Andhra HC (Pre-Telangana)
Smt. Katada Baby @ Kollati Baby vs Katadi Sri Venkata Satya Raja Sekhar on 24 March, 2014
Bench: R.Subhash Reddy, A.Shankar Narayana
HON'BLE SRI JUSTICE R.SUBHASH REDDY AND HON'BLE SRI JUSTICE A.SHANKAR NARAYANA
CIVIL MISCELLANEIOUS APPEAL No.1361 OF 2004
24-03-2014
Smt. Katada Baby @ Kollati Baby.. Appellant
Katadi Sri Venkata Satya Raja Sekhar .. Respondent
Counsel for the Appellant :Sri K. Sarva Bhouma Rao
Counsel for Respondent:Sri Y. Sudhakar
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. 2000 (1) ALD 697 (DB)
2. 2013 (5) ALD 230 (DB) (date of judgment 10-06-2013)
3. 2013 (4) ALD 416 (DB) (date of judgment 25-03-2013),
4. 2013 (4) ALD 680 (DB) (date of judgment 25.6.2013)
HON'BLE SRI JUSTICE R. SUBHASH REDDY
AND
HON'BLE SRI JUSTICE A. SHANKAR NARAYANA
CIVIL MISCELLANEIOUS APPEAL No.1361 OF 2004
JUDGMENT:(Per Hon'ble Sri Justice A. Shankar Narayana) Granting decree of divorce by dissolving the marital tie between the parties herein driven the appellant - wife to approach this Court, by preferring the instant appeal, challenging the order dated 25-03-2004 in Original Petition No.178 of 2002 on the file of the Additional Senior Civil Judge, Rajahmundry.
2. The marriage between the appellant - wife, Katada Baby alias Kollati Baby and respondent - husband, Katada Sri Venkata Satya Rajasekhar was solemnized on 19-12-1997 at the house of appellant's parents at L.B. Cherla village of Narsapuram Mandal, as per Hindu rites and customs. The marriage between the parties was duly consumated. The appellant joined the respondent at Rajahmundry at her in-laws house.
i) The respondent, who approached the Court below, pleaded that the appellant right from the date of marriage, started ill-treating him and insulting him in the presence of his family members and, thus, subjected to humiliation.
According to him, the appellant gave birth to a female child on 04-11-1999 at Narsapuram. She got the job in the month of September, 1998, whereas he secured the job in the month of January, 2002.
ii) He states that she was not inclined to join his conjugal society which made him to undergo great mental agony and she did not allow him to see the child. He states that the matter was mediated through the elders R. Adinarayana, A.B. Rao and some others, but the appellant and her parents did not heed to the advice of the elders. He was, therefore, constrained to issue a legal notice on 08-07-2002 which stood unanswered. So, he moved the Court below seeking decree of divorce on the grounds of desertion and cruelty under Sections 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955.
3. Appellant denied the ill-treatment and the other related facts pleaded by the respondent. According to her, after she joined the respondent at Kakinada on 18-08-1998, since she got Teacher's job at Parasavari Meraka of West Godavari District, she joined in the job at that village, and the respondent used to visit her and stay with her, and he also got job in the month of January, 2002 at Katrenikona village and she had been residing at Kovvur. The respondent along with his parents used to come to Kovvur, and on their demand, a sum of Rs.50,000/- (Rupees fifty thousand only) given towards additional dowry. That demand was made and they spent the amount for securing job to the respondent. Insatiated with the same, still, they subjected her to physical and mental cruelty.
i) She states that she gave a suitable reply to the legal notice got issued by the respondent. She claims that after the respondent got job, since, she refused their demand for payment of additional dowry, they even, beat her mercilessly and she was constrained to make a report which was registered in Crime No.169 of 2002 under Section 498-A of IPC. Claiming that she was inclined to join the respondent and to continue marital life, she sought for dismissal of the petition.
4. The Court below formulated the point for consideration thus:
"Whether the petitioner/husband is entitled to get decree of divorce against the respondent/wife on the ground of desertion and cruelty as prayed for?"
