A. Hari Haranadha Sarma, J.

Introductory:-

1. The appellant and the respondent herein are wife and husband.

2. The respondent herein filed H.M.O.P. No.85 of 2000 on the file of the Family Court-cum-V Additional District and Sessions Court, Tirupati, seeking relief of dissolution of marriage between the parties dated 12.04.1998 in terms of Section 13(1)(ia) (ib) of Hindu Marriage Act. The same was allowed under the impugned orders and decree dated 15.09.2006. Questioning the same present appeal is filed.

3. For the sake of convenience, parties will be herein after referred to as the petitioner (husband) and the respondent (wife), as and how they are referred in the impugned orders.

Case of the Petitioner/husband :-

4. [i] Marriage between the petitioner and the respondent was performed on 12.04.1998 at Tirupathi as per Hindu rights and customs. During the wed lock they are blessed with a male child; the respondent ill-treated the petitioner without providing basic amenities and she never treated him with love and affection, used to leave the petitioner’s house without any intimation and mediation through elders failed.

                  [ii] The respondent continued to leave the house of the petitioner and on 17.02.1999, she voluntarily left the house of the petitioner without any intimation, when she was carrying 4th month of pregnancy. On 13.07.1999, the respondent gave birth to a male child. When the petitioner went to the house of the respondent, he was not allowed, family members of the respondent used to beat him and he was asked by his mother-in-law to resign his job and to do coolie work and also to send out his mother from his house.

                  [iii] On 10.12.1999 the petitioner gave legal notice calling the respondent to join his society, thereafter she joined with him but lived for only 20 days and went to her parents house without any intimation. On 20.07.2000 the respondent refused to cohabit with him and left his society voluntarily and she has voluntarily deserted him, denying conjugal bliss and parental joy in respect of the child. His legal notices dated 10.12.1999 and 25.09.2000 were not replied and there was no reunion. Hence, the petitioner constrained to move the application for divorce.

Case of the respondent/wife:-

5. [i] Marriage was followed by presentation of gold and money. The petitioner is habituated to drinking and debauchery, used to come home in drunken state and used to scold the respondent and her parents in filthy language, asked her to get Rs.20,000/- for his vices.

                  [ii] When she was 4 months pregnant, the petitioner has taken way her jewels forcibly from her and necked out her from the matrimonial home, asking her to come back with Rs.20,000/-.

                  [iii] After birth of the child, the petitioner did not come to see the child nor attended the ceremonies following the birth of the boy.

                  [iv] The petitioner got issued the legal notice with false allegations.

                  [v] On mediation and undertaking that the petitioner should not demand any money, the respondent was taken to his house but again he has demanded dowry and the petitioner himself necked out her from his house, having no other go she went to her parents house with child. Therefore, the petitioner is not entitled for the relief of divorce.

EVIDENCE:-

6. During the enquiry, three witnesses were examined on behalf of the petitioner, and only the respondent was examined on the other side. The petitioner relied on Ex.A1 to Ex.A5 i.e., wedding card, two legal notices dated 10.12.1999 and 25.09.2000, and the postal covers in respect of legal notices.

Finding of Family Court:-

7. Learned Judge, Family Court allowed the application dissolving the marriage, assigning the reasons as follows:-

                  [i] In view of the observations made in Smt.Parimi Mehar Seshu Vs. Parimi Nageswara Sastry(AIR 1994 A.P.92 = 1993 SCC Online AP 95) and in Chiranjeevi Vs. Smt.Lavanya(AIR 1999 Andhra Pradesh 316 = 1999 SCC Online AP 58) that frequent desertions is sufficient cruelty, the petitioner has a case.

                  [ii] The only ground for the wife is that the respondent consumes liquor and abuses her and her parents in filthy language.

                  [iii] The respondent did not take steps to join her husband from 2000 for a period of six years, till the date of judgment. Therefore, the respondent has no love and affection towards the petitioner.

                  [iv] Even if reunion is ordered, there is no guarantee that the petitioner and the respondent will continue as wife and husband.

                  [v] The marriage is fit to be dissolved as the respondent voluntarily deserted the petitioner.

