Andhra Pradesh High Court - Amravati
Boddu Jaya Krishna, Secunderabad vs Boddu Naga Praveena, W.G.Dist on 19 September, 2023
THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
AND
THE HON'BLE SRI JUSTICE V.SRINIVAS
CIVIL MISCELLANEOUS APPEAL NOS.30 AND
190 OF 2017
COMMON JUDGMENT:(per Hon'ble Sri Justice V.Srinivas) These Civil Miscellaneous Appeals are directed against the common order and decree dated 21.10.2016 passed by the Senior Civil Judge's Court, Tanuku in O.P.Nos.148 of 2012 and 42 of 2015.
2. The appellant herein is the husband of the respondent. He filed a petition under Section 13(1)(ia) of Hindu Marriage Act, vide H.M.O.P.No.42 of 2015, before the trial court against his wife, seeking decree of divorce by dissolving the marriage between them held on 12.11.2011 on the ground of cruelty and the same was dismissed by the trial Court.
3. The respondent herein filed a petition under Section 9 of Hindu Marriage Act, vide H.M.O.P.No.148 of 2012, to pass a decree for restitution of conjugal rights directing the appellant to lead marital life with her and the same was allowed by the trial Court.
4. Aggrieved by the same, the appellant/husband preferred the present appeals.
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5. The case of the appellant herein in brief is as follows:
i. The marriage between the appellant and respondent solemnized on 12.11.2011as per Hindu rites and custom at Kshatriya Kalyanamandapam, Tanuku. But their marriage was not consummated. ii. On the first night of 16.11.2011, the respondent did not show any interest or cooperate with him, and she started sobbing and the appellant tried to console her and asked the reason. Then she revealed that when she was residing at Kakinada along with her parents, she fallen love with a person and the same was opposed by her parents and she became pregnant through him, and her parents shifted to Tanuku and got terminated her pregnancy. By saying so, she has been shown the pregnancy stretch marks on her abdomen to make him believe that and she did not accept her marriage with him.
3iii. She also informed that the said person came to Tanuku after marriage and created nuisance in public. She requested her husband not to reveal the issue to anyone and she would herself resolve it. Due to her confession, there was no consummation of marriage and he decided to go back to his home and her parents forced her to go with him to Hyderabad.
iv. On 21.11.2011, in the evening, she complained pain in her stomach and hence, she was taken to their family doctor and while the doctor sought to checkup her, she created nuisance by shouting and on knowing the same he went to clinic and brought her and his mother to home.
v. On the next day her parents and one Krishna Prasad came and the said Krishna Prasad, who has nothing to do with the family, abused and created nuisance. Then her parents took her back to Tanuku by saying that they would settle the matter. 4
vi. Again on 22.07.2011, she brought a group of people to his house at Bhilai and then he left due to fear.
vii. Marriage is a farce, vitiated by misrepresentation and fraud. In the light of the misconduct admitted by her, the marriage is to be declared as void. The marriage is to be dissolved on the grounds of suppression of material facts.
6. The case of the respondent/wife in brief is as follows:
i. She admitted their relationship and date of marriage. She further averred that at the time of marriage, her parents presented Rs.15,00,000/- towards dowry and half sovereign gold ring to the appellant.
ii. She observed that he had not much interest in her, even in the first night and during the three nights no consummation took place, though she showed much 5 interest in consummation, but he created mental harassment to her.
iii. On the next day, her mother-in-law asked her to accompany to their family doctor at Satya Clinic Malkajgiri, Secundrabad and the lady doctor by name Arathi asked her to undress and then she questioned the doctor and the doctor asked her mother-in-law why she was brought to her without informing about the virgin test and the doctor sent them away by saying that she will not conduct virgin test unless the respondent gives consent and it will be done at government hospital.
iv. Then she informed the same to her parents, and on the next day her parents visited the house of appellant at Hyderabad and questioned him, his parents and family friends. The father of the appellant tendered pardon for the said act and beat him and his mother.6
v. The parents of the respondent on a heat of exchange of words, he is ready to send the respondent for virgin test, for which appellant father expressed that the couple entered the house at bad time and asked her parents to take her along with them and send her on any auspicious day. Believing the same, she was brought up by her parents.
