Andhra HC (Pre-Telangana)
K. Radha Raju vs K. Seetharama Raju on 7 September, 2001
Equivalent citations: 2001(6)ALD460, 2001(6)ALT350
Author: G. Rohini
Bench: G. Rohini
JUDGMENT G. Rohini, J.
1. These two appeals filed by the wife arise out of a common order of the Family Court at Hyderabad dated 27-8-1999 made in OP Nos. 775 of 1996 and 567 of 1995. Whereas OP No. 567 of 1995 has been filed by the husband against the wife seeking dissolution of marriage between the parties under Section 13(1)(ia) of the Hindu Marriage Act, 1955, the other OP No. 775 of 1996 has been filed by the wife under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights. Both the OPs were tried together and on the basis of common evidence adduced, the family Court by a common order allowed OP No. 567 of 1995 granting decree of divorce and dismissed OP No. 775 of 1996 filed by wife for restitution of conjugal rights. Aggrieved by the said order the wife filed the present appeals viz., CMA Nos. 108 of 2000 and 3186 of 1999 against the common order in OP No. 775 of 1996 and OP No. 567 of 1995 respectively. Since both these appeals arose out of a common order, they are heard and decided together.
2. For the purpose of convenience, the parties in these appeals are hereinafter referred to as the wife and husband,
3. It is admitted by both the parties that they were married on 8-12-1993 at Tirumala and the marriage was consummated on 10-12-1993. It is also admitted that even by the date of the marriage the wife is an employee of Railways and working as Enquiry-cum-Reservation Clerk at Secunderabad Railway Reservation Complex. It is also not in dispute that the father of the wife is also a Retired Railway Officer and the parents of the wife are residing at Metuguda, Secunderabad, very near to the work place of the wife. The house of the husband is situated at Saleemnagar Colony, Malakpet, Hyderabad and both the parties admitted that soon after the marriage, the wife joined the husband at his house where he is staying along with his parents and younger brother.
4. The husband filed OP No. 567 of 1995 on 19-6-1995 in the Family Court at Hyderabad under Section 13 (1)(ia) of the Hindu Marriage Act, 1955 seeking dissolution of the marriage between the parties on the ground of cruelty. The averments made by the husband in the said petition in brief are as follows:
5. After the marriage it has come to the notice of the husband that the wife likes to stay with her mother who was residing at Metuguda, Secunderabad and that in the 18 months of the married life, she might have hardly stayed in his house for 60 days, that too intermittently. It was also alleged that the wife was very arrogant and had no respect for elders and had no civilized habits. Her duties are in shifts from 8-00 a.m., to 2-00 p.m., and 2-00 p.m., to 8-00 p.m. She gets up very late whenever her duties are in the afternoon. She always keeps herself aloof and did not mingle with the family members of the husband. She does not know cooking and she used to expect her mother-in-law or other members of the family to cook for her and serve food at her room. She used to got to her mother's house without informing anybody including the husband and used to return whenever she liked. It was also alleged that the wife did not join the thread marriage ceremony and the marriage of the younger brother of the husband and she also failed to attend any important and religious functions in the house of the husband. It was further alleged that the wife got her pregnancy aborted without the consent or knowledge of the husband sometime in March, 1984 and during the second pregnancy though the Doctors advised that she needs absolute bed rest to save pregnancy, she refused to do so resulting in premature delivery by Cesarean operation in October, 1984 and the female child born to her died just after an hour. It had also been alleged by the husband that the wife levelled false and unfounded allegations against him attributing illicit intimacy with the newly wedded wife of his younger brother and she abused and insulted the husband in the presence of his parents and elders and left the matrimonial home on 3-6-1995. Thus the husband alleged that the conduct of the wife had been very arrogant and her behaviour resulted in mental torture, lack of peace and harmony and particularly the allegation of illicit intimacy with the wife of his younger brother had caused intolerable mental cruelty to him as well as to his family members and that he apprehends that his wife would go to any extent and it would be most unsafe and would further endanger the safety, mental harmony of the husband as well as the members of his family if they were to live together. Therefore, the husband sought for dissolution of the marriage on the ground of cruelty.