Hearing:-

8. Heard learned counsel for the appellant/petitioner. No representation for the respondent, in spite of giving sufficient opportunity. This Court has provided sufficient opportunity by adjourning the matter and ordering notice to the respondent. Notice was dispatched to and the same was delivered at the admitted address, which is a deemed service. This Court made specific observations on 08.10.2025 as to inclination to proceed on merits thereafter there is no representation for the respondent. Hence, this Court is constrained to proceed on merits.

Points:-

9. On perusal of the material available on record, now the points that arise for determination in this appeal are:

                  1) Whether the petitioner is able to prove the desertion and cruelty on the part of the respondent against the petitioner to dissolve the marriage dated 12.04.1998 between the petitioner and the respondent and whether the order and decree passed by the learned Judge, Family Court, dated 15.09.2006 are sustainable in law and on facts Or requires any interference? If so, on what grounds?

                  2) What is the result of the appeal?

Discussion, Reasoning and Findings:-

Point No.1 :-

10. Facts not in dispute:-

                  1) Marriage

                  2) Separate living

                  3) Legal notice got issued by the petitioner/husband.

                  4) Birth of male child during the wed lock.

11. The allegations of the petitioner against the respondent are that-

                  a) She used to frequently go to her parents house, without informing.

                  b) She is adamant.

                  c) The petitioner was not allowed to see the child.

12. The allegations of the respondent against the petitioner are that –

                  1) He is habituated to drinking and debauchery

                  2) He used to scold the respondent and her parents in filthy language

                  3) Demanded the respondent to get Rs.20,000/- from her parents

                  4) When she was four months pregnant, she was necked out.

                  5) The petitioner did not go to see the child after birth.

                  6) The allegations in the legal notice dated 10.12.1999 are false.

                  7) The petitioner was threatening the respondent that he will made second marriage, if he demanded money is not complied.

                  8) The respondent was always willing to live with the petitioner and in fact he has deserted her.

                  9) The respondent has filed a petition before the Court under Section 125 Cr.P.C. vide M.C.No.03 of 2001.

                  10) The respondent is not willing to give divorce.

Evidence:-

13. The petitioner as PW.1 reiterated his stand, as to desertion and cruelty in the form of not allowing him to see the child and repeated leaving of matrimonial society by the respondent and that the respondent acting under the guidance of her mother. During the cross-examination, the petitioner/PW.1 stated that he did not give legal notice demanding divorce. Marriage was an arranged one. He do not know whether the father of the respondent died. He was residing in Poola Street where the respondent joined with him. He stated that brother of the respondent taken her without consent of the petitioner. Advice of the neighbours and elders is not honoured. By the time, the respondent went to her parents house, she was 4 months pregnant. He has denied the suggestion that he was informed about the birth of child and refused to go to hospital. He was unable to say the correct name of his son. He is not willing to take the respondent even if she is ready to join with him. He has added that he has no security with the respondent. He has admitted that no report is given to Police about the respondent and her relatives beat him.

14. PW.2, P.Savithramma states that she has acquaintance with the petitioner from the childhood. During the cross-examination, she has stated that both the parties lived in Poola street, she has no house in Poola street, mediation held at the house of the respondent. She does not know who are such mediators. The respondent is residing with her parents. She do not know the house address of the parents of the respondent. It was suggested to PW.2 that the respondent is ready to join with her husband. PW.2 went to an extent of stating that the respondent alleged the son was not born to the petitioner and that the petitioner is impotent. This is not the case of the petitioner. So the loyalty of the PW.2, for the cause of the petitioner is more than the petitioner and the same is sufficient to discard her evidence. But the said aspect is not considered by the Family Court.

15. PW.3, P.Prameela said to be another mediator. Her evidence is in the same lines of PW.2.

16. The respondent as RW1 reiterated the stand taken in her counter. During the cross-examination of RW.1, she has stated that she has not received any notice nor filed any petition for maintenance. She has issued reply to the notice of her husband, after notices she joined the petitioner and again she was sent back to her parents house. It was suggested to her that she was threatening the petitioner to set up separate family from his mother, otherwise she will foist a criminal case against him, she will also opt to commit suicide sending note to the to police. Her father informed about the delivery of a male child. It was suggested to her she herself deserted the petitioner. From the cross- examination of RW.1, it can be understood that there is a maintenance case and there is an issue about the payment of maintenance also.