vi. Thereafter, on several persuasions for reunion, his maternal uncle telephoned to her parents in the month of December 2021, requesting them to come to Guntur on 11.12.2011 to resolve the disputes. vii. Accordingly, she along with her family members and family friends attended the meeting in Hotel Sindhuri at Guntur. During the discussions, the appellant, his parents, and his maternal uncle Venugopal demanded additional dowry of Rs.10,00,000/- for her reunion, and her parents expressed their inability to provide the same. 7 viii. A few days thereafter, her parents requested his parents to come to Vijayawada for talks. On 04.03.2012, her father booked a room in Manorama Hotel at Vijayawada, but the appellant and his parents did not turn up.
ix. Then on 23.06.2012, she was taken by her parents to the matrimonial home at Hyderabad and found that the main gates were locked. On hearing the calling bell, her in-laws came near parapet wall and allowed their dogs upon her and her family members. x. Since the appellant is staying at Bhilai in connection with his job and she was asked to join him there and on 22.07.2012, she and her family members went to Bhilai, even at Bhilai, they had not allowed her into their house.
xi. On knowing their arrival through his General Manager, he did not go back to his workplace. Then she 8 returned to Tanuku. The appellant and his parents did not change their attitude.
7. During enquiry, on behalf of the respondent/wife, P.Ws.1 to 3 were examined and marked Exs.P.1 and P.2 and on behalf of the appellant/husband, R.Ws.1 and 2 were examined and no documentary evidence was adduced.
8. On the material placed on the record, the trial Court made a finding that the appellant failed to prove the cruelty on the part of the respondent and he is not entitled for decree of divorce and that the respondent is always ready and willing to join him, thereby, the petition filed by the appellant for divorce was dismissed and the petition filed by the respondent for restitution of conjugal rights was allowed.
9. It is against the said common order; the present appeals are preferred by the appellant/husband. 9
10. Heard Sri V.Hari Haran, learned Counsel for the appellant and Sri T.V.Jaggi Reddy, learned counsel for the respondent.
11. Sri V.Hari Haran, learned counsel for the appellant/husband, submits that the trial Court not properly appreciated the evidence on record; that trial court erred in come to conclusion that the appellant suspected the character of respondent without any basis; that the trial Court erred in holding that it cannot be considered as an matrimonial offence as the activity of premarital sex of the respondent took place prior to the marriage; that the testimony of the appellant as R.W.1 is not considered; that there had been no consummation of marriage and that the respondent failed to prove the ingredient of Section 9 of Hindu Marriage Act before the trial Court.
12. The learned counsel for the appellant contended in this appeal that long separation, absence of cohabitation, the complete breakdown of all meaningful bonds and the existing 10 bitterness between the two, has to be read as cruelty under section 13(1)(ia) of the Act, for such proposition he relied on Rakesh Raman v/s Kavita1 and which is apt in this case.
13. He also contended in this appeal, the Apex Court in Kanchan Devi v. Promod Kumar Mittal2 at para No.6held that: "In view of the peculiar facts and circumstances of the case and being satisfied that the marriage between the appellant and the respondent has irretrievably broken down and that there is no possibility of reconciliation, we in exercise of our powers under Article 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce".
14. He further contended in this appeal as held by the Apex Court in Shobha Rani v. Madhukar Reddi3 that: "This is not a case where the husband requested his wife to give some money for his personal expenses. The High Court appears to 1 2023LawSuit(SC)443 2(1996) 8 SCC 90 3(1988) 1 SCC 105 at para 8 11 have misunderstood the case. It has evidently proceeded on a wrong basis. It proceeded on the ground that the husband wanted some money from his wife for his personal expenses. If the demand was only of such nature, we would have thrown this appeal away. The wife must extend all help to husband and so too the husband to wife. They are partners in life. They must equally share happiness and sorrow. They must help each other. One cannot take pleasure at the cost of the other. But the case on hand is not of a failure on that front. It has been admitted by the husband himself in his letter dated August 28, 1983 addressed to the wife that his parents demanded dowry. But he wrote to the wife that there was nothing wrong in that demand of his parents. This is indeed curious. He would not have stated so unless he was party to the demand. The wife has stated in her evidence that there were repeated demands for money from her mother-in- law. Her evidence cannot be brushed aside on the ground that she has not examined her father. It was not the case of 12 the wife that the dowry was demanded directly from her father. The evidence of the father was therefore not material. It is also not proper to discredit the wife as hypersensitive or prone to exaggeration. That would be judging the wife by our style of manners and our standard of life. That we cannot apply. We must try to understand her feelings and then search for the nugget of truth in the entire evidence".
