Poornima vs L.Ravi Kumar

1 Heard Sri S. Raghuram, learned counsel representing Smt. K. Sri Devi, learned counsel for the appellant and Sri Sreenivasa Rao Velivela, learned counsel for the respondent.

Challenging the order and decree dated 19.08.2010 in F.C.O.P.No.400 of 2008 passed by learned Judge, Family Court, Secunderabad, dismissing the relief sought by appellant-wife for dissolution of marriage, she preferred the present appeal.

Appellant-wife has filed F.C.O.P.No.400 of 2008 against respondent-husband under Sections 13 (1) (1a) and 26 of Hindu Marriage Act, seeking divorce on the ground of cruelty and also for custody of the minor child on the following grounds:-

(i) The marriage of the appellant with the respondent was performed on 24.05.1997 as per Hindu rites and customs at Vijayawada.

(ii) The marriage was consummated and they blessed with a female child on 30.08.1998.

(iii) The father of the appellant and the father of the respondent are close friends and hence they mooted the alliance of the appellant with the respondent. It is an arranged marriage.

(iv) The mother of the respondent visited the appellant to see the child and informed that she is not willing to assist her in looking after the child. Therefore, appellant left her daughter at her parental house and joined the respondent.

(v) The respondent, his parents and his sisters started harassing her by beating, abusing, nagging, by calling her as beggar and in many other ways compelling her to bring additional amounts from her parents. As per the demand of the respondent and his parents, she brought her back one year child from her parental house.

(vi) She was compelled to discontinue her studies. However, she completed her graduation and post graduation. (vii) Thereafter, meetings among the elders to resolve the issue between the appellant and the respondent were held.

(viii) The appellant requested to set up a separate residence in view of unbearable harassment from her in-law. Accordingly, the respondent has taken a separate house.

(ix) The mother and the sister of the respondent started abusing her even in functions and casting aspersions on her character and picturising her as a woman with dubious character. Even then, respondent remained as a silent spectator and did not protest the said harassment.

(x) The respondent started making enquiries with the appellant about the property presented by her parents at the time of marriage and insisted her to transfer the property in his name. However, appellant refused to do the same. Respondent abused her in filthy language and bet her black and blue.

(xi) In view of the unbearable harassment of the respondent, she consumed sleeping pills and admitted into hospital by her parents. The respondent or his parents did not care to visit her at hospital.

(xii) Appellant father died in the year 2005 due to mental agony. The respondent started harassing her in a different way and started suspecting her.

(xiii) The appellant further stated that she found herself a job in Bangalore in the year 2006-07. The respondent made a complaint to the employer of the appellant and spoke in bad terms about her, due to which she resigned to the job and left  Bangalore and came to Hyderabad. Since then she started living under the care and custody of her maternal uncle Satyanarayana. She tried through her elders and relatives for reconciliation with the respondent so that they can lead a peaceful life for the benefit of the child.

(xiv) The appellant further contended that she is highly educated and capable of earning. Thus, according to her, respondent subjected her to cruelty and being mother, she is entitled for custody of the child.

The respondent filed counter affidavit denying the said allegations and contended as follows:-

(i) He never subjected the appellant to cruelty as alleged by her.

(ii) He joined his daughter Niharika in Nirmala High School. He performed all the death religious ceremonies of the appellant’s father. He never demanded any money or property from the appellant.

(iii) After completion of her studies, the appellant started avoiding his company and even used to refuse for any conjugal relationship and used to say that the respondent is after all studied intermediate and she is a post graduate. He never suspected her character as alleged. He never made any complaint with her employer at Bangalore as alleged.

(iv) On 03.01.2008, appellant along with her relatives and elders came to Vijayawada and after reconciliation talks, at last, the appellant agreed and promised to come back to Vijayawada and join the respondent and daughter for leading marital life. He also suggested that appellant can do job. But, she did not keep up her promise.

(v) The appellant developed superiority complex and egoism after joining employment and because of her earnings. He has great love and affection towards the appellant and their daughter.

To prove the said allegations of cruelty, appellant-wife examined herself as PW.1 and mediator-relative as PW.2, whereas, respondent examined himself as RW1 and his friends as RW.2 and RW.3. The appellant filed Ex.A1 to Ex.A5 documents and whereas respondent did not mark any documents.

On consideration of entire evidence both oral and documentary, vide impugned order dated 19.08.2010, learned Family Court allowed the said O.P in part and dismissed the O.P in so far as relief sought by the appellant-wife seeking dissolution of marriage on the ground of cruelty and however, allowed the said application giving custody of the minor child to the appellant.

