IMPORTANT POINT
Cruelty under the Hindu Marriage Act encompasses both physical and mental aspects, assessed on a preponderance of evidence standard.

JUDGMENT :

(Ravi Nath Tilhari, J.)

1. This appeal under Section 28 of Hindu Marriage Act, 1955 (for short, “the H.M.Act” has been filed by the wife challenging the decree of divorce dated 08.03.2006, passed in M.O.P.No.25 of 2004 on the file of Court of Senior Civil Judge, Rajam, Srikakulam (in short, the Trial Court) filed by the respondent-husband. M.O.P was filed under Section 13(1) of the H.M.Act on the ground of cruelty.

2. Heard Sri A. Ravi Shankar, learned counsel for the appellant (wife).

3. None appeared for the respondent (husband) in appeal.

4. Henceforth, parties shall be referred as arrayed in M.O.P.

5. The case of the petitioner (husband) was that the marriage was solemnized on 25.06.1994 as per the caste, custom and Sastric riots. After marriage, the respondent joined the petitioner for conjugal rights. They were living jointly. However, after six months, the disputes arose. Out of the wedlock children were born. However, the behaviour of the wife was not good and she meted the petitioner with cruelty on one or the other ground to cause intentional harassment. One incident dated 23.07.2004 the husband has pleaded, that intentionally the respondent poured boiled cattle feed to the body of the petitioner and left the house with children. He was given first aid and went to the police station from where he was taken to the Government hospital and he underwent treatment for 21 days. A case under Sections 325, 324 IPC was registered against the wife. Having fear of life in the mind, the petition for divorce was filed on the ground of cruelty.

6. The respondent filed counter denying the material allegations of cruelty. She denied the incident dated 23.07.2004 and pleaded that on that date, at about 8.00 p.m, the petitioner came in drunken state and had beaten indiscriminately to the respondent. In that process, he fell. The allegation of cruelty, the respondent levied on the petitioner.

7. The learned trial court framed the following point for consideration.

“Whether the petitioner is entitled for decree of divorce on the ground of cruelty?”

8. The petitioner was examined as P.W.1 and got examined P.W.2 N. Kannayya, P.W.3 D. Gopalam and P.W.4 G. Bodeyya and marked Ex.P.1 office copy of legal notice, Ex.P.2 CC of charge sheet in Cr.No.133 of 2004 of Rajam P.S, Ex.P.3 Eenadu paper clipping dated 15.09.2004, Ex.P.4Eenadu paper clipping dated 01.09.2004, Ex.P.5 photo with negative, Ex.P.6CC of order in M.C.No.28 of 2004 dated 14.12.2005 of JMPC, Rajam.

9. The respondent examined R.W.1 Gunapu Jayamma, R.W.2 S. Guruvulu, and R.W.3 G. Suribabu and marked Ex.R.1 copy of reply notice, Ex.R.2 xerox copy of F.I.R, Ex.R.3 wound certificate, Ex.R.4 private complaint in C.C.No.163 of 2005, Ex.R.5 copy of FIR in Cr.No.47 of 2005, Ex.R.6 CC of charge sheet in Cr.No.47 of 2005.

10. The learned trial court recorded the finding that the cruelty was established. It recorded that both the parties were living for the past 13 years with bad taste. The wife had filed a false case against the husband and his family members, which ended in acquittal. Her case for maintenance was also dismissed. The husband was held entitled for divorce.

11. Learned counsel for the appellant submitted that the finding on cruelty is incorrect. No case for divorce was made out. He submitted that though on 29.06.2006 while admitting the appeal the interim suspension was granted on the divorce decree but to his instructions both the parties are living separately. The children have also grown. There is no possibility of any amicable settlement.

12. We have considered the arguments of the learned counsel for the appellant and perused the material on record.

13. The following points arise for our reconsideration and determination:-

“i) Whether the cruelty was proved so as to grant the decree of divorce?

ii) Whether the judgment of the learned trial court deserves to be set aside?

14. The learned trial court recorded the finding on cruelty, on consideration of the evidence