Sreenivasa vs Smt. Chandramma

K.L. Manjunath, J.—The appellant is questioning the legality and correctness of the judgment and decree passed by the Civil Judge (Sr. Dn.) & JMFC, Sira dated 14.9.2011 in M.C. No. 30/2009, wherein the petition filed by the appellant-husband for grant of decree of divorce on the ground of cruelty against the respondent-wife has been dismissed. Heard the parties. The facts leading to this appeal are as hereunder:

The marriage between the parties was solemnised on 27.4.1997 at Komarenahalli village in Madakasira Taluk in Andhra Pradesh. In the marriage, they have a son by name Vishnu Gowda, who born in the year 1998. According to him the respondent has contracted heavy debt raised to a tune of Rs. 4,00,000/- and that the respondent is in the habit of selling arecanut, coconut, paddy and other agricultural produces from the house of the appellant to the villagers contending that creditors of the respondent every now and then coming near the house demanding for repayment of debt borrowed by her amounts to cruelty, filed the petition.

The respondent filed detailed objections. According to her she has not borrowed any loan. She was also neither in the habit of selling agricultural produces which were at home to any villagers. According to her, at the instance of the parents of the appellant, and his brothers a case has been filed against her and it is also her case that the appellant was ill treating and assaulting her and he neglected to maintain her as a dutiful husband. Therefore, she requests the court to dismiss the petition.

To prove the respective contentions, in all four witnesses were examined on behalf of the appellant. Amongst them, P.W. 1 is the appellant. P.W. 4 is the minor son of the parties. P.W. 2 and 3 are the close friends of the appellant. He relied upon the genealogical tree and birth certificate of the son as Ex. P.1 and P.2 The respondent got herself examined as R.W. 1. She relief upon Ex. R.6 to R8.

The trial court formulated the following points for its consideration.

i) Whether the petitioner made out a ground for dissolution of their marriage dated 27.4.1997 against the respondent?

ii) What order?

The trial court after appreciating the evidence, let in by the parties came to the conclusion that the appellant herein has failed to prove that the respondent wife was in the habit of borrowing loan from the villagers and relatives and on account of the same, the creditors of the respondent used to come near the residence of the appellant demanding for return of the amount. Accordingly, the petition came to be dismissed. Challenging the same, the present appeal is filed.

Mr. Hanumantharayappa, counsel for the appellant, relating to the ground urged in the appeal memo contends that the appreciation of the evidence by the court below is erroneous. According to him, the evidence of P.W. 2 to P.W. 4 have not been considered in a prospective manner. According to him there was no reason for the son of the parties to depose against his mother. In the circumstances, he requests the court to allow the appeal.

Per contra, learned counsel for the respondent submits that the appellant has failed to prove the case made out by him to consider his case either as a cruelty or as desertion. In the circumstances, he requests the court to dismiss the appeal.

We have perused the evidence let in by the parties. We have also perused the judgment of the trial court in order to find out "Whether the appreciation of the evidence by the trial court is proper or not?

Admittedly, none of the witnesses examined on behalf of the appellant were unable to say that from whom the respondent has borrowed loan and the reasons for borrowing the same. The evidence of the son cannot be considered because son is with the appellant and that the respondent is residing with his parents is a tutored evidence. Moreover, he is a minor. He has also given evidence about from whom his mother has taken loan. When the main ground of attack to secure a decree of divorce is only the contracted debt by the respondent is not proved, the question of granting decree of divorce on the said ground does not arise at all. In the circumstances, we are of the opinion that the appreciation of evidence by the trial court cannot be held to be perverse or not in perspective. But according to us, the appreciation of evidence is based on proper reasons. In the result, the appeal is dismissed.