Ex.A3 is the complaint lodged by appellant-wife against the respondent-husband dated 11.08.2007, Ex.A4 is the receipt of the police complaint made against the respondent dated 26.12.2007 and Ex.A5 is the notice issued by the respondent to the appellant dated 27.08.2008.

Feeling aggrieved by the said order in so far as dismissing the relief sought by her seeking dissolution of marriage on the ground of cruelty, appellant-wife preferred the present appeal on the following grounds:-

(i) Learned Family Court failed to consider that matters relating to the matrimonial disputes does not require evidence beyond reasonable doubt and it is settled law and the same can be decided on preponderance of probabilities.

(ii) Learned Family Court failed to consider the strained relationship between the appellant and respondent.

(iii) Learned Family Court failed to consider the cruel acts committed by respondent as narrated by her and supported by PW.2-mediator.

(iv) Learned Family Court failed to appreciate that the respondent suspected her character and harassed her during her stay in Hyderabad which compelled her to move to Bangalore

(v) Learned Family Court failed to appreciate that the respondent used to leave the house for several days on business as admitted by him in cross-examination as RW.1 and also she was left to take care of herself and her child. The said aspects were not considered by the learned Family Court while rejecting the relief sought by her seeking dissolution of marriage on the ground of cruelty.

Whereas, it is the specific contention of the respondent that learned Family Court on consideration of entire evidence both oral and documentary dismissed the relief sought by appellant-wife seeking dissolution of marriage on the ground of cruelty. Their daughter is aged about 25 years. However, learned Family Court granted visitation rights. She did not prefer any appeal challenging the impugned order granting custody of the child to the respondent-husband.

It is opt to note that learned Family Court considered the evidence on record both oral and documentary. In paragraph No.23 of

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the impugned order learned Family Court gave a specific finding which is as follows:-

“PW.1 further stated that she is not ready to join with the respondent though he is ready to gift all his property in the name of his daughter and ready to give the unconditional undertaking to look after her well. The appellant expressed unwillingness to join with the respondent even he is ready to gift all his property and ready to given unconditional undertaking, but no valid reasons were given by the appellant for her separate living.”

Learned Family Court also considered the documents filed by parties and also depositions of RW.2 and RW.3. Learned Family Court further held that for 11 years, the couple resided together for most of their matrimonial life and gave birth to a female child and now the child is aged about 12 years. Appellant wants to live separately and dispute between the parties is the employment of the appellant at Hyderabad. The appellant filed the present petition to justify her separate residence at Hyderabad and no grounds were made out by the appellant for seeking divorce on the ground of cruelty.

Learned Family Court gave a further finding that even assuming for a moment that there was any cruelty on the part of the respondent-husband as alleged by the appellant-wife, the subsequent reunion of the couple till 2008 would amount to condonation by the wife of the previous acts of the husband and cruelty, if any, on the part of the husband for the reason that according to the appellant, in the year 2006 she left for Hyderabad. Even according to her, since 2008 they have been living separately. The acts prior to that can be treated as condoned by the appellant.

Thus, the impugned order to the extent of denying relief sought by appellant-wife seeking dissolution of marriage on the ground of cruelty is a reasoned order and well founded. It does not require interference by this Court in the present appeal.

In Jayachandra vs. Aneel Kaur AIR 2005 SC 534, Hon’ble Apex Court held as under:

10.The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial dispute.

In Vinita Saxena v. Pankaj Pandit AIR 2006 SC 1662, Hon’ble Apex Court held as under:-

It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.

The word “cruelty” has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

As discussed supra, appellant herein failed to prove the cruelty by producing relevant evidence. The acts stated by the appellant does not amounts to cruelty.

It is opt to note that learned Family Court granted custody of the minor child to the appellant herein. Vide impugned order, learned Family Court gave a finding that respondent is permitted to visit the child as per the previous order. Respondent herein did not prefer any appeal challenging the said impugned order to the extent of granting custody of the minor child to the appellant.

As discussed supra, their daughter was born on 30.08.1998 and she is aged about 25 years. We have also interacted with the appellant, respondent and their daughter. Learned Family Court also interacted with the parties and their daughter and also conducted conciliation proceedings.

In the light of the aforesaid discussion, the appellant herein failed to make out any case to interfere with the impugned order. It is a reasoned order and well founded order in so far as denying the relief of dissolution of marriage sought by appellant-wife against respondent-husband on the ground of cruelty. This appeal is liable to be dismissed and accordingly it is dismissed. There shall be no order as to costs.

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