Need of the judgment s.vijayalakshmi vs s. bheem reddy

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S. Vijayalakshmi v. S. Bheem Reddy, 1998 AIR (A.P.) 296

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ANDHRA PRADESH HIGH COURT
(DB)

Before :- Motilal B. Naik and V. Bhaskara Rao, JJ.
C.M.A. No. 1222 of 1996. D/d. 16.3.1998.

S. Vijayalakshmi - Appellant

Versus

S. Bheem Reddy - Respondent

For the Appellant :- Mr. V.V.S. Rao, Senior Advocate for Mr. Bhaskar Reddy, Advocate.
For the Respondent :- Mr. M.V. Ramana Reddy, Senior Advocate for Mr. M. Ravindranath Reddy, Advocate.

JUDGMENT

Motilal B. Naik, J. - This appeal is directed against the order and decree in O.P. No. 139 of 1995 dated 9.9.1996 on the file of the Judge, Family Court, Hyderabad.

2. Wife is the appellant before us. The husband who is the respondent therein has originally filed O.P. No. 245 of 1994 on the file of the II Additional Judge, City Civil Court, Hyderabad which was subsequently transferred to the Court of the Judge, Family Court and re-numbered as O.P. No. 139 of 1995, under Section 13 of the Hindu Marriage Act against the wife seeking dissolution of their marriage on the grounds of cruelty and desertion by the wife.

3. For the sake of convenience, the parties are referred to as 'petitioner- husband' and 'respondent-wife'. The O.P. is instituted by the petitioner- husband on the following allegations :
According to the petitioner-husband, their marriage took place on 25.5.1989 according to Hindu Custom and Law. From the beginning, the respondent-wife had no liking for the petitioner-husband and had developed positive aversion towards the husband. She was expressing that her marriage with him was under pressure from her parents. She was frequently leaving the house of the petitioner-husband without his knowledge and consent and against his wish. Whenever she came to live with the husband, she was staying only for a short period and was going away to her parents house which is also located in Hyderabad without informing the petitioner-husband.

4. When the respondent-wife was in the family way and was in third month, she left the house of the petitioner-husband in the month of January, 1990 without informing him, along with all her clothes and belongings. On 16.3.1990, the petitioner-husband addressed a letter to the father of the wife intimating the facts and requesting him to send his daughter to his house immediately. However, the petitioner-husband did not receive any response. He again addressed a letter on 23.3.1990 to his father-in-law requesting him to send his daughter failing which he would be constrained to take legal steps. Instead of sending his daughter to the petitioner-husband, the father of the respondent-wife gave a reply dated 3.4.1990 making malicious and false allegations against the petitioner to which the petitioner gave a prompt reply on 16.4.1990 denying the allegations.

5. On 4.5.1992, the brother of the respondent-wife Sri Ajay Kumar accompanied by three goondas came to the residence of the petitioner-husband and abused him and further threatened him that they will see to it that the petitioner is removed from service. Apprehending risk of physical injury at the hands of the brother of the respondent-wife, the petitioner-husband lodged a complaint to the Station House Officer, Narayanguda and sought protection. Apprehending malicious prosecution, the petitioner-husband has also obtained anticipatory bail from the Metropolitan Sessions Judge, Hyderabad on 25.10.1992.

6. On 27.5.1990, the father of the respondent-wife sent a telegram to the petitioner-husband informing him that the respondent-wife was admitted in Nursing Home for delivery. The petitioner-husband immediately rushed to the Nursing Home but did not find the respondent-wife there. Though a female child was born on 16.5.1990, it was not informed to the petitioner-husband. On the instigation of the respondent's father and brother, one Rajeswar Rao, friend of the respondent assaulted the petitioner-husband and caused him bleeding injuries. The petitioner-husband addressed yet another letter on 31.5.1990 to the father of his wife requesting him once again to send the respondent-wife to his house. The petitioner apprehending danger to his life at the hands of said Rajeswar Rao and others, gave a report to the Police, Nampally P.S. on 30.5.1990 for protection and also lodged another report on 2.6.1990. The wife filed a complaint on 6.6.1990 against the petitioner and others under Section 498-A of Indian Penal Code. Thereafter, the matter was settled and the respondent joined the company of the petitioner and stayed only for two days and then left the house of the petitioner along with her child without the knowledge and consent of the petitioner.

