K.C. Bhanu, J.
1. This appeal is directed against the judgment and decree, dated 28.2.1997, in O.P. No. 75/1995 on the file of the learned Family Court-cum-IV Additional District and Sessions Judge, Vijayawada.
2. Appellant herein filed the above petition under Sections 13(1)(i), 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955, for dissolution of his marriage with the respondent alleging that his marriage with the respondent was solemnized according to Hindu Dharma Sastras and Caste Customs on 4.5.1984 at Tiruvuru. The marriage was consummated. Appellant and respondent led marital life at Vijayawada for sometime and thereafter petitioner got employment as Assistant Professor in Vasavi Engineering College, Hyderabad. Therefore, they shifted to Hyderabad in the month of March/April, 1985. During their lawful wedlock, they were blessed with a female child on 20.9.1985. The father of respondent acquired extensive movable and immovable properties in and around Tiruvuru. Since appellant was not wealthy, respondent expressed her dissatisfaction saying that great injustice was done to her as the appellant did not have good financial status. Respondent was from the very beginning was short-tempered, adamant, irritative and of uncompromising attitude. She never treated appellant with affection. She never cared to look after him or their child. Respondent used to insult appellant in the presence of others and complain that there was age gap between them. She used to pick-up quarrels with appellant day in and day out for no cause. She even went to the extent of attempting to stab appellant with a knife. Appellant was subjected to all sorts of cruelty. In the month of January, 1988, respondent left the appellant all of a sudden and thereafter she did not join appellant. Respondent made wild baseless and malicious allegations against appellant in her notice and at through the notice only appellant came to know that respondent gave birth to a female child on 28.2.1989. 2nd child was not conceived by respondent out of the lawful wedlock with appellant.
3. Respondent filed a counter denying the allegations levelled against her except the factum of her marriage with appellant. It is alleged that sisters and brothers of appellant used to ill-treat her and used not to provide food. Appellant was unable to control them and he used to abuse respondent. At the time of the marriage, respondent gave Rs. 1,00,000/- as Stridhana, gold and silver articles. Appellant, his brothers and sisters threw respondent out of the house in July, 1988 when she was carrying second month of pregnancy. After appellant secured a job at Delhi, she along with her mother and brother-in-law went to Delhi and requested appellant to live with respondent, but he refused to live with her and threatened her that he would kill her if she stayed at Delhi. Appellant was living with another woman by name Lakshmi at Delhi. Respondent got issued a notice in the year 1991 to take her back, but appellant did not respond to it. Respondent filed a case under Section 125 Cr.P.C., for maintenance and, therefore, as counter blast appellant filed the petition for divorce with false and baseless allegations with ulterior motive. Respondent thus prayed to dismiss the O.P.
4. On the basis of the above pleadings, the following issues were framed for trial:
'1. Whether the petitioner is not the father of the 2nd female child?
2. Whether the petitioner underwent mental agony due to cruel treatment by his wife?
3. Whether she has deserted him for more than two years before filing of this petition in the year 1992?'
5. On behalf of appellant, P.Ws.1 to 3 were examined and Exs.A1 to A7 were marked, and on behalf of respondent, R.Ws.1 and 2 were examined and Exs.B1 to B21 were marked.
6. The Trial Court after hearing both sides and considering the evidence on record, came to the conclusion that the incident of cruelty as deposed by P.Ws.1 to 3 were not grave and weighty, that the 2nd daughter was borne through the appellant during the lawful wedlock between the parties, and that there was no desertion by respondent. The Trial Court thus dismissed the petition by the impugned judgment and decree, as against which husband filed the present appeal.
7. Learned senior Counsel appearing for the appellant has contended that the evidence of P.Ws. 1 to 3 establishes cruelty. Their evidence establishes that respondent was not living with appellant right from January, 1988. The 2nd female child was not borne through the appellant. Behaviour of respondent was irrational and unpardonable which amounts to cruelty. Respondent deserted appellant in the month of January, 1988 and without considering the evidence on record, the Trial Court came to the wrong conclusion that there were no grounds to grant divorce. The learned senior Counsel therefore prays to allow the appeal and decree the petition as prayed for.