6. The wife filed a counter on 1-4-1996 denying all the allegations made by the husband. So far as the allegation that she likes to stay with her mother at Metuguda, Secunderabad, she stated that inspite of the fact that her work place is situated for away from the house of husband and in spite of hostile atmosphere she had to face in the house of the husband, she stayed in the matrimonial house till she was practically driven out of the house by the husband and his parents. She further stated that she could not attend that thread ceremony and the marriage of the younger brother of her husband on account of her ill health and she specifically denied the allegation that she got her first pregnancy aborted without the knowledge and consent of the husband. She stated that she suffered a spontaneous abortion and though the husband was present he did not provide any medical aid to her. As far as the second pregnancy is concerned, she stated that it was very cruel on the part of the husband to allege that she deliberately did not follow the medical advice resulting in premature delivery and death of the child. She specifically denied the allegation of husband that she attributed illicit intimacy to the husband with the wife of his younger brother. On the other hand, she stated that she suffered mental cruelty and humiliation at the hands of the husband and his parents and sister. She further stated that she is anxious to join her husband and she never contemplated initiating any civil or criminal litigation against her husband and his parents. She further stated that she tried her best for reconciliation and to resume the conjugal life with the husband and pleaded that the allegation of cruelty on her part in without any basis and was invented only for purpose of the present petition at the instance of parents and sister of the husband. She also alleged that the father of the husband demanded Rs. 5-00 lakhs in the negotiations for reconciliation and since her parents did not pay Rs. 5-00 lakhs as per their demand, the parents and sister of the husband prevailed upon her husband and got filed by the petition for dissolution marriage with all false allegations.
7. It may be noted that simultaneously on 1-4-1996 the wife also filed OP No. 775 of 1996 under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights. She pleaded several details in the said petition and some of the important averments in her petition are as follows:
Their marriage was an arranged marriage and as per caste custom, her parents gave Rs. 50,000/- in cash to the sister of her husband towards the 'Adapaduchkatnam'. The parents of the wife made clear at the time of the marriage that she would become owner of the properties worth Rs. 10-00 lakhs acquired by her through her own savings, gifts and inheritance. The parents of the husband also informed that the husband is having a share worth Rs. 30-00 lakhs in the family properties and they were under no further obligation to give anything to their marriage daughter. It was mutually agreed that the wife should be permitted to continue in service and keep her monthly salary for herself. It is specifically averred that the married sister of her husband used to visit their house every week end and she used to make taunting remarks that she could have secured a better alliance for her brother. Even within a week after the marriage, the husband and his parents suggested that the wife should purchase a flat belonging to the husband's sister in the same building as she was finding it difficult to dispose off the same. It is further alleged that the father of the husband demanded through her maternal uncle that her mother shall give Rs. 1-00 lakh to meet his family needs. It is also alleged that the mother of the husband was not allowing her son to lead a happy married life with the wife. She also narrated in detail about her first pregnancy, which was aborted in April, 1994, to show that it was only accidental, but not at her instance as alleged by the husband. She also stated that when she had to undergo Caesarean operation on 20-10-1994 either her husband or in-laws did not turn up and instead of showing any sympathy for the death of the newborn child, the father-in-law exhibited anger. She had to stay at her parents' house only as per the directions of her father-in-laws soon after the Caesarean operation for about six months. Thereafter, the wife and her parents took initiative and after several persuasions, she was allowed to return to the house of the husband on 17-5-1995. Her father took her to the house of the husband, but since her mother-in-law was away from the house, the husband and his father asked her to come back only after the return of her mother-in-law and accordingly on 31-5-1995, she along with her father went to the house of the husband. However, she was not looked after properly either by the husband or by her-in-laws. On 2-6-1995 she attended the duty though she was not quite well and returned home around 5-30 p.m. As she was not well, she was taking rest, but the husband asked her to prepare food and when she expressed her inability on account of ill-health her grew wild and while condemning the wife profusely praised his younger sister-in-law. Then the wife remarked that he was unable to recognise his wife's ability, but was very quick to notice and exaggerate his younger brother wife's capabilities. On this remark, the husband got irritated and became wild and called his father and told him that her words suggest imputations of illicit relationship between him and his sister-in-law. It is alleged that all the family members behaved with her indecently and she was asked to get out of the house. With a view to save the marriage the petitioner kept quite. On 4-6-1995 when she went to Office, her father met her in her Office and told her that her father-in-law fixed a meeting in the same evening and wanted him to attend the said meeting along with his daughter. It is alleged that at the meeting all the family members of her husband accused her alleging that she does not know cooking and asked her father to send her back only after teaching his daughter how to cook. Placed in a helpless situation and having realized that the parents-in-law are not inclined to permit his daughter to lead normal conjugal rights, the father of the wife took her to his house.
