Andhra HC (Pre-Telangana)
T. Yadagiri vs Smt. Bhagyawathi on 10 October, 1995
Equivalent citations: 1995(3)ALT778
JUDGMENT Motilal B. Naik, J.
1. This appeal is filed against the dismissal of O.P. No. 1 of 1991 by the III Additional Judge, City Civil Court, Secunderabad filed under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") by the appellant herein seeking divorce on the ground of cruelty.
2. Appellant herein is the husband and the respondent herein is the wife. Their marriage took place at Hyderabad on 13-5-1989. At the time of marriage, the appellant was working as Instructor in a Central Government Organisation and was living with his brother T. Rajaiah and his family in a rented house. It was the case of the appellant before the lower Court that immediately after their marriage, the respondent joined his society. Though there were no problems for some time, but later on, she took up quarrels with the appellant, his elder brother and his wife. This led to anarchy in the household affairs. The respondent became pregnant. On 19-1-1990 the respondent was advised by Dr. Ratna to go for scanning test, and accordingly, the appellant took the respondent to Mahavir Hospital on 2-2-1990 where scanning test was conducted and in the said test it was revealed that the respondent was carrying a child already died. However, at the instance of the parents of the respondent, it is alleged that she was taken to Woodland's Hospital on 3-2-1990 where she underwent abortion.Later on, the respondent was discharged on 5-2-1990 from the hospital.
3. It is alleged by the appellant that shifting of the respondent from Ratna Hospital to Woodland's Hospital is not made known to him and the abortion was carried without his knowledge. The appellant contended that the respondent was influenced by her parents and she was taken to their residence without his knowledge. It is further alleged by the appellant that despite his efforts to bring her back to his house, the respondent failed to show any inclination to join his society and therefore, the appellant was forced to use the good office of caste-elders as well as some Manila Associations. Despite his efforts, it is stated that the in-laws of the appellant beat him on 6-1-1991 and the appellant also lodged a police complaint in this regard.
4. Under this background, the appellant filed O.P. No. 1 of 1991 before the III Additional Judge, City Civil Court at Secunderabad seeking divorce on the ground of cruelty.
5. As against the allegations of the appellant, the respondent filed a detailed counter inter alia contending that the appellant started demanding house-hold articles such as Television, Refrigerator etc., and was also demanding dowry. That apart, it is alleged by the respondent that the appellant was influenced by his brother and sister-in-law and had not shown much interest in the respondent. It is stated that the grounds urged in the O.P. seeking divorce on the ground of cruelty are false as the appellant himself was cruel and unkind to the respondent. The respondent has further stated that the appellant has gone even to the extent of threatening to kill her and therefore, in this background, the respondent has resisted the claim of granting divorce.
6. In support of their respective claims, on behalf of the appellant, the appellant examined himself as P.W.I and got Exs. A-1 to A-5 marked. On behalf of the respondent, the respondent examined herself as R.W. 1 and also examined two other witnesses as R. Ws.2 and 3. Exs.B-1 to B-5 were also marked on her behalf.
7. On the basis of the oral and documentary evidence, the lower Court found that the ingredients contemplated under Section 13(1)(ia) of the Act have not been fulfilled and therefore, dismissed the O.P. holding that the appellant has failed to prove mental cruelty. Aggrieved by the said order and decretal order, the appellant has filed the present appeal.
8. Sri P. Venugopal, learned Counsel appearing on behalf of the appellant strenuously contended before us that though the ingredients contemplated under Section 13(1)(ia) of the Act in toto have not been fulfilled, yet there is a semblance of cruelty which act is apparent from the fact that the respondent though was admitted by the appellant is Mahaveer Hospital for scanning test, without his knowledge she was shifted from that hospital and was admitted in Woodland's Hospital where she underwent abortion. This act itself goes to show, according to the learned Counsel for the appellant, that the respondent was really under the influence of her parents and such an act amounts to cruelty whereby the appellant had suffered mental agony. This apart, the learned Counsel for the appellant states that the parties have not stayed together as wife and husband eversince 5-2-1990 and the situation has reached a point of no return and therefore, persuades this Court to mould the relief meeting the situation.
9. Sri Goverdhanachary, learned Counsel for the respondent, on the other hand, states that the lower Court has rightly dismissed the O.P. filed by the appellant for divorce and no reasons are warranted for this Court to interfere with the said order.
10. We have heard both the learned Counsel at length.
11. The only point that arises for consideration in this appeal is whether the appellant has made out a case for seeking a decree of divorce under Section 13(1 )(ia) of the Act, on the ground of cruelty?
12. It may be true that the parties are separately living for quite a long time and it may also be true that it would not be possible for them to come together and stay together in view of the long period of separation.
13. While granting divorce on the ground of cruelty, the Supreme Court in V. Bhagat v. Mrs. D. Bhagat, , has examined the ingredients of cruelty basing on which the divorce could be granted. In that case, the Supreme Court has held thus:
"Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible not desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case......"
14. Therefore, what has flown from this view held by the Supreme Court is that the situation must be such that the wronged party cannot reasonably be asked to put up with such a conduct and continue to live with the other party.
15. Applying the said test laid down by the Supreme Court, we are afraid, there is no cogent and convincing evidence from the appellant's side to indicate that there is really mental cruelty from the side of the respondent-wife. Therefore, in the absence of any evidence before us, we are not persuaded to hold that the appellant has suffered mental cruelty at the hands of the respondent.
16. It is urged by Sri P. Venugopal, learned Counsel for the appellant that the appellant was beaten by the relatives of the respondent and a criminal complaint to that effect was also lodged by him. However, it is evident from the judgment of the lower Court that the criminal complaint lodged by the appellant is dismissed. Therefore, we are of the view, that filing of criminal complaint is of no avail to the appellant for persuading us to grant the relief as prayed for on the ground of cruelty.
17. Having regard to the above discussion and having regard to the law laid down by the Supreme Court, we are of the view, the lower Court has rightly dismissed the petition filed by the appellant herein seeking a decree of divorce on the ground of cruelty. We do not see any merits in this appeal and accordingly, the same is dismissed, but without costs.