HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
C.M.A. No.265 of 2021
JUDGMENT: (Per Hon'ble Sri Justice M.S. Ramachandra Rao)
This Appeal is filed challenging the order dt.24-03-2021 passed
by the Principal Senior Civil Judge, Mahabubnagar in H.M.O.P.No.6
of 2015 on his file.
2. The appellant and respondent were married on 19-04-2000.
The respondent is employed as A.R.Police Constable in the Office of the Superintendent of Police, Mahabubnagar at the time of filing of the O.P.
The case of the respondent/husband
3. The respondent had filed the said O.P. against the appellant for dissolution of his marriage with the appellant and for grant of a decree of divorce.
4. In the said O.P., he alleged that they had two children viz., girl aged 10 years and a boy aged 8 years; that the appellant was having bad habits like taking drugs and alcohol; that she had no interest to lead material life with him; she always quarrels with him for each and every issue and used to threaten and abuse him in filthy language and this caused him lot of suffering and loss of reputation.
::2::
5. He contended that appellant was adamant, and when she was in intoxicated condition, she was subjected to sexual harassment in the locality when respondent was on duty. He alleged that the appellant did not bother about the welfare of the children and respondent, and she did not how to respect others and always threatens and abuses him and children.
6. He alleged that in February, 2013, the appellant left his company without his consent and she was unwilling to live with him and that she had also lodged a false complaint the respondent before P.S. Kollapur in Cr.No.28/2014 alleging that he committed the offence under Section 498-A I.P.C. and Sections 3 and 4 of Dowry Prohibition Act. He also alleged that appellant had filed O.P.No.9 of 2014 on the file of the District Judge, Mahabubnagar for custody of children and they are in her custody.
The stand of the appellant/ wife
7. Counter-affidavit was filed by the appellant opposing the O.P.
8. She denied all the allegations leveled against her by respondent, and contended that her parents gave dowry of Rs.75,000/- apart from gold and silver ornaments to the father of respondent; that only one year after the marriage, they lived happily, and thereafter respondent started harassing her on the ground that she did not become pregnant, and threatened that he would undergo second marriage and started insisting that the appellant should give divorce to him.
::3::
9. She alleged that while the respondent was working as Police Constable, he was posted at Nagarkurnool and at that time, he opened gas cylinder and attempted to kill her, but the gas cylinder did not blast and other adjacent owners came and closed the gas cylinder.
10. She alleged that when she gave birth to the girl child on 31-10- 2004, the respondent was unhappy and imposed a condition that her parents should not come to her house and she should not go to her parents house. The same condition was also imposed when she gave birth to the son in 2005.
11. She alleged that he used to take alcohol heavily and beat her mercilessly, and after the birth of second child, the respondent drove her and her children away from his house and since then she was living with her parents.
12. She also alleged that in 2007, respondent developed illegal contacts with several ladies, used to quarrel with the appellant and stopped coming to the house of appellant and did not provide maintenance.
13. She alleged that his behaviour is dangerous and he is a womanizer and in 2010, when her friend came to their house, he even demanded the appellant that the said friend should fulfill his sexual desire.
::4::
14. She alleged that in March, 2014, the respondent demanded Rs.2,00,000/- as additional dowry from her parents and threatened to give her divorce.
15. She claimed that on 02-03-2014, respondent came to Kollapur and forcibly taken away her children from her custody and he is not allowing them to talk to her.
16. She admitted that she lodged a complaint against respondent for having committed the offence under Section 498-A I.P.C. and Sections 3 and 4 of Dowry Prohibition Act. She alleged that she never left the company of the respondent and it was the respondent who drove her and her children away from his house and she had therefore to take the shelter with her brothers. She alleged that she filed G.W.O.P.No.9 of 2014, which was allowed and custody of the children was given to her and they are living with her. The order of the Trial Court
17. Before the Trial Court, the respondent had examined himself and marked Exs.P-1 and P-2. The appellant examined herself and marked Ex.R-1.
18. By order dt.24-03-2021, the Trial Court allowed H.M.O.P.No.6 of 2015.
19. After referring to the oral and documentary evidence filed by the parties, the Trial Court noted that respondent had denied that he ever demanded dowry or that he used to beat the appellant in a ::5::
drunken condition and tried to kill her by opening the gas cylinder while they were staying at Nagarkurnool.
20. It also noted the suggestions given to respondent by appellant's counsel that when the parties had stayed at Monappagutta, a criminal case was registered against the respondent on the allegation that he misbehaved with a girl, who lives in the neighbouhood, and the appellant had got the said complaint withdrawn by pleading that if such criminal case is registered he would loose his job.