8. On the other hand, learned Counsel for respondent contended that the alleged acts of cruelty do not constitute cruelty warranting the grant of divorce, that there is evidence to show that respondent lived with appellant till July 1998. Desertion as pleaded by appellant has not been established. The trial Counsel after appreciating the evidence in a right perspective came to the right conclusion. There are absolutely no grounds to allow the appeal. Hence, the appeal be dismissed.
9. Now the question that arises for consideration is whether in the facts and circumstances of the case, a case under Sections 13(1)(i), 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act is made out?
10. Section 13 of the Hindu Marriage Act reads as under:
'Divorce:--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
X X X X X X X'
11. Under the statutory provision, 'cruelty' means both physical and mental. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Cruelty for the purpose of the Act means where any spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily injury suffering or to have injured health. Cruelty, therefore, postulates a treatment by the respondent with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it would be harmful or injuries for the petitioner to live with the respondent.
12. Desertion for the purpose of seeking divorce under the Act means the intentional, permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words, it is a total repudiation of the obligations of the marriage. Desertion is not withdrawal from the place, but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, that is to say, not permitting or allowing and facilitating cohabitation between the parties.
13. It is the case of appellant that respondent left his company in the month of January, 1988 and thereafter there was no cohabitation between them, and in the month of February, 1989, she gave birth to a female child and, therefore, it must be deemed that she lived adulterous life. On the other hand, it is the case of respondent that she was deserted in the month of June, 1988 and she led marital life with her husband till then and, therefore, the 2nd daughter was borne through appellant during their lawful wedlock.
14. It is not in dispute that the marriage between the parties took place on 4.5.1984. Till January, 1985 they lived at Vijayawada. In the month of January, 1985, appellant joined as Assistant Professor in Vasavi Engineering College at Hyderabad, and respondent joined her husband in the month of March/April, 1985. Respondent gave birth to a female child on 20.9.1985. Appellant as P.W.1 stated in his evidence that in the first week of January, 1988 respondent went away to Tiruvuru. He also stated he did not cohabit with respondent subsequent to January, 1988. He stated that she wanted to lead a luxurious life comparing herself with her two brothers-in-law and her parents. She developed dislike towards him. She used to pick-up quarrels with him on flimsy grounds. Her conduct became aggravated and it became impossible for him to live with her. Respondent, who examined herself as R.W.1, deposed that she lived with her husband till June, 1988. Her husband was demanding her to get money from her father and he ill-treated her for money. Ultimately appellant sent her away to Tiruvur in June, 1988. Except the oral testimony of P.W.1, there is no documentary evidence to show that his wife lived with him only till January, 1988. P.W.2 stated that he was informed by P.W.1 that the former's wife left the house two months prior to his visit in the month of March, 1988. So, the evidence of P.W.2 is not of much help to appellant to ascertain whether respondent left appellant in the month of January, 1988 or June, 1988. P.W. 3 stated that he did not see respondent at any time subsequent to Pongal 1988. He saw respondent last in the month of December, 1987 and left to his native place during Pongal Vacation in 1998. He did not say how many times he went to the house of appellant after Pongal 1998. Therefore, his evidence is also not much relevant.
15. The evidence of R.W.1 would go to show that she left her matrimonial house in June, 1988. To substantiate her claim, she filed Exs.818 and B19, the letters written by her younger sister on 21.4.1998 and 10.2.1998, and Ex.B20, the letter written by the paternal aunt of appellant in February, 1988 enquiring about the welfare of respondent and her daughter. These letters would clearly go to show that respondent was in her matrimonial house till June, 1988.
16. From the above evidence on record, it can be said that appellant failed to establish that the 2nd daughter was born due to the adulterous life of respondent. We also find no reasons to deviate from the findings of the trial Court on this aspect.
