Mr.Chintham Gopinath v. Smt.Perisetla Soujanya

THE HON'BLE SRI JUSTI CE C.PRAVEEN KUMAR & THE HON'BLE SMT KONGARA VI JAYA LAKSHMI C.M.A No.4593 of 2004 JUDGMENT: (per Hon'ble Sri Justice C.Praveen Kumar) This Civil Miscellaneous Appeal arises out of an order, dated 14.07.2003, passed in H.M.O.P.No.79 of 1999, on the on the file of the Principal Senior Civil Judge, Nellore, wherein the O.P. filed by the appellant/husband seeking for dissolution of the marriage with the respondent/wife was dismissed.

2. Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondent.

3. The brief facts of the case are as under:

The appellant who is the husband of the respondent filed O.P seeking dissolution of the marriage under Section 13 (1) (ia) of the Hindu Marriage Act. It is pleaded that the marriage between the appellant and the respondent took place on 28.05.1997 at Pellakur Anasuyamma Kalyana Mandapam, Nellore, as per Hindu rites and customs. By the date of marriage, the appellant possessed B.Sc., B.Ed degree and after the marriage he got employment as a Teacher in Vivekananda School. It is stated that from the date of marriage, the respondent/wife oftenly left the matrimonial home without his knowledge and consent and started staying at her parents' house for weeks together. The appellant used to bring her back to the matrimonial home after a great persuasion. It is further stated that the appellant secured employment at Chennai and he used to come to the house at the week ends, and during that period, the respondent/wife secured employment as a Teacher in Mandal Parishad Elementary School, Kakuvaripalli of Chillakur Mandal. As the movements

of the respondent/wife were not transparent and causing serious anxiety, the appellant questioned her behaviour, to which she abused him in filthy language. It is further pleaded that the appellant fell sick at his work place and came to Nellore to take rest, but the respondent/wife did not attend him. Again when the appellant came to Nellore from Chennai on 08.08.1999 and 14.08.1999, he found the door locked. When he searched for the respondent, he could not trace her whereabouts. Since the respondent/wife subjected the appellant to mental agony, a divorce application came to be filed by the appellant before the court below.

4. A counter came to be filed by the respondent/wife in the divorce OP admitting the marriage. It is stated that at the time of marriage, her parents gave cash of Rs.1,00,000/- to the appellant, besides gold and household articles. She pleaded that after the marriage, the appellant and his parents used to demand her to bring additional dowry from her parents house and when she refused, the family members of the appellant harassed and subjected her to cruelty by not providing food etc. It is further pleaded that the appellant wanted to go to Singapoor for which he demanded her to bring cash from her parents. She further stated that she was subjected to physical assault by the appellant and his family members, and ultimately she was necked out from the house of the appellant.

She stated that the parents of the appellant humiliated her by sending her for medical check up as to whether she is capable to procreate children, and though the Doctor advised that the appellant also has to undergo medical check up, they did not do so and further more, the appellant and his family members have physically assaulted her.

Fathekhanpet, Nellore. The appellant visited the house only on one occasion and did not turn up later and hence, the respondent/wife vacated the rented house. Later the respondent lodged a report before the police, which was registered as a case in Cr.No.29/99 under Section 498-A IPC against the appellant and his family members. The police investigated the matter and filed charge sheet and the same was taken on file as CC.No.550/99 on the file of the Special Mobile Court, Nellore, and later the same was re-numbered as CC No.859 of 2000. Initially, the trial court, in C.C.No.859/2000, vide judgment dated 10.08.2004, convicted the appellant and his family members for the offence under Section 498-A IPC and for the offence under Section 5 of the Dowry Prohibition Act. On appeal, the lower appellate court, vide its judgment dated 20.11.2006, in Crl.A.No.106 of 2004, set aside the conviction of the trial court and acquitted the appellant and his family members for the charges leveled against them.

5. Basing on the above pleadings, the Court below framed the following issues:

1.

Whether the petitioner (appellant) treated the respondent with cruelty or vice-versa?

2.

Whether the marriage of the petitioner (appellant) and the respondent be dissolved by a decree of divorce? 3.

To what relief?

6. In support of his case, the appellant examined himself as PW 1 and the respondent examined herself as RW 1 before the court below. No documentary evidence was adduced by either side.

7. After hearing both sides and on considering the oral evidence adduced by the parties, the court below rejected the request of the

appellant for granting divorce. Assailing the same, the present appeal came to be filed.

