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CASE NO.

C.M.A No. 1059 of 2010

ADVOCATES

Counsel for the appellant: Sri. U.V.S Laur

Counsel for respondent: Sri. Bommanayuni Appa Rao

JUDGES

L. Narasimha Reddy

M.S.K Jaiswal, JJ.

ACTS

No Acts

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 P. Jayaram v. Smt. P. Sudha Laxmi Andhra Pradesh High Court Nov 26, 2013
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P. Jayaram v. Smt. P. Sudha Laxmi

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P. Jayaram v. Smt. P. Sudha Laxmi

L. Narasimha Reddy, J.
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1. The marriage between the appellant and the respondent took place on 30-11-2002 and they
are also blessed with a child in the year 2004. Thereafter, the parties are living separately.
While according to the appellant, the respondent left his house at the time of delivery of child
and did not turn up, the version of the respondent is that the appellant deserted her and did
not take her back in spite of repeated requests. Alleging that the respondent resorted to acts of
desertion and cruelty, the appellant filed O.P. No. 91 of 2006 in the Court of Senior Civil
Judge, Sanga Reddy. He pleaded that soon after the marriage, the respondent started
harassing him to put up a separate residence in spite of the fact that he is the only son to his
old parents, who are suffering from various ailments and that though a separate residence was
established, the respondent did not turn up. He pleaded that the acts of the respondent have
also caused untold agony to his parents. Ultimately, he pleaded for decree of divorce.

2. The respondent filed a counter opposing the O.P. She pleaded that at the time of marriage,
quite a considerable amount was given in cash and valuable articles were also presented that
included two kilograms of silver articles. She pleaded that the appellant insisted that soon
after the delivery of their child, she should come back despite the promise of her parents that
as soon as her health becomes stable and customary functions are over, she would be sent.
Reference was also made to the correspondence that ensued in this regard. She pleaded that
the elder sister of the petitioner is the root cause for the disturbances in the family and unable
to bear the harassment, separate residence was put up. She stated that when the appellant did
not evince interest to take her to the matrimonial home, she filed a maintenance case and
despite the order passed therein, the appellant did not pay the amount. She further pleaded
that unable to bear the harassment, she filed a complaint, which was taken on file before the
concerned Court, for the offence punishable under Section 498A IPC.

3. The trial Court dismissed the O.P. through order dated 30-06-2010. Aggrieved by that, the
appellant preferred this appeal.

4. Sri U.V.S. Laur, learned counsel for the appellant, submits that ever since the performance
of the marriage, the respondent was reluctant and she was living with the appellant, almost
under compulsion. He contends that being the only son to his parents, the appellant was under
the obligation to look after them, but on account of the insistence by the respondent, he had to
put up a separate residence. Learned counsel further submits that though the respondent went
to her parents' house in Adilabad for delivery, she did not come back in spite of repeated
efforts. He contends that the respondent filed a complaint under Section 498A IPC with false
and frivolous allegations and the same ended in acquittal. According to him, filing of such
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cases would also amount to an act of cruelty. He submits that the trial Court did not properly
appreciate the oral and documentary evidence particularly that of the counsellor, who made
an attempt to bring about reconciliation.

5. Sri Bommanayuni Appa Rao, learned counsel for the respondent, on the other hand,
submits that the appellant and his sister were harassing the respondent from the inception of
the marriage itself. He submits that even in respect of a customary practice in the community,
where the nuptials are arranged on the 16th day of the marriage, the appellant made a big
issue of it causing humiliation to the respondent and her family. He submits that after the
respondent went to her parents' house for delivery, the appellant did not evince any interest
despite the fact that the father of the respondent informed the appellant that she would be sent
as soon as her health stabilises.

He contends that neither the ground of cruelty nor of desertion is proved and that if the
parties are living separately, it is only on account of the highhandedness and indifference on
the part of the appellant.

6. The trial Court framed only one point for its consideration viz., whether the appellant
herein is entitled for dissolution of his marriage against the respondent on the ground of
cruelty and desertion?

7. The appellant adduced the evidence of PWs. 1 to 4 and he filed Exs. A-1 to A-8. On behalf
of the respondents, RWs. 1 and 2 were examined.

