercised their franchise at Paradesipalem  
for panchayat elections in 1998.  In his cross-examination, he stated that after
the respondent came, the petitioner and the respondent started living together
at the house in Paradesipalem.  One month after the respondent joined him
subsequent to the house-warming ceremony, the petitioner left her, and
thereafter, did not join the respondent.
        RW3, who is also the Sarpanch of Paradesipalem, Boravanipalem, 
Maruthivalasa villages, deposed that he attended the house-warming ceremony when
he was invited by the petitioner, and he saw one person called "Pantulamma"
getting up with the petitioner after performing Puja together, and 15 days
later, the respondent came and informed him that the respondent herself was the
actual wife of the petitioner, and from then onwards, the respondent started
living in that house.  Later, the petitioner and the respondent lived in that
house for three years, and later, he got transfer to Makkuva.  In February,
1998, the petitioner, the respondent and their first daughter came to
Paradesipalem and exercised their franchise.
        RW4, the Branch Manager of State Bank of India, deposed that the
petitioner applied for travelling allowance for transportation of luggage and
for the travelling of himself, his wife and the three daughters from Chodavaram
to Makkuva.  In cross-examination, he stated that the petitioner was transferred
from Makkuva to Visakahapatnam in December, 1998.  
        RW5, a Reporter in Eenadu at Makkuva, deposed that the petitioner and the
respondent lived together at Makkuva from November, 1997 for three or four
months in a portion beside the portion in which he was residing.  In cross-
examination, he stated that they stayed in that portion from March, 1998 to
December, 1998. 
        RW6, the daughter of the petitioner, deposed that in 1992, her father got
transfer to Visakhapatnam from Tupran and in November, 1992, her father got
transfer to Makkuva.  Then, he took her, her sisters and her mother from
Paradesipalem to Makkuva by car.  She further stated that her father used to
stay along with Ramadevi in one portion and her grant parents used to reside in
other portion.  She further deposed that Ramadevi is not a cook by profession
and her father developed illegal contacts with Ramadevi.  In cross-examination,
she denied a suggestion that her father and Ramadevi did not stay together in
the house of her grand parents at Dabagardens.
        RW7, the then Deputy Manager, State Bank of India, deposed that Ex.X1 is
the relevant TA Bill and it does not contain any details regarding the actual
place of transfer and number of persons for which T.A was applied for.
        On the basis of the aforesaid evidence of the parties, both oral and
documentary, the Family Court dismissed O.P. No.150 of 1998 by order and decree 
dated 11.09.2000.  Challenging the order of dismissal, the petitioner-husband
has preferred the present C.M.A.
 
