HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
CIVIL MISCELLANEOUS APPEAL NO.319 OF 2020
JUDGMENT:
(Per Sri Justice M.S.Ramachandra Rao) This Civil Miscellaneous Appeal is preferred against the order dt.25.02.2020 in H.M.O.P.No.38 of 2018 of the Senior Civil Judge, Narayanpet.
2. The appellant herein was married to the 1st respondent on 11.06.2011.
The case of the 1st respondent/husband
3. The 1st respondent filed H.M.O.P.No.38 of 2018 alleging that ever since the parties got married, the appellant was harassing and ill-treating him and was also abusing him in filthy language and defaming him in the presence of other villagers; that she filed a false complaint against him and his parents on 20.09.2015 under Section 498A read with Section 34 IPC which was numbered as C.C.No.549 of 2015; and that the appellant had deserted him and was leading adulterous life with the 2nd respondent.
4. The 1st respondent alleged that the appellant, while residing with the 2nd respondent, was demanding a big sum of money from the parents of the 1st respondent; that thereafter since the 1st respondent and his parents refused to pay it, she filed another false complaint on 24.01.2018 against the 1st respondent and his parents under Section 498A IPC read 2 with Sections 3 and 4 of the Dowry Prohibition Act (Crime No.5 of 2018).
5. It is also alleged by the 1st respondent that the appellant came to the 1st respondent's village on 09.02.2018 and attacked and beat up the mother of the 1st respondent causing her internal injuries; that she also lodged another false complaint under Sections 448, 323, 504 and 506 IPC (Crime No.7 of 2018).
6. The 1st respondent therefore contended that leading of adulterous life by the appellant with the 2nd respondent amounts to cruelty to him and the actions of the appellant amounted to defamation, insult and annoyance and because he lost his reputation in the village, he is entitled to decree for dissolution of the marriage on the ground of mental cruelty and desertion as well.
The stand of the appellant/wife
7. The appellant filed a counter denying the allegations leveled by the 1st respondent and contended that the 1st respondent and his parents harassed her, because of which she filed C.C.No.549 of 2015, but the same was compromised.
8. She denied that she was in love with the 2nd respondent and wanted to live with the 2nd respondent by leaving the company of the 1st respondent. According to her, she gave a complaint against the 2nd respondent for sexual harassment, but the 1st respondent managed the police and got it returned as a wrong complaint.
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9. She denied attacking the parents of the 1st respondent and contended that the 1st respondent himself got registered false police case against her.
10. According to the appellant, the 1st respondent was very aggressive, angry and wanted to control the appellant in every aspect and did not give her any space or freedom to do anything in the house and prohibited her from doing any job.
11. She stated that after the first year of the marriage, her mother-in- law forced her to do all household work without any help apart from agriculture work and the 1st respondent never bothered to care about the health of the appellant and did not spend any time with her; and after she delivered a female child, her mother-in-law wanted to get rid of her. According to her, her in-laws beat her up during her pregnancy and threw her out of the matrimonial home and she spent four years in her parents' house during which time the 1st respondent did not bother to call or reconcile with her.
12. Thereafter, on persuasion by her father, the 1st respondent and his family members agreed to take her in the house, but the 1st respondent was addicted to alcohol, used to abuse and treat her violently and he also never bothered about her daughter.
13. She admitted that on Dussara festival 2017, she left the house of the 1st respondent along with her daughter and on the next day the 1st respondent and his parents came to her parents' house and assaulted her and forcibly took away the minor daughter. She alleged that in January, 2018 when she went to the 1st respondent's house to take the minor 4 child, the 1st respondent and his parents beat her and refused to hand over the child and then she filed complaint in Crime No.5 of 2018. The stand of the 2nd respondent
14. The 2nd respondent filed a counter denying knowledge of matrimonial disputes between the appellant and the 1st respondent.
15. He denied that the appellant intended to lead marital life with him. According to him, there was enmity between the family of the 1st respondent and the family of the 2nd respondent and to take revenge against him and to damage his reputation, he was impleaded as a party in the HMOP.
16. According to him, he was a married person having three children and the 1st respondent defamed him by impleading him in this O.P. The events in the HMOP
17. In the HMOP, the 1st respondent examined P.Ws.1 and 2 and marked Exs.P1 to P8 and the appellant examined R.Ws.1 and 2 but did not file any documents.
The order of the Court below
18. By order dt.25.02.2020, the Court below allowed H.M.O.P.No.38 of 2018.
19. The Court below referred to the statement given by the appellant in Ex.P5, which is attested copy of the FIR in Crime No.47 of 2017 filed by her against the 2nd respondent, and noted that in the said FIR, the appellant alleged that the 2nd respondent committed offences under 5 Sections 417 and 420 IPC; that she also alleged that the 2nd respondent had lured her with delicious words, told her that he loved her and if she agreed, he would marry her, that she had discarded her husband as she is not willing to lead marital life with her husband and she came to the 2nd respondent and asked him to marry, but the 2nd respondent then refused to marry her.
