Unsubstantiated allegations of cruelty made in a counter-affidavit, if put to an issue and not substantiated by evidence, can amount to mental cruelty and entitle the petitioner to a decree of divorce.

M. Satyanarayana Murthy, J.

1. Aggrieved by the dismissal order dated 19.01.2004, passed in H.M.O.P. No. 6 of 1999 on the file of the Court of Senior Civil Judge, Avanigadda, Krishna District (For short, 'the trial Court'), the unsuccessful petitioner therein preferred this Appeal. For convenience of reference, the ranks given to the parties in H.M.O.P. No. 6 of 1999 will be adopted throughout this judgment.

2. The petitioner (husband), who is appellant herein, filed Petition against the respondent (wife), under Section 13(1)(ia) of Hindu Marriage Act, 1955 (For short, 'the Act') for grant of decree of divorce, dissolving the marriage between the petitioner and respondent, alleging that their marriage was performed on 21.05.1994, at the residence of the respondent's parents in Kosuruvaripalem village, as per Hindu rites and customs. At the time of marriage, parents of the respondent gifted Ac. 2.00 cents of fertile land and Rs. 40,000/- towards pasupukunkuma to the respondent and the said amount and property is kept in possession of father of the respondent for improvement. The respondent used to visit her parents occasionally, even without informing the petitioner. When the petitioner requested the respondent to undergo medical examination for not begetting children, respondent and her parents bluntly refused to the request. The respondent and her parents ill-treated and harassed the petitioner on several occasions, in the presence of general public and treated him as their farm servant. The respondent abused, insulted and humiliated the petitioner on several occasions. Father of the respondent beat the petitioner on 27.06.1997; thereupon, the petitioner submitted a report to the S.H.O., Avanigudda P.S. against father of the respondent and on account of mediation, the matter was compromised. Subsequently, at the instance of respondent and her father, petitioner set up a separate family, but the respondent did not change her attitude and treated the petitioner cruelly. Hence, sought for decree of divorce dissolving the marriage between the petitioner and respondent.

3. The respondent filed counter admitting the marriage, marital relationship between her and the petitioner including consummation but denied the alleged acts or omissions attributed against her, more particularly, abusing, humiliating the petitioner and harassing the petitioner in any manner, which amounted to cruelty.

The marriage between the petitioner and the respondent was consummated; they led happy marital life for two years. Subsequently, the respondent was subjected to both physical and mental cruelty by the petitioner and his parents. As she failed to meet the illegal demand of additional dowry, though out of the alleged dowry amount of Rs. 75,000/-, an amount of Rs. 40,000/- was paid by father of the respondent on the date of marriage and later Rs. 35,000/-, the petitioner and his parents harassed the respondent for additional dowry and not begetting children, which was not due to fault of the respondent, but expressed her readiness and willingness to lead marital life and carry pregnancy, finally prayed to dismiss the Petition.

4. During course of enquiry, on behalf of the petitioner P.Ws. 1 to 5 were examined and Exs. A-1 to A-8 were marked. On behalf of the respondent, P.Ws. 1 to 4 were examined and marked Ex. B-1.

5. The sole point framed by the trial Court for consideration is as follows:

Whether the petitioner/husband is entitled for grant of divorce for the reasons and circumstances stated in the Petition and also on the strength of evidence available on record or not?

6. Upon hearing arguments of both the counsel, considering oral and documentary evidence available on record, the trial Court dismissed the Petition on the ground that the petitioner failed to establish the act of cruelty, attributed to the respondent, and dismissed the Petition.

7. Aggrieved by the dismissal order of the trial Court, the unsuccessful petitioner - appellant preferred