CMA/1839/2003 of K. Suvarnamma Vs G. Siva Reddy on 30 December 2010

THE HON’BLE SRI JUSTICE N.V. RAMANAANDTHE HON’BLE SRI JUSTICE B.N. RAO NALLAC.M.A. No. 1839 of 2003

Judgment: (Per N.V. Ramana, J.)

This C.M.A. is directed against the order dated 04.03.2003passed by the Senior Civil Judge, Penukonda, allowing the petition inO.P. No. 37 of 2001, filed by the respondent under Section 13(1) and(1b) of the Hindu Marriage Ac, 19545, for dissolution of his marriagewith the appellant, by a decree of divorce.

The learned counsel for the appellant-wife submitted that sincethe respondent-husband was living with another woman, the appellanthad reasonable cause to live separately from the respondent, but theCourt below without considering the said aspect, has committed agrave error in holding that the appellant deserted the respondent, andallowing the O.P. filed by the respondent, seeking dissolution of hismarriage with the appellant, by reason of the order under appeal. Hence, he prayed that the order under appeal be set aside and theC.M.A. be allowed.

The learned counsel for he respondent-husband, on the otherhand, submitted that as the appellant-wife without any reasonablecause, left the society of the respondent and deserted him, the Courtbelow has rightly allowed the O.P. filed by the respondent fordissolution of his marriage with the appellant, by reason of the orderunder appeal, and no interference is called for therewith. He thusprayed that the C.M.A. be dismissed.

Heard the learned counsel for the appellant-wife and thelearned counsel for the respondent-husband and perused the order under appeal.

The facts that are not in dispute are - the appellant and therespondent got married, and out of their wedlock, they are blessed withtwo children, a daughter and a son. The daughter is married, while theson is studying, and he is being educated by the respondent.

While so, alleging that the appellant deserted and is stayingaway from him, the respondent filed the present O.P. The appellantcontested the O.P. stating that the respondent subjected her toharassment, and forced her to give consent for second marriage, andwhen she refused, he drove her out of the house and is living withanother woman, and therefore, she is living separately. The Courtbelow upon considering the evidence placed by the respective parties,disbelieved the version of the appellant, and on the ground that shedeserted the respondent without any reasonable cause, allowed theO.P. filed by the respondent and granted decree of divorce by reasonof the order under appeal.

Though the appellant contended that she did not desert therespondent, and that as the respondent was living with anotherwoman, she was forced to live separately, the fact remains, the Courtbelow upon appreciation of the evidence, found that the appellantherself has admitted that she voluntarily left the company of therespondent, and that though she stated that the respondent washaving illicit relationship with another lady, she did not name who thewoman is. However, the appellant without pleading in her counter, inher evidence stated that the respondent after the death of hiscolleague, namely Narayana Reddy, developed illicit intimacy with hiswife, namely Aswarthamm, and is living with her, and that both of themhad driven her out of the house. If really, both the respondent and thesaid Aswarthamma, had driven her out of the house, nothing prevented

the appellant from taking such plea in the counter, but admittedly, theappellant has not taken any such plea in the counter, in the absence ofany such pleading in the counter, the Court below disbelieved theversion of the appellant, that she was driven out of the house by therespondent, and more so when the appellant herself admitted that shevoluntarily left the company of the respondent. The appellant, itappears, has made this improvement in her evidence, taking note ofthe admission made by the respondent in his evidence that his familyand the family of his colleague was living in one house. However, therespondent in his cross-examination has stated that his family and thefamily of his colleague, are living in separate portions of the samehouse. The Court below found that merely because the family of therespondent and the family of his colleague are living in the samehouse, it cannot be said that the respondent was having illicitrelationship with the wife of his colleague after his death, particularlywhen they were said to be living in separate portions in the samehouse. Thus the Court below came to the conclusion that theappellant deserted the respondent, and that the desertion was three tofour years prior to the filing of the present O.P. for divorce and that itcontinued till the date of its filing, and having come to such conclusion,by reason of the order under appeal, allowed the O.P. filed by therespondent and dissolved his marriage with the appellant by grantingdecree of divorce, and we find no reason whatsoever to interferetherewith, particularly when the same is based on proper appreciationof the evidence on record.

The C.M.A. is devoid of merit, and the same is accordinglydismissed. No costs.

Dated: 30[th] December, 2010.

KSR

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N.V. RAMANA, J.

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B.N. RAO NALLA, J.