REKHA Vs. B SUSILENDRA

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is directed against order dated 08.04.2002 passed in O.P. No. 273 of 1999 by the learned Judge, Family Court, Hyderabad, whereby the petition filed by the respondent-husband under Section 13(1)(ia)(ib) and (iii) of the Hindu Marriage Act, 1955 (for brevity "the Act") for dissolution of the marriage, was allowed. The wife filed this appeal.

(2.) For the sake of convenience, the parties are referred to as they are arrayed in O.P. No. 273 of 1999.

(3.) The marriage between the petitioner-husband and the respondent-wife was solemnized on 09.07.1989 as per Hindu customs and rites. Immediately after the marriage, the respondent joined him at matrimonial home at Ramkoti in the joint family house of the petitioner consisting of his parents and his younger brother and started insisting the petitioner on setting up separate family. While so, during pregnancy, the respondent went to her parents' house and gave birth to a baby-girl on 09.08.1990, and later she stayed hardly for four months with the petitioner at Ramkoti. In December, 1990, she abruptly left the company of the petitioner for her parents' house with the child even without informing him. When the petitioner went to the respondent to take her back, she refused to join him. In March, 1991, the petitioner was allotted Government quarters at Bhanur campus of BDL defence unit, where she joined him on 26.3.1991, but again started insulting him in the presence of his friends and superiors commenting that the quarters is situated in jungle area, and left his company within five days. Having no alternative, the petitioner vacated the quarters and came back to his house at Ramkoti and stayed with his parents waiting for his wife to turn up, but she did not come. Then, he filed O.P. No. 228 of 1991 for divorce. However, on her assurance to live with him peacefully, and on the advice of the elders and in the welfare of the child, compromise effected between them, and he got dismissed the O.P. on 18.12.1992 and shifted his residence to Nallakunta, where she joined him on 05.03.1993 and lived hardly for nine months, but with no change in her attitude and with cruel treatment. She never even attended cooking, and she used to sleep separately, go out without informing him, come back home during late hours, pick up quarrels, shout loudly causing disturbance and nuisance to neighbours and hit him with chappals even before outsiders. Therefore, the owner of the house at Nallakunta asked them to vacate the house, as such, the petitioner shifted his residence to another house at Jambagh at her request, and lived together for three months, where also she continued the same ill-treatment and abruptly left his company along with the child on 05.04.1994 without informing him. Therefore, the petitioner filed O.P. No. 1170 of 1994 for divorce, which was transferred to another Court and renumbered as O.P. No. 1043 of 1995, but again at the intervention of elders, the matter was compromised, as a result, it was dismissed on 25.6.1996. In spite of her assurance and mediation and withdrawal of O.P. No. 1170 of 1994 by the petitioner for the second time, she did not join him nor did she talk to him nor allow him to the see the child. As she continuously deserted him since 05.04.1994 with animus deserende, the petitioner filed O.P. No. 273 of 1999 seeking divorce. The respondent filed counter affidavit inter alia denying the allegations made in the O.P. and stated that the parents of the petitioner are hale and healthy. After the marriage, she stayed with the husband in the joint family consisting of the petitioner's eldest sister and her daughter, his parents, his brother's family, and his second and third sisters till 01.02.1991, on which day, when her father was going to Bombay for three days, she requested the petitioner to allow her to go to her parents' house at Jambagh to stay with her mother, who was staying alone, for which, the petitioner created a big scene though ultimately agreed to send her. In December, 1991, the petitioner visited the house of her parents, and with an intention to set up separate family, both of them searched for a house for rent and the landlord fixed rent, and the petitioner promised the landlord to come again and pay advance, but he did not turn up. She states that she is always ready and willing to join him to lead happy marital life, but he is not providing her any opportunity. The petitioner knows that she was doing M.Phil while they were living together at Nallakunta, and thereby, she was attending classes in the morning and returning home by 4.00 p.m. Again, she joined him at Jambagh and lived for four months during 01.12.1993 to 05.04.1994. She states that the petitioner was not paying the rents regularly to the landlord before the stipulated date of 10th of every month, and on 05.04.1994, during her absence, the petitioner came along with his mother and one Jayaprakash started packing all the belongings. When the respondent was at Vivek Vardhini College, where she was working, the landlords' wife sent word to her, thereupon, the respondent rushed to the house and objected the petitioner to packing the material, but he kept silent, and his mother and Jayaprakash asked the petitioner to accompany them, and the petitioner, though he said that he was unwilling to go, went with them with some luggage. Then, the respondent alone continued to stay in that premises for one more month hoping that the petitioner would join her, but he never came back. She states that she never herself deserted him nor ill-treated him during their stay nor he suffered cruelty in her hands much less during 09.07.1989 to 09.04.1999.