THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON'BLE SRIB.CHANDRA KUMAR C.M.Appeal No.849 of 1999
Counsel for the petitioner:Smt. N. P. Anjana Devi Satyanarayana
Counsel for the Respondents: Himabindu
:JUDGMENT:(per Hon'ble Sri Justice B. Chandra Kumar)
This appeal is directed against the decree and order dated 27.08.1998 passed in O.P.No.4 of 1993 by the Senor Civil Judge, Tadepalligudem, West Godavari District, whereby and whereunder, the petition filed by the respondent - husband against the petitioner - wife seeking divorce was allowed.
2. The appellant herein is the respondent/wife and the respondent herein is the petitioner/husband before the Court below. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Court below.
3. The marriage of the petitioner and the respondent was solemnized on 05.05.1982 according to the Hindu rights and customs. The specific case of the petitioner is that the respondent is a sadist and she ill-treated him which amounts to cruelty. The respondent forced the petitioner to put up separate family within two months from the date of marriage. She had humiliated him on the ground that his income from the coolie work was not sufficient to satisfy her desire for sarees and other cosmetics. The respondent was suffering from excessive white discharge and when the petitioner sought the advice of the doctors, the respondent went to her parents' house and never returned to lead the marital life with the petitioner. The respondent is also guilty of desertion and she harassed the petitioner by filing criminal cases in C.C.No.263 of 1988 on the file of the II Additional Judicial Magistrate of First Class, Kakinada, alleging that the petitioner had married another lady. She had also filed C.C.No.54 of 1990 on the file of the Additional Judicial Magistrate of First Class, Tadepalligudem, alleging dowry harassment under Section 498-A IPC and she has also filed M.C.No.14 of 1987 claiming maintenance and she was granted Rs.100/- per month towards maintenance in the said case. The respondent made all false allegations against the petitioner in those cases alleging that he was addicted to vices. Thus, the main contention of the petitioner is that the respondent is guilty of desertion and cruelty and, therefore, he is entitled for decree of divorce.
4. The respondent contested the matter and filed a counter and denied the material averments made by the petitioner. Her specific case is that after her marriage with the petitioner, they never resided separately and they were residing with the parents of the petitioner. She has also denied the allegation that she was suffering from excessive white discharge or any other ailment. She has also denied the allegation of the petitioner that when he sought the advice of the doctors about excessive white discharge, she went to her parents house and never returned and that she is unfit for marital life. Her specific case is that the petitioner married one Mysamma @ Varalakshmi - daughter of one Gandam Venkateshwar Rao of Uppaluru Village of Undi Mandal and that now, he has been living with her. Her further case is that the petitioner had two children, i.e., one son and one daughter, through his second wife and that the son born through his second wife died, but the daughter is alive. Though she admitted about of the filing of the criminal cases and maintenance case against the petitioner, but her specific case is that the allegations made by her against the petitioner in those cases are correct. Her further case is that at the time of marriage, her parents paid an amount of Rs.10,000/- as dowry to the petitioner and also gifted on acre of land towards 'Pasupu Kumkuma' and also 10 sovereigns of gold ornaments besides household articles to her, but the petitioner and his parents took away the gold ornaments on the pretext that they required money for business of the petitioner and subsequently, the petitioner forced the respondent to sell away one acre of land given by her parents and, therefore, the said land was sold away to one Madduru Venkatarao and that the petitioner had taken away the entire sale consideration amount and misappropriated the same. It is also her case that though she made efforts to join the petitioner, but since the petitioner contacted second marriage, she was forced to live in her parents house. It is also her case that the petitioner became addicted to vices and that he was harassing her.
5. On behalf of the petitioner, the petitioner himself was examined as P.W.1 and Ex.A.1 - Certified copy of part of deposition of Goka Kameswari Bai - P.W.1 in M.C.No.14 of 1987 on the file of the II Additional Munisif Magistrate's Court, Kakinada was marked. On behalf of the respondent, the respondent herself was examined as R.W.1 and one M.Ravi Kumar was examined as R.W.2 but no documents were marked.
6. The Court below, on appreciation of oral and documentary evidence available on record, held that in the present proceedings, she deposed that she lived with the petitioner for about five years, but in the earlier proceedings, i.e., in M.C.No.14 of 1987 on the file of the II Additional Munisif Magistrate's Court, Kakinada, she admitted that she did not return to her husband's house after she left to her parents house and thus referring to the contents of Ex.A.1, the Court below disbelieved the version of the respondent and came to the conclusion that the petitioner has proved that the respondent deserted him without any reasonable cause and further referring to the criminal cases filed by the respondent against the petitioner, observed that the act of initiating criminal proceedings by the respondent against the petitioner amounts to cruelty. Holding so, the Court below allowed the petition by granting decree of divorce by dissolving the marriage of the petitioner and the respondent.
