Andhra Pradesh High Court - Amravati

Sri Gudivada Seshagiri Rao vs Smt.Gudivada Ashalatha on 18 October, 2023

      HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

                               AND

     HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO


                     C.M.A No.248 of 2007


JUDGMENT: (Per Hon'ble Sri Justice U. Durga Prasad Rao)

       The CMA is filed by the petitioner/husband aggrieved by

the order dated 18.01.2007 in H.M.O.P.No.86/2002 passed by

learned III Additional Sessions Judge, Guntur dismissing the

petition filed by the petitioner/husband U/s 13 of Hindu Marriage

Act, 1955 (for short "HM Act") seeking divorce against the

respondent/wife.

Petitioner's case:

2. Petitioner's case is that he married the respondent on

27.05.1999 as per Hindu customs and rituals at Dondapadu

village. On the first night of marriage, the respondent intimated to

him that her marriage is against her will and compulsion and

refused to consummate the marriage. He took her to his working

place Digboi (Assam Oil Division). At that place also, the ::2::

respondent was suspicious and started picking up quarrels with

maid servants. Because of her attitude, all the servants left the

job. As such, he constrained to do all house hold works including

cooking food. With a fond of hope to see change in the behavior

of the respondent, he provided all comforts to her like

Refrigerator, Colour TV, all house hold articles and Maruthi Car

but she became more and more drastic, rude and harsh towards

him. She used to abuse him and his family members. On her

pressure, he sent Rs.25,000/- (Rupees twenty five thousand only)

on 30.06.1999 to his father-in-law (D. Issac) through E.M.S

Speed post by way of demand draft. After some time, the

respondent demanded him to resign his job and to shift to

Vijayawada but he refused. While so, surprisingly on 01.11.1999

when he returned from the office, he found the respondent

missing from the house. Later he came to know that she left to

Vijayawada by taking all gold ornaments worth of Rs.75,000/-

(Rupees seventy five thousand only) and cash of Rs.25,000/-

(Rupees twenty five thousand only). Thereafter his all efforts to

bring her back proved futile. Surprisingly in the month of July, ::3::

2000, he received a legal notice dated 21.06.2000 with all false

story. As such he gave reply notice on 01.08.2000 with all false

story. She also filed M.C.No.27/2000 under section 125 of

Cr.P.C on the file of Additional Judicial First Class Magistrate,

Tenali. She also filed criminal case under sections 498-A, 107,

406 read with Section 34 IPC against him and his family members

on 26.09.2000 on the file of II Additional Munsif Magistrate,

Tenali with false story of torture and demand of dowry. She also

wrote letters on 10.12.1999, 15.05.2000 and 27.12.2000 to his

higher officials with all false allegations and concocted story.

Thus the respondent wantonly and willingly deserted him on

01.11.1999 and living separately in Vijayawada.

Respondent's case:

3. Respondent denied all the petition allegations. Inter alia it

is contended that at the time of marriage the petitioner took hand

loan of Rs.25,000/- (Rupees twenty five thousand only) from the

parents of the respondent to take her to Digboi where he was

working. Subsequently he sent the said amount to her parents.

From the date of marriage, the petitioner started harassing her and ::4::

abusing her parents and her elder brother in filthy language. At

the instigation of his mother and maternal aunt namely Rani, he

bet her indiscriminately and kept in a guest house at Digboi where

she and petitioner lived for six days. During that period, he used

to come late in night hours in drunken condition and used to ill-

treat her. He accustomed to bad habits like gambling and

debauching etc., He used to threaten her that he is going to marry

another woman for more dowry . On 10.07.1999, when her

brother and mother came to Digboi with household articles worth

of Rs.10,000/- (Rupees ten thousand only), the petitioner

quarreled with her and beat with belt in their presence. On

12.07.1999 on her birth day also he ill-treated her. He left the

house by locking her in the house. As such she gave telegram to

her parents asking them to come to Digboi on 28.10.1999. On

31.10.1999, all of sudden without any reason the petitioner

abused her as well as her father, beat her and forcibly necked out

of his house. In those circumstances, she was constrained to

return back to her parents' house and remained there since then.

