Previous decree of mutual separation insufficient for divorce; only judicial decree can validate dissolution of marriage under substantial grounds like cruelty.

JUDGMENT :

K. Lakshman, J.

1. Heard Smt.Indira, learned counsel for the appellant/husband. Despite service of notice, there is no representation on behalf of the respondent/wife.

2. Feeling aggrieved and dissatisfied with the order dated 05.07.2013 in F.C.O.P.No.366 of 2011 passed by learned the Judge, Family Court, Secunderabad, the appellant/husband preferred the present appeal.

3. Appellant/husband filed an application under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 vide F.C.O.P.No.366 of 2011 against the respondent/wife seeking dissolution of marriage on the ground of cruelty.

4. Appellant is the husband and respondent is the wife. Their marriage was solemnized on 21.06.2006 as per Hindu rites and customs. It is an arranged marriage. It is second marriage to both of them. They have blessed with a female child in the year 2009 and now she is aged about 16 years old.

5. It is the specific contention of the appellant herein that he has obtained decree of divorce legally by filing O.P.No.251 of 2000 on the file of learned the Judge, Family Court, Secunderabad, against his first wife. Whereas, the respondent did not obtain divorce from her first husband legally. She has obtained decree of divorce by way of entering into Ex.B.1 Memorandum of deed of mutual separation. She has suppressed the said fact.

6. According to the appellant/husband, respondent/wife subjected him to cruelty. She never shouldered any responsibility or behaved in such a manner. She never respected the appellant and his parents. She used to pick up quarrels with him on trivial issues. She used to go to her parents’ house frequently without informing the appellant. She used to speak to her brother-in-law and on observing, his habits, attitude, his looks, etc., appellant warned her. But, she did not refrain from speaking about him. His parents gently advised her not to repeat the same. Respondent conceived in the month of February, 2007. She did not heed any of the advises of the appellant and his parents. She refused for medical check-ups. Subsequently, she complained severe stomach pain and was hospitalized and she had to undergo abortion. Neither the respondent nor her elders regretted to share any information to the appellant or his family members. There was no change in the attitude of the respondent and she continued the same irresponsible nature.

7. It is further contended that a panchayat was held in the presence of the elders. On mutual understanding and the undertaking given by the respondent, elders advised them to live together. In the year 2008, respondent conceived her second pregnancy and gave birth to a baby girl on 28.01.2009. Even then there is no change in the attitude of the respondent. She continued harassing the appellant and his family members. Thus, according to the appellant, respondent subjected him to cruelty.

8. Respondent denied the said allegations and according to her, it is the appellant/husband, who subjected her to cruelty.

9. It is apt to note that the respondent/wife and her daughter filed an application under Section 125 of Cr.P.C. vide M.C.No.10 of 2012. Vide common order, dated 05.07.2013, learned Family Court dismissed F.C.O.P.No.366 of 2011 filed by the appellant/husband seeking dissolution of marriage and allowed M.C.No.10 of 2012 filed by the respondent/wife and daughter seeking maintenance, awarding an amount of Rs.2,000/- per month to the respondent/wife and Rs.1,500/- per month to the daughter. According to the learned counsel for the appellant, appellant/husband has been paying the said maintenance amount and there is no default.

10. To prove the cruelty and to disprove the claim