8. Learned counsel for the appellant would contend that the court below erred in considering the evidence of RW1 in the absence of any documentary evidence in support of her version. He further contends that the court below ought to have taken into consideration the fact that the respondent, on her own, used to leave the matrimonial home without knowledge and notice of the appellant and willfully deserted him. It is urged that since 1999 the appellant and the respondent are living separately, and considering the said fact, the court below ought to have allowed the divorce OP filed by the appellant. The learned counsel further contends that except denial with regard to allegations made in her oral evidence, there is no other independent evidence on record in order to support the plea of the respondent. The learned counsel further contends that there are no chances of reunion of the appellant and the respondent at this length of time.

9. On the other hand, the learned counsel for the respondent would contend that if the evidence of RW 1 is seen, it would clearly indicate that the respondent was subjected to cruelty by the appellant. He further submits that the appellant and his family members subjected the respondent to cruelty and because of the said treatment, she was forced to file a criminal complaint against the appellant and his family members which lead to their conviction. The learned counsel further submits that the court below having considered the rival contentions of both parties, rightly dismissed the OP filed by the appellant.

10. It is to be seen that the appellant and the respondent made a claim and counter claim against each other. In his evidence, PW 1 stated

that he was subjected to cruelty at the hands of the respondent while they were staying at Nellore and prior to that. The evidence of RW 1 runs contra to the evidence of PW 1. It is a case of oath against oath as no documentary evidence is placed on record by either side.

11. As seen from the oral evidence of PW 1, the respondent was working as a Teacher and most of the time she was away from him and was living at her parents' home. PW 1 in his evidence stated that when he questioned the absence of the respondent when he visited the house, she never gave any proper reply. His evidence also shows that for some time the respondent was going to the school from Nellore, and later she took a room on rent at Kota along with her colleagues and was attending the school. Though PW 1 requested her to stay at Nellore, she refused. Later, PW 1 secured employment in Chennai and used to come to Nellore during week ends. The evidence of PW 1 further reveals that when PW 1 fell sick and was suffering with Typhoid, the respondent did not attend him. According to PW 1, on 11.07.

1999 the respondent lodged a report with the police. The Deputy Superintendent of Police, Nellore enquired into the matter and directed PW 1 and RW 1 to put up separate family. As such, PW 1 took a house on rent, but the respondent never joined him at the new house. His evidence further shows that when PW 1 came to Nellore from Madras on 08.08.1999, he found the house locked and again on 14.08.1999 when he came to Nellore, the house was locked and when he questioned, RW 1 expressed her unwillingness to join him. It is in his evidence that without joining him, the respondent lodged a false criminal complaint against PW 1 with Woman P.S, Nellore under Section 498-A IPC, which was registered as C.C.No.

Magistrate of First Class, Mobile Court, Nellore, which ended in an acquittal in appeal.

12. On the other hand, in her evidence, RW 1 admitted the marriage with PW 1 and stated that by the time of marriage PW 1 was running a Pawn Broker shop at Nellore; that she joined as a Teacher in Vivekananda school and her father-in-law was collecting her monthly salary of Rs.800/-; that she secured Government teacher post in August, 1998 at Kakuvaripalli of Chillakuru Mandal, she stayed at Kota, and she stated that she was regularly going to the house of her in-laws at the week ends. She denied that she was oftenly leaving the matrimonial home and staying outside for weeks together. She stated that she was illtreated by PW 1 and his parents and she was subjected to harassment for not bringing additional dowry.

She further stated that her in-laws got her examined by a Doctor, by name Padma Priya, to know whether she was capable to procreate children. She further stated that the doctor advised the appellant to be examined as there was no fault with her and in that connection she was abused and humiliated by the appellant and his parents. She further stated that unable to bear the treatment meted out to her, she lodged a report before the police and the police advised them to put up separate family. She further deposed that on the advice of the police, she took a rented house at Fathekhanpet, Nellore, but the appellant never visited her. She further stated that she lodged a report before the Women Police Station, Nellore, which resulted in registration of C.C.No.550/1999 on the file of the Special Mobile Court, Nellore.

RW 1 stated that she was humiliated and harassed by the appellant and his parents.

13. No documentary evidence was adduced on either side to substantiate their respective pleadings.

14. During pendency of the appeal, the learned counsel for the appellant placed on record a copy of the judgment, dated 20.11.2006, passed in C.C.No.106/2004 on the file of the Court of Sessions, Nellore Division, Nellore and a letter, dated 01.08.1999 executed by the respondent.

15. The documents filed by the appellant would show that C.C.No.106/2004, which was registered basing on a report given by the respondent, ended in an acquittal in Appeal and the letter, dated 01.08.1999 would show that the respondent executed the said letter in token of receipt of some gold and silver ornaments from the appellant.

