CMA/114/2002 of AYYAGARI VISWESWARA RAO Vs AYYAGARI LAKSHMI SUBHADRA on 29 December 2009

HON’BLE SRI JUSTICE B. PRAKASH RAOandHON’BLE SRI JUSTICE G. BHAVANI PRASAD

C.M.A. No. 114 of 2002

DATED: 29.12.2009

Between:

Ayyagari Visweswara Rao .. Appellant

And

Ayyagari Lakshmi Subhadra .. Respondent

JUDGMENT:- (Per Hon’ble Sri Justice G.Bhavani Prasad)

The dismissal of the appellant’s request for grant of divorcemade in O.P. No. 46 of 1998 on the file of the Additional Senior CivilJudge, Srikakulam, by the order dated 29.04.2000, led the aggrievedhusband to file the present appeal.

The appellant approached the trial Court with a request fordissolution of his marriage with the respondent, which took place on12.06.1993. He claimed that the marriage was consummated on thesame day and the husband came to know that the wife was a chronicasthma patient which was suppressed till the marriage. When thecouple lived together, a daughter was born to them in October, 1994and her second pregnancy was aborted in the 3[rd] month. After suchabortion, the wife continued to stay in her brother’s house for fivemonths and failed to come back, and since her return later to thehusband, the wife started behaving in an unruly manner with thehusband, and she developed hatred against the husband and hisparents for no reason. She was harassing the husband physically andmentally and was alleging that the husband had illicit intimacy withone Satyanarayanamma. The appellant further alleged that the wifewas giving petitions against him to the higher officials and ultimatelygot a notice issued with false allegations on 03.05.1996. The husbandalso came to know that the wife took away cash, gold ring and otherornaments when she left the house and when he issued a telegraphicnotice, it was not received by the wife. The husband attributed failureof the marital life to the conduct of the wife, and desertion, harassmentand cruelty are the grounds for divorce. He filed the petition after exchange of notices between the couple.

The wife contended in her counter that the termination of thesecond pregnancy was against her will and at the instance of thehusband. Since then, her health deteriorated and she claimed that shewas left unattended at her parents’ house and also alleged that thehusband developed illicit intimacy with one M.Nirmala. She claimedthe other members of the family of the husband also to be responsiblefor the harassment and separation and her being necked out of themarital home in 1996, and she also claimed that since then, she andher children were neglected and refused to be maintained by thehusband. Hence, she desired the divorce petition to be dismissed.

During the enquiry, the trial Court had examined PWs.1 to 4 andRWs.1 to 6 and marked Exs.A1 and A2, Exs.B1 to B3 and Ex.X1.

The trial court rendered the impugned order observing that therewas absolutely no evidence to prove that the wife behaved adamantlywith the husband or that she was suffering from any disease or ill-health. The trial Court considered the evidence of PW2 about thepurchase of medicines by the couple from the shop to be insufficient toprove any such sickness as alleged by the husband and furtherobserved that the husband failed to give any details of the ornamentsor cash said to have been taken away by the wife while going awayfrom his house. The trial Court was of the opinion that when thehusband failed to prove that the wife obtained key from the owner ofthe house and took away the cash, gold, etc. that aspect cannot beconsidered proved. In the absence of an iota of evidence, on any ofthe allegations made against the wife, the trial Court preferred toaccept the evidence of the wife as corroborated by the evidence ofRWs.2 to 6 about the harassment by the husband. It also referred tothe clear statement made by the husband in his cross-examination that he was not willing to take back his wife even ifshe agreed to live with him as indicating that the desertion was by thehusband and not by the wife. Therefore, the trial Court considered that the husband failed to prove his entitlement to a decree of divorce, anddismissed the petition with costs.

The grievance of the husband in this appeal against theimpugned order is about the approach of the trial Court to the facts andevidence before it and it is his contention that the desertion clearlyprobablized by the evidence on record made any continuance of themarital life impossible. The husband also contended that thesubsequent events after filing the divorce petition like the filing ofcriminal case and a petition for maintenance also should have beentaken into account, and the husband claimed that the trial Court shouldhave therefore granted a decree for divorce.

Sri E.V.S. Venu Gopal representing Sri P.V.S.S.S. Rama Rao,learned counsel for the appellant and the learned counsel for therespondent are heard.

The only point for consideration is whether the husband hadprobablized any justification for the grant of divorce in his favour?

Conclusion

The relationship between the parties, the consummation of themarriage and their living together for a considerable time during thecourse of which they had a daughter, are not in dispute. It is also not indispute that the wife became pregnant the second time and that thesecond pregnancy was aborted in the 3[rd] month. It is, thus, clear thattill then, this couple had apparently no disputes or differences betweenthemselves and if the wife was found to be a chronic asthma patientimmediately after the marriage, which was suppressed from thehusband, the same would have led to consequential questioning of thesuppression of such fact by the husband through some means whichtype of evidence was not alleged or proved. The unruly behaviour ofthe wife as against the husband since the return of the wife from thehouse of her brother after about five months was not alleged or shownto be for any specific reason, and in the ordinary and natural course ofhuman events, it cannot be presumed that a rustic house-wife with atender daughter to look after would have picked up a quarrel with the husband for no reason after living with him for a considerable time. The illicit intimacy between the husband and Nirmala alleged by thewife was attempted to be denied by the husband and it is true that thetrial Court did not give any positive finding about the truth or otherwiseof such complaint, but insofar as the finding of the trial Court about theabsence of proof of the alleged incident during which the wife tookaway the cash, gold and other ornaments from the house of thehusband between 3[rd] and 5[th] May, 1996 is concerned, it is clear that itwas not probablized by any positive evidence. The mere failure of thewife to prove the alleged illicit intimacy of the husband with anotherlady will not be material on the facts and circumstances of thisparticular case in view of the fact that the husband positivelyexpressed that he will not take back the wife even if she was ready tocome back to him, during the evidence before the trial Court. The trialCourt took into consideration the evidence adduced by both the partiesand after seeing the witnesses in flesh and blood, had considered theevidence of PWs.1 to 4 to be not such as inspiring confidence of theCourt about the truth of such version. The finding of the trial Court thatthere was absolutely not an iota of evidence about the allegationsmade by the husband against the wife cannot be deviated from underthe circumstances, more so, in the light of the absence of positivecorroboration to the claims of PW1 against the claims of RWs.1 to 6. Inthe absence of any proof of harassment or cruelty by wife against thehusband and in the absence of any proof of desertion by the wifeherself, the husband cannot be considered to be entitled to a decree ofdivorce from the wife and this Court has to concur with the trial Court inthis regard.

Accordingly, the Civil Miscellaneous Appeal is dismissed. Nocosts.

___________________

B. PRAKASH RAO,

J

29[th] December, 2009

____________________

PRASAD, J

G. BHAVANI

bcj