8. Thereafter elders interested in both the parties made sincere efforts to bring about reconciliation between them, but on account of the adamant attitude of the husband and his parents who also demanded Rs. 5.00 lakhs as the price for allowing her to live in the matrimonial house, the attempts for reconciliation did not succeed. Further it has been pleaded by the wife that the husband at the instance of his parents and sister who developed grouse against her, abandoned her without any manner of justification, as such, she is entitled to seek the relief of restitution of conjugal rights and accordingly, she filed OP No. 775 of 1996 under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights.
9. Husband filed a detailed counter to OP No. 775 of 1996 denying the allegations made by the wife with particular reference to the allegations as to huge amounts alleged to be demanded by the husband and his father from the parents of the wife. He also specifically stated that the version of the wife that her parents gave Rs. 50,000/- in cash to his sister as 'Adapaduchukatnam' is false and intended only for the purpose of initiating criminal action against him and his family members. He stated that after he filed the petition for dissolution of marriage, the wife started taking coercive steps by initiating criminal proceedings against him to see that he withdraws OP No. 567 of 1995. Hence, he got issued a legal notice dated 24-12-1995, marking a copy of the same to the Commissioner of Police calling upon the wife to desist from filing frivolous cases. In reply to the said notice, wife got issued a notice dated 17-1-1996 denying the allegations. She also issued another notice dated 10-2-1996 calling upon the husband to take her to his house within two weeks, failing which she would initiate necessary proceedings in the Court. He stated that even after filing her counter in OP No. 567 of 1995, the wife continued to harass him and at her instance on 25-5-1996 two Police Constables came to his house and took him to the Women Protection Cell, situated at Control Room, Hyderabad stating that the wife filed a complaint that he is likely to contract a second marriage. In the circumstances, he had to give an undertaking to the police authorities that the petition filed by him for dissolution of the marriage is pending and that he would not contemplate any second marriage. Again on 4-6-1996 the husband and his father were called to the Police Station and the husband was pressurized to withdraw the petition filed by him for dissolution of the marriage forth with and live with the wife in her house or in a rented house as per the choice of the wife. In view of the harassment by the wife threatening him to withdraw OP No. 567 of 1995, he was constrained to file Writ Petition No. 12746 of 1996 seeking a direction from this Court restraining police authorities from forcing him to withdraw OP No. 567 of 1995. While the said writ petition was pending, wife filed a complaint dated 4-6-1996 before the Women Protection Cell alleging dowry harassment by her husband and in-laws and that when elders from her side tried for reconciliation, her father-in-law demanded Rs. 5-00 lakhs on 19-11-1995 and therefore sought protection from the alleged dowry harassment. In pursuance of the said complaint, Crime No. 146 of 1996 was registered by police for the offence punishable under Section 498-A read with 34 of the Indian Penal Code, in which the husband, his parents and his sister were named as accused. Consequently, the husband was arrested on 10-6-1996 arid was produced before the XII Metropolitan Magistrate-cum-Mahila Court and was remanded to judicial custody. Subsequently he was released on bail on 12-6-1996, pursuant to the orders in Criminal MP No. 1270 of 1996. Parents and sister of the husband were granted anticipatory bail, and therefore, could avoid arrest by police. The husband stated that the said case, which is taken up as CC No. 293 of 1996 on the file of the XII Metropolitan Magistrate-cum-Mahila Court at Hyderabad is pending adjudication. In the circumstances, the husband pleaded that it is most unsafe for him to live in the society of the wife. He also pleaded that the petition for restitution of conjugal rights has been filed as a defence to the proceedings already initiated by him for dissolution of the marriage, and therefore, he pleaded to dismiss OP No. 775 of 1996.
10. The Court below clubbed both the matters together and framed the following issues for consideration :
(1) Whether the petitioner in OP No. 567 of 1995 has established the grounds under Section 13(1)(ia) of Hindu Marriage Act, if so, whether he is entitled for the decree of divorce dissolving the marriage with the respondent dated 8-12-1993?
(2) Whether the petitioner in OP 775 of 1996 has established that the respondent has withdrawn from her company without any reasonable cause and if so whether she is entitled for the restitution of conjugal rights as prayed for ?