15. He also contended in this appeal as held by the Apex Court in Suman Kapur v. Sudhir Kapur4, at para No.45 that: "The High Court noted that the appellant wife was constantly and continuously avoiding staying with the husband and preventing him to have matrimonial relations. From the letters of the appellant wife also, the High Court held that it was the wife who had stated that she had completely lost interest in the marriage and she was willing to get divorce".
4(2009) 1 SCC 422 13
16. He further contended in this appeal, as held by the Apex Court in Samar Ghosh v. Jaya Ghosh5, at para No.101 that:
"No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(2007) 4 SCC 511 5 14
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would 15 not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the 16 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. In such like situations, it may lead to mental cruelty."
17. As against the same, Sri T.V.Jaggi Reddy, learned counsel for the respondent/wife, submits that the trial Court on considering the facts and circumstances, material on record rightly dismissed the petition filed by the appellant and allowed the petition filed by the respondent for restitution of conjugal rights; that there are no grounds to interfere with the well-articulated order of the trial Court and that the appeals are liable to be dismissed. He relied upon judgment of High Court of Madhya Pradesh reported in Nandkishore v. Munnibai6.
18. Now, on hearing both sides, the following points that arises for determination are:
6 AIR 1979 Madhya Pradesh 45 17
1. Whether there are any grounds to set aside the order of the Trial Court?
2. Whether the appellant is entitled for decree as the marriage dated 12.11.2011 is vitiated under the circumstances stated in the petition, thereby the marriage is null and void?
3. Whether the respondent is entitled for decree of restitution of conjugal rights? and
4. To what relief?
19. Before deciding on above points, it is to be keep in mind that the trial Court rendered its order as appellant/petitioner filed the O.P. under Section 12 r/w.13 of Hindu Marriage Act (hereinafter referred as "H.M.Act") and the trial Court decided the O.P.No.42 of 2015 under Section 13(1)(ia) of H.M.Act.
20. As could be seen from the pleadings of O.P.No.42 of 2015, the entire pleading goes to show that the marriage is to be declared as void. The petition is said to be filed into the Court on 30.12.2013, but in the decree it is mentioned as petition presented into the Court on 19.02.2014 and numbered on 28.04.2014.
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21. It is to be noted that to consider the application of appellant/petitioner under Section 12 of H.M.Act, it should be filed within one (1) year of the marriage and if his application is filed under Section 13 of H.M.Act, they need to be filed a petition atleast one (1) year or upwards as there has been no resumption of cohabitation as between the parties to the marriage after passing of a decree for judicial separation or decree for restitution of conjugal rights in a proceeding to which they were parties.
22. In the present case on hand, the marriage took place on 12.11.2011 and as per petition it was said to be filed on 30.12.2013 into Court and as per petition it was received by the Court on 19.02.2014. Thus, the petition cannot be treated under Section 12 of H.M.Act as there is a legal bar of one (1) year to take the cognizance of the matter and it is hit law of limitation. In this connection, law is also very clear under Section 12(2)(b)(ii) of H.M.Act requires that the petition should be presented within one (1) year from the date of 19 marriage. In Vellinayagi v. Subramaniam7, it was held that Section 5 of Limitation has not been held applicable to the petitions under Section 12 of H.M.Act considering like provisions under Matrimonial Causes Act, 1937. In Nandakishore case(6th case) referred to supra, in which at Paragraph No.12 it was held as follows:
12. Yet another submission in this regard which remains to be considered is this. Section 12(2)(b)(ii) of the Act requires that the petition should be presented within one year of the date of marriage. Counsel urges that for computing the period of one year the starting point should not be the date of marriage but the date when the fact of pregnancy was revealed to the appellant.