The petitioner never came to her place and tried to take her back ::5::

despite several mediations by her father. She also wrote a letter

requesting the petitioner to take her back. She also sent registered

letters dated 12.01.1999 and 15.05.2000 to the respondent and a

Telegram on 20.1.2000 to the higher officials of the Indian Oil

Company, Digboi. Thereafter she gave registered notice on

22.06.2000 to the respondent through her advocate. The

petitioner received the same and kept quite. The petitioner filed a

divorce petition on the file of District Judge at Tinsukia, in Assam

State, which was numbered as title suit divorce No.16/2001. The

respondent got transferred the said case to this court by a petition

before the Honourable Supreme Court of India. On the said

transfer it is numbered as H.M.O.P No.86/2002 on the file of III

Additional Sessions Judge, Guntur.

4. During trial PWs 1 to 4 were examined and Ex.A1 to A9

were marked. Respondent did not adduce any oral evidence but

Ex.B1 was marked on her behalf.

Trial Court's order:

5. The trial Court dismissed the divorce application filed by

the petitioner on the observations that the oral evidence adduced ::6::

through the independent witnesses also do not infuse confidence

in the Court, and the conduct of the petitioner shows that he filed

the divorce petition as a counter blast to the maintenance case and

criminal case filed by the respondent against him and his family

members and further there was no written request from the

petitioner either by way of letter or a legal notice requesting her to

join his society to lead conjugal life in spite of Ex.A6-legal notice

issued by the respondent expressing her readiness to join in the

society of the petitioner, but on the other hand he gave reply

notice under Ex.A7 seeking divorce and therefore the petitioner

himself deserted the respondent but not the respondent as alleged

by him. That apart, the divorce petition was dismissed on one

main ground that as per Ex.B1 certified copy of bail petition in

Crl.MP No. 3084/2000 in Crime No.145/2000 of Duggirala PS,

on the file of II AMM, Tenali, the petitioner asserted himself as

Indian Christian and sought bail before Christmas and added to it

the respondent in the cross-examination contended that their

marriage was performed as per the Christian customs and rites ::7::

and therefore the provisions of HM Act are not applicable to the

parties.

Hence the CMA.

6. Heard arguments of learned counsel for the petitioner

Smt.A.Chaya Devi and learned counsel for respondent Sri Y.N.

Anjaneyacharyulu.

Arguments of Appellant:

7. While severely fulminating the impugned order, learned

counsel for the appellant Smt. A. Chaya Devi would vehemently

argue that the trial Court committed severe blunder in treating the

appellant's divorce application on the ground of desertion instead

of cruelty and misread the evidence and gave an erroneous

finding that the petitioner himself was guilty of desertion as he

did not make any written request by way of letter or legal notice

to the respondent inviting her to lead conjugal life with him and

thus the petitioner has deserted the respondent but not the

respondent. In expatiation, learned counsel would submit that the

divorce application was initially filed before the District Judge, ::8::

Tinsukia in Assam U/s 13(1)(ia) of HM Act on the ground of

cruelty and later it was transferred to the III Additional Sessions

Judge, Guntur and renumbered as H.M.O.P. No.86/2002.

Referring to the averments in the paragraph numbers 4 to 12 of

divorce petition, learned counsel would strenuously argue that in

those paragraphs the petitioner has vividly described the various

modes of cruelty inflicted by the respondent on him under

different circumstances including her act of leaving Digboi on

01.11.1999 with her father suddenly without petitioner's

knowledge and intimation. Learned counsel would expatiate that

the act of desertion in the whole episode is a part of cruelty that

can be understood from the reading of entire petition. However,

the trial Court unfortunately took the desertion aspect alone into

consideration and made erroneous observations as if the petitioner

had not tried to bring the respondent to his marital fold in spite of

her request under Ex.A6-notice and therefore he himself was

guilty of desertion and thereby he was not entitled to decree of

divorce. Learned counsel took a serious objection of such finding

and reiterated that desertion is not the forte of the petitioner but ::9::

the cruelty. She would submit, the desertion is subsumed in the

various acts of cruelty. Learned counsel lamented that in the

whole process the trial Court has not made any effort to discuss

the plea of cruelty and evaluate the evidence in right earnest,

though the divorce petition was filed on the very ground of

cruelty. Learned counsel would further submit that the ill-

tempered and harsh behavior of the respondent as elucidated in

different paragraphs of the petition would amount to mental

cruelty and torture to the petitioner and the evidence led in

support of those pleas would clearly establish the ground of

cruelty. Unfortunately, the trial Court has not at all touched upon

the cruelty aspect to decide the divorce petition. Learned counsel

would additionally submit that the criminal case filed against the

respondent was ended in acquittal and therefore such false

implication in criminal case also can be taken as an element of

cruelty. She would thus submit, the impugned order is liable to

be set aside. Learned counsel placed reliance on the following

judgments to submit as to what acts constitute mental cruelty to

entitle a spouse to obtain decree of divorce.