5. During Inquiry, the respondent besides examining himself as PW.1 has examined his father as PW.2 and got exhibited Exs.A-1 to A-7 to substantiate his stand. Whereas, the appellant examined herself as RW.1 and exhibited ten documents as Exs.B-1 to B-10 to disprove the case of the respondent.
6. The Court below, on appraisal of evidence both, oral and documentary, referring to the decisions relied on by the learned counsel for the respondent, acceded to the request, mainly basing on a particular circumstance that being, that after receipt of notice from the Court in the petition, the appellant engaged a counsel and by seeking time to file counter, she filed a report with the Police under Section 498-A IPC against the respondent and others and, since, the filing of that report as supported through the evidence of Exs.A-3 and A-4, which are copies of remand report and bail order, amounted to cruelty and, thus, the conduct of the appellant - wife amounted to causing mental cruelty. The next circumstance which weighed with the Court below to accede to the relief is that the appellant except examining herself, has not attempted to examine anyone in order to speak about the harassment meted out by her in the hands of respondent and his parents, and even Exs.B-2 to B-10 do not reflect any such demands alleged by the appellant as having been made by the respondent and his family to get additional dowry. The third circumstance which favoured the Court in acceding to the relief sought for by the respondent is, filing of M.C. No.49 of 2003 by the appellant though, the appellant got job prior to the respondent getting job. Basing on these circumstances, the Court below observing that they developed hatred against each other and that there is no possibility for re- union between the parties, as the conduct of the appellant suggests separation and not re-union and holding that the respondent established mental cruelty on the part of the appellant and also the desertion, as the appellant deserted the respondent voluntarily without any reasonable cause and living separately from the respondent, answered the point in favour of the respondent, and consequently, granted decree of divorce by dissolving the marriage between the parties.
7. Aggrieved of the above order, the appellant - wife preferred the instant appeal contending that the Court below did not properly appreciate the pleadings and evidence on record, despite the fact that no pleading about any specific instance of treating cruelly or a specific period of desertion, still, arrived at a wrong conclusion. There is no pleading touching the filing of criminal case and the alleged humiliation and loss of prestige to the respondent by such criminal case, and the same was not introduced even by way of amendment. The Court below, somehow, over-looked the fact that the evidence let in by the respondent is only through himself and his father as PW.2 and, though, the respondent has taken a stand that there was a mediation still, did not examine any mediator. The Court below even, failed to consider Ex.B-1 photograph and Exs.B-2 to B-10, which were the letters written by the respondent showing the continued relationship between them, which would falsify the case of the respondent.
8. Heard Sri K. Sarva Bhouma Rao, learned counsel for the appellant, and Sri Y. Sudhakar, learned counsel for the respondent.
9. During the course of arguments, the learned counsel for the appellant contends that no specific acts constituting cruelty have been mentioned in the petition, and the allegations of appellant subjecting the respondent to insult and humiliation are very vague and supported by any specific instances. His next submission is that mere filing of maintenance case and lodging report under Section-498-A IPC is no ground to arrive at that they aided the respondent proving cruelty. Even, there is no evidence worth the name to establish the desertion pleaded by the respondent. He has also placed reliance on the decisions of this Court.
10. The contention of the learned counsel for the respondent is that the evidence let in by the respondent through PWs.1 and 2 and the documentary evidence would clinchingly establish both the grounds of cruelty and desertion. It is also his submission that law is well-settled that filing of report and registering crime for the offence under Section-498-A IPC is sufficient enough to entitle the respondent for grant of decree of divorce on the ground of mental cruelty besides, in the instant case, the appellant also filing maintenance case despite the fact that she was already working as a teacher, which has to be considered that it was in the direction of harassing the respondent.
He has also placed reliance on the decisions of this Court.
11. The points that arise for consideration are:
i) Whether the respondent made out a case for grant of divorce?
ii) Whether the order challenged can be sustained?
12. The grounds on which the respondent claimed the relief of divorce are; firstly, cruelty under Section 13(1) (i-a), and second, desertion under Section 13(1)(i-b) of the Act. It is needless to mention that to establish cruelty; strict proof in accordance with evidentiary rule is absolutely indispensable.