11. Before the Court below common evidence was let in by both the parties. The husband who is the petitioner in OP No. 567 of 1995 and respondent in OP No. 775 of 1996 got himself examined as PW1. The wife who is the respondent in OP No. 567 of 1995 and petitioner in OP No. 775 of 1996 got herself examined as RW 1. No other witness was examined on either side. The husband got marked Exs.A1 to A11 documents in support of his case, whereas the wife got marked Exs.B1 to B19 documents to substantiate her stand. The Court below on consideration of the entire material on record held that the wife had withdrawn from the company of the husband without any cause and that the conduct of the wife is sufficient to bring the case of the husband within the purview of cruelty. The Court below also held that in the circumstances it is not possible for the parties to live together even if the petition is dismissed. The Court below also gave a finding that the husband proved that the it is not possible for him to continue the marital relationship with the respondent due to her conduct and accordingly allowed OP No. 567 of 1995 and granted a decree for dissolution of the marriage. The Court below further held that the wife failed to prove that the husband had withdrawn from her society without any reasonable excuse, on the other hand the material placed on record would prove that she made the life of the husband miserable with her arrogance and indifferent behaviour and that there are no bona fides in asking for the relief of restitution of conjugal rights, and accordingly dismissed OP No. 775 of 1996. Against the said common order dated 27-8-1999, as stated above, the wife filed CMA No. 3186 of 1999 against the decree granted in OP No. 565 of 1995 dissolving the marriage and filed a separate appeal in CMA No. 108 of 2000 so far as the dismissal of OP No. 775 of 1996 is concerned.
12. We have heard the learned senior Counsel Shri M.V. Ramana Reddy appearing on behalf of the appellant-wife in both the appeals as well as Sri P.K Rama Sarma, learned Counsel for the respondent-husband in both the appeals. Sri M.V. Ramana Reddy, learned senior Counsel submitted that the findings arrived at by the Court below are not based on any evidence and the Court below erred in holding that the wife is guilty of cruelty. The learned senior Counsel also submitted that except the sole testimony of the petitioner in OP No. 565 of 1995 who is the husband, there is no supporting evidence to substantiate the allegations of cruelty made against the wife. The learned Counsel further submits that the burden lies on the petitioner-husband to establish the allegation of cruelty made against the wife and in the instant case the husband failed to discharge the said burden of proof, and therefore, the impugned order of the Court below is unsustainable and liable to be set aside. The learned senior Counsel further contended that the finding of the Court below that the wife failed to prove that the husband had withdrawn from her society without any excuse is perverse since the lower Court failed to take into consideration the evidence placed before it. Therefore, the learned senior Counsel pleaded that the common order granting a decree in favour of the husband for dissolution of the marriage and rejecting the petition of the wife for restitution of conjugal rights is liable to be set aside.
13. On the contrary, the learned Counsel appearing for the respondent-husband supported the findings recorded by the Court below and contended that the order of the lower Court is in accordance with law and based on proper appreciation of evidence on record and it does not call for any interference by this Court.
14. The learned senior Counsel for the appellant-wife relief upon a judgment of the Apex Court reported in Dastane v. Dastane, ; in support of his plea that the burden of proving cruelty lies on the husband who alleged cruelty against the wife and sought a decree for dissolution of the marriage on that ground. The learned senior Counsel has also relied open a judgment of the Allahabad High Court reported in Neera v. Kishan Swarup, ; and another judgment of the Orissa High Court reported in Kashinath Sahu v. Devi, ATR 1971 Ori. 295; in support of his contention that even assuming that the allegations of the husband are proved, it cannot be said that the cruelty alleged is of such a nature and degree as to cause a reasonable apprehension in the mind of the husband that it would be injurious or harmful to the husband to live with the wife, and therefore, the husband is not entitled to the decree for dissolution of the marriage.
15. On the other hand, the learned Counsel appearing for the respondent-husband relied upon several judgments of this Court viz., S. Vijaya Laskhmi v. S. Bheem Reddy, ; Lokeshwari v. Srinivasa Rao, ; D. Manga v. D. Venkata Ramana, ; Jaya Krishna Panigrahi v. Surekha Panigrahi, 1995 (3) ALT 195; Chiranjeevi v. Lavanya, ; and Anagalla Padmalatha v. A. Sudershan Rao, AIR 2000 AP 353; and submitted that in the light of the principles laid down in the said decisions the conduct of the wife amounts to cruelty, and therefore, the decree granted by the Court below dissolving the marriage is justified.
16. On the basis of the pleadings and evidence in both the petitions and in the light of the submissions made by the learned Counsel for the appellant and the respondent now the points for consideration in these two appeals are:
(1) Whether the order of the Court below granting a decree for dissolution of marriage on the ground of cruelty within the meaning of Section 13(1)(ia) is justified and;
(2) Whether the findings of the Court below that the wife has withdrawn from the society of the husband without any reasonable cause and the petition filed by the seeking restitution of conjugal rights is not bona fide are correct.