::10::

1. Vinita Saxena v. Pankaj Pandit1

2. Vishwanath Agrawal v. Sarla Vishwanath Agrawal2

3.K. Srinivas Rao v. D.A. Deepa3

4. Rani Narasimha Sastry v. Rani Suneela Rani4

8. Nextly, regarding the religious status of the petitioner and

respondent, learned counsel would submit that the parties to the

marriage are Hindus and so far as petitioner is concerned, he is a

Hindu-Madiga as per the Caste Certificate issued by the MRO,

Gudivada as per Ex.B2 filed in the connected O.P No.200/2003

which was filed by the present respondent for restitution of

conjugal rights. Learned counsel would argue that the social

status as conferred under the said certificate holds valid for all

purposes till it is cancelled by the appropriate authority. In the

light of said certificate, she would submit, merely because in

Ex.B1-bail application if it was wrongly mentioned by his

advocate that the petitioner is a Indian Christian and he may be

released before Christmas, such mentioning cannot be viewed

seriously. At the time of filing bail application, the petitioner was

(2006) 3 SCC 778

(2012) 7 SCC 288

(2013) 5 SCC 226

(2020) SCC 247 = (2021) 3 SCC (Crl) 522 = 2019 SCC OnLine SC 1595 ::11::

in jail and only on some third party information his learned

advocate might have mentioned so and there was no occasion for

the petitioner to cross-check the averments in the bail application.

Learned counsel would submit that in the divorce application the

petitioner has clearly mentioned that his marriage was performed

with respondent on 27.05.1999 as per Hindu customs and rites.

Further, as per Ex.A1-Sumuhoorta Patrika, the marriage date,

time and lagnam were fixed as per Hindu religious conventions

and as such the trial Court was not justified in giving undue

importance to Ex.B1-bail application to hold that the marriage

was performed as per Christian customs and rites and thereby the

petition is not maintainable as per the Hindu Marriage Act, 1955.

Learned counsel requested this Court to look into the said

material, particularly Ex.B2 filed in the connected OP

No.200/2003. She thus prayed to allow the CMA.

9. Per contra, learned counsel for respondent Sri Y.N.

Anjaneyacharyulu while supporting the impugned judgment

would argue that the allegations of cruelty mentioned in the

divorce petition are absolutely false and concocted, inasmuch as, ::12::

the divorce application was filed with those false averments as a

counter blast to the maintenance case and criminal case filed by

the respondent herein and it was so observed by the trial Court.

He would submit that the trial Court has firmly held that the

independent evidence adduced by the petitioner has not inspired

confidence of the Court, meaning thereby, the allegations of

cruelty and desertion were all disbelieved by the trial Court.

Therefore, the judgment of the trial Court should be understood in

that perspective and not merely in the context of ground of

desertion. He would argue, the petitioner shall be deemed to have

failed to establish the ground of cruelty or desertion and hence the

judgment of the trial Court cannot be found fault. Regarding the

social status of the parties learned counsel would argue that the

parties are Christians and their marriage was performed as per

Christian rites and ceremonies. In this regard, in Ex.A6-legal

notice, the respondent has taken a clear plea that their marriage

was solemnized according to the Christian customs on 27.05.1999

at petitioner's house. In her counter also she took a similar plea.

In that view, the burden is on the petitioner to establish that the ::13::

parties are Hindus and their marriage was solemnized as per

Hindu religious rites and customs. However, except filing Ex.A1-

Sumuhoorta Patrika, the petitioner did not examine the concerned

Purohit who prepared Ex.A1. Further, the marriage was

videographed but the petitioner has not produced the CD to

establish the form of marriage. Above all in Ex.B1-bail

application the petitioner was described as Christian. He cannot

now conveniently disown the averments in the said bail

application. All these would give an irresistible conclusion that

the parties are Christians and their marriage was solemnized as

per Christian rites. Therefore, the trial Court rightly held that the

provisions of Hindu Marriage Act, 1955 have no application. He

thus prayed to dismiss the CMA.

