Court:ANDHRA PRADESH HIGH COURT
Bench: JUSTICE G. Radhakrishna Rao & G.V.L. Narasimha Rao
PARIMI MEHAR SESHU Vs. PARIMI NAGESWARA SASTRY On 29 April 1993
Threat to put life to an end, Removing of Mangalsutram from her neck, Beatings to the child, Frequent desertion of Husband amounts to cruelty.
This civil miscellaneous appeal was brought in challenge against the order passed by the learned Subordinate Judge, Gudivada, in O.P. No. 99 of 1989 on his file; whereby the learned Subordinate Judge found that the petitioner, respondent herein, has established that the respondent, appellant herein, behaved cruelty towards him and that, therefore, the petitioner is entitled for divorce.
2. The facts of the case is brief, are as follows : The marriage between the petitioner and that the respondent had taken place on 26th February, 1982 at Eluru according to Hindu rites and customs. Later, the marriage was consummated. Thereafter, the respondent joined the petitioner and lived for about three months at Gudivada. In or about 1983, the petitioner shifted his family to Mangalagiri where he was working as Lecturer. Out of their wedlock, in the year 1982, a male child was born. The respondent developed aversion towards the male child and did not choose to pay proper care and attention. Ultimately, the boy dies due to lack of proper care. The respondent openly expressed her disliking towards the petitioner. The respondent treated the petitioner with cruelty. In the year 1983, she left to her parents house. When requested by the petitioner, the respondent bluntly refused to join the petitioner. Subsequently, the respondent and her mother came to Mangalagiri and stayed nearly for one month. During that period also, the respondent treated the petitioner with cruelty. In the month of February, 1984, the respondent and her mother left the petitioner’s house without informing him. Subsequently, the petitioner came to know that the respondent gave birth to a female child. When the petitioner’s father went to see the child, he was insulted by the relatives of the respondent. He came back to Managalagiri and informed the same to the petitioner. Thus the respondent treated the petitioner with cruelty and developed aversion towards him.
3. The respondent-wife filed a counter resisting the averments made in the petition. She admits the marriage and their relationship as man and wife. She also admits that she gave birth to a male child on 27.12.1982. It is admitted by her that subsequently disputes arose between both of them due to the interference by the parents of the petitioner. According to her, the parents of the petitioner have no liking towards her and, therefore, they have been instigating their son, petitioner, to illtreat her. The petitioner insisted on abortion for which the respondent did not agree. He used to send her to Eluru on some pretext or the other on the ground that she was unwell and required medical attention. She was not taken (back) after the death of the male child. Therefore, she went to Mangalagiri along with her mother. The respondent again became pregnant. The petitioner insisted on abortion as he does not like children at early age. Thereafter, disputes arose between the petitioner and the respondent. Therefore, the respondent was brought to Gudivada and kept her in the house of his grand-mother. Ten days thereafter she was driven out of the house after taking all the jewellery. She was compelled to file M.C. No. 10/86 on the file of the First Class Magistrate, Elurtu. She also filed O.S. 148/86 on the file of the District Munsif, Gudivada, for partition of joint family properties. She admits that she is ready and willing to join her husband, respondent (petitioner). She arrests that the parents of the petitioner are responsible for the failure of the marriage and now she is employed in a local College at Eluru.
4. The petitioner examined himself as P.W. 1 and got his father examined as P.W. 2. On the other hand, the respondent examined herself as R.W. 1 and got examined her brother and uncle as R.Ws. 2 and 3 respectively. Exs. A-1 to A-10 were marked on behalf of the petitioner Hearing the Counsel on either side, going through the entire evidence on record and considering the facts and circumstances of the case, the learned Subordinate Judge came to the conclusion that the petitioner has established that the respondent behaved cruelty towards him and that, therefore he is entitled for divorce. Aggrieved by the aforesaid order, the respondent-wife has preferred this Civil Miscellaneous Appeal.