17. Before going into the merits of the case it is necessary to note the essential features of concept of cruelty on which ground now the husband sought a decree for divorce.
18. It is well settled that 'cruelty' which is listed under Section 13(1) of the Hindu Marriage Act, 1955 as one of the grounds for grant of divorce is not confined to physical violence, but in conceives of mental cruelty as well. There cannot be any hard and fast rule in determining the question of mental cruelty. It is a pure question of fact which has to be decided from the whole facts and circumstances of the case keeping in view the temperament and emotions of both the parties, the particular circumstances of the home, the social status of the parties, their way of life and the whole matrimonial relations between them apart from several other facts. The acts of cruelty alleged should be tested from a reasonable person's point of view whether the party who sought divorce can be called upon to endure the conduct of the other party. On consideration of totality of circumstances if a conclusion can be arrived at that the conduct of the other party resulted in psychological injury to the party seeking divorce to such an extent that both parties cannot reasonably be expected to live together any further, it is a fit case where a decree can be granted dissolving the marriage on the ground of mental cruelty.
19. It is also relevant to note one of the important changes brought about by reason of the amendments under the Marriage Laws (Amendment) Act (68 of 1976). By virtue of the said Amendment Act Clause (ia) has been added to Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 under which 'cruelty' has been made one of the grounds for obtaining divorce. However under Section 13(1)(ia) cruelty simplicitor is made a ground to seek a decree of divorce and it is not necessary to establish that the other party has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. Prior to Amendment Act, 1976 when cruelty was a ground only to seek judicial separation under Section 10 of the Act it is obligatory on the part of the petitioner to prove that the mental cruelty is such as to cause injury to the health of the petitioner. Now the said requirement is not existing under Section 13(1)(ia).
20. Therefore, the contentions of the learned Counsel for the appellant on the basis of the decisions of High Courts of Allahabad and Orissa cited above cannot be accepted. At any rate the said two decisions are rendered while interpreting the provisions under the Hindu Marriage Act, 1955 as amended by UP Act XIII of 1962 and Section 18 (2)(b) of the Hindu Adoptions and Maintenance Act, 1956 which are not akin to Clause (ia) of Section 13 (1) of the Hindu Marriage Act, and therefore the said decisions are not relevant for the purpose of the present case.
21. The Apex Court in the case of Shobha Rani v. Madhukar Reddi, ; has elaborately considered the concept of cruelty and held as follows:
"............Section 13 (1)(i-a) uses the words "treated the petitioner with cruelty". The Word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second the impact of such treatement on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injuries to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per Semester unlawful or illegal. Then the impact or the injuries effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatized, as cruelty in one case may not be said order in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance."
22. Again in the case of V. Bhagat v. D. Bhagat, ; the Supreme Court held as follows:
"Mental cruelty in Section 13(1)(ia) can broadly by 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 the move in, they 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 curelty in one case may not amount to curelty 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."
23. In yet another decision in S. Hanumantha Rao v. S. Ramani, , the Supreme Court while dealing with mental cruelty observed as follows:
"Before we deal with the submission it is necessary to find out what is mental cruelty as envisaged under Section 13 (1)(ia) of the Act. Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party."
24. In the light of the principles laid down in the above cases, now it has to be examined whether the conduct of the wife amounts to mental cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act.
25. Having heard both the learned Counsel and on a perusal of the lengthy pleadings and depositions, the acts of cruelty alleged by the husband in OP No. 567 of 1995 can be broadly summarized into three facets.
26. Firstly, that the wife is arrogant, does not mingle with the family members of the husband and does not attend to the household duties and spends most of the time at the house of her parents; secondly, that the wife got her first pregnancy aborted without the consent and knowledge of the husband and the second pregnancy resulted in premature delivery and death of new born child since the wife deliberately did not follow the advice of the Doctor to take bed rest; and thirdly, that the wife falsely attributed illicit relationship to the husband with his younger brother's wife.
27. It is interesting to note that though the family members of the husband were described in the pleadings, as the witnesses to the acts alleged against the wife, except the sole testimony of the husband himself as PW1, no other witness was examined to corroborate the version of the husband. So far as the documentary evidence is concerned, Exs.A1 to A9 marked on behalf of the husband relate to several events regarding the coercive steps taken by the wife by initiating criminal proceedings against the husband and his family members. Exs.A10 and A11 are the letters written by the father of the wife to the father of the husband requesting him to take necessary steps to solve the problems between the wife and the husband and see that both of them live together happily.
