Andhra Pradesh High Court - Amravati
Senior Civil Judge vs Jaya Ghosh on 30 April, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.M.A. No. 911 OF 2005
And
C.M.A. No. 933 OF 2005
COMMON JUDGMENT:(per the Hon'ble Dr.Justice K.Manmadha Rao)
1) Aggrieved by the Common Order, dated 31.03.2005, passed in O.P. 55 of 2002 and O.P. 27 of 2004 on the file of Senior Civil Judge, Tadepalligudem, allowing the application filed by the Respondent/Husband for divorce, while dismissing the application filed by the Appellant/Wife for restitution of conjugal rights, the present Appeals came to be filed.
2) The facts, in the O.P. No.55 of 2002, are as under:
(i) The marriage between the Respondent/Husband and Appellant/Wife herein was solemnized on 07.05.1998. Out of the wedlock, a female child, by name Pratyusha was born on 11.09.1999. It is said that, at the time of marriage the parents of the Appellant/Wife promised to give Ac.5.00 of land and a portion of house to her towards pasupukunkuma. It is further said that Rs. 1,50,000/- was given to Respondent/Husband in the presence of elders, by name, Nallamilli Venkata Krishna Reddy and Medapati 2 Srirama Reddy. Also, Rs.1,00,000/- was given towards adapaduchukatnam.
(ii) It is said that Ac.3.35 cents of land and a house portion was given to the Appellant/Wife at Pentapadu. It is said that the father-in-law of the Appellant/Wife was residing at Peraigudem and visits their house now and then.
It is said that the mother-in-law of the Appellant/Wife developed hatred towards her and used to find fault with her work. During 3rd month pregnancy of the Appellant/Wife, her mother-in-law removed the maid- servant and extracted the household work jeopardizing the health of the Appellant/Wife. The parents of the Appellant/Wife brought her to Pentapadu on seeing her health condition, wherein, the Respondent/Husband used to visit and stay with her for some days. It is said that, during the 6th to 9th month of pregnancy, the Appellant/Wife went to Pentapadu for treatment, as then Respondent/Husband and her mother-in-law neglected medical care and did not provide food.
(iii) It is said that, after the birth of the child, the Respondent/Husband and her in-laws did not turn up to take the Appellant/Wife with them. However, after lot of persuasion and after the 5th month of delivery, the Appellant/Wife was taken for kapuram along with sare- samans. Since the Appellant/Wife brought only few sare 3 samans and failed to bring expected sare articles, her mother-in-law demanded that unless balance Ac.1.65 cents and another Rs. 1,00,000/- was brought, no servant-maid would be engaged and the Appellant/Wife would be treated as servant-maid. It is said that, the mother-in-law of the Appellant/Wife used to beat her and snatched away her child forcefully, confining in a room by locking her for days together thereby causing mental harassment to her.
(iv) It is said that, in the month of January, 2002, the parents of the Appellant/Wife came to Peraigudem and requested the Respondent/Husband and the Appellant/Wife to come to pongal festival, but he refused the same. However, the Appellant/Wife was sent on a condition that her parents should deliver the original document in respect of Ac.3.35 cents of land and portion of the house and also provide remaining Ac.1.65 cents and Rs.1,00,000/- towards sare saman. Thus, the Appellant/Wife along with her child went to Pentapadu and stayed with her parents for fifteen days. It is said that the father of the Appellant/Wife handed over passbook for Ac. 3.35 cents and original title deed of house portion given to her. But, her parents could not purchase the remaining Ac.1.65 cents of land, for which the Respondent/Husband grew wild and left her and her child at Pentapadu. The said incident was witnessed by one Karri Satyanarayana Chari and Karri Subbi Reddy. 4
(v) It is said that, though, the Respondent/Husband and his parents committed offence punishable under Sec.498-A of IPC, the Appellant/Wife did not give any report to keep harmony of the family. However, the Appellant/Wife received a legal notice dated 01.04.2002 with false allegations. It is said that, a reply notice was sent on 21.05.2002 offering join Respondent/Husband to lead conjugal life. However, the Respondent/Husband filed O.P.No.40 of 2002 on the file of Senior Civil Judge's Court, Sattupalli, for divorce with false allegations.