10.             Having heard the learned counsel for both the parties, the only
question that arises for determination in this appeal is whether the dismissal
of O.P. No. 150 of 1998 filed by the petitioner-husband is justified in the
facts and circumstances of the case?
        The petitioner filed O.P. No.150 of 1998 seeking dissolution of the
marriage between the petitioner and the respondent mainly on the grounds of
desertion and cruelty of the respondent.
        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 aforesaid legal position laid down by the Supreme Court is also
reiterated in Adhyatma Bhattar Alwar Vs. Vadhyatma Bhattar Sri Devi2 and the
Supreme Court held that "desertion in the context of matrimonial law represents
a legal conception. 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.
        Insofar as the term "Cruelty" is concerned, it is observed in
V.Bhagat Vs. Mrs. D.Bhagat3, 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 issue.
According to the petitioner, on 10.05.1992, the respondent, with the help of her
goondas, broke open the locks of the house constructed by him at Paradesipalem,
forcibly entered the house and took away the household articles, in respect of
which, he gave a report to the police under Ex.A4, but of no avail.  This
statement was falsified by RWs.2 and 3, who attended the house-warming ceremony. 
They stated that the petitioner performed the house-warming ceremony along with
Pantulamma (T.Ramadevi) and it is only 15 days after the house-warming ceremony,
the respondent visited Paradesipalem and reported that she herself is the
legally wedded wife of the petitioner.   The police, based on the investigation
report, stated that the complaint given by the petitioner is false and the
respondent is proceeding against him in Civil Court as evidenced by Ex.A3 -
reply given by her.  This goes to show that it is the petitioner himself, who
initiated criminal action against his wife in the first instance attributing
theft of gold of his mother, and also by apprehending that she is going to
proceed in the Court of law, he gave a notice demanding her to join him for
restitution of conjugal rights.
11.             The petitioner, examined himself, his mother and Ramadevi, who is
said to be living with him in adultery, but there is no other corroborating
evidence to speak that the respondent is guilty of subjecting him to cruelty.
The evidence of PWs.1 to 3 can be said to be interested testimony inasmuch as
PW3 is a consenting party to the illicit relationship of PW1.  Even though the
petitioner lived at different places as a tenant in view of his occupation, he
did not examine any of the house owners of the locality to speak about the
respondent that she picked up quarrels and left the matrimonial home very often
or the alleged cruelty.
        Moreover, Exs.B11(c & d) are the photographs of the petitioner and PW3
being together.  The very taking of those photographs when PW2 went for
pilgrimage along with the family members, itself establishes the intimacy
between PWs.1 and 3.  Contrary to those documents, the petitioner deposed that
he never went on pilgrimage along with PW3 and he did not know how the
photographs were taken and by whom.  Further, even though PW3 denied the hand- 
writings in Exs.B20 and B26 - letters, but on a comparison of her hand-writing
with the hand-writing in Ex.C1 obtained before the Court, it probablises that
the letters were written by PW3 to PW1.  They would amply show that there is
love affair between PW1 and PW3 and the petitioner is treating her as his wife.
That apart, if really, PW3 - Ramadevi is only a Cook, and a domestic servant as
stated in her evidence, the question of her working in the house of the parents
of the petitioner, without any remuneration and addressing letters to PW1 when
he was working at different places, does not arise.  The very admission of
Ramadevi that the petitioner and she were living in the house of PW2 in
Visakhapatnam when she gave a report to the police against the respondent and
her children further probabalizes that PW1 is instrumental in getting the report
lodged by PW3 against the respondent and her children in order to sever
connections by getting his marital tie dissolved and to continue his illicit
relations with PW3 with an oblique motive to marry her subsequently.
        According to the petitioner, on 06.03.1998, when he was at Makkuva Branch,
the respondent along with her three daughters entered the house of her in-laws
with the help of goondas, caused physical harassment to his parents and cook
resulting in bleeding injuries with regard to which a complaint was given to the
police.  As stated earlier, PW3 herself deposed in her evidence that on the date
when the alleged incident took place, the petitioner was very much available in
his parents' house and was not at Makkuva.  This incident appears to be the
result of the failure on the part of the petitioner in allowing the respondent
to enter the house to facilitate him to continue his illicit intimacy with
Ramadevi.  According to him, during the year 1987, he stayed at Makkuva all
alone and the respondent did not join him, but Ex.X2 - copy of the expenditure
statement, establishes that he claimed T.A. from the Department not only for
shifting his luggage from Chodavaram to Makkuva, but also shifting the
respondent and his three children including himself.
        RW6, daughter of the petitioner, stated that when they were at the house
of her paternal grand parents, her father used to stay with Ramadevi in one of
the portions while her grand parents used to live in another portion.  She added
that her father looked after them well till he developed illegal contacts with
Ramadevi.  It is to be noticed here that there was not even a suggestion to RW6
that the respondent used to harass the petitioner at every place of his work and
made Galata.  Therefore, from the evidence of RW6 also it can be inferred that
the reason for the disputes between the petitioner and the respondent is only
due to the stay of Ramadevi in the house and her closeness with the petitioner.
12.             After filing O.P. No.422 of 1989 for divorce and while the trial was
in progress, the petitioner filed Ex.A5 Compromise Memo, and even according to
him, he took the respondent to his matrimonial home and lived with her till
15.01.1996, as such, it can be said that by entering into a compromise and
living with the respondent subsequently for two years, the petitioner can be
said to have condoned the prior cruelty if any on the part of the respondent,
and therefore, he cannot be permitted to urge the alleged commission of cruelty
prior to 15.01.1996, and at any rate, after filing the compromise memo in the
year 1984 and relying upon Exs.A1 to A9.
        The petitioner stated that on 15.01.1996, the respondent picked up quarrel
with him, tore her "Mangala Suthrams", left his company from Paradesipalem,
visited his parents' house on 06.03.1998 and caused bleeding injuries to
Ramadevi, as a result, Ramadevi gave a report to the police under Ex.A7, and
thereupon, the respondent also lodged a report with the police against him and
others, but the petitioner failed to elaborate the reasons that led the
respondent to go to the extent of tearing her "Mangal Suthram" even in the
presence of the petitioner and proclaiming that he will be no more her husband.
No Hindu Woman with three daughters of marriageable age would go to the extent
of tearing her "Mangal Suthram". unless she is subjected to cruelty by her
husband.
Further, when the petitioner himself obtained an injunction order preventing the
respondent from living with him at Makkuva, he cannot make a complaint that the
respondent never lived with him at Makkuva and she herself deserted him.  Even
the fact that he did not join the respondent to perform the marriage of his
first daughter establishes that he invented the entire story of the respondent
harassing him from time to time and at different places of his employment in
order to obtain divorce from the respondent and with an ulterior motive to marry
Ramadevi.
 
