IMPORTANT POINT
Husband alleging non-co-operation on the part of wife to lead conjugal life, the proper remedy will not be to file divorce petition but to file petition under Section 9 of the Act.

L. Narasimha Reddy, J.—The appellant is the wife of the respondent. Both are medical doctors by profession. Their marriage took place on 26.01.1991 and they were also blessed with two children. The respondent filed O.P.No.251 of 2002 in the Family Court, Secunderabad, against the appellant, for divorce, pleading the grounds of cruelty, under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short ‘the Act’). He alleged that the appellant possesses unique characteristics and behaves like “kojja”. According to him, though the appellant, who was employed by the time of their marriage, promised to resign, but she did not do so, and on account of the same, there was serious disturbance in the family. He further alleged that the appellant used to insult him, and revealed her past relations with her male friends at different places of work. He stated that the appellant is in the habit of beating the children and refuse to prepare food or tea for his parents or other family members. He has also stated that he joined Pondicherry Medical Services in the year 1995, and ever since then, he is living separately. According to him, there was an agreement between them at one point of time, for obtaining divorce by mutual consent, but the same did not fructify, on the alleged insistence by the appellant to continue her as nominee in the service records of the respondent. Ultimately, he stated that the marriage between him and the appellant has broken irretrievably, and that a decree of divorce deserves to be granted.

2. The appellant resisted the O.P., by filing a counter. She denied all the allegations made against her. It was stated that the nature of allegations made by the respondent in fact constitute cruelty to her. She stated that though she offered to resign the job, the respondent stated that the family would face problems since he was not employed. She has denied the allegations about her alleged ill-treatment of the respondent. She stated that even when the respondent was employed elsewhere, his parents used to stay in their house at Hyderabad and she extended service and respect to them. Through its order, dated 17.04.2003, the trial Court allowed the O.P. and granted a decree of divorce. While admitting the C.M.A. on 20.05.2003, this Court suspended the decree.

3. Heard Sri K.S. Murthy, learned counsel for the appellant.

4. The appeal was listed for hearing yesterday. Since there was no representation for the respondent, it was adjourned to today. There is no representation today also, either in the forenoon or in the afternoon.

5. The respondent sought divorce from the appellant by pleading only one ground, namely, cruelty. The trial Court framed point for consideration thereon, namely, whether the respondent established that the appellant harassed and treated him with cruelty and refused to lead conjugal life. In a way, it can be said that the pleadings did not accord with the provision of law invoked by the respondent. The grievance of the respondent was mostly about the alleged non-cooperation on the part of the appellant to lead conjugal life. Therefore, he was expected to file a petition, under Section 9 of the Act. If, on the other hand, the appellant left the company of the respondent without any justification, the latter could have invoked Section 13(ib) of the Act.

6. Now, the point, that arises for consideration before us, is as to whether the decree passed by the trial Court can be sustained.

7. The Family Court, Secunderabad, was headed by a typical officer, about a decade ago. The orders passed by him would invariably reflect the reproduction of a handful of certain precedents irrespective of their relevance to the facts of the case, and grant of divorce used to be a matter of course. Good number of couples suffered, on account of the imperfect, lopsided and perverse adjudication, which took place in that Court at that period. The appellant herein is one such victim.

8. After giving the particulars, as to the