5. It is vehemently contended by the learned Counsel for the appellant-wife that the Court below erred in holding that the respondent has made out a case of cruelty and that he is entitled for divorce. The evidence of P.Ws. 1 and 2 is discrepant and is not corroborated by any independent evidence. There is no clear finding based on any legal evidence to justify the conclusion reached by the Court below. It is contended further that the Court below should have seen that the acts and conduct attributed to the appellant, even assuming it to be true, do not amount to cruelty warranting a decree of divorce, it is further contended that the petition for divorce is not bana fide and that it is filed with a view to get rid of the appellant and contract a second marriage. On the other hand, it is the contention of the learned Counsel for the respondent that the appellant used to abuse the respondent in vulgar language, that she openly expressed her disliking towards the respondent, that the appellant treated the respondent with cruelty and that the respondent’s father was insulted by the relatives of the appellant. Therefore, it is prayed that the conclusion arrived by the Court below is correct and a decree of divorce may be granted on the peculiar facts and circumstances of the case.
6. To appreciate the rival contentions advanced by both the learned Counsel appearing for the parties, it would be necessary to look into the evidence adduced by the parties.
7. The petitioner himself examined as P.W. 1 who deposed that the respondent-wife never respected him as her husband. She treated him like a boy friend. She used to say that if her father was alive, she would haw married her cousin and she does not like the petitioner. On 27 12 1982 a son was born at Eluru. In the third month she brought the child to Gudivada. They shifted to Mangalagiri in July, 1983. As Mangalagiri daily she was picking up quarrel. She was abusing him, spitting in the meals plate and eventually she poured hot coffee on his testicles she was not giving breast feeding to the child. Therefore, the health of the boy was spoiled and ultimately the boy died. It was only due to the negligence and carelessness of the attitude of the respondent, the child died He further deposed that she used to comment him as an ‘animal’. She does not give any respect to him. She was not interested in seeing the welfare of the petitioner and his people. She tied a banian around to her neck and tried to commit suicide. He deposed further that the mother and brother of the respondent advised her to behave properly and not to ill-treat the petitioner. Exs. A-3 and A-4 are the letters written by the mother and brother of the respondent. She went to Gudivada, stayed for one week and went away without informing anybody. When she went to the house of one Sri Srinivasacharyulu, Advocate as Eluru, he advised her to live with her husband properly. She was taken to Gudivada where she stopped taking food. Two days after she went to Eluru, the respondent (petitioner) brought her to Mangalagiri. Both of them stayed there for one month. Afterwards, the respondent left the house on 31.1.1984. He went to Eluru on 7.3.1984 to bring her back, but she refused to come with him. On 11.9.1984 she gave birth to a female child. On 3.3.1985 the respondent, her mother and child and other elders came to Mangalagiri. At their instance the respondent executed a letter that she would behave properly; certified copy of which is marked as Ex A-5. She stayed for about ten days and again went away and he never advised her for abortion. He further deposed that the respondent filed M.C. 10 of 1986 on the file of the First Class Magistrate, Eluru, for maintenance and subsequently it was dismissed on the ground that the respondent deserted her husband; certified copy which is marked as Ex. A-6, It is suggested to him that the mother of the petitioner was intetested in another alliance; but against her wish the petitioner married the respondent and that, therefore, she developed ill-will or grudge against the respondent. Even though the witness was cross-examined at length, nothing could be elicited to prove that what all he deposed is not correct. The petitioner further deposed that the respondent did not evince interest with him to have conjugal happiness. He has to act according to her wish. If she has no desire, she never allowed him to sleep with her. It is suggested to him that he was very cruel in the bad room, very rude towards her and he was behaving like a sadist. The respondent expressed her desire to keep her mother with her and when the petitioner did not agree for it, all these troubles started. She was not co-operating with him in all the matters. He never kicked her on the stomach and he was never cruel towards her. P.W. 2 is the father of the petitioner. He deposed that both parties lived together after marriage; but she was quarrelling with her husband always. The evidence of P.W. 2 is corroborated by the evidence of P.W. 1 in all material particulars.