According to him, in construing this clause, equitable considerations applicable to statutes of limitation may be invoked. The counsel invited our attention to Section 17 of the Indian Limitation Act and urged that the time should not start running until the fraud is discovered. It is not the period of limitation which the Act prescribed in the sense the statutes of limitation do. All that it says is that action beyond specified period cannot be founded 7 AIR 1969 Madras 479 20 upon certain grounds. In Vellinayagi v. Subramaniam, AIR 1969 Mad 479, Section 5 of the Limitation Act has not been held applicable to petition under Section 12 of the Hindu Marriage Act. Considering like provisions under the Matrimonial Causes Act, 1937, the Court of Appeal in Chaplin v. Chaplin, (1948) 2 All ER 408 held that such equitable principles could not be applied to matrimonial causes. Provisions of Section 7(1) of the Matrimonial Causes Act, 1937, appear to be practically similar to those contained in Clause (b) of Section 12(2) of the Act. What has been observed in that case is this:
"One must appreciate the subject-matter with which it is dealing viz., proceedings to alter the status of the parties, the result of which will affect the children of the marriage, and that in all the cases specified in the sub-section. Parliament has thought fit to prescribe in the clearest possible language that the court shall not grant a decree unless it is satisfied that proceedings were instituted within a year of the date of the marriage."
It is pertinent to note that in earlier part of the Act, i.e., Section 12(2)(a)(i), it is specifically mentioned that the action should be launched within one year of the discovery of the fraud. We cannot read such words even by implication while construing Sub-section (2) (b) (ii) of Section12. That course is not permissible. This contention of the learned counsel also fails. 21
23. In the above said judgment it was clearly mentioned that Parliament has thought fit to prescribe in the clearest possible language that the Court shall not grant a decree unless it is satisfied that proceedings shall be instituted within a year of date of marriage. Thus, in the present case also the appellant/petitioner could not file the petition under Section 12 of H.M. Act as it is hit by Limitation Act.
24. Even to consider the case under Section 12 of H.M.Act, in the present case it is the specific allegation made by appellant/petitioner that on the nuptial night dated 16.11.2011the respondent wife intimated to the appellant/petitioner that she fallen in love with a person at Kakinada and she got pregnant through him and it was aborted by way of termination of pregnancy. Thus, as per him the respondent/wife and her parents have not only cheated him in life, respondent/wife promised him to get the issue resolved by herself, is now spreading canard and abusing the initial lenience shown by him and conduct of the 22 wife/respondent are also blame worthy, cruel and unacceptable to a good married and dignified harmonious married life. Since appellant taken the above defence to declare the marriage as void, he must prove that his wife even before the marriage had an extra marital relationship, which is also proved very clearly. For this law in this aspect is also clear by the Apex Court in in Dastane v. Dastane8, in which, it has laid down that proof beyond reasonable doubt is a proof of higher standard which generally governs criminal trials or trials involving inquiry into issues of quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities, but in trials of purely civil nature such considerations need not be imported. All that has to be done is to weed out the impossible at the first stage and the improbable at the second. There the Court was concerned with the consideration of charge of cruelty and to find out 8(1975) 2 SCC 326 23 whether the facts proved would cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent. Imputing unchastity to a woman is charge of a very serious nature. The charge, if established, may result in serious consequences. Not only that such a woman be condemned in the society and be lowered in the eyes of her relatives and associates, but may also suffer a child, if any, being called a bastard. It shall, therefore, be just to seek for a more cogent and convincing evidence in such cases than the one which may only be sufficient to create a doubt. Indeed, the Supreme Court in Mahendra v. Sushila9, has under such circumstances desired that the petitioner should be allowed to succeed only if he proves beyond reasonable doubt that the respondent was pregnant by someone else at the time of marriage. Needless to say that the evidence adduced by the 9AIR 1965 SC 364 24 appellant in this case does not satisfy the tests laid down by the Supreme Court.
25. It is relevant to keep in mind judgments of Apex court while dealing this case in between Suman Kapur v. Sudhir Kapur10 and Vinita Saxena v. Pankaj Pandit11 that: "35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered".
26. In the same Judgment it is also observed that: " The legal concept of cruelty which is not defined by the statute is generally described as conduct of such character as to have 10(2009) 1 SCC 422 11[(2006) 3 SCC 778] 25 caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relation must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards the wife, denial of a company to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant's side, ought this appellant to be called on to endure the conduct? From the respondent's side, was this conduct 26 excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure".