3) (i) The Respondent/Husband filed counter denying the averments made in the O.P. (ii) In the counter, it is denied that the
Respondent/Husband demanded any dowry or adapaduchu katnam. It is said that the Appellant/Wife was given Ac.3.35 cents of land. It is averred that, the father of the Respondent/Husband is working as Assistant Engineer in AP TRANSCO at Warangal and his mother is residing at Peraigudem. It is said that, Respondent/Husband is a Diploma holder in Civil engineering and attending agriculture work and doing small contract works.
(iii) It is said that, the Appellant/Wife being the eldest daughter was a pampered child and grown up by her parents as ferocious, tough and cantankerous woman and her negligence and recklessness attitude towards 5 Respondent/Husband was witnessed by one Jupalli Ramesh of Aswaraopet.
(iv) It is contended that the Appellant/Wife used to comment that the Respondent/Husband is fit to be a servant and used to make derogatory remarks against him. It is said that, the Appellant/Wife used to allow conjugal life at her will and wish. It is also contended that the Appellant/Wife commented that because he is not a fit husband they could not begotten a male child. She also commented that the Respondent/Husband is inefficient Husband who cannot satisfy the desires of his wife. She also used to pass pinching comments against the Respondent/Husband and his parents in the presence of servants and visitors. She used to confine herself in a room and avoid taking food and maintaining silence for days together. She is having paranoid schizopharenia during lunar intervals. She also used to abuse him and his parents in unparliamentary words by referring their names by toring the marriage photographs into pieces and thrown at him.
(v) It is contended that after the birth of their child, the Appellant/Wife grew more wild and neglected to take care of the child also. From the beginning she intend to have abortion after noticing the foetus of the child as female. To discipline the child, she used to confine the child in a dark room and bathroom.
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(vi) It is contended that, during sankranthi,2001 the Appellant/Wife picked up quarrel that the Respondent/Husband should live separately from his parents and partition the properties. It is said that, all the properties are the self acquired properties of his father and stridhan of his mother. It is said that, in February, 1999 the marriage of her sister was performed. At that time, his parents gave Rs. 1,00,000/- as hand-loan to her parents. In October, 2000 his father gave Rs.40,000/- to her father for purchasing a house plot in the name of their child- Pratyusha at Pentapadu.
(vii) It is said that, the Respondent/Husband sent a notice dated 01.04.2002 asking the Appellant/Wife to join his company along with their child to lead conjugal life. However, a reply notice was issued by the Appellant/Wife. Accordingly, he filed O.P.40 of 2002 before the Senior Civil Judge's Court at Sattupalli for divorce.
4) As per the Orders of this Court in Transfer C.M.P.No.231 of 2003, the O.P.No.40 of 2002 on the file of Senior Civil Judge's Court, Sattupalli, was transferred to Senior Civil Judge's Court, Tadepalligudem, and it is renumbered as O.P.27 of 2004. Accordingly, O.P.No.55 of 2002 and O.P.No.27 of 2004 were tagged and tried together.
5) During the course of trial, the Respondent/Husband examined himself as P.W.1 and also examined P.W.2 and 7 got marked Ex.A1 to Ex.A5, while the Appellant/wife examined herself as R.W.1 and also examined R.W.2 and R.W.3 and also got marked Ex.B1 to B14 on her behalf.
6) After considering the evidence available on record, the Trial Court while allowing the petition granting Divorce to the Respondent/Husband dismissed the petition of the Appellant/Wife for Restitution of Conjugal Rights. Challenging the same, the present Appeals came to be filed by the Appellant/Wife.
7) Sri S.Subba Reddy, learned counsel appearing for the Appellant/Wife would contend that there is no evidence on record to grant a decree of divorce under Sec. 13 (ia) of the Hindu Marriage Act, 1955, except the evidence of P.W.1 neither the mother nor the father of P.W.1 was examined. He further contends that the trial court erred in come to the conclusion that the marriage was irretrievably broke down when it is not the case of the Respondent/Husband. He further contends that the trial court ought to have seen that in the O.P. No. 27 of 2004 there is no plea that the Appellant/Wife deserted the Respondent/Husband and leaving separately from January, 2001. He further contends that the trial court failed to appreciate that the Appellant/Wife has agreed to join the Respondent/Husband when she was examined by the Presiding Officer at the time of reconciliation. He further contends that the 8 Respondent/Husband after issuance of legal notice failed to make efforts for reunion. He further contends that the trial court ought to have seen that the Respondent/Husband failed to prove that the Appellant/Wife subjected him to cruelty. To substantiate his contentions, the learned counsel relied on V. Usha Devi v. G. Dayalanathan1.