28. Thus, except the sole testimony of the husband himself as PW1, there is no other corroborating evidence. The wife filed a detailed counter and also deposed as RW1, categorically denying the allegations made by the husband. She also made several allegations against the husband and his family members stating that she was harassed by them and she was practically driven out of the matrimonial home. However, she too did not examine any other witness to support her case. Though it is a case where both parties made allegations and counter allegations without any corroborating evidence, the Court below recorded certain findings against the wife and concluded that from the beginning the wife and her parents behaved in an abnormal way and never respected the husband and his family members, she hardly stayed at matrimonial home on the ground that her parents' house is near to her place of work and never discharged her matrimonial obligations as the wife and that she had withdrawn the company of the husband without any reasonable cause. Though we are of the view that the conclusions so arrived at by the Court below on the said aspects cannot be said to be based on proper appreciation of evidence, it is pertinent to note that while fifing the counter to OP No. 775 of 1996, filed by the wife seeking restitution of conjugal rights, the husband has categorically stated the events that's took place subsequent to the filing of OP No. 567 of 1995 about which he deposed as PW1 and also filed Exs.A1 to A9 documents to support the same. Ex.A1 is the Office copy of the legal notice dated 24-12-1995 got issued by the husband calling upon the wife to desist from taking any coercive steps against him for withdrawal of OP No. 567 of 1995. Ex.A2 is the reply notice dated 17-1-1996 got issued by the wife. Ex.A3 is another notice dated 10-2-1996 got issued by the wife calling upon the husband to take her back to the matrimonial home within two weeks. Ex.A4 is the reply given by the husband dated 19-2-1996 stating that he had already filed the petition for dissolution of the marriage and that he is not willing to take back the wife. Ex.A5 is the copy of the Writ Petition No. 12746 of 1996 filed by the husband in the High Court in which he sought a direction from this Court to restrain the police authorities from taking any coercive steps against him for withdrawal of OP No. 567 of 1995. Ex.A6 is the certified copy of the police complaint given by the wife to the Deputy Commissioner of Police, Women Protection Cell, Hyderabad. Ex.A7 is the certified copy of the remand case diary, which shows that the husband was arrested on 10-6-1996 and was sent to judicial remand. Ex.A8 is the certified copy of the bail order dated 12-6-1996 under which the husband was released on bail. Ex.A9 is the certified copy of the anticipatory bail granted to the parents and the sister of the husband in Crime No. 148 of 1996.
29. From the said evidence it can be seen that the wife having left the matrimonial home as per her own version on 4-6-1995, lodged a complaint in the Women Protection Cell after an year on 4-6-1996 alleging dowry harassment by the husband, his parents and sister. From a reading of the said complaint, marked as Ex.A6, it is noted that the alleged demands made by the husband and his parents were said to have been made during the years 1994 and 1995. It is also pertinent to note that by that time the wife had already filed her counter to the petitioner filed by the husband for dissolution of the marriage and she herself filed a separate petition seeking restitution of conjugal rights. While the matters are pending in the competent Court and whereas admittedly the wife did not live with the husband or his family members after 4-6-1995, there appears to be no reason for the wife to make a complaint under Section 498-A of the Indian Penal Code about the alleged incidents which took place about an year ago before she left the matrimonial home. It is evident from Ex.A7 A A9 documents that Ex.A6 complaint resulted in the arrest of the husband and the criminal proceedings initiated against the husband and his married sister and parents is pending on the file of the XII Metropolitan Magistrate. From the material, on record, we are unable to appreciate the steps taken by the wife against the husband and his family members after a lapse of an year and in the circumstances, there is no reason for us to disbelieve the version of the husband that the wife filed Ex.A6 complaint only to harass them and to put them to hardship.
30. The lower Court also discussed the aforesaid aspects in detail and held that the abusive action of the wife caused much mental agony and cruelty to the husband and the relationship between the parties after filing of the petition for dissolution of the marriage has been deteriorated due to the arrest of the husband and sending him to judicial custody based upon the complaint given by the wife and it is proved by the husband that it is not possible for him to continue the matrimonial relationship with the wife.
31. It can be seen from the material on record that the husband has successfully established by leading cogent evidence that the wife has resorted to several coercive methods by initiating criminal proceedings against him and his family members resulting in undue hardship and constant mental agony to him.
