Andhra HC (Pre-Telangana)
Muppa Venkateswara Rao vs Avula Asha on 12 December, 2002
Equivalent citations: 2003(2)ALD653, 2003(6)ALT807
JUDGMENT B.S.A. Swamy, J.
1. This Civil Miscellaneous Appeal arises out of the Order dated 11-3-2002 in O.P. No. 156 of 1998 on the file of the Judge, Family Court, City Civil Court, Hyderabad, dismissing the petition filed by the appellant-husband seeking dissolution of the marriage on the ground of non-consummation of the marriage and also on the ground of incompatibility between the respondent-wife and himself.
2. The factual matrix of the case is that the marriage between the appellant and the respondent has taken place on 16-6-1995 at Angalakuduru, erstwhile Tenali Taluk of Guntur District as per Hindu custom and it is an arranged marriage. We need not traverse all the allegations made by the appellant in his legal notices, Original Petition and the evidence adduced in the matter.
3. The short question that falls for consideration of this Court would be whether there is any truth in the allegation of the appellant that the respondent did not cohabitate with him as the marriage has taken place against her will.
4. Admittedly, at no point of time, the appellant did not plead any unchastity to the wife. It is not his case that she did not cohabitate with him because of her illicit contact with any other person. The legal proceedings were put in motion by issuance of a lawyer's notice on 3-12-1997. As per the version of the appellant, he spent Rs. 10,000/- to purchase gold ornaments and Rs. 30,000/- to purchase sarees to his wife apart from spending Rs. 80,000/- towards other expenses of the marriage. Since his elder brother did not come forward to meet the marriage expenses, he contracted loans for the marriage and he is now repaying the same. It is also his case that the respondent refused for conjugal relationship in spite of several attempts made by him and she bluntly refused to cohabitate with him by contending that the marriage was celebrated against her wish. He has also given some dates about the coming and going of the respondent from his house. According to him, the respondent left his house in November, 1995 and thereafter she did not return back to marital home. In 1995, a close friend of him by name Venkateswara Rao residing in Guntur made sincere attempts to convince the respondent and her father and both of them refused for the proposal made by Venkateswara Rao. He also stated that another friend by name Hanumantha Rao residing at Hyderabad also visited the house of the respondent's parents and the attempts made by him to bring reconciliation did not yield any result. With the above allegation he pleaded that the marriage has broken down irretrievably and since there is no possibility of reconciliation because of mental compatibility between him and his wife, he sought for divorce by mutual consent. To this legal notice, a reply legal notice was sent by the respondent on 8-12-1997 denying all the allegations made by the appellant and as per the case of the respondent she was sent by the appellant to Tenali on 26-10-1996 for the Annaprasana ceremony of his foster brother's granddaughter and thereafter, the appellant did not allow her to come to Hyderabad. In paragraph-7 of the legal notice, it was categorically stated by the respondent "in the light of the above facts, my client is ready and willing to join with your client immediately at Hyderabad". In paragraph-8, it was also categorically stated that since the appellant changed his residence, he may be directed to furnish the new address so that she can immediately join him in his new abode. A rejoinder dated 26-12-1997 was sent by the appellant to the respondent denying the averments in the reply notice dated 8-12-1997 and in fact, he denied the fact of sending the respondent to his brother's house to attend 'Annaprasana' ceremony. In paragraph-13, it is categorically stated "with reference to the allegations made in paragraph-8 my client reiterates that there has been no possibility in view of mental uncompatability on the part of your client that my client should change his opinion towards your client and as such, the question of reconsideration does not arise. Hence, I call upon you to advise your client to agree for divorce by mutual consent in the absence of any possibility of the said persons living together." The respondent got issued another reply to the rejoinder of the appellant on 4-1-1998 refusing to agree for divorce by mutual consent.
5. After exchange of notices, the Original Petition was filed on 10-2-1998 with the same allegations as contained in the legal notices. The pleadings of both the parties are on the same lines as given in the legal notices that were exchanged between the parties. To prove his case, the appellant examined himself as P.W.1 and got examined P.W.2 - Venkateshwara Rao, son of Gopaiah, who according to the appellant tried to bring in reconciliation. The respondent examined herself as R.W.1. She has also examined R.W.2 - P.Dhananjay Kumar - an R.M.P. Doctor at Mulpur Village to prove that she was treated by him after undergoing Appendicitis operation, apart from making efforts to bring reconciliation and R.W.3 - R. Sivaji - to speak about appellant's visit to the house of the respondent in July, 1996 and also the mediation efforts made by him.
6. We have carefully scanned the legal notices got issued by the appellant and his evidence as P.W.1. We find so many inconsistencies in his versions from time to time. Before adverting to those inconsistencies, we will deal with the aspect of non-cohabitation.
