ORDER
N.Y. Hanumanthappa, J.
1. This
is an appeal filed by the husband aggrieved by the judgment and order passed by the Principal Sub-Judge, R.R. District, Saroornagar on 19-10-1995 in CP No. 104 of 1992 rejecting his application filed under Section 13(1)(i-a) of the Hindu Marriage Act, 1956 seeking dissolution of the marriage with the respondent-wife, namely, Smt. Lavanya @ Sujatha.
2. The appellant and the respondent are husband and wife. Their marriage was solemnised on 1-8-1990 at Lalaguda, Secunderabad as per Hindu rites and customs. The said marriage was an arranged one. It is the case of the appellant-husband that after the marriage the parties lived together at Malkajigiri. Later, some trouble started between them and thereafter the respondent-wife to visit her parents house often without informing her husband and used to insist him to leave the joint family house of his father and take a separate house. It is also his case that the respondent-wife was unwilling to prepare food for his parents. When the
demands of the respondent-wife were not heeded to, it is alleged, she approached one of her relatives Sri K. Narayana who was a retired DSP and working as a Special Magistrate at Secunderabad. It is also alleged that the said relative of the wife Sri K. Narayana beat the appellant-husband along with some anti-social elements. It is further alleged that the wife deserted him. Later, she gave birth to a child. According to the appellant, the paternity of the child is doubtful. The respondent-wife filed a maintenance case against the husband and also a criminal complaint under Section 494-A of IPC and it was published in the Telugu daily ‘Udayam’ that the appellant was harassing the respondent for dowry. It is stated that for the said acts of the wife the appellant-husband suffered mental agony and torture and therefore sought divorce on the ground of desertion and cruelty.
3. It is the case of the respondent-wife that the husband was ill-treating her and his intention is to get rid of her so as to marry a second time to get more dowry. According to her, the appellant used to visit night clubs and he is in the habit of drinking and spending lavishly and used to force her for financing on one pretext or the other. Thus urging, the sought the dismissal of the petition filed for divorce.
4. In support of their contentions both the parties adduced evidence. The husband examined himself as PW1 and two other witnesses, PWs. 1 and 2 and marked documents Exs.Al to A5. The wife examined herself as RWI and three other witnesses, RWs.2 to 4 and marked documents Exs.B1 to B8.
5. PW1 deposed in his evidence on the same lines as he pleaded in the petition. PW2 supported the case of the appellant and stated that the appellant was assaulted by the relative of the respondent-wife namely Mr. Narayana and one George and
others in his house and that the complaint made by the appellant in that regard was not registered at the intention of said Narayana, a retired DSP, who influenced the police to hush up the same. PW3 is the colleague of PW1 and he supported the stand taken by PWs.1 and 2. RW1 deposed in her evidence on the same lines as she pleaded in the written statement and in support of her case she relied upon the documents marked by her. RW2 Mr. K, Narayana is the relative of RW1. He denied in his evidence that he manhandled PW1 and admitted that He filed a criminal case against PWs.1 to 3 for defamation.
6. The Court below after considering the entire evidence on record dismissed the divorce petition holding that the wife did not desert the husband and on the other hand she requested him to lead a marital life and, that the husband failed to prove the plea of cruelty. Aggrieved by the said order of the Court below, present appeal is filed by the husband.
7. It is urged on behalf of the appellant-husband that the approach of the Court below in dismissing the divorce petition is quite incorrect and it committed mistake in accepting the theory as regards the presentation of items to the appellant at the time of marriage when RW1 herself admitted in her cross-examination that no cash was paid to the appellant and the alleged articles were purchased in the name of the respondent-wife. It is also urged that the Court below erred in disbelieving the evidence of the appellant that at the instance of one Narayana, who is close relative of the wife, he was beaten up by certain anti-social elements and it ought not to have dismissed the divorce petition on the ground that the appellant did not prove desertion on the part of the respondent-wife and as such the plea of cruelty cannot be accepted. On the other hand, it is urged on behalf of the respondent-wife that the order under appeal
is quite correct which is based on appreciation of evidence on record and therefore does not warrant any interference.
8. For the proposition that when the wife ill-treats the husband, the husband is entitled for divorce, the learned Counsel for the appellant relied upon the view taken in Shobha Rani v. Madhkar Reddi, , wherein it was held that the evidence of harassment or of intention to treat with cruelty is not essential to establish cruelty and the Court would draw inference and decide on the basis of preponderance of probabilities having regard to the nature of conduct of the other spouse and its impact on the complaining f spouse in the context of their standard of life. For the some proposition the learned Counsel relied upon a decision in Trivedi v. Trivedi, 1993 (3) Scale 541, wherein it was held as follows :
“Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three Courts are correct or not but what is certain is that it is obvious that the marriage of the two cannot in any circumstances be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be atleast intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife.”
The learned Counsel also relied upon another decision of the Supreme Court in V. Bhagat v. D. Bhagat, , wherein it was observed thus:
“….. 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 conclusions 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 nor desirable to set out exhaustively.”
The learned Counsel further relied upon a Division Bench decision of this Court in K. Lalithakumari v. K. Rama Prasada Rao, 1992 (1) ALT 631, wherein it was observed that there are any number of instances wherein wife humiliated and insulted husband and treated him most cruelly and wife behaving with her husband in a most inhuman way abusing him on every occasion and humiliating and harassing him in numerous ways and in such extreme cases granting of relief of divorce by trial Court on the ground of cruelty is justified when the husband seeks relief of divorce on the ground of cruelty by wife.
9. Keeping in view the above settled legal position and preponderance of circumstances, we have to consider as to whether there is any chance of reunion or not and thus grant of refuse the divorce.
10. Admittedly, both the parties lived together as husband and wife for some time after marriage and when the misunderstandings arose between them, they made claims and counter claims and thus whatever love and affection existed between them was lost and even if there is re-union, there is no guarantee that they would continue as husband and wife. Under those circumstances and also considering the observations made in similar cases referred to above, it is proper to grant separation than to compel them to join together. This view of ours is supported by a decision of Karnataka High
Court, of which one of us i.e., Justice N.Y. Hanumanthappa, was a member, wherein it was observed as follows in Roopa Reddy v. Prabhakar Reddy, 11 1993 DMC 274 :
“Marriage is an union of two hearts. Success of married life depends on the edifice built with the mutual trust, understanding, love, affection, service and self sacrifice. Once this edifice is shaken, happy married life will be shattered into pieces. The result is one of misery and emotion. Whether one accepts it or not liberalisation in the way of living of individuals and reformation in age old customs and due to modernisation and understanding of individual rights and status irrespective of sex it is natural for either of the spouse to seek for dissolution. Where the marriage tie has been broken, the Court has to look to the interest of the parties and the welfare of the children as paramount. When it is impossible to live like husband and wife, any compulsion to unite them will lead to social evils and disturbance of mental peace and disorder in the family life. However rigid social fabric, it is not the social system but the personal safety of the parties to the wedlock shall prevail. This should be the guiding principle in view of Section 13B(1) of the Act. There is complete destruction of the essence of marriage between parties and it has reached the stage of irretrievable breakdown.”
In the background of circumstances narrated in the case, in our view, the appreciation of evidence by the Court below is not proper. Apart from this, the conduct and status of the parties suggest separation and not re-union. For the above reasons, the petition filed for divorce by the husband is ordered. As far as maintenance case is concerned, that has to be dealt with separately in accordance with law. It is made clear that this order shall not come in the way of disposal of the case filed for maintenance.
11. The appeal is accordingly allowed. The decree of divorce is granted by ordering dissolution of marriage between the parties setting aside the judgment of the Court below. No costs.