This Court Has Heard Sri ... vs Unknown
2023 Latest Caselaw 3760 AP

                                      1


           HOB'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                 AND
       HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA


                        CMA.No.819 of 2014
JUDGMENT: (per Hon'ble D.V.S.S.Somayajulu)


     This Court has heard Sri K.Ramakoteswara Rao, learned counsel

for the appellant and Sri K.Jyothi Prasad, learned counsel for the

respondent.

2. This Civil Miscellaneous Appeal is filed questioning the order of

dismissal dated 21.07.2014 in H.M.O.P.No.57 of 2010 passed by the

Senior Civil Judge, Bapatla, Guntur District. The appellant/petitioner

is the wife and respondent is the husband. After protracted trial, the

petition by the wife was dismissed.

3. Learned counsel for the appellant argued that the trial Court

committed a gross error in dismissing the application. According to

him, the point for determination was framed only on the ground of

desertion and not on the ground of cruelty. In the course of

argument, learned counsel pointed out that both the grounds urged by

the appellant/petitioner are proved and yet the trial Court committed

an error in dismissing the application. He also points out that the

marriage between the parties was performed on 10.06.2006 and that

the petitioner was driven out of the house after living with him for one

week only. After waiting for more than a reasonable period, the

petition was filed in 2010 after the issuance of a legal notice. He

therefore submits that desertion is proven in this case. He also points

out that the respondent/husband did not take any steps for getting

his wife back. On the contrary, he filed an application for restitution

of conjugal rights and withdrew the same even before the same was

numbered. He also filed an application for divorce in the Court of

Senior Civil Judge, Repalle, Guntur District which was also

withdrawn. Learned counsel submits that in this petition, he had

admitted that the desertion occurred on 18.06.2006. This document

is marked as Ex.R.1. Hence, the learned counsel argues that

desertion is clearly proved and cruelty is also proved. Therefore, he

submits that this is a fit case in which this Court should interfere and

reverse the findings.

4. In reply to this, Sri K.Jyothi Prasad, learned counsel for the

petitioner submits that cruelty should be of a continuous nature and

should cause fear in the mind of the opposite spouse that living in the

matrimonial relationship make harm to the spouse both physical or

otherwise. He points out that admittedly, there is only 7 days of

married life and that in those 7 days, no events are described which

would amount to cruelty of a sustainable nature which would give a

ground for divorce. He also relies upon the lawyers notice which

shows that right from the stage of lawyers notice itself, the

respondent/husband was interested in living with the petitioner and

that neither cruelty nor desertion are proved.

5. This Court after hearing both the learned counsel notices that it

is a fact in this case that after marriage on 10.06.2016, the petitioner

came to the respondent's house to lead marital life and after one week

she left the house. The date 18.06.2016 is also admitted in the

application filed by the husband for divorce which was later

withdrawn (Ex.R.1). Therefore, it is not in doubt that within one week

the wife left the matrimonial home.

6. The law on the subject of cruelty is very clear. Beginning from

the case of N.G.Dastance v. S.Dastane1 and the case of V.Bhagat v.

D.Bhagat2 which is considered by the trial Court, the cruelty should

be of such a nature as would cause fear in the mind of the spouse that

living with the opposite spouse is impossible. In the span of one week

that the petitioner and the respondent lived together, no such incident

occurred which would justify the finding that cruelty had in fact

occurred.

7. As far as the ground of desertion is concerned, this Court notices

that the trial Court has considered the law on the subject including

the fact that both the animus deserendi and the intention to bring the

cohabitation permanently to an end are required to be proved. There

1 (1975) 2 SCC 326 2 1994 (1) SCC 337

should be desertion without any reasonable cause. In the case on

hand, the petitioner stayed with the respondent only for a period of

7/8 days. She submits that she left the house because the

respondent/husband stated that he had a love affair with another

lady; that he used to regularly telephone her and he acted as per the

directions of the said lady. As per her, he also used to come to the

house in a drunken condition and using filthy language by beating

and finally necked out of the house by beating her on 17.06.2006. In

the cross-examination, it is established that none of these issues are

proved. She clearly admits that she did not file any police complaint

nor did she inform the elders or parents about the behavior of the

respondent. It is also admitted that after marriage, the petitioner was

permitted to continue her studies by the respondent. Even the second

witness for the petitioner, who is father of the petitioner clearly stated

that he does not even know the contents of his chief-examination as

they were not read out to him by the counsel. He admitted that he

did not make any enquiries about the alleged affair of his son-in-law.

He admits that he did not present any report to the police. So, cause

for desertion is not proved.

8. On the other hand, respondent deposed that even after the

petitioner left the matrimonial house, he stayed for four months at the

house of the petitioner's place. He denied the suggestions that he is

having extramarital affair etc. In the light of this evidence, this Court

is of the opinion that the necessary ingredients for proving desertion

by the husband which would give a cause to the petitioner/wife to file

this petition are not made out.

9. Therefore, both the grounds of cruelty and marriage and

desertion are not proved in the opinion of this Court. No error is

committed by the trial Court in this case, which has analysed the case

correctly and reached the proper conclusion. There are no merits in

the appeal.

10. The Civil Miscellaneous Appeal is therefore dismissed. No order

as to costs. As a sequel, the miscellaneous petitions if any shall stand

dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

__________________________________ DUPPALA VENKATA RAMANA,J

Date: 31.07.2023 KLP