7. The case of the appellant is that his brother and elderly people of the village know about the non-consummation of their marriage in November, 1995 i.e., within six months of the marriage. If this is a fact, there is no need for him to wait for two long years to issue the first notice i.e., till 3-12-1997 on which day, the legal proceedings were set in motion. If the marriage is not consummated owing to impotency or for any other reason, the marriage is a voidable one under Section 12 of the Hindu Marriage Act, 1955 and the question of waiting for two long years to claim divorce does not arise. If the appellant as well as the well-wishers on his side made any efforts and if the alleged impotency is not a curable one, he would have taken steps immediately to get the marriage dissolved. That was not the situation in this case.
8. Nextly, on the date of marriage, the respondent was aged about 19 years and for various reasons she may be afraid to have sexual intercourse with the appellant. Since she was a teenaged girl, a duty is cast on the appellant-husband to get her examined either by a Doctor or by a Family Counsellor to wipe out fears in her mind, as it is not the case of the appellant that she is having any affair with any other person. As far as the medical treatment is concerned, he categorically admitted that he has not shown her to any Doctor and he tried to justify his action that the respondent expressed that she is not interested in conjugal relations. Except the statement of the appellant on oath, there is no evidence whatsoever to show that she refused to cohabitate with him and the same cannot be inferred from any of the legal notices or the Original Petition or the evidence.
9. Coming to the efforts said to have been made by the appellant, the natural witness in this case, would be his brother or his sister-in-law, who were looking after his welfare. The appellant admits that his brother is having cordial relationship with the family of the respondent. If his brother was aware of the impotency of the respondent in November, 1995 itself, definitely he would have made some efforts either to bring reconciliation between the parties or to get the marriage dissolved. By the time, the evidence in the Original Petition started, he was very much alive. But, the appellant did not choose to examine him as a witness. Even if he died during the pendency of the proceedings, the next best witness would be his sister-in-law, who is fully aware of the facts. She was also not examined and it is not his case that he is not having cordial relationship with his sister-in-law. He also admitted in the evidence that his cousin brother - Pothuraju - was having a friendly relationship with the respondent's family and he was going to their house to bring reconciliation between him and the respondent. The appellant says that Pothuraju died after the Court started recording evidence on his behalf. Exact date of his death is not known. Even if Pothuraju died, his wife, who actively participated in the reconciliation proceedings, could have been examined. But, he examined one Venkateshwara Rao, a resident of Guntur Town as P.W.2. We have scanned through the evidence of this witness, who categorically stated that when he visited the house of the appellant, for the first time he saw the respondent there. It is only on the second occasion she was not there. He simply stated that the appellant informed that the respondent is not cohabitating with him since the marriage has taken place against her wish. But, no whisper was made by this witness whether he tried to know the reason from the respondent why she was refusing to cohabitate with the appellant or whether he tried to mediate between the parties for reconciliation. Hence, the evidence of P.W.2 is not at all useful to prove the case of the appellant.
10. The Counsel for the appellant brought to our notice the following portion from the evidence of P.W.2 to show that he tried to mediate between the parties.
".....About 15 days later when I went to Mulpur, I saw her at her parents house. Even then she did not give proper reply and from her saying I could understand that she was not liking P.W.1 and that her marriage was performed against her will with P.W.1."
11. Under what circumstances the witness jumped at this conclusion was not explained by him in his evidence. Perhaps, having been driven by the appellant from her marital home, she may not be willing to share her agony with others hoping that some good days may be ahead when her husband may realize his mistake and take her to the marital home. The above statement does not mean that she is not having any inclination to live with the appellant.
12. As far as the evidence of the respondent is concerned, she expressed her willingness in unequivocal terms to join the appellant-husband and she has gone to the extent of requesting the appellant to pardon her, if any mistakes are committed by her in the past. The evidence of other witnesses examined on her side won't throw much light on the real controversy.
13. Now the material before this Court is the statements of both the parties on oath against oath. To know the conduct of the parties, it is useful to refer to the stand taken by the appellant from the beginning. In his first notice dated 3-12-1997 - Ex.P1 -he stated that he raised the amounts for getting himself married since his brother did not look after him. But in the witness box, he categorically admitted that his brother bore the marriage expenses. Nextly, in Ex.P1 he stated that the parents of the respondent did not give him any gifts, but in the evidence, he admitted that the father of the respondent has given a gold chain of two sovereigns and a ring of one sovereign at the time of marriage. As stated supra, the respondent in her reply stated that she was sent by the appellant to his brother's house to attend 'Annaprasana' ceremony of his brother's granddaughter, but in his rejoinder the appellant flatly denied that statement by stating that since they are staying separately from November, 1995, the question of sending the respondent for Annaprasana function that had taken place on 26-10-1996 does not arise. But, in the witness box he admitted that he sent his wife along with his sister-in-law (The Counsel for the appellants submits that the appellant sent the respondent to his brother's house in the year 1995, but not to this function). That was not the case of the appellant before the Trial Court. In his rejoinder -Ex.P3 - he categorically stated that he has no knowledge regarding the Appendicitis operation undergone by the respondent. But, in the witness box he stated that he knew about the operation undergone by his wife, but he did not go to see her. Lastly, in his evidence he stated that though he is convinced in the year 1995 itself that the respondent won't join him, he did not issue the notice to her till 3-12-1997 with a hope that there is a little possibility of her coming back and join with him. If there is any truth in this statement, the moment the respondent received the legal notice - Ex.P2, she expressed her willingness to join the appellant. But he has not taken her to his home. In fact, in Ex.P2 she categorically stated that since the appellant changed his residence, he may be asked to communicate the new address so that she will join him immediately without any delay. Though the appellant sent Ex.P3 reply, he did not give his new address. Of course, the Counsel for the appellant contends that the appellant is staying in the same house where both parties lived together. But, in his evidence, the appellant stated that he has changed number of residences from time to time. If there is any good intention on his part and if he is interested to continue the marital knot, definitely he would have given his new address. On the other hand, in unequivocal terms, he declared that the question of reconciliation does not arise and he requested the Advocate to advise the respondent to agree for divorce by mutual consent in the absence of any possibility of the parties living together.
