Smt. P. Padma vs Sri P. Chennaiah
2021 Latest Caselaw 2081 Tel

     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.

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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.

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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.

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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.

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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

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

(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

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