8) Sri. N.Subba Rao, learned counsel appearing for Respondent/Husband mainly submits that both the grounds of desertion and cruelty were categorically proved by the Respondent/Husband adducing credible oral and documentary evidence and that genuine steps were taken by the Respondent/Husband to live in matrimony and the Appellant/Wife was not inclined to live with him as a loyal wife. He further submits that the attempts made by the Respondent/Husband to make the Appellant/Wife to come and live with him had failed at the instance of her parents. He further contends that the trial court was right in concluding that there was no resumption of cohabitation between the parties from Sankranthi, 2001. He further contends that the Appellant/Wife failed to explain single reason as to why she is staying at her parent's house within one month after her marriage. He relied upon the decisions of the Hon'ble Supreme Court in Savitri Pandey v. Prem 1 2017 LawSuit (Mad) 2792 9 Chandra Pandey2 and also in Samar Ghosh v. Jaya Ghosh3.
9) The point that arises for consideration is, whether the trial Court was right in granting divorce to the Respondent/Husband on the ground of cruelty, while dismissing the petition of the Appellant/Wife for Restitution of Conjugal Rights?
10) As the word 'Cruelty' is not defined in Hindu Marriage Act, it would be just and proper to refer to judgments on this aspect.
11) In S. Hanumantha Rao V. S.Ramani4, the Hon'ble Supreme Court held as under:
"8. 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 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."
12) In G.V.N. Kameswara Rao V. G. Jabilli5, the Apex Court held as under:
"9. Under Section 13(1) (ia) of the Hindu Marriage Act, on a petition presented either by the husband or wife, the 2 (2002) 2 Supreme Court Cases 73 3 (2007) 4 Supreme Court Cases 511 4 (1993) 3 Supreme Court Cases 620 5 (2002) 2 Supreme Court Cases 296 10 marriage could be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty.
'Cruelty' is not defined in the Act. Some of the provisions of the Hindu Marriage Act were amended by Hindu Marriage Laws (Amendment) Act, 1976. Prior to the amendment, 'cruelty' was one of the grounds for judicial separation under Section 10 of the Act. Under that Section, "cruelty" was given an extended meaning by using an adjectival phrase, viz. "as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". By the Amendment Act of 1976, "cruelty" was made one of the grounds for divorce under Section 13 and relevant provision reads as follows:-
"Divorce (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(i) * * * * * (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty, or (i-b) * * * * *
(ii)-(ix) * * * * * The omission of the words, which described 'cruelty' in the un-amended Section 10 of the Hindu Marriage Act, has some significance in the sense that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. English Courts in some of the earlier decisions had attempted to define "cruelty" as an act which involves conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. But we do not 11 think that such a degree of cruelty is required to be proved by the petitioner for obtaining a decree for divorce.
Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct."
13) In Parveen Mehta V. Inderjit Mehta6, the Apex Court held as under:
"14. ...... Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realizing the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been 'conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger' (Russel v. Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II page 87]. The provision in clause (ia) of Section 13(1), which was introduced by the Marriage Laws (Amendment) Act 68 of 1976, simply states that 'treated the petitioner with cruelty'. The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct and not fail in some circumstances. By the amendment the Legislature must, therefore, be understood to have left to the courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition 6 (2002) 5 Supreme Court Cases 706 12 which could be exhaustive and not fail in some cases. It seems permissible, therefore, to enter a caveat against any judicial attempt in that direction (Mulla Hindu Law, 17th Edition, Volume II, page 87).
14) In Samar Ghosh V. Jaya Ghosh [cited 3rd supra], the Hon'ble Supreme Court after referring to judgments on the subject held as under:
"46. In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or 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, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. [emphasis supplied]. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious 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. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. [emphasis supplied]. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment."13
"The word "cruelty" has not been defined and 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 and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious 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." [Vidhya Viswanathan V. Kartik Balakrishnan].