27. Now the case of the appellant/petitioner is to be considered to see if it can be culled out under Section 13(1)(ia) of H.M.Act for granting divorce.
28. POINT No.2: "Whether the appellant is entitled for decree as the marriage dated 12.11.2011 is vitiated under the circumstances stated in the petition, thereby the marriage is null and void?"
In the backdrop of above legal preposition, by dealing with the core point, this court intends to narrate the material evidence placed on record for determination of point.
29. The foremost contention of the appellant is that the respondent/wife, on the first night of 16.11.2011, respondent 27 did not show any interest or cooperate with him, and she started sobbing and the appellant tried to console her and asked the reason, for which she confessed to him that she has premarital sex with another person while she was at Kakinada and got pregnant, which was terminated by her parents forcibly. She further intimated him that her marriage was solemnized with the appellant without her interest and shown the stretch marks on her abdomen and make believe what she is speaking truth. Thereby the marriage itself is vitiated, and null and void.
30. The appellant reiterated the above said facts as mentioned in the pleadings before the trial Court as R.W.1.He further stated in his evidence that after the marriage, the said person had come to Tanuku and created a scene in the presence of neighboures and public in the street and her parents drove away the said person. She also revealed that she did not accept the proposal of her parents to marry the 28 appellant. On the pressure of her parents only she agreed to the marriage.
31. At this stage it is relevant to state that it is an admitted fact that after three days of nuptials his wife was taken to Hyderabad, where she was taken to their family doctor at Satya Clinic, Malkajgiri, Secundrabad and the lady doctor by name Arathi said to have examined the wife/respondent. For the better reasons known to the appellant/petitioner he has not examined the doctor to make this Court to believe that there are stretch marks on the stomach of the wife to prove his allegations. In fact, it is contended by the appellant/petitioner that his wife got stomach ache for which she was taken to a doctor on the evening of 21.11.2011. It is the case of wife/respondent that she was taken to Satya Clinic, Malkajgiri to test her virginity. But fact remains the respondent/wife was taken to Satya Clinic, Malkajgiri, Secundrabad on 21.11.2011. However, no doctor from Satya 29 Clinic was examined by the appellant/petitioner to prove his contentions.
32. In the cross examination it is elicited that "I visited P.W.1 on 15.08.2011 before marriage. It is true my parents and our relatives visited P.W.1 on 04.09.2011. I did not inform that the petitioner told me that she loved somebody with my parents or the parents of the petitioner as she expressed that she herself will separate from me after discussing with her parents".
33. But in-fact, as understood from the pleadings as well as cross examination, appellant/petitioner on 15.08.2011 met his wife/respondent and himself, his parents and his relatives visited the house of parents of respondent/wife on 04.09.2011, as well even before 04.09.2011 there was phone conversation between the appellant/petitioner and respondent/wife. It all goes to show that the allegations of the appellant/petitioner that his wife has no interest for the 30 marriage with him and at the instance of her parents only she married him is not believable.
34. Besides, it is further elicited in the cross examination that there was phone conversation between her and the petitioner during the period between engagement and marriage. When there were phone conversations also as admitted by appellant/petitioner his contention that the respondent has no interest towards him and intimated to him that she had premarital relationship and also shown stretch marks on her abdomen all are appears to be false. If really respondent/wife had no interest towards appellant/petitioner, she would not have make any phone conversation nor taken the matrimonial affair towards marriage and allowed to go to the stage of nuptials.
35. It is also elicited in the cross examination that "it is true the petitioner (wife) and her parents and one Krishna Prasad came to Bhilai. I (husband) enquired about the person with whom the petitioner fallen in love basing on the address 31 furnished by her, but it is learnt that the address furnished by her is not correct. I(husband) do not remember the address of that person furnished by the petitioner".
36. From the above it is very clear the appellant/petitioner clearly admitted that he does not know the name of the person who said to have premarital contact with his wife and that his contention shows he made enquiries also at Kakinada as well Tanuku goes to show he tried to secure something or other to favour his case. But he could not do so.