10. The points for consideration in this appeal are:

(1) Whether the trial Court committed error in treating the divorce petition as filed on the ground of desertion instead of cruelty ?

(2) Whether the trial Court committed error in holding that the parties to the marriage were Christians and their marriage was performed as per Christian customs and ::14::

rites and thereby the provisions of Hindu Marriage Act, 1955 are not applicable to the parties ?

(3) To what relief in the CMA ?

11. Point No.1: We have cogitated on the pleadings, evidence

and law in this case. We must say, as rightly argued by learned

counsel for appellant, the petitioner has sought for divorce mainly

on the ground of cruelty. The petition was filed U/s 13(1)(ia).

The said section reads thus:

"13. 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) xxx.

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;

(a) The petitioner has, in paragraphs 4 to 12, pellucidly

narrated the different instances of mental cruelty inflicted on him

by the respondent viz.,

(i) The couple after marriage arrived at Digboi on 18.06.1999 and ever since, to the shock and surprise of the petitioner, the respondent was exhibiting nagging, overbearing temperament, quarrelsome, suspicious and isolated character.

::15::

(ii) The respondent suspected the movements and activities of maid servants and picked up quarrel with them and became harsh and thereby they left the service and even male servants who were engaged also left the job and thereby the petitioner himself had to attend household duties in addition to heavy office work as the respondent refused to cook and do house work.

(iii) The respondent ill-treated the petitioner with abusive and harsh words and exhibited inhuman behavior and the petitioner bore such acts with the hope that the respondent may change her behavior but of no avail.

(iv) Taking advantage of petitioner's good manners, the respondent became more rude, harsh and drastic and she neglected petitioner even from the first night of the marriage and she abused the petitioner and his family members with slang and filthy language.

(v) During her stay with petitioner, the respondent subjected him with mental and physical torture by refusing to cohabit and thus deprived him of his legitimate sexual pleasure

(vi) The respondent demanded petitioner to resign his job at Digboi and shift to Vijayawada and did not heed his persuasive counseling that after facing high competition he could get job in IOC which he cannot resign

(vii) The respondent pressurized the petitioner and got sent Rs.25,000/- to her elder brother.

(viii) On 01.1.1999 the petitioner went away with her father along with gold ornaments worth Rs.75,000/-

::16::

and cash of Rs.25,000/- without intimation and consent of the petitioner.

Thus there can be little demur that the petitioner has filed

the divorce petition predominantly on the ground of cruelty

allegedly meted out by the respondent. It is altogether a different

aspect whether he established the said ground or not.

12. Then a meticulous scrutiny of the judgment in HMOP

No.86/2002 would show that the trial Court, as rightly argued by

the learned counsel for appellant, treated the divorce petition as

filed on the ground of desertion rather than the cruelty. Para-7 of

the judgment can be said to be a prelude for the way in which the

trial Court evaluated and decided the fate of the petition on the

ground of desertion. In para-7 the trial Court observed thus:

"7. The initial burden is on the petitioner to prove that the respondent herself voluntarily deserted him since more than two years from the date of filing of this present petition. "

The subsequent paras of the judgment more particularly

para-9 proceeded in the lines of treating the petition on the ground

of desertion. Para-9 reads thus:

::17::

"9. The evidence of these independent witnesses is not inspiring confidence of the court more particularly the conduct of the petitioner goes to show that he filed present divorce petition as counter-blast only after filing maintenance case and criminal case by the respondent against him and his family members. Admittedly, there is no written request from the petitioner either by way of letter or legal notice to the respondent asking her to join his society. On the contrary as per Ex.A6, the respondent got issued legal notice to the petitioner expressing her readiness to join in the society of the petitioner and to lead marital life. She requested the petitioner to come and take her to lead marital life within 10 days after receipt of notice. Admittedly after receipt of notice Ex.A6, the petitioner never tried to take her back but gave reply notice under Ex.A7 contending that several efforts made by him for restitution of conjugal life were proved futile. As such he constrained to take divorce and requested the respondent to cooperate in the matter of divorce. The reply notice Ex.A7 is dated 01.08.2000. Instead of taking the respondent into his fold to lead marital life in response of Ex.A6, he filed divorce petition on 27.03.2001 at Tinsukia (Asssam State), which is evident from the endorsement of the said court on the divorce petition which is originally numbered as Title suit (Divorce) No.16/2001 on the file of the District Judge, Tinsukia. Therefore, it is clearly revealed that it is the petitioner who deserted the respondent but not the respondent as alleged by the petitioner". (Emphasis Supplied)