7. On 2.5.1992, the respondent has deserted the petitioner-husband and since then she has been living separately. She also filed another complaint under Section 498-A of Indian Penal Code against the petitioner on 13.5.1994. The petitioner- husband was arrested by the police and remanded to judicial custody. He was enlarged on bail on 18.5.1994. On account of his arrest, the petitioner was kept under suspension by his employer.

8. During the stay of the respondent-wife with the petitioner-husband, she was very arrogant and adamant. She was not evincing interest to do household work and she not even cooked the food. She was saying that she did not know how to cook. She was taunting the petitioner that he is only a petty employee and that she came from a rich and affluent family. She was lamenting for having married the petitioner who is in low position when compared to the members of her family who are well-placed. She also expressed that she was not interested in living with the petitioner. According to the petitioner-husband, by her conduct, abusive behaviour and teasing statements, the respondent-wife was causing mental agony to him and thus, she was cruel to the petitioner-husband.

9. Petitioner-husband, therefore, filed the petition under Section 13 of the Hindu Marriage Act seeking dissolution of his marriage with the respondent- wife on the grounds of cruelty and desertion by the wife.

10. In the counter filed by the respondent-wife, the marriage between the parties is admitted. She alleged that her parents gave 12 tolas of gold worth Rs. 60,000/-, silver Thali and other items worth about Rs. 10,000/- besides two gold rings worth Rs. 5,000/- and silk sarees worth Rs. 12,000/- to the petitioner-husband. That apart, cash of Rs. 5,000/- for purchasing clothes and Rs. 2,000/- for other expenses was also given to the petitioner. According to the wife, her father gave household articles and utensils including pressure cooker, grinder, decolam cot with foam rubber beds, steel almirah and dressing table to the petitioner. She has denied the allegation that she had no liking for the petitioner-husband. On the other hand, she states that she had developed positive liking for the petitioner. She has also denied other allegations such as irresponsive tendency on her part, her frequent visits to her parents' house and she was adamant in not doing the household work.

11. The respondent-wife alleged that in the first week of June, 1989, the petitioner and his mother were harassing and taunting her on one pretext or the other by saying that they could have got other alliances who were ready to pay more than Rs. one and half lakhs as dowry in cash and by marrying the respondent, they have lost that amount. It is further alleged that the petitioner and his mother were demanding the respondent to bring colour TV, scooter, refrigerator and gas stove. As she expressed her inability to get all these items, the petitioner and his mother started ill-treating the respondent-wife. Petitioner used to come home late in the nights after consuming liquor and was ill-treating the respondent by beating her, pulling her hairs, slapping her and kicking her in a fit of drunkenness.

12. The respondent-wife has denied the allegation that when she was in family way, left the house of the petitioner in the month of January, 1990 without informing him. On the contrary, the respondent-wife has averred that due to continuous harassment, mental torture and physical violence, her health condition has deteriorated. On 7.1.1990, the respondent's sister-in-law and brother Dr. Ravi Kumar visited the house of the petitioner and on seeing the condition of the respondent-wife requested the mother of the petitioner to send the respondent along with him for two days so that she can take rest and also medical treatment could be provided to her. As the petitioner was not at home at that time, the respondent took the permission of his mother and went to her parents' house, stayed there for three days and returned to the maternal house which was originally located at door No. 3-2-828 Chappal Bazar, Hyderabad. On 10.1.1990, the respondent-wife along with her sister-in-law Smt. Suman went to the house of the petitioner. The petitioner who was present at that time, dragged out the respondent by pulling her hair and closed the doors after driving her away. As a result of the attitude of the petitioner, the respondent-wife developed blood pressure which rose to dangerous level.

13. According to the respondent-wife, the petitioner-husband never cared for her health but only addressed a letter on 8.3.1990 to her father. Immediately after receipt of the letter, she along with her mother went to the house of the petitioner and to their surprise found that the petitioner had vacated the house. The landlord also expressed their inability to give the address of the petitioner. According to the respondent-wife, from January, 1990 to the end of May, 1990 she was under medical treatment and was advised rest. As the petitioner did not intimate his address to her, she could not find his whereabouts and was forced to stay in her parents' house. The respondent-wife has shown inclination to live with the petitioner-husband if the petitioner- husband treats her well.