17. The theory of the petitioner being impotent and the issue that the respondent claiming that his son was not born to the petitioner, are not even suggested to the respondent, when she was in witness box. Legal notice- Ex.A4, dated 25.09.2000 is indicating that without permission of the petitioner she left the house of the petitioner and even after joining on legal notice, the respondent used to frequently visit her parents house. There was reluctance on the part of the respondent to join him. Ex.A4 is issued asking for restitution of conjugal right. Ex.A2-legal notice is also indicating about the asking the respondent to join with the petitioner.

Desertion:-

18. As per the legal notice-Ex.A2 or even Ex.A4, the respondent left the society of the petitioner, on 17.02.1999 firstly and thereafter in July 2000. The proceedings for divorce are initiated in the year 2000 and the application was filed on 11.10.2000. When the law contemplates minimum two years voluntary desertion, vide Section 13(1) (ib) it is not known how the petitioner can claim that he is entitled for divorce on the ground of desertion. Going for delivery is in the month of February 1999 and thereafter matrimonial home was resumed and again second time leaving of matrimonial home is in the year 2000 and the application is filed in the month of October 2000, how the requirement of two years period contemplated under law gets fulfilled is a simple logic, which the petitioner missed. Therefore, the ground of desertion is not available to the petitioner.

Cruelty:-

19. Admittedly, the respondent went to parental home during the pregnancy and mind set of the petitioner appears to be that his permission is necessary for his wife to go to her parents house and that appears to be the cause for the gap. When parental home is situated in the same town, going to the parents house that too when there was pregnancy etc., is natural and emotional phenomenon. When that aspect is also found fault and pressed into service as cruelty, such exercise cannot be appreciated. The witnesses examined on behalf of the petitioner sated whatever they want, attributing indirectly unchastity to the respondent/wife, very loosely which is not even the case of the petitioner. If at all one has to visualise any cruelty it is there on the part of the petitioner but it is not on the part of the respondent, particularly when seen from the scenario in which wild allegations are made. Maintenance case was pending and maintenance is not paid, is what the wife claims. The reasoning of the learned Judge, Family Court that even if the parties are asked to live, there will not be any happy matrimonial home is purely imaginary. Contextual similarity is missing as to the facts in the cases/citations referred by the Judge, Family Court and the context the present case. Surprisingly, the learned Judge Family Court observed that “wife’s only ground is that the respondent consumes liquor and abuses her and her parents in filthy language”. This observation suggests that such kind of behaviour is as if tolerable. The further observations of the learned Judge, Family Court are that the respondent did not take any steps to join her husband from 2000 till the date of the judgment. When the litigation is pending before the Court from 2001 to 2006, what steps wife can take to join except asserting that she is ready to join in the form of evidence contesting the case, is a serious aspect requires consideration. This aspect lost the sight of the learned Judge, Family Court. The findings of the learned Judge, Family Court are found not proper in the factual and evidential context of the case. Empathetical concern is found completely missing on the part of Trial Judge.

20. Further even the evidence on record is not indicating either the ground of desertion or ground of cruelty, sufficient to grant divorce. The allegations that the husband was beaten by one Balaji, is not forfeited with any evidence and the same was not followed by any complaint. Further, the same is not even specifically pleaded, therefore, we are unable to accept that there is evidence indicating the cruelty on the part of the respondent/wife to dissolve the marriage between the petitioner and the respondent.

21. For the reasons stated above, the point No.1 framed is answered concluding that there are no grounds and sufficient evidence to accept either desertion or cruelty on the part of the responded/wife to grant dissolution of marriage, therefore, the findings and conclusions drawn by the learned Judge, Family Court deserves to be set aside.

Point No.2:-

22. In the result, the appeal is allowed and the impugned orders and decree dated 15.09.2006 in H.M.O.P. No.85 of 2000 on the file of the Family Court-cum- V Additional District and Sessions Court, Tirupati, dissolving the marriage between the petitioner and the respondent are set aside. No costs.

                  As a sequel, miscellaneous petitions pending, if any, shall stand closed.