13. It is thus clear that the above findings of the trial Court are

in the context of desertion rather than cruelty. Further, while

rejecting the evidence of petitioner's side, the trial Court did not

give any reason except making a cryptic mentioning of "not

inspiring the confidence of the Court". Such dubious style of

rejecting evidence does not amount to weighing the evidence with ::18::

the scales of principles of Evidence Act. The judgment of the

trial Court depicts that the petitioner' case was rejected on the

ground of desertion which is a wrong appreciation of facts,

evidence and law. Needless to emphasize that cruelty and

desertion are two different grounds on which a spouse can get

divorce. Cruelty is of varied modes one of which is the desertion.

However, mere failure to prove desertion shall not be taken as

failure to prove the ground of cruelty altogether, for, in a given

case the party may plead different modes of cruelty including

desertion. Thus at the outset, the trial Court wholly misconceived

the pleadings and evidence and gave an erroneous finding on the

aspect of desertion alone leaving aside the plea of cruelty. This

point is answered accordingly.

14. Point No.2: As can be seen from the judgment, the trial

Court basing on Ex.B1 alone came to conclusion that the parties

are Christians and the provisions of Hindu Marriage Act, 1955 are

not applicable to them. As rightly argued by the counsel for

appellant, the trial Court did not consider the other oral evidence

and Ex.A1 in this regard. That apart, the submission of learned ::19::

counsel for appellant is that in the connected O.P.No.200/2003

the petitioner filed Ex.B2-Caste Certificate to show that he is a

Hindu-Madiga. Of course, the said certificate is not filed in the

present case. Further, the respondent also not adduced her

evidence in the divorce O.P. Considering all these aspects it is

not apt for the trial Court to come to a conclusion on the sole

basis of Ex.B1. Rather this aspect needs both oral and

documentary evidence for an effective adjudication. As of now,

in view of non consideration of other oral and documentary

evidence the finding of the trial Court deserves to be set aside.

This point is answered accordingly.

15. Point No.3: Thus on a conspectus of pleadings, evidence

and law the judgment of the trial Court is unsustainable and liable

to be set aside. The relief in this appeal is concerned, since the

trial Court has not evaluated the facts and evidence on the ground

of cruelty, we have no advantage of its judgment on that ground.

Similarly, the social status of the parties is concerned, since the

evidence of respondent is not there and also that the trial Court

has not appreciated and considered the other oral and ::20::

documentary evidence except Ex.B1, its finding on the social

status, which may have other ramifications, cannot be sustained.

Essentially the case on hand is a matrimonial case. Therefore,

interest of justice requires that the matter has to be remanded back

to the trial Court with a direction to give an opportunity to both

parties to adduce evidence on the aspects of cruelty and also the

religious / social status of the parties and appreciate the facts and

evidence in accordance with governing law and dispose of the OP

on merits. For this purpose, we set up the following points for

trial:

(i) Whether the respondent is guilty of inflicting cruelty on the petitioner and if so whether the petitioner is entitled to a decree of divorce on that ground ?

(ii) Whether the parties to the marriage are Christians but not Hindus and if so whether provisions of Hindu Marriage Act have no application to them and thereby the divorce petition is not maintainable under Section 13 of Hindu Marriage Act, 1955 ?

16. (i) Accordingly, the CMA is allowed and judgment and

decree in H.M.O.P.No.86/2002 passed by III Additional Sessions

Judge, Guntur is set aside and matter is remanded back to the trial

Court with a direction to afford an opportunity to both parties to ::21::

adduce evidence on the two points set up supra by this Court and

after hearing arguments pass the judgment on merits without

being influenced by the findings in its earlier judgment dated

18.01.2007. The entire exercise shall be completed within three

months from the date of receipt of a copy of this judgment.

Both parties shall appear before trial Court on 10.11.2023

and trial Court shall take up further steps.

(ii)The trial Court shall submit a copy of its judgment to