13.             It is the contention of the learned counsel for the petitioner that
the respondent, after driving the petitioner out of the house on 15.01.1996, by
tearing her Mangal Suthram, the respondent did not join him till the date of
filing the O.P.No.150 of 1998, and there was continuous desertion for a period
of not less than two years immediately preceding the presentation of the
petition, as such, he is entitled to a decree for divorce.  But the evidence of
RWs.1 , 5 and 6 is to the effect that sometime after his joining in office at
Makkuva, the respondent visited that place and lived with him till March, 1998
and thereafter, she was forced to leave the house as the petitioner obtained an
order of injunction against her.  If she had not joined him from 1996, the
question of his filing the suit against the respondent and obtaining the order
of interim injunction in I.A. No.355 of 1998, does not arise.  Therefore, his
contention that from 1996, the respondent continuously deserted the petitioner
for two years, is baseless and the fact that the respondent might have joined
the petitioner at Makkuva is further fortified by Ex.X2 and the evidence of
RWs.2 and 7.
 
14.             It seems that after PW3 - Ramadevi came to live in the house of the
parents of the petitioner, misunderstandings developed between the petitioner
and the respondent leading to frequent quarrels between them in view of his
illicit relationship with PW3 from 1989 onwards, and unable to bear this, the
respondent used to go away to her parents' house frequently, and ultimately the
petitioner filed the present application to get rid of the respondent and live
happily with PW3, which is obvious from the photographs, Exs.B6 to B13.
        No doubt, the facts and circumstances on record probablise that there is
no love lost between the spouses, but the fact remains that it is only due to
the intrusion of Ramadevi into the petitioner's family, the quarrels started.
        The above pleadings and the evidence clearly established that the
petitioner himself is responsible for the domestic quarrels between the spouses
and the petitioner himself is guilty of cruelty towards his wife having
developed illegal contact with Ramadevi, who joined as cook in their house.
15.             For the foregoing reasons, 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 inclination of animus deserendi on the part of the
wife to permanently cease the cohabitation and marital relation.  The factum of
separation on account of PW1 having illicit intimacy with PW3 - Ramadevi, by
itself is not sufficient to establish any animus on the part of the wife to
desert the husband as is sought to be alleged in the O.P.No.150 of 1998 filed by
the petitioner    Further, the position of law is well-settled in the edict of
the Apex Court (3rd supra) that levelling disgusting accusation of unchaste and
indecent familiarity with a person outside the wedlock and allegations of extra
marital relationship is a grave assault on the character, honour, reputation,
status as well as the health of the wife.  The aspersion of infidelity of the
husband, an educated man would amount to insult, adding to injury of the worst
kind, and sufficient to substantiate cruelty on his part.  The allegation of the
husband in the claim petition adverted to by the Family Court while recording
the finding that they tantamount to cruelty by the husband to the wife, cannot
be said to be perverse.   The petitioner-husband appears to have persisted in
his endeavour to hurt the feelings of the wife as to to cause reasonable
apprehension in the mind of the wife that it would be dangerous for her to live
with the husband..
 
16.             On an appreciation of the entire evidence on record as well as the
findings of the Family Court, we are satisfied that there is no evidence on the
part of the husband to establish the 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.  The petitioner also
miserably failed to establish the allegation of cruelty meted out by his wife by
adducing substantial legal evidence.
 
17.             The findings recorded by the Family Court, in our considered
opinion, are justified and there appears to be no infirmity therein and they are
not vitiated on the ground of perversity calling for interference from this
Court.  The contentions urged by the learned counsel for the petitioner-husband
do not merit consideration and are rejected.
Hence, the Civil Miscellaneous Appeal inevitably fails, and is accordingly
dismissed.  No order as to costs.
?1 1997 (5) ALT 805 (D.B.)
2 (2002) 1 SCC 308
3 AIR 1994 SC 710