21. It also noted that while the respondent was pleading that the appellant has left his company in 2013, the appellant contended that on 10-08-2006, she was driven away from the house by respondent and that for the previous 9 years she was residing with her parents.
22. It also noted the admission of P.W.1 about certain photographs confronted to him through Ex.R-1 which indicated certain injuries on the appellant's body and that he also admitted that he did not pay any maintenance to her and the children.
23. It then referred to the evidence of the appellant and noted that she admitted that respondent looked after well without harassment for 14 years after their marriage and only thereafter started harassing her to bring additional dowry, contradicting her own pleading that on 10-08-2006 she was necked out of the matrimonial home by the respondent. It also noted that appellant stated that she has a life threat ::6::
from the respondent, but yet insisted that she wanted to join his company, which behaviour is contradictory.
24. That apart, it also referred to the statement made by the appellant in her cross-examination that in G.W.O.P.No.9 of 2018 filed by her in Mahabubnagar, she denied that her parents had given Rs.75,000/-, gold and silver ornaments towards dowry, which is also contrary to her pleading in the counter filed by her in the O.P.
25. It also noted that she admitted in her cross-examination that respondent was not a heavy drinker or that he consumes alcohol frequently, but in her pleading she stated that he is a drinker and womanizer and she has no faith in his character, but is insisting that she wants to live with him.
26. It noted that she stated that in 2007, he developed illegal contacts with several ladies and used to pick up quarrel and also did not provide maintenance to her and attempted to kill her by opening gas cylinder, but she did not file any criminal complaint against him for his alleged attempt to kill her by opening gas cylinder.
27. It also noted that while the appellant stated that in 2008, the respondent misbehaved with the adjacent house owner's daughter and attempted to outrage her modesty and a case was also registered in II Town P.S., Mahabubngar and was withdrawn at her instance, but she did not examine the father of the said girl or the girl, who is alleged to have been subjected to misbehaviour by respondent.
::7::
28. In view of these contradictions between the pleadings of the appellant and her evidence, the Trial Court came to the conclusion that the relationship between the parties is strained in view of the allegations leveled against each other, and they are not having confidence in each other in order to sustain and continue their conjugal life, and the parties cannot be compelled to live together. It therefore accepted the plea of guilty made by respondent against appellant and granted the decree of divorce. The present Appeal
29. Challenging the same, this Appeal is filed.
30. Sri N.Bhujanga Rao, leaned counsel for appellant contended that the respondent did not discharge the burden cast on him to prove the allegations made by him in the O.P., that the Trial Court did not discuss about the evidence of respondent, and it only discussed about the discrepancies and contradictions in the appellant's case, and that the Trial Court erroneously came to the conclusion that the allegations leveled by the appellant against respondent are false because she failed to prove them.
31. He also contended that respondent failed to show that he was subjected to cruelty and that the relationship has irretrievably broken down and there is no scope for their reunion in future. According to him, mere trivial irritations, quarrels, normal wear and tear of the married life cannot be grounds of divorce on the grounds of mental ::8::
cruelty. He also pointed out that respondent had admitted to causing injuries which are found in the photographs filed by the appellant and so it ought to have come to conclusion that it was the respondent who harassed the appellant physically and mentally. He also contended that the Trial Court should have taken into account the conduct of the respondent when he admitted in cross-examination that he did not pay maintenance to the children as well as the appellant. He also relied on the judgment of this Court in Naval Kishore Somani Vs. Poonam Somani1.
32. He stated that criminal case alleging that respondent had committed the offence under Section 498-A I.P.C. and Sections 3 and 4 of Dowry Prohibition Act is still pending in the Criminal Court and has not been decided yet.
The consideration by the Court
33. We have given our anxious consideration to the contentions raised by the leaned counsel for appellant.
34. Admittedly, the parties were married on 19-04-2000 and they are blessed with a daughter on 31-10-2004 and a son on 10-08-2006. The respondent is admittedly employed as Police Constable at A.P.S.P. 10th Battalion, Beechupally in 2018.
35. It is also an admitted fact that the appellant filed G.W.O.P.No.9 of 2014 before the Principal District Jude, Mahabubnagar and secured 1 1998(5) ALD 349 ::9::
custody of the children; and the appellant had filed a criminal case Cr.No.28/2014 in P.S. Kollapur alleging that respondent had committed the offence under Section 498-A I.P.C. and Sections 3 and 4 of Dowry Prohibition Act, and it is still pending in the Criminal Court and has not been decided yet.
36. It is also an admitted case of the parties that appellant had filed a case for maintenance in Court of Judicial Magistrate of First Class, Kollapur. But no information was given as to the fate of the said case though it is admitted by the appellant that respondent did not pay any maintenance to the appellant and children since 2013.