37. It is further elicited in the cross examination that "I do not know if the parents of the petitioner also agreed to conduct virgin test to the petitioner". Thus, it is clear the appellant/petitioner made an attempt to state he does not remember rather not known whether his parents took his wife to a doctor for virginity test. It is a fact the wife/respondent was taken to Satya Clinic where one doctor Arathi said to have examined the wife which all goes to show the contention of the appellant he does not know all these 32 facts is incorrect because it is the case of appellant/petitioner that he himself went to the hospital and brought his wife and mother from Satya Clinic to their house. So it is clear that he is not speaking truth. Moreover, even if really respondent/wife intimated that she had physical relationship with somebody prior to the marriage and terminated her pregnancy, there is no need even to seek a further virginity test for her.
38. In the entire pleadings and evidence adduced on behalf of the appellant, the name of the said person is not mentioned. It is also not the case of the appellant that he insisted the respondent to reveal the name of the said person on the confession made by her. It is also elicited during the cross examination of R.W.1 that "he does not remember the address of the person which whom the respondent fallen in love". If really the respondent made any confession by furnishing any address of the said person, the appellant would have enquired about him and mentioned the name and 33 address of the said person either in his pleading or evidence to prove his case. But he did not do so, which shows the falsity in the allegations leveled against the respondent. Therefore, the alleged premarital relation of respondent with some unknown person is nothing but a false allegation, which in-fact causes mental cruelty to the respondent/wife, but not to the appellant.
39. Furthermore, the appellant contended that the trial Court erred in holding the pre-marital sex cannot be considered as a matrimonial offence as the said activity took place prior to the marriage. The said contention is not upheld either on facts or under law as the appellant is not able to prove the alleged confession of the respondent.
40. The evidence of R.W.2, who is maternal uncle of the appellant's testimony is not helpful to the case of appellant/petitioner as his total testimony is hearsay in nature.
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41. Except the above said allegation, which is not proved by oral evidence or any documents, nothing is stated either in his pleading or evidence about any other behavior of the respondent, which causes mental cruelty against appellant to grant divorce.
42. Moreover, nothing is elicited from the evidence of P.Ws.1 to 3 to attribute any cruelty against the appellant. In the absence of any particulars with regard to the cruelty caused by the respondent, it is unsafe to rely upon the baseless and unproved oral testimony of the appellant. Therefore, the evidence adduced by the appellant does not inspire confidence to grant divorce.
43. This Court closely perused the evidence adduced before the learned Senior Civil Judge, Tanuku and this Court agree with the findings arrived at by the learned Senior Civil Judge, Tanuku as that appellant has not been able to prove that the respondent was having premarital relationship as well her alleged termination of pregnancy prior to the marriage. 35
44. In the above circumstances, we are of the opinion that the appellant could not establish that he entitled for a decree on the ground that the marriage dated 12.11.2011 is vitiated under the circumstances stated in the petition.
45. So far judgments referred by the learned counsel for the appellant, Rakesh Raman (1st case) referred to supra is by the Hon'ble Apex Court, when it was concluded that the marriage is irretrievably broken down. Then invoking the provision of Article 142 of Constitution of India the Hon'ble Supreme Court passed orders. In the present case this court cannot invoke article 142 of Constitution of India to grant decree in his favour upon considering the facts of this case.
46. In Kanchan Devi (2nd case) referred to supra, it mutual divorce application, there by facts there in distinguishable to the facts of the case on hand.
47. In Shobha Rani (3rd case) referred to supra, it was held that "where the husband requested his wife to give some money for his personal expenses. ... If the demand was only of such 36 nature, we would have thrown this appeal away. The wife must extend all help to husband and so too the husband to wife. They are partners in life. They must equally share happiness and sorrow. They must help each other. One cannot take pleasure at the cost of the other. But the case on hand is not of a failure on that front. It has been admitted by the husband himself in his letter dated August 28, 1983 addressed to the wife that his parents demanded dowry. The wife has stated in her evidence that there were repeated demands for money from her mother- in-law. Her evidence cannot be brushed aside on the ground that she has not examined her father. It was not the case of the wife that the dowry was demanded directly from her father. It is also not proper to discredit the wife as hypersensitive or prone to exaggeration. That would be judging the wife by our style of manners and our standard of life. That we cannot apply. We must try to understand her feelings and then search for the nugget of truth in the entire evidence. Thus fact there in are quite distinguishable to facts of this case 37
48. In Suman Kapur(4thcase) referred to supra, the facts are, wife was constantly and continuously avoiding staying with the husband and preventing him to have matrimonial relations. Considering facts of that case divorce has been granted, but in this case facts are totally different. Hence, the said judgement has no application to this case.