16. From the above, it appears that the allegations of harassment, made by the respondent in the hands of the appellant, prima facie, were proved to be incorrect, as no supporting documentary evidence was adduced by the respondent. That being so, the evidence of PW 1 carries some weight with regard to cruelty, which was meted out to him in the hands of the respondent. It may not be necessary to reproduce the entire version of PW 1 herein. As observed earlier, PW 1 was subjected to cruelty by the respondent, by staying away from him and not looking after him properly when he visited the house due to sickness. Further, as and when the appellant came to Nellore, the respondent was not found in the house and it was locked. He could not find out the whereabouts of the respondent.

17. Apart from, the learned counsel for the appellant would contend that since 1999 both the appellant and the respondent are living separately and the respondent did not join the appellant in spite of his

best efforts. The learned counsel further submits that living separately such long time would lead to mental cruelty and on such ground alone, divorce can be granted. In support of his contention, the learned counsel for the appellant relied upon the judgment of a Division Bench of this Court in Kalapatapu Lakshmi Bharati v. Kalapatapu Sai Kumar1.

18. The learned counsel for the appellant further submits that it is not possible for the appellant and the respondent to live together and there are no chances of their reunion. It is pleaded that their marriage is irretrievably broken down. The version of RW 1 would go to show that she is not interested to join the appellant and lead a conjugal life.

19. We feel that once the marriage has been broken down beyond repair, it would be unrealistic for the law not to take notice of the fact and it would be harmful and injurious to the parties, if they are forced to live together. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage, on the contrary, it shows scant regard for the feelings and emotions of the parties. Such situations may lead to mental cruelty.

20. In the case, referred to above, a Division Bench of this Court, after referring to the judgments of the Apex Court in Samar Ghosh v. Jaya Ghosh2 and Kohli v. Neelu Kohli3, held as under: "In the light of the undisputed fact that the parties have been living separately for nearly 14 years, there may be no escape from the conclusion that the marriage has irretrievably broken down. As held by the Supreme Court, a long time separation itself would lead to mental cruelty. Therefore, irrespective of the findings of the lower Court on the 1 2017 (1) ALD 272 (DB) 2 2007(4) ALD 11 (SC) 3 (2006) 4 SCC 558

failure of the appellant to prove mental cruelty, she is entitled to a decree for dissolution of marriage on the sole reason that there is no possibility for reunion of the parties in order to live together. Since the marriage between the parties has irretrievably broken down, any attempt to force the parties to live together would tantamount to causing mental cruelty and would only prolong the mental agony of the parties for the rest of their lives."

21. We are of the opinion that the judgment of the Division Bench of this Court, referred supra, is clearly applicable to the facts on hand. As stated earlier, the marriage of the appellant and the respondent was performed on 28.05.1997. From the year 1999 onwards there were illfeelings between the appellant and the respondent and since then they were living separately. The said fact is not denied by either party. This circumstance would establish mental cruelty, as per the ratio laid down by the Division Bench of this Court. The divorce OP was filed by the appellant in the year 1999 and the same was dismissed on 14.07.2003. Even after dismissal of the OP, the respondent did not join the appellant. As per the letter, dated 01.08.1999, produced by the appellant, gold and silver jewelry articles were returned to the respondent and in token thereof, the respondent executed the said letter.

22. For the foregoing discussion, we are of the opinion that serious differences cropped up between the appellant and the respondent and they could not sink their differences and live together. Admittedly, the appellant and the respondent are living separately from 1999 onwards, which mean that 18 years have expired since they started living separately. As there is no possibility of reunion of the appellant and the respondent, and having regard to the finding given on the aspect of cruelty, we feel that it is a fit case to grant divorce to the appellant.

23. Accordingly, the Civil Miscellaneous Appeal is allowed. The order, dated 14.07.2003, passed in H.M.O.P.No.79 of 1999, on the file of the Principal Senior Civil Judge, Nellore, is set aside. The marriage between the appellant and the respondent, which took place on 28.05.1997, is hereby dissolved by granting decree of divorce. However, the respondent/wife is given liberty to take appropriate proceedings before the appropriate forum, claiming maintenance and for other reliefs, if any, if she is eligible, in accordance with law. No order as to costs. Pending miscellaneous applications, if any, shall stand closed in consequence.

______________________ C.PRAVEEN KUMAR,J ____________________________ KONGARA VI JAYA LAKSHMI ,J Date: 07.06.2018 Dsr