(Prayer: Appeal under section -----against orders

IA NO: 1 OF 2008(FCAMP 477 OF 2008

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the order of the Judge, Family Court at Vizianagaram in FCOP.No. 15/2008 dated 18.11.2008 pending disposal of the above Family Court Appeal)

A. Hari Haranadha Sarma, J.

Introductory:

1. Respondent / Wife in F.C.O.P.No.15 of 2008 on the file of the Judge, Family Court at Vizianagaram, feeling aggrieved by the order and decree dated 18.11.2008, whereunder the application filed by her husband was allowed, filed the present appeal. Under the questioned decree and order, the marriage between the parties was dissolved.

2. For the sake of convenience, the parties will be hereinafter referred to as the petitioner and the respondent as and how they are referred to in the impugned orders.

Case of the petitioner / husband:

3(i). The marriage between the petitioner and the respondent was performed on 02.06.2002 as per their caste, custom and Hindu rites and the parties started their conjugal society at Pataduppada, Vizianagaram. During the wedlock, they were blessed with a girl child. From the beginning, the respondent was insisting on setting up a separate family and she used to go to her parents’ house without intimation to the petitioner. She was reluctant to come to the petitioner’s house, spending all her salary on her luxuries and used to quarrel on one pretext or the other.

                  (ii). She was not even preparing food and demanded that the entire salary of the petitioner be given to her. She did not even allow him to see their daughter. The attempts made by the petitioner to mend the attitude of the respondent did not yield any result. She used to come late in the nights and when the same was questioned, she threatened that she would lodge a complaint and get the petitioner arrested.

                  (iii). The respondent, in fact, wrote a letter asking him to give divorce but later sent a legal notice dated 14.06.2004 with false allegations. Both of them moved H.M.O.P.No.52 of 2004 on the file of learned Senior Civil Judge, Vizianagaram, for grant of divorce on the basis of mutual consent. But, as per the advice of the conciliators, they agreed to live together and the said application was closed.

                  (iv). Thereafter, the respondent joined him in the month of January, 2005.

                  However, there was no change in her attitude. She opted for termination of pregnancy, exposing the petitioner mental agony. The advice of elders also did not yield any result. He got issued a legal notice dated 22.04.2005 and thereafter initiated the present proceedings for divorce.

Case of the respondent / wife :

4(i). The allegations against her are all false.

                  (ii). The petitioner was sadistic and ill-treated her, used abusive and vulgar language and beat her indiscriminately. The situation was unbearable. The petitioner used to scold respondent’s father and even necked out the respondent from his house.

                  (iii). She was even put under lock in a room and was asked to sign on divorce papers. Having no other option, she signed the divorce papers pertaining to H.M.O.P.No.52 of 2004, but when the matter was came up for enquiry, due to fear that the real facts would come out, the matter was got referred to the Lok Adalat.

                  (iv). Even after the proceedings in H.M.O.P.No.52 of 2004, the petitioner continued harassing her and got issued a legal notice dated 22.04.2005. When the same was questioned, he informed her that on his previous instructions to the advocate, the notice was issued and that there was nothing to worry. Even after initiation of the present proceedings, the petitioner approached the respondent at her house, invited her to his house and she went along with her daughter. He repeated the acts of beating her and sent out her again.

                  (v). The respondent is having all love and affection towards her husband and in-laws. She was handing over her entire salary to him and asking for daily expenses. There are no merits in the petition. The petition is liable to be dismissed.

Evidence:

5(i). During the enquiry before the learned Family Court, the petitioner has taken the witness stand as P.W.1 and got P.Ws.2 to 4, the panchayat elders, were examined on his behalf. P.W.5 is the mother of the petitioner.

                  (ii). Ex.A1 is the office copy of the legal notice issued by the petitioner to the respondent dated 22.04.2005. Ex.A2 is the postal acknowledgment of the respondent. Ex.A3 is the notice got issued by the respondent to the petitioner dated 14.06.2004. Ex.A4 is the copy of the agreement written by the father of the respondent dated 07.12.2003. Ex.A5 is the letter written by the respondent.