49. In Shobha Rani referred to supra in which there is dowry harassment by the wife and husband filed divorce application seeking divorce as it is mental harassment and the court held in the said particular held it is a cruelty and granted divorce, but the facts herein differ to the referred and said case law is not applicable to the facts of this case.
50. Thus, the case law relied upon by the appellant is not applicable to the facts of this case. Considering the evidence etc., this Court is of the opinion that the appellant could not establish that he is entitled for a decree as the marriage dated 12.11.2011 is vitiated and the point is answered accordingly.
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51. POINT NO.3: Whether the respondent is entitled for decree of restitution of conjugal rights?
As per Section 9 of the Hindu Marriage Act, It states that if one spouse has withdrawn from the society of the other without any reasonable excuse, the aggrieved party can file a petition in a district court for the restitution of conjugal rights. The burden is always on the respondent who is aggrieved party to prove her case. The respondent testified as P.W.1 stated that due to indifferent attitude of the appellant the marriage failed in all the three nights and no consummation has taken place. It is also averred that she was taken by her parents on the advice of her father-in-law only, who promised that they will take her back to the matrimonial home on an auspicious day. But the appellant did not allow her to join him inspite of several attempts made by her. Nothing is elicited from the evidence of P.Ws.1 to 3 during the cross examination. The above all shows that the appellant did not make any efforts to join with the respondent.
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52. Moreover, from the beginning she made attempts to join the appellant/petitioner to maintain her marital relationship. But for the acts of the appellant/petitioner, her efforts were in vain. Even according to the respondent her parents made all efforts for mediation through the elders for reunion and those efforts are also in vain. Same is stated by her through her evidence as well examined two witnesses on her behalf to prove her case. Several persuasions were taken place for reunion continuously in December 2011, March 2012, again in June 2012, but the efforts could not materialize. It is also a fact that even she went to the work place of appellant/petitioner at Bhilai, where also her attempts could not materialize.
53. The Trial Court rightly appreciated the entire evidence on record and found that the appellant deserted the respondent without reasonable and justifiable cause and the conduct of the appellant towards her shows that he is not at all interested to lead marital life by making unfounded 40 allegations against her. Hence, there are no grounds to interfere with the order of the trial Court as the appellant failed to establish any cruelty meted out by him in the hands of respondent as the sole allegation of premarital relation leveled by him is nothing but baseless allegation. On the other hand, the respondent/wife shown her interest to join with the appellant/petitioner to lead marital life.
54. The above circumstances clearly show that the appellant himself deserted the respondent without any reasonable cause and made baseless allegation. The respondent is found to be willing to join with him. Thereby, the respondent/wife is entitled for restitution of conjugal rights. The point is answered accordingly.
55. POINT NO.1: Whether there are any grounds to set aside the order of the Trial Court?
For the foregoing reasons in point Nos.2 and 3, we are of the view that the appellant has not established that he is subjected to cruelty at the hands of the respondent and that 41 he is entitled for divorce on that ground. Hence, there are no grounds to interfere with the common order of the trial Court and as such these appeals are liable to be dismissed. Thereby the point is answered accordingly.
56. POINT NO.4: To what relief?
Accordingly, these Civil Miscellaneous Appeals are dismissed confirming the common order and decree dated 21.10.2016 in O.P.Nos.148 of 2012 and 42 of 2015 passed by the learned Senior Civil Judge, Tanuku. No order as to costs.
57. Interim orders granted earlier if any, stand vacated.
58. Miscellaneous petitions pending if any, stand closed.
_________________________________ JUSTICE D.V.S.S.SOMAYAJULU _______________________ JUSTICE V.SRINIVAS Date: 19.09.2023 Krs 42 81 THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU AND THE HON'BLE SRI JUSTICE V.SRINIVAS CIVIL MISCELLANEOUS APPEAL NO.30 AND 190 OF 2017 DATE: 19.09.2023 Krs