7. Smt. Anjana Devi, learned counsel for the appellant - wife submitted that the order of the Court below is erroneous and not based on proper appreciation of the evidence. Her main submission is that there is no evidence on record to show that the respondent was unfit for marital life or that she was suffering from mental disorder. It is her submission that only on the ground that the respondent was suffering from mental disorder, the petitioner had left her at her parents' house. It is also her submission that even subsequent events have to be taken into consideration which go to show that the petitioner married another woman and that he became father of two children through the second wife and that he never tried to bring back the respondent from her parents' house. It is also her submission that mere filing of cases against the husband by a wife when she was harassed or when the husband re-married another woman does not amount to cruelty. In support of her contentions, she relied upon the judgments of Division Bench of this Court in the cases between P.Malleswaramma Vs. P. Prathap Reddy1 and M.R.Thulasi Kumari Vs. K.Krishnan2.
8. No representation for the respondent - husband in this appeal.
9. We have considered the entire evidence on record. Admittedly, the marriage of the petitioner and the respondent was solemnized on 05.05.1982. Besides other allegations, the main allegation of the petitioner is that the respondent is unfit for the marital life, and that she was suffering from excessive white discharge. Admittedly, there is no medical evidence to substantiate this allegation of the petitioner. If at all the respondent had any health problems, the petitioner ought to have taken her to a competent doctor and got her examined. Merely because a wife had some health problems that cannnot not a ground for granting divorce.
10. As far as filing of criminal cases by the respondent against the petitioner is concerned, it has to be seen that mere filing of criminal cases cannot be treated as treating the husband with cruelty. In P.Malleswaramma's case (1 supra), this Court held that mere filing of criminal cases relating to matrimonial disputes cannot be treated as an act of cruelty by wife. The circumstances under which the wife filed the criminal cases against her husband and relatives of the husband have to be critically examined. Whether there is any truth in the allegation made by the wife and whether she exercises her legal rights have to be considered. When a husband re-marries another woman, naturally the wife will be at liberty to initiate criminal proceedings against the husband for the offence punishable under Section 494 IPC. Similarly, when the husband harasses a wife demanding dowry, she has every right to initiate criminal proceedings alleging dowry harassment. Therefore, it all depends upon the facts and circumstances of each case. Where, in a case, it is proved that without any basis and without any truth and only for the purpose of harassing the husband or his close relatives husband wife initiated criminal proceedings, such an act may be treated as an act of cruelty. Merely because a criminal case ended in acquittal is no ground to hold that the allegations made by the wife in those proceedings are utterly false. In criminal case, charges have to be proved beyond reasonable doubt. The standard of proof, i.e., appreciation of evidence in criminal cases differs from the standard of proof, i.e., appreciation of evidence in civil proceedings. Conclusions can be drawn on preponderance of probability in a civil case, but the same cannot be done in a criminal case. There may be many reasons for passing a judgment in a criminal case. While dealing with matrimonial cases, the family Court has to examine all the aspects thoroughly. The Court should examine as to which party is at fault and who is responsible for the trouble and whether a party is justified in living separately.
11. Ex.A.1 is referred as a part of deposition of Goka Kameswari Bai - P.W.1 in M.C.No.14 of 1987 on the file of the II Additional Munisif Magistrate's Court, Kakinada. Normally, a part of deposition should not be marked, and the entire deposition of a witness has to be considered to decide whether a particular sentence amounts to admission or not. Be that as it may, even if it is accepted that the wife admitted that she has been living with her parents from the time when the petitioner had left her at her parents house, it has to be seen as to who is guilty of desertion. A reading of the entire evidence gives an impression that it is the petitioner who had left the respondent at her parents' house and subsequently did not take any steps to bring her back. The following admission of the petitioner clinches the issue:-
"Except the reason mentioned in the petition that the respondent was not willing for sexual intercourse due to excessive white discharge, there is no other reason for filing of this petition for divorce. There is no documentary evidence to show that I got medically treated the respondent."
12. The petitioner, in his deposition, also admitted as follows:- "I did not go to the respondent's parents' house after filing of the M.C."
13. On the other hand, the evidence of the respondent shows that her parents gave Rs.10,000/-, 10 sovereigns of gold ornaments and also one acre of land towards 'Pasupu Kumkuma' to the petitioner at the time of marriage and that the petitioner has taken away her entire gold ornaments and one acre of land was also sold away. Of course, the respondent has also categorically stated that she is not willing to join the petitioner as he re-married another woman.
14. Thus, the main contention of the petitioner seeking divorce appears to be excessive white discharge and his opinion that the respondent is unfit for sexual intercourse. As discussed above, since the petitioner failed to adduce any medical evidence on this aspect, his contention cannot be accepted. More so, excessive white discharge cannot be a ground for dissolution of marriage under the relevant provisions of the Hindu Marriage Act, 1955. We are of the view that the Court below failed to consider that there is no evidence to prove that it is the respondent who deserted the petitioner. Similarly, the Court below failed to examine the admission made by the petitioner himself which goes to show that the main reason for filing of petition for divorce is the allegation that the respondent was suffering from excessive white discharge and the opinion of the petitioner that she is unfit for sexual intercourse.
15. In view of the above, we are of the opinion that the Court below committed error by not appreciating the evidence in proper perspective. The impugned order cannot sustain and the same is liable to be set aside.
16. In the result, the Civil Miscellaneous Appeal is allowed by setting aside the decree and order dated 27.08.1998 passed in O.P.No.4 of 1993 by the Senior Civil Judge, Tadepalligudem, West Godavari District. However, in the circumstances, no costs.?1 AIR 2006 AP 4