13. In the direction of substantiating the plea of cruelty raised by the respondent, it is according to him, that right from the marriage day, perhaps from day one onwards, the appellant started treating him harshly and insulting him in the presence of his parents and family members by abusing him in filthy language and scolding him, and for ten days she stayed him and demanded him to stay at L.B. Cherla expressing that she was not interested to join him at Rajahmundry at her in-laws house. The next circumstance he quotes is that when the appellant gave birth to a female child on 04-11-1999, at Narsapuram even, that fact was not communicated to him. The third, that though, mediation is convened still, she did not heed to the request and advice of the elders, and the last, that she did not even answer the legal notice got issued by him dated 08-07-2002.
14. At the outset, we would like to observe that the respondent ought to have amended his petition and ought to have introduced the factum of filing complaint under section 498-A I.P.C. and the maintenance case, as it is well settled principle that no evidence can be permitted to be let in without there being a plea therefor and even if let in should not look in to.
15. Ex.B-1 is a photograph with negative showing the presence of appellant and respondent along with their daughter. Their common case is that, the female child was born on 04-11-1999. The very fact that they were together, as seen from Ex.B-1, would completely condemn the stand of the respondent that right from the marriage day onwards which indicates that from day one, the appellant was treating him harshly and showing disrespect to him by abusing him in filthy language and scolding him in the presence of his family members. Even, it completely falsifies the stand of the respondent that the factum of birth of female child was not communicated to him and the further fact that the appellant never allowed him to see the child also gets totally falsified. These pleas put-forth in the petition when found to be false in the presence of Ex.B- 1, any amount of assertions made by PWs.1 and 2, who are no other than the respondent and his father, is of any consequence and would not assist the respondent in establishing the plea of cruelty set up by him. Even, the circumstance that his legal notice dated 08-07-2002, stood unanswered is no ground at all to draw any adverse inference in a case of this nature, where breaking of marital tie is involved, as the evidence required to break the marital tie is subject to strict proof through the evidence on record.
16. Now turning to the submission of learned counsel for the appellant, we are of the view, that there is substance in the submission made by the learned counsel for the appellant that these allegations touching cruelty averred in the petition and asserted by PWs.1 and 2, have to be construed as vague allegations, as no specific instances at all, have been projected in the petition. We would also like to mention that, though, the respondent has specifically averred that they have placed the matter before the elders, R. Adinarayana, A.B. Rao and others, but the appellant or her parents did not heed the requests and advise, still, the respondent has not chosen to examine none of the said elders, despite mentioning the names of the elders, and no reasons are forthcoming as to their non-examination by the respondent, as one of the witnesses on their behalf to prove the alleged mediation. Certainly, the said circumstance cannot be sidelined as it constitutes a vital circumstance from which an inference adverse to the stand taken by the respondent as to the alleged acts constituting cruelty has to be invariably drawn.
17. Now, the question is, whether filing of report with the police by the appellant for the offence punishable under Section 498-A IPC against the husband and his close relations and even, the maintenance case against the husband, would by themselves suffice to grant decree of divorce?
i) The decision relied on by the learned counsel in Anagalla Padmalath v. A. Sudarshan Rao1, this Court while considering the circumstance of wife filing a petition under Section 498-A IPC and also under Section 125 Cr.P.C. on facts therein, opined that the said circumstance indicated that the wife has decided to abondon the matrimonial home permanently and thereby held that the husband has proved the ground of desertion and in that view of the matter, held that it was unnecessary to go into the question as to whether the appellant has treated the respondent with cruelty but not on mere circumstance of filing the complaint under section u/s 498-A I.P.C. Thus, this Court in the said decision, has not viewed the fact of wife filing petitions under Section 498-A IPC and also the petition under section 125 Cr.P.C. by itself amounting to cruelty, warranting grant of decree of divorce. Therefore, this decision would not aid the respondent.