17. The next ground on which appellant sought divorce is cruelty. According to petitioner, respondent exhibited irritation, ill-temper and she started her married life with appellant with dissatisfaction. She used to insult him in the presence of several persons. She used to pick-up quarrels with him on flimsy grounds and shout at him and abuse him in filthy language. He was thus subjected to ill-treatment, humiliation and abuses.
18. Whether the above acts would cause reasonable apprehension in the mind of appellant that it would be harmful for him to live with his wife is the question.
19. The mental cruelty alleged by appellant has to be assessed having regard to his status in life, educational background and the environment in which he lived. Appellant is a Doctorate in Engineering from IIT, Delhi. Though he was not an affluent person, from the evidence it appears that respondent hails from an affluent family. The father of respondent had movable and immovable properties in and around Tiruvuru and Khammam. The eldest sister of respondent was given in marriage to a rich landlord who was also a rice miller. Similarly, the younger sister of respondent was given in marriage to a landlord who too was a rice miller. Respondent is a postgraduate in Economics. Petitioner is not stated to have suffered from mental disorder like insanity or unsoundness of mind. In this background, the alleged acts of cruelty alleged by appellant may not in strict sense amount to cruelty. The cruelty must be such as to cause injury to health of appellant or raise a reasonable apprehension of damage to life, limb or health. On this aspect, it is pertinent to refer to a decision in V. Bhagat v. V. D. Bhagat (Mrs.), : AIR1994SC710 , wherein it is held as under:
'The 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 nor 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. If it is a case of accusations and allegations, regard must be had to the context in which they were made.'
20. Learned Counsel for the respondent relied upon a decision in Naval Kishore Somani v. Poonam Somani, : 1998(5)ALD349 (DB), wherein a Division Bench of this Court has held as under:
'It will thus be seen that is not sufficient to contend that charges made in the written statement are unproved, and, therefore, amount to 'cruelty'. What is further necessary for the petitioner to prove is that the said charges are false. The burden is on the petitioner to show that the charges are false. The burden cannot be thrown on the respondent because respondent has not come to the Court for seeking any relief. It is settled law that in all matrimonial cases, burden of proof is on the petitioner. Particularly in cases of 'cruelty' it is for the petitioner to prove the element of 'legal cruelty'. If in the facts and circumstances of the case from evidence led on both sides, the Court comes to the conclusion that irrespective of the burden of the proof there is sufficient material from either side to prove that a particular allegation is not only not proved but is false, it will be open for the petitioner to take advantage of such finding. However, it is sine qua non that the petitioner must show that respondent's allegations are false and, therefore, they amount to 'mental cruelty' towards him.'
There is no doubt about the above proposition of law. This Court in Vegi Jagadesh Kumar v. Mrs. V. Radhika, : 2000(1)ALD76 (DB), has explained 'desertion' and 'cruelty' after referring to a number of decisions. In paras 18 and 21 of that judgment, it is held as under:
'Thus, it is not cruelty, merely because party alleges cruelty finds that to continue his or her life with the party is impossible. The party complains cruelty shall prove that the other party committed wilful and unjustifiable acts inflicting pain and misery on the complainant and causing injury to his/her health. The conduct of complainant must be serious and higher than the wear and tear of married life. It is not cruelty if acts complained of are not violent in nature. Mere complaints, accusations, or taunts by one against the other if the same are not wilful in nature, do not constitute cruelly.
In order to obtain a decree of divorce on the ground of desertion, the party who alleges desertion shall have to prove that the other party to the marriage deserted his or her company without any reasonable cause and without the consent or against the wish of such party which also includes the wilful neglect of the party who alleges desertion by the other party to the marriage.'