What is cruelty simpliciter? It is not possible to comprehend the human conduct and behaviour for all time to come and to judge it in isolation. A priori definition of cruelty is thus not possible and that explains the general legislative policy - with sole exception of the Dissolution of the Muslim Marriage Act - to avoid such definition and leave it to the Courts to interpret, analyse and define what would constitute cruelty in a given case depending upon many factors such as social status, background, customs, traditions, caste and community, upbringing, public opinion prevailing in the locality etc. It is in this background that the suggestion contained in para 2.12. of the 59 report was turned down and the limiting words, namely, "such cruelty that the petitioner cannot reasonably be expected to live with the respondent" were not incorporated on the view that "the Court would even in the absence of such words broadly adopt the same approach". [Dr. Keshaorao Krishnaji Londhe V. Mrs. Nisha Londhe].
15) From the above judgments, it is very clear that, it is necessary to prove that the nature of cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful to the petitioner to live with other party.14
Occasional acts of anger, rudeness of language, may not amount to cruelty, but continuous non-cooperation and hostile attitude of either of the party can safely be termed as 'cruelty' coming within the purview of Section 13(1)(ia) of the Hindu Marriage Act.
16) Coming to the case on hand, we have perused the evidence of PW1 and PW2 and RW1 to RW3. There is no dispute with regard to the marriage between the Appellant/Wife and Respondent/Husband and the birth of the child.
17) PW1 [Respondent-Husband] in his evidence deposed that, the marriage between him and the Appellant-Wife was an arranged one. According to him, there is condition precedent in his community to not to accept any dowry, accordingly, no dowry was received by him and the respective parties have borne the expenses. PW1 in his evidence deposed that, the Appellant-Wife being eldest daughter grew up by pampering and the parents used to fulfil her wishes. PW1 further deposed that, after the birth of daughter, the Appellant/Wife used to comment that because of the Respondent/Husband not fit they could not begot a male child. Without any fault, the Appellant/Wife used to pickup quarrels, seclude herself in a room by avoiding taking food and maintaining silence for days together.
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18) PW1 also deposed that without his notice and concern, the Appellant/Wife use to visit her parents house and after long request she would join him. PW1 furtehr deposed that he bore all the acts of harassment by the Appellant/Wife with the fond hope that the birth of their child would realise her the facts. However, she grew wild and neglected him and his daughter. In October, 2000, the father of PW1 gave Rs.40,000/- to the father of Appellant/Wife to purchase a house plot in the name of their daughter at Pentapadu to give her the property as a birthday gift.
19) PW1 deposed that he is an ordinary villager doing small contract works while attending agriculture. Since he is leading an ordinary village life, the expectations of the Appellant-Wife proved wrong thereby she has shown disinterest and wilful negligence towards him. He further deposed that the Appellant/Wife use to insult him by saying that a man like him cannot get employment and he is suitable to be a servant or utmost a gardener and their lives and status is much better than him. He deposed that even during nights the Appellant/Wife use to pass derogatory remarks against him and she will allow him to have conjugal life only at her will and wish thereby causing mental agony and torture.
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20) PW1 in his evidence further deposed that during Sankranthi, 2001 the Appellant/Wife picked up a quarrel and left his company on her own accord and when he objected to live separately and for partition of the properties, since the properties were self-acquired by his parents, the Appellant/Wife started living separately, thereby deserted him on her own accord. According to him, the conduct of Appellant/Wife prove that she has no element of love or interest to live with him.
21) PW1 further deposed that he made several efforts personally, through his parents and mediators, to persuade and convince the Appellant/Wife to join him to have happy matrimonial life, but the efforts went in vain. He sent Ex.A1 notice inviting the Appellant/Wife to join him for conjugal life but instead he received Ex.A5 reply notice. Since, there is no scope of reunion, he filed petition to grant decree of divorce by dissolving the marriage performed between them.
22) PW2 who is a friend to the family of PW1, deposed that he used to visit the house of PW1 frequently and witnessed the Appellant/Wife quarrelling with PW1, insulting PW1 as she disliked him for not getting employment and doing cultivation and also witnessed she passing derogatory remarks against PW1. He further deposed that the Appellant/Wife left the house on several occasions without notice to PW1 and made them to search for her 17 whereabouts. He deposed that, after the Sankranthi festival 2001, after quarrelling with PW1, she left the matrimonial house and did not join the company of PW1. He further deposed that on one occasion he went to her parent's house and tried to mediate the reunion, but she did not give any reply and expressed her unwillingness to join PW1.