14. The respondent-wife has denied the allegation that her brother Ajay Kumar accompanied by three goondas threatened the petitioner. On the contrary, she pleads that on 2.5.92, in order to cover up his misdeeds, the petitioner- husband had beaten the respondent black and blue and approached the Metropolitan Sessions Judge, Hyderabad and obtained anticipatory bail on 21.5.92. The respondent has stated that on 10.5.90, she was admitted in a Nursing Home in Kachiguda for pregnancy complications. Though her father sent a telegram to the petitioner informing him about the same, the petitioner did not visit the nursing home. Respondent states that even though the petitioner has addressed a letter to her on 31.5.1990, he did not furnish his present address. She further alleged that the petitioner demanded Rs. 35,000/- cash and asserted that she would be allowed to join his company if she brings that amount.

15. According to the wife, elders intervened and settled their disputes and the petitioner assured that he would not ill-treat and harass her and then only she joined his company. She further alleged that in the month of May, 1992, the petitioner-husband in a fit of drunkenness removed the clothes of the respondent-wife and beat her with waist belt and drove her away along with small baby. Though she tried to talk to the petitioner on phone in the office, he never responded. As the treatment by the petitioner was so harsh and unbecoming of a husband, she had no other go than to lodge a complaint to the D.C.P., Women Protection Cell and sought the protection from the police seeking justice. The respondent-wife has averred that the petitioner-husband was cruel and developed cynicism and it is he who is responsible for her leaving the house on 2.5.1992. The respondent-wife has thus opposed the petition filed by the petitioner-husband seeking divorce.

16. In support of his pleadings, the petitioner examined himself as P.W. 1 and got marked Exs. P-1 to P-9. On behalf of the respondent-wife, she examined herself as R.W.1 and got marked Exs. R-1 to R-7.

17. The Court below on a consideration of the entire evidence on record held that the allegations made by the petitioner-husband on both counts, namely, cruelty and desertion are proved and dissolved the marriage between the parties by passing a decree of divorce as prayed for, against which the present appeal is filed by the wife.

18. On behalf of the appellant-wife, Sri V.V.S. Rao, learned Senior Counsel appearing on behalf of Sri Bhaskar Reddy, Counsel for the appellant-wife, contended that in order to seek a decree of divorce on the ground of cruelty, there shall be a pleading to that effect by the petitioner-husband and that pleading shall be specific and has to be proved. It is further contended that when the petitioner-husband has sought divorce on the ground of desertion by the wife, he has to necessarily plead and prove that the wife has left his society without any reasonable excuse and her leaving his company is intended to determine the ties permanently. It is also contended that the Court below is not justified in shifting the burden on the respondent-wife to prove that she has not left the company of the husband voluntarily. Counsel next contended that the petitioner-husband has not only failed to plead the actual grounds of cruelty and desertion but also did not prove the same by adducing cogent evidence that the wife was cruel towards him and has deserted him on her own volition. Counsel contended that the lower Court has failed to appreciate the evidence properly and has erroneously dissolved the marriage between the parties which is not sustainable and is liable to be set aside.

19. On behalf of the husband, Sri M.V. Ramana Reddy, learned Senior Counsel appearing on behalf of Sri M. Ravindranath Reddy, Counsel for the husband, on the contrary submitted that the trial Court has found that in view of the conduct of the parties, the marriage has irretrievably broken down and as such the parties cannot settle down to lead the marital life. Learned senior Counsel further submitted that the respondent-wife hailing from an affluent family was taunting and abusing the petitioner and visiting her parents' house quite frequently without informing the husband and cursing her fate for marrying the petitioner. Counsel stated that the indifferent attitude of the respondent-wife and her cruel behaviour towards the petitioner have caused him untold mental agony. Counsel further submitted that the attempts were made by the brother of the respondent-wife and his friends to attack the petitioner, and on account of the complaint lodged against the petitioner by the wife, the petitioner was arrested and sent to judicial custody on account of which he was kept under suspension. It is further submitted that on a settlement by elders, the respondent has temporarily joined the society of the petitioner but unable to adjust herself has finally deserted the petitioner without any reasonable excuse on 5.2.92 and since then she did not return to the society of the petitioner. Counsel further submitted that the Court below on being satisfied about the material facts pleaded by the petitioner has granted a decree of divorce and no interference is called for by this Court.

20. In the wake of these submissions, the point for consideration before us is whether the petitioner-husband has substantiated his allegations for granting a decree of divorce on the grounds of cruelty and desertion ?

21. The petitioner-husband has filed the O.P. seeking dissolution of his marriage with the respondent-wife by a decree of divorce on the grounds of cruelty and desertion on the part of the wife. Though serious allegations are levelled by the petitioner and respondent against each other, what is to be seen is whether the petitioner is able to substantiate the allegations of cruelty and desertion on the part of the wife.

