THE HON’BLE SRI JUSTICE K.LAKSHMAN AND THE HON’BLE JUSTICE B.R.MADHUSUDHAN RAO FAMILY COURT APPEL NO.315 OF 2013

JUDGMENT:

(per the Hon’ble Sri Justice K.LAKSHMAN)

Heard Sri Giri Krishna, learned counsel for the appellant and Sri K.Lakshmana Chary, learned counsel appearing for the respondent. 2. Feeling aggrieved and dissatisfied with the order and decree dated 02.11.2012 in O.P.No.425 of 2010 passed by the learned Judge, Family Court, L.B.Nagar, Ranga Reddy District, the appellant-husband preferred the present appeal.

3. The marriage of the appellant with the respondent was performed on 13.02.2005, they blessed with a female child on 20.12.2005. Thereafter, disputes arose between them. According to the appellant, respondent deserted him on 01.06.2007. According to the respondent, she never deserted the appellant. However, the appellant herein has filed a petition under Section 13(1)(ia) & (ib) of the Hindu Marriage Act vide O.P.No.425 of 2010 seeking dissolution of marriage on the grounds of cruelty and desertion.

4. It is the specific contention of the appellant herein that his family is a joint family. Respondent demanded him to come out of his joint family and set up a separate family, for which appellant did not accept. Therefore, respondent subjected the appellant to cruelty and she left matrimonial house on 01.06.2007. Thus, according to the appellant, respondent subjected him to cruelty and deserted him.

5. To prove the said cruelty and desertion, the appellant himself examined as PW1 and marked Exs.P1 to P15. To disprove the same, the respondent examined herself as RW1. However, she has not exhibited any document.

6. On consideration of the said evidence, both oral and documentary, vide impugned order and decree, learned Family Court dismissed the said O.P. Challenging the said order, appellant has preferred the present appeal.

7. Though the appellant contended that the respondent insisted him to leave the joint family, set up a separate family, respondent subjected him to cruelty for not accepting the same, he has not examined any witness including his parents, brother etc,. He has not even examined the neighbours. He has filed a petition vide PLC.No.64 of 2008 [Ex.P4] before the District Legal Services Authority, Ranga Reddy District, seeking Restitution of Conjugal Rights. The learned Secretary, District Legal Services Authority advised the appellant to take appropriate steps by filing an application under Section 9 of the Hindu Marriage Act, 1955 seeking Restitution of Conjugal Rights against the respondent. Thereafter, he has filed a petition under Section 9 of the Hindu Marriage Act, 1955 vide O.P.No.677 of 2008. The said O.P. was posted for his evidence. Instead of prosecuting the said O.P. he left abroad for higher studies. Therefore, the said O.P was dismissed for default. Thereafter, he has filed an application for restoration of the said O.P. and the said O.P was restored. It was dismissed, on merits.

8. Thereafter, respondent has lodged a complaint against the petitioner, his family members including his parents for the offence under Section 498(A) of IPC. On completion of investigation, Investigating Officer has laid charge sheet i.e., Ex.P10. The said calendar case is pending now.

9. She has also filed a petition under Section 125 of Cr.P.C against the appellant seeking maintenance. Learned Magistrate has awarded an amount of Rs.4,500/- per month to the respondent and Rs.2,500/- per month to the child.

10. During cross examination, in the present OP, appellant has specifically admitted that he failed to examine any of his parents or neighbours to prove the cruelty. He has admitted about leaving abroad for higher studies. He has also admitted about filing PLC.No.64 of 2008 and O.P.No.677 of 2008. Though he has cross examined the respondent (RW1) at length, he failed to elicit anything from her to prove cruelty and also desertion.

11. There is no definition of ‘cruelty’ in Hindu Marriage Act or Indian Penal Code.