                  (iii). On behalf of the respondent, she has taken the witness stand as R.W.1 and her father was examined as R.W.2. No documents were marked.

Family Court order:

6. After referring to the evidence of petitioner as P.W.1 and the evidence of P.W.2 and P.W.3 as to their attempts to pacify the issue and P.W.4 as to Ex.A4 documents and the demands of the respondent to set up a separate family, which was corroborated by P.W.5, the learned Judge, Family Court allowed the petition of the husband and granted the relief of divorce.

Arguments in the appeal:

For the appellant:

7(i). The learned Judge, Family Court, failed to evaluate the evidence and erred in concluding that the cruelty is proved.

                  (ii). The Trial Court failed to consider the evidence of the appellant- R.W.1 and erred in granting the relief of divorce.

                  (iii). The Trial Court ought to have appreciated that when there was no ill-treatment, there was no need for the appellant to issue Ex.A1 legal notice seeking divorce on mutual consent.

                  (iv). The orders under challenge are liable to be set aside.

For the respondent:

8. The learned Family Court has properly evaluated the evidence and the evidence on behalf of the petitioner clearly proves the cruelty to which he was subjected and the same is sufficient to grant a decree of divorce.

9. Perused the material available and the observations in the impugned order. Thoughtful consideration is given to the arguments advanced by both sides. Now the points that arise for determination in this appeal are:

                  1) Whether the petitioner-husband was subjected to cruelty and whether the same is sufficient to dissolve the marriage between the petitioner and the respondent?

                  2) Whether the order and decree dated 18.11.2008 passed by the learned Judge, Family Court, Vizianagaram are sustainable in law and on facts or whether any interference is necessary?

                  3) What is the result of the appeal?

Point Nos.1 and 2:

Analysis, reasons and findings:

10. The date of marriage between the parties is 02.06.2002. The arrest of the petitioner / husband as per his pleadings is 07.12.2003. The legal notice from the wife is dated 14.06.2004, whereunder the demand for divorce was made and the same was followed by H.M.O.P.No.52 of 2004 for grant of divorce with mutual consent. But, the same did not fortify. The reunion has taken place in January, 2005. Again, there was separation. The same was followed by a legal notice dated 22.04.2005 got issued by the husband. The application for divorce is moved on 30.04.2005, which appears to be renumbered as F.C.O.P.No.15 of 2008. Therefore, clear two years’ separate living from the last living together is not shown. Hence, the ground of desertion for granting divorce is not available.

                  (ii). The other ground sought by the petitioner / husband is cruelty, which can even be mental cruelty. The petitioner, as P.W.1, stated about the quarrels and separation from the parental family, abortion of the second pregnancy without the consent of the petitioner, the respondent not heeding to the advice of elders and her insistence on setting up a separate family after H.M.O.P.No.52 of 2004.

                  (iii). P.W.2, a marriage elder, gave evidence stating that the respondent used to go to her parents’ house.

                  (iv). P.W.3 also stated in the same lines and about his attempts to pacify the matter.

                  (v). P.W.4, one of the attesting witness to Ex.A4 stated about the respondent demanding the petitioner to set up a separate family and persisting in her attitude and he added that the respondent developed dislike towards the petitioner.

                  (vi). P.W.5, the mother of the petitioner, corroborated the evidence of the petitioner and during her cross-examination, she stated that the respondent lived in her house only for three months.

                  (vii). The respondent, during her cross examination, stated that she lived in Duppada i.e. in the house of the petitioner, for two or three months and thereafter lived at his parents’ house.

                  (viii). Respondent got issued a notice seeking divorce under Ex.A3 and both of them filed H.M.O.P.No.52 of 2004 seeking mutual consent.

                  (ix). Respondent never reported the matter to the police against the petitioner. She did not attend any meeting before the elders. She attended one panchayat at Duppada and gave Ex.A5 letter. The father of the respondent, examined as R.W.2, stated that the petitioner and respondent lived happily for two months and later there was harassment and the respondent used to come to his house when she was necked out.