23) Before adverting to the evidence of RW1, it would be appropriate to refer to the evidence of RW2 and RW3.
24) RW2 who is the father of Appellant/Wife/RW1 in his evidence deposed that the marriage between PW1 and RW1 was an arranged marriage. At the time of marriage, he promised to give Ac.5.00 cents of land and a house plot to RW1 towards pasupukunkuma. One week prior to marriage, he gave Rs.1,50,000/- to PW1 and his parents at penugonda at the house of Narsireddy. He also paid Rs.1,00,000/- to the sister of PW1 towards aadapaduchu lanchanam. He also presented 20 sovereigns of gold to RW1. He further deposed that out of Ac.5.00 cents, he provided Ac.3.35 cents of land and a house plot to RW1 and the remaining Ac.1.65 cents was to be given later. He further deposed that PW1 and RW1 lived happily at Peraigudem and five months after delivery of RW1, he and his wife took RW1 and the child to Peraigudem along with few articles. He further deposed that RW1 informed him that she was ill- treated and harassed by PW1 and his parents as he could 18 not bring the remaining land of Ac.1.65 cents and Rs. 1,00,000/- towards saresamans.
25) According to RW2, in the first week of January,2002 they went to peraigudem and requested the parents of PW1 to send PW1 and RW1 and their child to pongal festival. On that, the mother of PW1 demanded to give all documents and also provide Ac.1.65 cents in her name and cash of Rs.1,00,000/- to her son. He also deposed that, though, he handed over the pattadar passbook for Ac.3.35 cents and original document of house-site to PW1 but still PW1 raised a dispute stating that until the remaining land of Ac.1.65 cents is transferred in the name of RW1 and Rs.1,00,000/- is given towards sare samans, he will not take RW1 and their daughter to Peraigudem. Though, RW2 tried to convince PW1 along with Satti Subbareddy, Karri Satyanarayana Chari, but PW1 left the house and went to peraigudem. RW2 also deposed that he made negotiations through T.Narsi Reddy and Narayana Raju to restore the conjugal life between PW1 and RW1 but his efforts went in vain. RW2 deposed that PW1 issued legal notice on false allegations and he sent a reply.
26) RW3 who is a cousin of PW1 deposed that he married the younger sister of RW1 at the advice of PW1. He deposed that he used to visit the house of PW1 now and then and witnessed PW1 and his parents harassing RW1 for non 19 payment of remaining dowry. He further deposed that PW1 left RW1 on that ground and though he tried to convince PW1 but in vain. He further deposed that RW1 is a respectful lady and always shown respect to PW1 and her in-laws.
27) Though, RW1 reiterates the averments made in her petition and in evidence, further deposed that after receiving legal notice from PW1 and on coming to know the false assertion, herself and RW2 got issued a reply. RW1 deposed that, she filed M.C.12 of 2003 on the file of Additional Judicial First Class Magistrate, Tadepalligudem, as PW1 neglected her and the child, towards maintenance. Pending the M.C., at the intervention of Narayanaraju and other elders she went to Peraigudem in the second week of August, 2004 and stayed with PW1 for a period of fifteen days. She also deposed that, during her stay PW1 beat her and brought her to Pentapadu in a car and left her at her parent's house.
28) From the evidence of PW1 and PW2 and also RW1 to RW3 it clearly emerges out that RW1 was staying at her parent's house since January, 2002. The evidence of RW2 also shows that, since the remaining Ac.1.65 cents of land and Rs.1,00,000/- was not provided, PW1 harassed and ill- treated RW1 and left her at his house. Though, he made efforts by way of negotiations through mediators, none of 20 them were examined to prove such meetings or negotiations. In fact, the evidence of RW3 who is no other than the cousin of PW1 and son-in-law of RW2 is silent about any such meetings being held for leading a conjugal life between PW1 and RW1. It is also important to note that, though RW1 was staying at her parents house since 2002, she did not choose to send any notice or letter seeking for conjugal life with PW1. It was PW1 who sent Ex.A1 notice and then RW1 got issued reply Ex.A5. A perusal of Ex.A5- reply categorically show that there exists a condition precedent which reads as under:
"That my client further inform you that she is ready and willing to come and join with your client on any auspicious day as fixed up by your client, but, at the same time my client request you to give protection to her life in the hands of your client and his parents as she has to live in their custody within four walls of their house. If she was given an assurance that no further ill-treatment or harassment in the hands of your client of his parents she is ready and willing to join with him for leadings happy married life at her matrimonial house".