32. Ex.A6 complaint made by the wife to the Women Protection Cell complaining about the alleged dowry harassment on the basis of the demands alleged to have been made more than an year ago, makes it clear that the wife is intended to malign and harass the husband rather than seeking any protection from the Women Protection Cell. The wife is an educated and matured woman and it cannot be said that she was not aware of the consequences that would follow such a complaint. Exs.A7 to A9 reveal that consequent to Ex.A6, complaint made by the wife, the husband was arrested and was in judicial custody for three days till he was released on bail. Apart from the husband his aged parents and married sister were also named as accused and they were made to face the criminal proceedings. As can be seen from the record, the husband belongs to an educated and respectable family and his sister was married and settled comfortably in a good family. In such circumstances, either party to the marriage may not condone the coercive acts and in this case the husband cannot reasonably be expected to endure such conduct on the part of the wife.
33. It is clear from the material on record that the steps taken by the wife in implicating the husband and his family members in criminal proceedings are well planned with a clear intention to malign the husband. It is also on record that while the matters were pending before the lower Court for cross-examination of the wife, she filed a complaint before the police alleging that the husband was leaving the country to avoid trial in CC No. 293 of 1996 and sought for seizure of the passport of the husband. Consequently, the husband had to deposit his passport in the concerned Court. Naturally the series of acts on the part of the wife making complaints against the husband and attempting to implicate him in criminal proceedings would effect the family reputation and may also prejudice his working career resulting in continuous mental agony to the husband and in the circumstances of the case we are convinced that the conduct of the wife amounts to mental cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act. Therefore, we are in agreement with the conclusion arrived at by the Court below and the lower Court is perfectly justified in holding that the husband is entitled to a decree for dissolution of marriage on the ground of cruelty.
34. So far as the petition filed by the wife under Section 9 of the Act seeking restitution of conjugal rights is concerned, the Court below on appreciation of the entire material on record gave a finding that the wife failed to prove that the husband had withdrawn from her society without any reasonable excuse on the other hand, the material placed on record would prove that she made the life of the husband miserable with arrogance and indifferent behaviour and there are no bona fides in asking for the relief of restitution of conjugal rights. On consideration of the material placed on record we are of the opinion that the conduct of the wife suggests separation and not re-
union. If the wife is genuinely interested to save her marriage, she would not have lodged a complaint under Section 498-A of the Indian Penal Code on the incidents alleged to have taken place about a year ago. From the evidence of PW1 and RW1 and on appreciation of the contents of exhibits A1 to A9 documents we are satisfied that the conduct of the wife in seeking restitution of conjugal rights is not bona fide and in the circumstances of the case the Court below has rightly held that she is not entitled to the relief of restitution of conjugal rights under Section 9 of the Hindu Marriage Act.
35. While arriving at the aforesaid conclusion and taking into consideration the totality of the circumstances as established by evidence we are also of the view that the marriage between the parties had broken down irretrievably.
36. It may be noted that in the instant case both the parties are educated and financially independent. The wife was already in service of the Railways by the date of the marriage. The husband who is an Engineering Graduate though by the date of marriage was working as an Apprentice. It is on record that subsequently he secured a job at Medchal. Though the husband and his family members knew pretty well that the wife is employed in the Railways and the nature of her work may not permit her to attend to the household duties every day, it appears that they are not able to reconcile and not at all happy with the routine of the wife. Equally the way in which the wife tried to justify her action shows that she is not genuinely interested to compromise with the situation and to save her marriage. The temperment of both the parties appear to be totally different and each party wants to stick on to its guns resulting in incompatibility between them. Though the parties lived together for just about 18 months, the allegations in their respective pleadings and the elaborate depositions reveal that both of them developed hastred against each other and the mutual respect and understanding which is an essential element of a happy married life is very much lacking.
37. It is also pertinent to note that the parties have no issues out of wedlock. They are living separately for the past more than six years. The petition for dissolution of marriage has been filed by the husband just one and half years after the marriage and having regard to the nature of allegations and counter allegations made by the parties in the notices exchanged between them, the pleadings as well as in their depositions, it is clear that whatever love and affection existed between them has lost and there is hardly any room for their coming together. Particularly in view of the events that took place consequent to the criminal proceedings initiated by the wife against the husband the marriage between them in dead practically and emotionally.
38. As a matter of fact this Court with a view to bring about reconciliation between the parties directed personal appearance of both the parties and accordingly both the husband and wife appeared before this Court on 22-2-2001. One of us (Dr. Justice Motilal B. Naik) being a member to the said Bench had an opportunity to observe the demeanor of the parties and to ascertain their respective views. Though the wife expressed that she is ready and willing to joint the husband, the husband had categorically expressed his unwillingness to continue the matrimonial life with the wife stating that he cannot continue the matrimonial life with the wife under any circumstances. Thus practically there appears to be absolutely no scope for settlement.