21. The acts complained of by appellant may not by themselves constitute cruelty for the purpose of divorce. However, there is another allegation made by respondent that appellant was leading immoral life with a woman by name Laxmi. On this aspect, there is unchallenged testimony of P.W.2 that respondent used to doubt the character and conduct of appellant and shout at him. Respondent stated that one Lakshmi, who was a cook, was present at the house of appellant when she went to Delhi on 14.10.1991. Respondent did not say that appellant was having illegal contacts with Lakshmi, R.W.2 also did not state that appellant was having illegal contacts with Lakshmi or some other ladies. Therefore, without any basis attributing immorality to husband would cause mental cruelty to him. Similarly without any basis attributing immorality to wife would definitely cause mental harassment and cruelty to her.
22. Desertion for the purpose of divorce requires two essential conditions, namely, (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end. Similarly, two elements are necessary so far as the deserted spouse is concerned; (i) absence of consent, (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form necessary intention aforesaid.
23. Admittedly there was a separation, because, even according to respondent, she was not residing with appellant since June, 1988, i.e., more than two years preceding the petition.
24. The legal burden is upon the petioning spouse to establish by convincing evidence beyond any reasonable doubt that the other party abandoned him or her without reasonable cause. Petitioner must also prove that there was desertion throughout out the statutory period and there was no bona fide attempt on the part of the respondent to return to the matrimonial house and that the petitioner did not prevent the other spouse by his/her action by word or conduct from cohabitation.
25. Appellant narrated the humiliation he met with while staying with respondent. He stated that respondent exhibited irritation, ill-temper and was of uncompromising attitude towards him from the beginning of their matrimonial life and she used to think highly of her sisters, brothers-in-law and other members of her parents. She never exhibited love towards him. She used to talk insultingly of him before his friends and others that he was not a match to her. She wanted to lead a luxurious life comparing herself with her brothers-in-law and her parents. She developed dislike towards and discontentment with him. She used to pick up quarrels on flimsy pretexts. She used to abuse him in filthy language. She used to throw whatever articles she could lay hands on. She subjected him to ill-treatment, humiliation and abuses. After deserting him in January, 1988, she did not cohabit with him. It became impossible for him to live with her.
26. The father of respondent was financially very sound possessing lands, fields, houses, commercial complexes etc., at Tiruvur and Sattupally. Brothers-in-law of respondent are also affluent persons having rice mills, whereas appellant and his family do not have any property except a house at Laxmipuram which is a residential house. The father of appellant is a retired Railway Engine Driver. Appellant has got two brothers and two sisters. So, naturally the burden was on appellant to perform their marriages and appellant performed their marriages. Respondent admitted that in M.C. No. 38/1995 that her father's financial status was far superior to that of appellant. In these circumstances, there was every possibility for respondent to expect to have a luxurious life which could not be provided by appellant in view of his family background and financial constraints. On the aspect of leading a luxurious life there was every possibility for respondent to desert appellant because respondent admitted in M.C. No. 38/1995 that her father had a very big house, apart from residential houses, and that the house was let out to State Bank of India, and that her father had gardens and other extensive properties. By the date of giving evidence in M.C. No. 38/ 1995, desertion in the present case had already taken place. So, when such was the case, there was every reason for respondent to withdraw from the conjugal society of appellant. The evidence of respondent would also suggest that she was not inclined to live with appellant. She admitted that it seemed to have been stated in her notice Ex.B30 that appellant was suffering from unsoundness of mind and insanity and that the culture and tradition of his family was not good. She also admitted that she never filed any petition against appellant seeking restitution of conjugal rights. She also categorically admitted that she did not exhibit any interest to join appellant either through any notice including the notice Ex. B30 or through any petition and that she only showed interest in receiving maintenance from him.
27. The entire case of respondent is that appellant was ill-treating her demanding to get more money from her father, that appellant demanded for more furniture after they shifted their residence to Hyderabad, that appellant demanded a scooter, that he demanded to get money to perform the marriage of his younger sister, that his demands could not be honed after the death of her father in August, 1987.