14. From the pleadings and the evidence discussed above, though it is not possible to jump at the conclusion that the respondent did not cohabitate with the appellant, more so in the light of his statements in the cross-examination that the nuptials date was fixed two or three days after marriage, that the nuptials was at his in-laws house for one day and later he came to his house at Vatticherukuru and that he brought his wife with him to his place of working at Hyderabad after the marriage on 21st or 22nd June, 1995, it can be said that the marriage was consummated. If the marriage was not consummated as alleged by the appellant, we are sure that the appellant would not have brought the respondent to Hyderabad and then and there he would have raised a hue and cry in the presence of the elders. In fact, he has gone to the extent of saying in his cross-examination that he did not inform to the parents of the respondent about the unwillingness of the respondent to lead marital life with him on their going to their in-laws place on 26-10-1996 i.e., four months after the marriage. Though in the legal notice - Ex.P3 - he denied the factum of the respondent's going to Annaprasana function of his brother's granddaughter, in the cross-examination he categorically stated that his wife attended the Annaprasana function of his brother's granddaughter and that he raised a dispute by calling the respondent's father before his brother by stating that she was unwilling to live with him; but, he says that this was in November, 1995. There is no evidence to show that the Annaprasana function has taken place in November, 1995 and not in October, 1996. Except this, there is no other evidence on record to prove that either the respondent refused to cohabitate with the appellant or her marriage was performed with the appellant against her will.
15. What transpired between the parties is known to them only, but not to the outside world. Be that as it may, when the appeal was filed before this Court, having seen that the girl-respondent is very much after the boy-appellant and pleaded to save the marriage and also having seen that both of them look like made for each other, every possible effort, in fact, going beyond our limits was made to bring reconciliation between the parties. In fact, we advised the appellant treating him as our younger brother not to break the marriage for nothing. Even if there is some truth in the allegation that the respondent did not cohabitate with him, he must pardon keeping in view her young age at the time of marriage. Today, the respondent is not only a Post-Graduate, but also a working woman knowing fully well the relationship between the wife and the husband. In fact, we sent the parties to Psychiatrist and also Family Counsellors. All of them in one voice stated that there is nothing wrong with the respondent and the appellant has to mend himself and co-operate to save the marriage.
16. Learned Counsel for the appellant strenuously contended that there was no effort whatsoever from the side of the respondent to save the marriage by bringing in reconciliation. Since the case of the appellant is that he made efforts to convince the respondent to join him, onerous responsibility is on him to prove that the efforts made by him failed and they became a futile exercise, whether the respondent made any efforts or not. On the other hand, except giving Exs.Pl and P3 - notice and rejoinder respectively - no effort whatsoever was made by the appellant to save the marriage. Even if we ignore the lapses on the part of the appellant, since a duty is cast on the Court to save the marriage till the last minute, for over six months, we talked, we pleaded and we requested him to save the marriage since he is not doubting the chastity of his wife and give her one opportunity to prove that she is faithful to him. With reluctance, at one stage, though he has taken the respondent to his house, the appellant did not allow her to enter the bedroom stating that he would break her legs, if she enters his bedroom. This is the conduct of the appellant, which is highly reprehensible and cannot be appreciated by this Court. Since the appellant was expressing so much of hatred and animosity against the respondent, we suggested to the respondent to agree for divorce by mutual consent. But, as she is fond of the appellant, she refused to give divorce by mutual consent. Hence, the hands of the Court are tied between the two parties - while the appellant does not agree to take the respondent to his fold, the respondent - wife is not willing to give divorce by mutual consent. Be that as it may, uninfluenced with his conduct, we scanned every material that is available on record from the date of issuance of first legal notice till the pronouncement of the Order by the Family Court and we have no hesitation to hold that the grounds contemplated for divorce under Section 13 of the Hindu Marriage Act, 1955 are not existing in this case and accordingly, the appeal has to fail.
17. In the light of the view expressed by us, as above, the Appeal is dismissed and the impugned Order of the Family Court is confirmed. No order as to costs.