39. It is true that irretrievable break down of the marriage is not a ground by itself for grating a decree of divorce under the Hindu Marriage Act.
40. In V. Bhagat v. D. Bhagat (supra), while considering the said issue the Supreme Court observed:
"Merely because there are allegations and counter-allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable break-down of the marriage is not a ground by itself. But while scrutinizing the evidence on record to determine whether the ground(s) alleged is made out and in determining the relief to be granted, the said circumstances can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the Court finds it in the interest of both the parties."
41. Similarly in Ashok Hurra v. Rupa Bipin Zaveri, ; the Supreme Court while granting a decree of divorce by mutual consent in exercise of jurisdiction under Article 142 of the Constitution discussed about "irretrievable break-down of marriage" and held as follows:
"It appears to us that the appellate Court was swayed by the fact that the appellant/ husband has not come to Court with clean hands; in that he married during the pendency of the proceedings. It may be, as expressed by the appellate Court that factors such as the marriage is dead and has broken-down irretrievably, that there was no chance of reunion, that there were allegations and counter-allegations made by the parties, that the parties were residing separately for nearly 13 years - each one of the above factors by itself (individually) may not afford a ground for divorce by mutual consent.
When the matter was pending in this Court, there were attempts to settle the matter. But, finally Counsel on both sides reported that there is no scope for settlement between the parties.
We are of the view that the cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically, and there is no chance at all of the same bring revived and continuation of such relationship is only for namesake and that no love is lost between the parties, who have been fighting like "kilkenny cats" and there is long lapse of years since the filing of the petition and existence of such a state of affairs warrant the exercise of the jurisdiction of this Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under Section 13-B of the Act and dissolve the marriage between the parties, in order to meet the ends of justice."
...............There is no useful purpose served in prolonging the agony any further and the curtain should be rung at some stage. In coming to the above conclusion, we have not lost sight of the fact that the conduct of the husband is blame worthy in that he married a second time and got a child during the pendency of the proceedings. But that factor cannot be blown out of proportion or viewed in isolation, nor can deter this Court to take a total and broad view of the ground realities of the situation when we deal with adjustment of human relationship.
42. In this context it is also relevant to refer to the following observations of the Division Bench of this Court to which one of us (Dr. Justice Motilal B. Naik) is a party in the case of S. Vijaya Lakshmi v. S. Bheem Reddy, (supra):
"We are reminded of a well-found saying that "a house is built with bricks and stones but a home is built with love and affection". A matrimonial home cannot be built by bricks and stones but only built by love and affection.
If there is no love-lost between the partners, the home collapses and any attempt to bring reconciliation between the partners would be a futile exercise.
.............Indian tradition and culture may not permit granting of divorce on trivial grounds. Law may not agree that small disputes could be a ground for divorce. As we have observed that a matrimonial home is built with love and affection and when such love and affection are absent, instead hatred has marred the homely atmosphere, the matrimonial home becomes hell. We are rather distressed to observe that love and affection between the parties have vanished and in its place seeds of hatred have been blossomed. Therefore, we are of the view that no useful purpose would be served if they are 'ordered' to stay together.
Having regard to the facts and circumstances narrated above, apart from the evidence on record, it is apparently clear that the relationship between the parties has been irretrievably broken-down and we have no other option than to grant a decree of divorce dissolving the marriage between the parties."
43. Thus it is clear that though irretrievable break-down of marriage is not a ground by itself for granting a decree of divorce, it is always open for the Courts while determining the claim for dissolution of marriage, and while appreciating the evidence on record, to take into consideration the circumstances such as the marriage between the parties is practically and emotionally dead and it has become impossible to re-unite the parties and keeping the marital tie alive will be only for namesake driving the parties to suffer greater unhappiness.
44. On a consideration of the material on record in the light of the above stated principles as to irretrievable break-down of marriage, we are of the view that this is a fit case to grant a decree of divorce in the interest of both the parties.
45. For the reasons stated above, we hold that the conduct of wife amounts to mental cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act and the husband is entitled to a decree of divorce dissolving the marriage between the parties. Accordingly the decree granted by the Court below in OP No. 567 of 1995 is affirmed. We also make it clear that it is open for the wife to take appropriate steps for grant of maintenance in accordance with law.
46. For the aforesaid reasons the order of the Court below dismissing OP No. 775 of 1996 is also affirmed.
47. Accordingly, both CMA No. 3186 of 1999 and CMA No. 108 of 2000 shall stand dismissed. However, in the circumstances, there shall be no order as to costs.