28. Admittedly, the marriage of the first sister of appellant was performed on 25.2.1989 and the marriage of his younger brother was solemnized on 17.5.1989. So, by the date of those marriages, respondent already deserted appellant. Therefore, the allegation that appellant demanded respondent to get money to perform the marriages of his brothers and sisters appears to be not correct. On the other hand, respondent admitted that appellant did not make any demand for a scooter through Ex.B22, and that he did not make any demand except stating that she shall not rejoin him unless she became a good wife. So, from the evidence of respondent it is clear that the conduct and behaviour of appellant was not proper towards him and he wanted to take back his wife if she would behave or act as good wife. Furthermore, respondent did not produce any letter to show that appellant demanded her for money for performing the marriages of his sisters or that her sisters-in-law harassed her to get presentations. She admitted that it was not a financial problem at all for her father to provide money in the year 1986 to appellant to purchase a scooter. She admitted that no wife would allow her matrimonial life to get ruined merely for the sake of demand by her husband for a scooter where the wife was financially sound to fulfil the wish of her husband for a scooter. The father of respondent died on 15.8.1987. According to respondent, she was necked out from her matrimonial house by appellant in June, 1988. It is not her case that appellant sent her away to get a share in the properties of her father. If appellant had any intention to desert respondent for the sake of money as contended by respondent, definitely he would have necked out her after the death of her father.
29. Admittedly appellant is a self-made man having grown up from the childhood by self-efforts. He used to encourage not only respondent but also his brother to take coaching for Civil Service Examinations. If really appellant had no love and affection for respondent or had he been a money-minded person, certainly he would not encouraged respondent to take coaching. So, in this backdrop of the case, it is highly improbable to believe that appellant deserted respondent especially when they both maintained cordial relationship with each other.
30. The evidence of respondent would go to show that she made some efforts to join her husband in November, 1989. But that appears to be false, because she did not file any material to show that she went to Delhi. Further, the case of respondent is that she went to Delhi for mediation on 14.10.1991 along with two others. Admittedly, she filed a written statement in 1992, wherein it is stated that she visited Delhi only once before filing the, written statement. If that is so, she might have visited Delhi after the disputes and Court litigations started, because on 31.10.1992 she filed a report against the relatives of appellant and a case was registered against them. Thereafter in the year 1992 she filed a petition before the learned III Metropolitan Magistrate, Vijayawada, claiming maintenance. Furthermore, she did not state in her written statement that she went to Delhi along with his mother and her two daughters in the year 1989. On the other hand, it is specifically stated that she went to Delhi accompanied by her mother, brother-in-law and maternal uncle. Even according to R.Ws. 1 and 2, that was on 12.10.1991. There is no evidence to show that respondent and some others went to Delhi on 14.10.1991 except Ex.B33 which is a railway ticket and Ex.B5. Those two documents do not show that respondent went to Delhi in 1991. Ex.B5 does not show the name of respondent and in Ex.B33 names of the persons, their ages and sex are not mentioned. So, under these circumstances, it is not desirable to place an implicit reliance upon those two documents to arrive at a conclusion that respondent went to Delhi in the year 1991.
31. From the evidence on record, it can be said that appellant established to the satisfaction of this Court that his wife had left the matrimonial home with intention of permanently breaking up and such desertion continued during the requisite period of two years preceding the petition. It is a total repudiation of the obligations of the marriage. Intentional permanent forsaking and abandonment of appellant by respondent without the former's consent and without reasonable cause.
32. Though a specific plea has been taken and an issue has been raised specifically, no reasons have been assigned by the Trial Court with regard to the dissolution of the marriage between the parties on the ground of desertion. So, from the evidence on record, we have no hesitation in holding that appellant proved the ground of desertion beyond all reasonable doubt. It is a clear case of abandonment of appellant by respondent without the former's consent and without any reasonable cause.
33. Hence, after going through the entire evidence, material on record, the finding of the Trial Court with regard to desertion is set aside. In the result, the appeal is allowed. The parties are granted divorce on the ground of desertion. However, in the circumstances of the case, there shall be no costs. A decree be drawn up accordingly. This judgment shall not affect other rights of respondent, if any.