8. Two grounds are pleaded by the appellant as the basis for seeking divorce against his wife,
the respondent herein.

9. The point that arises for consideration before us is as to "whether the appellant has proved
the grounds of cruelty and desertion?"

POINT:

10. The acts of cruelty alleged by the appellant against the respondent are not specific. It is on
the basis of vague and general allegations he felt that there exists the ground of cruelty. Even
in the absence of such specific acts, a party, in a given case, can establish cruelty. The test is
whether the cumulative effect of acts and omissions on the part of the spouses created a sense
of humiliation, insecurity and harassment in the other spouse. Therefore, the matter needs to
be examined from that angle.
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11. The appellant pleaded that the respondent did not extend cooperation even for conducting
nuptials. Another facet of his allegations is that the respondent insisted on putting up a
separate residence. Lastly he cites the filing C.C. No. 522 of 2008 as an act constituting the
cruelty. That the marriage was consummated between the parties, is not in dispute. The haste
or impatience on the part of the appellant was only about the time that took place between the
nuptial ceremony and the marriage. The respondent pleaded that according to the customs in
their community, it is only on the 16th day, that such arrangement is made. The appellant is
not at all contradicting it, and one just cannot understand the mind set of the appellant.

12. Coming to the question of insistence of establishment of a separate family, it is the

specific case of the respondent that the sister of the appellant, who is residing with her
parents and brother, is root cause for harassment. The very fact that such a separate residence
was put up that too in the proximity of the parents' house of the appellant, demonstrates that
the appellant was also convinced that it is not at all congenial for them to live in the house of
his parents. There is nothing on record, which discloses that the respondent had ever
exhibited any disrespect towards the parents of the appellant. The specific plea raised by the
respondent that the sister of the appellant was harassing her, remains unexplained.

13. It is no doubt true that in certain cases, the Hon'ble Supreme Court took the view that
filing of complaint under Section 498A IPC with patently false allegations would, by itself,
constitute an act of cruelty. Much, however, depends upon the persistence with which such
matters are pursued. In the instant case, the record discloses that the appellant do not evince
any interest to bring his wife and the new born baby to his house, that too, in spite of the
written and oral requests made by the respondent and her family members. Under those
circumstances, any person in the place of respondent would certainly submit a complaint
under Section 498A IPC. It is a different matter that the criminal case ended in acquittal, as is
true with 95% of such cases. Unless it is proved by the appellant that the very filing of the
complaint was motivated and aimed at harassing the family, it cannot be treated as a basis,
constituting cruelty.

14. We, therefore, do not find that the respondent has exhibited cruelty towards the appellant
and the finding of the trial Court does not warrant interference.

15. Coming to the ground of desertion, a party to a marriage can certainly seek divorce on the
ground of desertion, if she or he demonstrates that the other spouse left the company without
any justification. Basic requirement in such cases is that the one who complains of desertion
must demonstrate that he or she was willing to live with the other spouse and that the latter
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living separately on account of his or her disinclination. In the instant case even according to
the appellant, the respondent went to her parents' house in the year 2005 for delivery and
there is nothing on record to disclose that he made an attempt to bring her back. It is
customary in the families to which the parties belong that the father of the child and his
family must bring the mother and the child to the matrimonial home. That did not occur.
When the appellant made a halfhearted attempt, the father of the respondent promptly
addressed a letter expressing the view that the respondent would be sent on completion of
fifth month from delivery. No attempt was made by the appellant thereafter. His remaining
quiet appears to be only with a view to create a ground for desertion.

16. We find that if the respondent is living separately from the appellant together with the
minor child, it is squarely on account of the gross negligence or disinclination on the part of
the appellant to live with the respondent. Due to lack of love and affection on the part of the
appellant towards the respondent or their child, not only he did not care to bring them to his
house, but also refused to pay the maintenance that was awarded by the trial Court. The
appellant miserably failed to prove the ground of desertion also. The point is, accordingly,
answered against the appellant and in favour of the respondent. The appeal is, accordingly,
dismissed with costs of Rs. 10,000/- (Rupees ten thousand only) payable to the respondent by
the appellant. The Miscellaneous Applications filed in this appeal shall stand disposed of.

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