8. The respondent gave evidence as P.W. 1, she denied the allegations made in the petition. She deposed that after marriage she came to Gudivada and lived with her parents-in-law. Her mother-in-law was not affectionate towards her as she intended to perform the marriage of her son with another girl of choice. At her instance, the petitioner used to ill-treat her by beating and abusing. Upto third month of the child she was giving feeding but she became sick and was admitted in the hospital. The petitioner and his mother were harsh towards her. He used to bite on her breasts. He used to have breast milk preventing the baby and depriving the baby to have the milk. He used to kick her on the stomach, so that the pregnancy may terminate. She asserted that she never poured hot coffee on the testicles of the petitioner. She deposed that she is ready and willing to live with her husband. She is not responsible for breaking of the marriage. She admits that she is not wearing ‘mangalasutram’ nor ‘pasuputadu’ at present. She admits that there was no dispute on the first pregnancy and she stated in her maintenance petition that her husband is good. She never wrote any letter to her people that she was ill-treated by the petitioner or his parents. She alleged that she was not having any milk to feed the baby as P.W. 1 (Petitioner) used to suck them always. She never went to any doctor for treatment of the injuries she got during sexual intercourse with the petitioner. She never attempted to commit suicide with the banian of the petitioner. The petitioner has nothing to do with the abortion of the second pregnancy. The petitioner filed this petition with a view to have second marriage. R.W. 2 is the brother of the respondent. He deposed that his sister was always willing to live with her husband. Himself and his mother have no capacity to maintain the respondent. The evidence of R.W. 2 is corroborated by the evidence of R.W. 1. R.W. 3 deposed that on one day the respondent, P.W. 1 and P.W. 2 came to his house from Gudivada. They left the respondent at his house saying that they would come back again but they did not come back- Therefore, be issued a telegram to the mother of the respondent into the house. Therefore, they took back the respondent who was in Madhya Pradesh. The petitioner did not allow the respondent to Gudivada. There also they did not allow her into the house. Again they took her to Mangalagiri and left her there. Thereafter, they went away.
9. At the outset it must be stated that this petition is filed not on the ground of desertion nor anything else except cruelty by the appellant to the respondent. It is for the respondent to establish the cruelty by his wife towards him. Even if the appellant is cruel, it does not make any difference. In this connection various decisions of the Supreme Court have been referred to. The Supreme Court held that the onus is upon the petitioner to establish cruelty. He has to fall or succeed on his own evidence and not on the laches of the other spouse. The Supreme Court also held that in matrimonial cases strict proof is not necessary. The Court must be satisfied on matters alleged before it. A reasonable satisfaction by the Court is sufficient. The satisfaction should be based on preponderance of the probabilities and not on absolute satisfaction beyond reasonable doubt. The Court should consider that the petitioner is not taking any undue advantage of the circumstances in his favour. A threat by wife to her husband that she would put an end to her life or that she would set herself to fire is sufficient to imperil the happiness of the husband. The act like removing Mangalasutram etc., beating the child would amount to cruelty. Admittedly, the respondent is not having her Mangalasutram or Pasuputadu on her neck while giving evidence. She removed it even though the marriage was subsisting and her husband is alive. Such act is not expected from an educated Hindu Brahmin Woman. Here it may be mentioned that the Court requested one of the junior Advocates Sri C.V.N. Sastry to examine and find out whether the appellant-wife is wearing Mangalasutram or not. On verification, he informed the Court that the appellant is not having Mangalasutram or Pasuputadu. After hearing arguments, the appeal was posted for judgment next day. To-day the appellant filed a petition requesting the Court that the matter may be posted before another Bench. We declined to do so and this practice of filing such petitions should not be encouraged.
10. Be that as it may, cruelty need not be physical. It can be mental cruelty making the life of husband miserable always with quarrel. Frequent desertion itself is sufficient cruelty to attract the provisions of the Hindu Marriage Act. Mental cruelty itself is sufficient to cause greater injury and creates a reasonable apprehension that it will be harmful and unsafe to live with her. The Court below has elaborately dealt with the aspect of the matter in paragraph-18 of its judgment and held that there is no reason for the wife to live away from her husband. The reasoning given by the Court below is cogent and convincing and does not call for interference in appeal.
11. The respondent-husband deposed as P.W. 1 and his evidence is corroborated by the evidence of his lather who was examined as P.W. 2. There is no reason to discredit their evidence. From their evidence it is clear that the wife was treating her husband with cruelty and she never showed any affection towards him. She made his life miserable and therefore she is responsible for breaking down his family life. The learned Magistrate, who tries the maintenance case also came to the conclusion that the wife is responsible for breaking down the marriage. Therefore, having regard to all the circumstances of the case, we find that the appellant-wife was responsible for the failure of the marriage, and that the respondent-husband has established that the appellant behaved cruelly towards him.
12. We have scanned the entire material and evidence let in by both the parties and we do not find any law in the order under appeal. The reasoning and the conclusion arrived at by the Court below are sound and does not call for our interference in this appeal. Consequently, the appeal is dismissed. There will be no order as to costs.
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