22. Petitioner filed his petition under Section 13 of the Hindu Marriage Act seeking divorce on the grounds of cruelty and desertion. It is settled law that petitions filed seeking divorce on any of the two grounds, there must be a necessary pleading and also that pleading has to be proved. We have carefully scrutinised the pleadings as well as the evidence let in by both the petitioner and the respondent. In para 9 of his petition, the petitioner- husband has specifically alleged that by the conduct, abusive action and statements by the wife, she has caused immense mental agony and mental cruelty to the petitioner. In the same paragraph, the petitioner has also specifically pleaded that on 2.5.1992 without any excuse, the wife has left his society without any permission and has not tried to join his society despite writing so many letters by him.

23. Petitioner-husband has examined himself as P.W.1. He has narrated various instances in his evidence as to how the respondent-wife was teasing and taunting him on one pretext or the other. He has also deposed that the wife was seen going to her parents' house frequently without his permission. He further deposed that the wife was quarrelsome and was cursing her fate for marrying the petitioner who is a petty employee. Though the disputes were settled by elders in the year 1990, the wife did not stay with him for long and again went back to her parents' house. On 2.5.1992, she left the society of the petitioner without any reasonable excuse and on her own volition. Petitioner has also narrated that he was remanded to judicial custody following the complaint filed by the wife to the DCP, Women Protection Cell and his suspension from his employment.

24. The respondent-wife has also deposed denying the allegations and the circumstances leading to the filing of complaint by her in the Women Protection Cell.

25. When the matter came up for hearing before us, we made an earnest effort to bring reconciliation between the parties so that they could lead a happy marital life by sinking all their differences keeping in view the welfare of the minor girl child, aged 8 years who is staying with her mother. Though on behalf of the respondent-wife, it was made known to us that she is willing to join the society of the husband, the petitioner-husband pleaded that the attempt of the wife is only a drama preventing this Court to pass an appropriate order.

26. Counsel for the petitioner-husband has stated before us that when the marriage between the parties has irretrievably broken down, no useful purpose would be served by asking them to stay together.

27. We are reminded of a well-found saying that "A HOUSE IS BUILT WITH BRICKS AND STONES BUT A HOME IS BUILT WITH LOVE AND AFFECTION". A matrimonial A matrimonial home cannot be built by bricks and stones but only built by love and affection. If there is no love-lost between the partners, the home collapses and any attempt to bring reconciliation between the partners would be a futile exercise.

28. In this case, the marriage between the parties has taken place on 25.5.1989. A female child is born out of the said wedlock and that girl is now aged about 8 years. Both the husband and wife have levelled serious allegations against each other. The petitioner-husband was even arrested by the police and sent to judicial custody on a complaint given by the respondent-wife and he was kept under suspension by his employer. When the matter has reached a point of no return, any amount of persuasion to keep the matrimonial home in good stead is of no use. As seen from the record, on an earlier occasion, a Division Bench of this Court has also made efforts to bring an amicable settlement between the panties but met with little success.

29. Both the learned Counsel appearing on behalf of the parties have cited several decisions of various High Courts as well as the Supreme Court before us. The principle emerging from these decisions is that the marriage between the parties cannot be dissolved for an asking. Before granting a decree of divorce, Court must satisfy itself and come to the conclusion that the marriage between the parties has irretrievably broken down and the wounds cannot be healed. Keeping this principle in view, we have given our anxious consideration while scrutinising the pleadings as well as the supporting evidence let in by both the parties.

30. It is true that Courts are to see that there is evidence to support the pleadings. Courts must also examine whether the party who approaches the Court seeking a decree of divorce has placed sufficient material before the Court in this behalf even though the matter is uncontested, as provided under Section 23 of the Hindu Marriage Act. It is also true that the burden is on the party who approaches the Court seeking dissolution of the marriage, to prove that the other party has been cruel towards him and has deserted him without any reasonable excuse.

31. Indian tradition and culture may not permit granting of divorce on trivial grounds. Law may not agree that small disputes could be a ground for divorce. As we have observed that a matrimonial home is built with love and affection and when such love and affection are absent, instead hatred has marred the homely atmosphere, the matrimonial home becomes hell. We are rather distressed to observe that love and affection between the parties have vanished and in its place seeds of hatred have blossomed. Therefore, we are of the view that no useful purpose would be served if they are 'ordered' to stay together.