20. The Court below therefore rejected the plea of the appellant that she was not living in adultery with the 2nd respondent in view of the contents of Ex.P5 referred to above.
21. It also observed that the appellant did not lead any cogent and reliable evidence to prove that the 1st respondent was avaricious and interested only in money and materialistic gain, that the mother-in-law of the appellant was not happy with the jewellery, house hold items and other items given in the shape of dowry, and would constantly insult the appellant and her parents.
22. The Court below also relied on the statement of R.W.1 that she was voluntarily residing separately and concluded that she was not interested in leading marital life with the 1st respondent.
23. It then concluded that the 1st respondent cannot be expected to live with the appellant since she had illegal contact with the 2nd respondent, and the evidence on record indicates that the appellant was treating the 1st respondent with mental cruelty, that both parties were living separately since 2015, and the marriage had irretrievably broken down, and there was no chance of them living together again. 6
24. It therefore granted the decree of divorce.
The present Appeal
25. Challenging the same, this Appeal is filed by the appellant.
26. The counsel for the appellant contended that the Court below had erred in dissolving the marriage between the appellant and the 1st respondent by granting decree of divorce; that it also erred in coming to the conclusion that they were living separately since 2015 without accepting the appellant's plea that because of the harassment by the 1st respondent for dowry, she was residing separately and had given police complaints twice against the 1st respondent. He contended that the first complaint given under Section 498A IPC by the appellant against the 1st respondent was withdrawn by her on the basis of a compromise entered into between the parties, but since there was fresh harassment for additional dowry, she had to give second complaint against her husband alleging commission of offence under Section 498A IPC. He also pointed out that the 1st respondent had not filed any complaint against the appellant for her illegal connection with the 2nd respondent and the filing of the divorce OP by the 1st respondent was a counter-blast against the criminal case, domestic violence case filed by the appellant against the 1st respondent.
The consideration by the Court
27. One of the grounds for dissolution of a marriage is treatment of one spouse by the other spouse with cruelty, and such cruelty can be either mental cruelty or physical cruelty.
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28. The appellant herself had given a criminal complaint Ex.P5 which is attested copy of FIR in Crime No.47 of 2017 against the 2nd respondent stating that she was married to the 1st respondent and was blessed with a female child, but she was for previous four years staying away from her husband and from previous one year the 2nd respondent had lured her with delicious words and told her that he loved her and if she agreed, he will marry her; that she discarded her husband as she is not willing to lead marital life with her husband and when she came to the 2nd respondent and asked him to marry, he refused to marry her. She thus sought to take legal action against the 2nd respondent.
29. The contents of this complaint clearly indicate that the appellant had illegal connection with the 2nd respondent and had expressed her intention that she was not willing to lead marital life with the 1st respondent who is her lawfully wedded husband.
30. Merely because the 1st respondent had not lodged any complaint against the 2nd respondent for enticing his wife, it cannot be said that the 1st respondent had approved of the illegal contact between the appellant and the 2nd respondent.
31. Fidelity in marital relationship is very important and if one of the spouses is guilty of infidelity, it would certainly amount to causing mental cruelty to the other spouse.
32. Though the appellant alleged that because of dowry harassment by the 1st respondent and his parents, she was forced to stay away from him, admittedly one complaint C.C.No.549 of 2015 filed by her against her husband under Section 498A IPC came to be compromised, and the 8 second complaint in Crime No.5 of 2018 lodged by her against her husband, has not resulted in any conviction.
33. The evidence of P.W.2, uncle of the 1st respondent who was one of the panchayatdars and who tried to mediate between the parties, corroborates the case of the 1st respondent that the appellant refused to join the company of the 1st respondent in order to lead marital life though the first complaint in C.C.No.549 of 2015 had been compromised, and that she had stated that she was in love with the 2nd respondent and intended to continue her future life with the 2nd respondent. The conduct of panchayats several times is also corroborated by Ex.P3 criminal complaint in Crime No.37 of 2015 filed by the appellant against the 1st respondent and his mother, wherein she herself admitted that there were several panchayats took place in which her parents and some village elders participated.
34. Even R.W.2, the brother of the appellant, had admitted that the appellant was residing with her mother for the previous two years.
35. In view of this evidence on record, we are of the opinion that the Court below did not commit any error in giving the finding that the appellant treated the 1st respondent with cruelty by leading adulterous life with the 2nd respondent, and that she had also deserted the 1st respondent, that she treated him with cruelty, and that the marriage itself had irretrievably broken down and there is no chance of them living together again.
36. Accordingly, we do not find any merit in this Appeal and it is dismissed at the admission stage. No costs.
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37. Pending miscellaneous petitions, if any, in this CMA shall also stand dismissed.
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M.S.RAMACHANDRA RAO, J
____________________
T.VINOD KUMAR, J
Date: -04-2021
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