29) From the above, it emerges that RW1 made several riders before offering herself to join the society of PW1. Though, RW1 made an offer to join PW1 on any auspicious day fixed by PW1, but she did not herself made any efforts of fixing a date to join the society of PW1, which only shows 21 her bona fides in joining the company of PW1. Thus, it is clear that offer made in Ex.A5 is only an eyewash.
30) The case on hand is somewhat identical to the case reported in Vinod Kumar Subbiah V. Saraswathi Palaniappan [cited 7th supra]. It was also a case where the Respondent was said to have been verbally insulting the husband's family; threatening to lodge false police complaints, to commit suicide blaming the Appellant and his family etc. The claim of the Appellant in the said case was that he was put through intolerable mental agony and can no longer continue to be married to the Respondent. Dealing with the evidence adduced, the High Court observed that the allegations in the divorce petition are no more than "the ordinary wear and tear" that takes place in a marriage. The High Court held that the Appellant did not give details of the events of abuse by the Respondent towards his family or the cruelty that was meted out to him in the U.S.A. However, the Hon'ble Supreme Court disagreed with the view and held as under:
"7 We have carefully considered the matter, and find that we are unable to uphold the conclusions of the High Court. The Appellant had duly pleaded instances of mental cruelty which he proved in evidence and documents. An examination of the divorce petition makes it abundantly clear that various allegations of cruelty were made out and a number of incidents were mentioned therein. Further evidence was submitted during the course of the Trial to substantiate these 22 allegations, which is in keeping with Order VI Rule 2 of the CPC. Furthermore, we find that the Trial Court examined the evidence at great length and came to the reasoned conclusion that the actions of the Respondent amounted to cruelty. If a spouse abuses the other as being born from a prostitute, this cannot be termed as "wear and tear" of family life. Summoning the police on false or flimsy grounds cannot also be similarly viewed. Making it impossible for any close relatives to visit or reside in the matrimonial home would also indubitably result in cruelty to the other spouse. After a cursory discussion of the evidence which the Trial Court had discussed threadbare, the High Court was not justified to set aside the conclusions arrived at by the Trial Court without giving substantiated reasons.
31) The counsel appearing for RW1 [Appellant/Wife] would submit that even now the appellant is ready to continue her marital relationship with PW1. But as seen from the record, the Appellant and Respondent are living separately since 2002 and there is absolutely no evidence on record to show that any effort was made for reconciliation in these years.
Separation for such a long time, may be not escape from the conclusion that the marriage has irretrievably broken down. As held by the Hon'ble Supreme Court, long time separation itself would lead to mental cruelty.
32) In Kalapatapu Lakshmi Bharati V. Kalapatapu Sai Kumar [cited 1st supra], while dealing with irretrievable breakdown of marriage due to long period of separation, the Hon'ble Supreme Court, held as under:
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"9. In Samar Ghosh Vs. Jaya Ghosh , the Supreme Court held that once the parties are separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage is broken down and that the Court, no doubt, would seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. It has further held that the consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.
10. One of the instances indicated by the Supreme Court in Samar Ghosh (1 supra), which may be relevant in dealing with the case of mental cruelty is as under:
Where there has been a long period of continuous separation, it may fairly be concluded 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. In such like situations, it may lead to mental cruelty"
11. 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 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 24 only prolong the mental agony of the parties for the rest of their lives."
33) In view of the above, though irretrievable break down of marriage is not a ground for divorce, but long time separation would lead to mental cruelty and, as such, we feel that the order passed by the Trial Court, which is impugned in the appeal, warrants no interference.
34) Accordingly, the C.M.A's are dismissed confirming the Order, dated 31.03.2005, passed in O.P. 55 of 2002 and O.P. 27 of 2004 on the file of Senior Civil Judge, Tadepalligudem. No order as to costs.
35) Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR ___________________________________ DR. JUSTICE K. MANMADHA RAO Date: 30.04.2022.
SM/GVL...
25THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE DR. JUSTICE K. MANMADHA RAO C.M.A. No. 911 OF 2005 And C.M.A. No. 933 OF 2005 SM/GVL Dt. 30.04.2022.