32. Having regard to the facts and circumstances narrated above, apart from the evidence on record, it is apparently clear that the relationship between the parties has been irretrievably broken down and we have no other option than to grant a decree of divorce dissolving the marriage between the parties. Though the approach of the Court below in appreciating the evidence on record is not satisfactory, but in the overall circumstances, we hold that the Court below is justified in dissolving the marriage between the parties by granting a decree of divorce. Accordingly, we confirm the order and decree of the Court below.

33. When once the marriage is dissolved, the wife is entitled for a permanent alimony from the husband. The wife has filed C.M.P. No. 4702 of 1998 in the present C.M.A. No. 1222 of 1996 seeking permanent alimony/maintenance of Rs. 3,00,000/- from the husband in case this Court confirms the decree of divorce granted by the Court below. In her petition, the wife stated that the minor girl aged 8 years is studying in St. George Grammar School and she has to incur nearly Rs. 1200/- per month for her school fees and other expenses. The wife has also claimed that she needs an amount of Rs. 2,500/- towards her maintenance including the house rent. She further stated that the joint family of the husband owns 14 acres of land in Amarchinta village in Mahaboobnagar District and he gets an income of Rs. 50,000/- per annum towards his share. That apart, the joint family has got a house worth Rs. 1,50,000/- in the village. The wife has stated that the Irrigation Department acquired some land of the joint family in the village and an amount of Rs. 3,50,000/- has been paid as compensation.

34. The husband in his counter to this application has admitted than an extent of Ac. 2-00 has fallen to his share which was acquired by the irrigation department and an amount of Rs. 81,253/- was received by him in the month of March, 1993 towards compensation. He stated that the said amount has already been spent by him on various litigation's and for maintaining his family as he has been kept under suspension. He has further stated in his counter that an amount of Rs. 800/- per month towards interim maintenance and a sum of Rs. 800/- towards legal expenses has been paid by him during the pendency of the proceedings in the Court below and he has been paying Rs. 800/- per month towards maintenance for the wife and the daughter during the pendency of the CMA. The husband has also stated that he is prepared to take the minor daughter with him. He has denied having any other property excepting his job in M.C.H.

35. As discussed, when once divorce is granted, the wife is entitled for permanent alimony from the husband. The husband is working as a Senior Clerk in the Office of the Commissioner, Municipal Corporation of Hyderabad and his gross salary is about 6,780/- per month. However, he has been kept under suspension from 24.12.1996. Permanent alimony could be granted to the wife basing on the status and financial capacity of the husband. The husband in his counter has stated that the wife is working in a private school and getting a monthly salary of Rs. 1000/-. However, nothing is placed before us to show that the wife is working in a school and is capable of maintaining herself. In his counter, the husband has stated that as on today, he has no immovable property. We, therefore, proceed to assess the quantum of permanent alimony to be paid to the wife by the husband on the basis of his salary. The last drawn gross salary of the husband prior to his suspension was Rs. 6,780/- per month and he is aged 45 years by now. The wife is aged about 37 years by now. Though the wife has claimed an amount of Rs. 3,00,000/- as permanent alimony, we are of the view, the husband could be directed to pay an amount of Rs. 1,50,000/- towards permanent alimony to the wife. Accordingly the husband shall deposit the said amount of Rs. 1,50,000/- within a period of six months from the date of receipt of a copy of this Order to the credit of O.P. No. 139 of 1994 on the file of the Judge, Family Court at Hyderabad and on such deposit, the wife is entitled to withdraw the same without furnishing any security.

36. Admittedly, the minor female child is aged about 8 years and is in the company of the mother. We feel that the father shall pay an amount of Rs. 800/- per month separately towards maintenance amount to the daughter. This amount shall be sent to the mother by money order on or before 10th of every month. We clarify that the right of the minor girl for any legal claim under any law against her father is always available to her. We further clarify that the right of the father to seek the custody of the girl child is also available to him. Since the husband is given six months' time to deposit the permanent alimony to the wife, the husband shall continue to pay an amount of Rs. 800/- per month towards maintenance to the wife by money order on or before 10th of every month till he deposits the permanent alimony of Rs. 1,50,000/- as directed. When once the amount of Rs. 1,50,000/- is deposited by the husband into Court as directed above, the wife is not entitled to receive the interim maintenance from the husband. We also award an amount of Rs. 2,000/- towards legal expenses for the wife to be paid by the husband by way of money order within a period of one month from the date of receipt of a copy of this order.

37. In the result, the CMA is dismissed. No costs.

CMA dismissed.

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