37. It is true that respondent in the O.P. had made allegations against appellant that she was addicted to bad vices like taking drugs and alcohol, that she used to quarrel with the respondent for each and every issue, that she did not bother about his welfare and that of the children and used to abuse him and children in foul language.
38. In his evidence, respondent reiterated these facts. No doubt no third party like family member was examined by respondent in support of the allegations leveled by him against the appellant.
39. Coming to the evidence of the appellant, she stated in her cross- examination that respondent had looked after her without harassment for 14 years after their marriage and only thereafter started harassing her to bring additional dowry amount. She too did not examine her ::10::
family members in support of this allegation leveled against the respondent.
40. Her statement that she stated in G.W.O.P that the allegation that her parents gave Rs.75,000/- cash, gold and silver ornaments is false, contradicts her pleading in the counter filed by her in the OP about the demand for dowry by respondent, and renders it doubtful whether there was really any harassment on account of dowry if the appellant had been looked after well by respondent for 14 years after the marriage.
41. Having alleged in the counter filed in the O.P. that it was the respondent who opened the gas cylinder to kill her, in the cross- examination, appellant stated that it was respondent's brother who attempted to kill her by opening gas cylinder. No witness to speak of this incident is examined by her.
42. Having alleged that respondent was a heavy drinker and that he used to beat her mercilessly in the drunken condition, she stated in the cross-examination that he was not a heavy drinker.
43. She then alleged that she is having a life threat from the respondent and that he did not provide daily means to her, yet she insisted that the divorce O.P. be dismissed.
44. She did not also lead any evidence in support of her plea that respondent is a womanizer and had illegal contacts with several ladies and even tried to outrage the modesty of neighbouring land owner's ::11::
daughter and criminal case was registered against him for the said offence. But none is examined to prove this.
45. We find it surprising that the appellant who says that she has a life threat from the respondent, that he did not provide meals to her, and even tried to open a gas cylinder to kill her and accused of heavy drinker and a womanizer, still wants to live with him.
46. The allegations of this nature impugn the character of respondent-husband and would certainly amount to cruelty, in our considered opinion, because no reasonable man would want to continue a matrimonial relationship once he is falsely accused by his wife of infidelity or that he attempted to kill her. (A. Jayachandra vs Aneel Kaur2).
47. Though the appellant confronted to the respondent certain photographs showing her with injuries and the respondent did admit that the person in the said photograph is the appellant, he clearly denied that she sustained injuries due to the beating given by him to her. No police complaint had been lodged against the respondent by the appellant at that point of time either.
48. The learned counsel for appellant sought to rely on the judgment in Naval Kishore Somani (1 supra) to contend that the allegations leveled in written statement in the divorce O.P. by the wife cannot be a ground to grant divorce to the husband on the basis of 2 (2005) 2 SCC 22 ::12::
cruelty if the wife could not prove the charges leveled in the written statement.
Even the said decision accepts as correct the view taken in Kanchanapalli Lalithakumari Vs. Kanchanapalli Ramprasada Rao3, that false, scandalous malicious and baseless charges levelled by one party against other party do amount to 'cruelty' and the allegations made for the first time in the counter/written statement by respondent can be a foundation for granting a decree of divorce in favour of petitioner, if those allegations are found to be false and baseless.
So we did not agree with the view taken in Naval Kishore Somani (2 supra) that if certain allegations are leveled by the wife in the counter-affidavit filed against the husband in the O.P. filed by him for divorce, there has to be an amendment to the petition for making the charges in the counter as basis for alleging cruelty.
In the said case where there was allegation that the husband tried to terminate the pregnancy of the wife which was not proved though alleged by the wife, but in the instant case the allegations are about the husband being guilty of adultery or attempting to kill the wife.
49. In the instant case, we are of the opinion that false, scandalous malicious and baseless charges are made against respondent by the 3 1992(2) ALT 631 ::13::
appellant which prima facie amount to cruelty and on the basis of the same, the respondent is entitled to a decree of divorce. So the order of the Trial Court, therefore, does not warrant any interference by this Court in appeal.
50. Since the appellant has already made a claim for maintenance against respondent before the Court of Judicial Magistrate of First Class, Kollapur, she is entitled to pursue the same seeking maintenance/alimony for herself; and if necessary, we grant her liberty to also make a fresh claim for maintenance for the children, who are admittedly in her custody in a separate proceeding.
51. The Appeal fails and it is accordingly dismissed with the liberty granted as aforesaid. No costs
52. Consequently, miscellaneous petitions, pending if any, shall stand closed.
______________________________ M.S. RAMACHANDRA RAO, J ___________________ T.VINOD KUMAR, J Date: 13-07-2021 Vsv