ii) The learned counsel has relied on yet another decision of this Court in Ganti Srinivas v. G. Vasantha2, wherein the husband preferred appeal challenging the refusal order to grant decree of divorce in a petition filed by him on the ground of cruelty. A Division Bench of this Court observing that "in the recent past, the Hon'ble Supreme Court took the view that the filing of criminal cases, by a wife, against the husband and his family members, would, by itself, constitute cruelty, particularly, when it ends up in acquittal" affirmed the order of the trial Court, allowing the appeal. However, this Court in an earlier decision in Lakshmi Chaitanya v. B. Sharat Chandra3 wherein the appellant - wife challenged the decree of divorce granted by the trial Court on the ground of cruelty under Section 13(1)(i-a) of the Act, while considering the effect of filing of complaint by wife under Section 498-A IPC. whether amounts to cruelty by itself, referring to the fact-situation observed that the case on hand was a typical one where the learned Family Court which concentrated only upon the evidence of respondent in a petition filed for divorce and the contents of the counter, and there was not even a remote reference to the evidence of the only witness i.e., PW.1, and even in the order, no discussion as to what was the evidence, which, the respondent - husband has adduced, to substantiate his plea of cruelty only rested, his conclusions on the factum of filing of a complaint under Section 498-A IPC. Thus, finding fault with the approach of family Court observing that the effort of the Family Court should be, to ensure that the institution of marriage is strengthened and nurtured, and to the extent possible the spouses are made to live together, than to grant divorce, just for the asking of it, allowed the appeal.
iii) Even subsequent to the decision in Ganti Srinivas's Case (Supra 2), this Court in Akuladevi Padmaja v. Akula Veera Venkata Satyanarayana4 found fault with the approach of the trial Court, in granting divorce by merely stating that filing of complaint under Section 498-A IPC amounted to mental cruelty without basing on evidence, as unjustified and contrary to settled principles of law, set aside the impugned order and decree passed therein.
18. We are, therefore, of the opinion that granting of divorce by the Court below on the mere ground that the appellant filed criminal case against the respondent and others under Section 498-A IPC and the maintenance case in M.C. No.49 of 2003, is unjustified. Further, we opine that though, no cogent and convincing evidence is adduced by the respondent to prove the ground of cruelty and despite withholding the best evidence through the disinterested persons, still, basing on the interested evidence of PWs.1 and 2, who are no other than the son and father, granting divorce on the ground of cruelty, is contrary to the well established principles of law.
19. What remains now is, whether the decree of divorce granted by the Court below can be sustained, at least, on the ground of desertion. At the cost of repetition, we deem it appropriate to refer to the evidence on record again contextually. The respondent's stand has been that from the day one there was no cordiality between them, mainly, due to the arrogant behavior of the appellant by which he claims that he was subjected to harassment in the hands of the appellant, as mentioned in the above, including the alleged refusal of the appellant to allow the respondent to see the child. We have already observed in the above, that Ex.B-1 would belie that stand. Besides, the respondent is not specific as to on what date, or from which day, the appellant voluntarily withdrawn herself from the society of the respondent to reckon statutory period for sustaining the ground of desertion alleged by the respondent. Even Exs.B2 to B10, which are the in-land letters addressed by the respondent to the appellant from 12-10-1998 to 16-12-1999 covering a period of more than one year, since, in unambiguous terms, establish the cordiality between them and exchange of visits and in the face of such strong constant communication and correspondence between them accounting for cordial relations between them further strengthened by Ex.B1 positive and negative photograph, we are of the considered view, that the respondent failed to establish even the ground of desertion, and thereby disentitle him for grant of decree of divorce.
20. We, thus, conclude that the respondent failed to establish none of these two grounds, either cruelty or desertion, and consequently, we are constrained to set aside the decree and decretal order passed by the Court below by allowing the appeal.
21. In the result, the appeal is allowed. The decree of divorce granted by the Court below dissolving the marriage between the parties in original petition No.178 of 2002, stands set aside.
The parties are directed to bear their own costs.
22. As a sequel, miscellaneous applications, if any, pending in this appeal, shall stand closed.
_______________________ R. SUBHASH REDDY, J _____________________ A. SHANKAR NARAYANA, J March ______2014.