                  (x). As per the evidence of both sides, it is clear that there is no love between the two parties and there was no attempt by the respondent to maintain cordial relations.

                  (xi). The respondent got issued a legal notice, Ex.A2, calling upon the petitioner to give divorce on the ground that marital tie between the parties is not cordial.

                  (xii). R.W.2, the father of the respondent, admitted about the Ex.A4 agreement, which reflects a number of disputes between the parties.

                  (xiii). In Ex.A5, the respondent wrote that under any circumstances she is not willing to live with her husband and that she is ready to obtain divorce.

                  (xiv). According to respondent, Ex.A4 and A5 were obtained by the petitioner under threat. If that were true, she might have mentioned the same at the earliest point of time.

                  (xv). The relationship is strained and the same gets vindicated with the evidence of P.Ws.2 to 4.

                  (xvi). The grounds urged by the appellant that seeking divorce on mutual consent under Ex.A1 testifies the ill-treatment of the husband and that there cannot be any advantage to the husband out of his own wrong, are found not tenable for the reason that the parties lived together even after moving the application for divorce on mutual consent and thereafter, again the wife lived in the society of the husband.

                  (xvii). The oral and documentary evidence indicating that the conduct of respondent-wife caused the husband to feel that he cannot lead a matrimonial life with the respondent.

11. The word ‘cruelty’ is required to be understood in different dimensions. It can be either physical or mental. The meaning of ‘being cruel’ or ‘cruelty’ encompasses inhuman behaviour generally. A strict definition of ‘cruelty’, covering both physical and mental aspects, is not possible. In matrimonial law, it is very difficult to give a strict definition for ‘cruelty’. The causes which warrant separation generally must be grave and weighty, such as to show an absolute impossibility that the duties of married life can be discharged. In a state of personal danger, no marital duties can be discharged. Self-preservation will take priority over the marital duties. What wounds the mental feeling is, in few cases, to be admitted as a cruelty, even though it is not accompanied with bodily injury. Mere temper, rudeness of language or a want of civil attention, if they do not threaten bodily harm, do not amounts to legal cruelty. But they are high moral offences in the field of marriage.

12. The ordinary wear and tear in the matrimonial life and general misconduct of either of the parties, sometimes exists on one side and sometimes on the other, or even both. The parties will bear to some degree, either by prudent conciliation or by suffering in silence. If one has to take only danger to life, limb or health as the cruelties, which are usually considered as a cruelty for the purpose of enforcing penal law as grounds, in matrimonial litigation. It may not be sound and logical. The Court is not to wait till hurt is actually done, but if apprehension is reasonable, it is sufficient. Injury to body is one branch, and injury to health is another branch. Injury to health would include mental health. Every wilful act or omission or negligence indicated with some behaviour will amount to cruelty but what shall be such behaviour cannot be precisely defined with straight jacket formula. That depends on the way of life of the parties and their social and economic conditions, including the customs and traditions. Harassment of a woman with a view to coerce her or any person related to her to meet an unlawful demand for any property amounts to cruelty. Physical violence is not absolutely essential to constitute cruelty. A consistent course of conduct inflicting immeasurable mental agony and torture will amount to cruelty.

13. The evidence adduced on behalf of both sides indicating that the petitioner/ husband is able to show that the attitude of respondent (wife) exposed him to cruelty/ harassment sufficient to seek relief of dissolution of marriage. Further, the findings of the learned Judge, Family Court are found sound, legal and logical. Therefore, this Court finds that there are no grounds to interfere with the order and decree dated 18.11.2008 passed by the learned Judge, Family Court, Vizianagram. Point Nos.1 and 2 answered accordingly.

Point No.3:

14. In view of the findings under Point Nos.1 and 2, the appeal is liable to be dismissed.

15. In the result, appeal is dismissed. There shall be no order as to costs.

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