excess white discharge is not a ground for divorce.

THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON'BLE SRIB.CHANDRA KUMAR 
C.M.Appeal No.849 of 1999 

09-06-2011 

Goka Kameswari 

Goka Venkataramaiah 

Counsel for the petitioner:Smt. N. P. Anjana Devi Satyanarayana

Counsel for the Respondents: Himabindu 

:JUDGMENT:(per Hon'ble Sri Justice B. Chandra Kumar) 

This appeal is directed against the decree and order dated 27.08.1998 passed in
O.P.No.4 of 1993 by the Senor Civil Judge, Tadepalligudem, West Godavari
District, whereby and whereunder, the petition filed by the respondent - husband
against the petitioner - wife seeking divorce was allowed.

2. The appellant herein is the respondent/wife and the respondent herein is
the petitioner/husband before the Court below. For the sake of convenience, the
parties will be hereinafter referred to as they were arrayed before the Court
below.

 3. The marriage of the petitioner and the respondent was solemnized on
05.05.1982 according to the Hindu rights and customs. The specific case of the
petitioner is that the respondent is a sadist and she ill-treated him which
amounts to cruelty. The respondent forced the petitioner to put up separate
family within two months from the date of marriage. She had humiliated him on
the ground that his income from the coolie work was not sufficient to satisfy
her desire for sarees and other cosmetics. The respondent was suffering from
excessive white discharge and when the petitioner sought the advice of the
doctors, the respondent went to her parents' house and never returned to lead
the marital life with the petitioner. The respondent is also guilty of
desertion and she harassed the petitioner by filing criminal cases in C.C.No.263
of 1988 on the file of the II Additional Judicial Magistrate of First Class,
Kakinada, alleging that the petitioner had married another lady. She had also
filed C.C.No.54 of 1990 on the file of the Additional Judicial Magistrate of
First Class, Tadepalligudem, alleging dowry harassment under Section 498-A IPC
and she has also filed M.C.No.14 of 1987 claiming maintenance and she was 
granted Rs.100/- per month towards maintenance in the said case. The respondent
made all false allegations against the petitioner in those cases alleging that
he was addicted to vices. Thus, the main contention of the petitioner is that
the respondent is guilty of desertion and cruelty and, therefore, he is entitled
for decree of divorce.

 4. The respondent contested the matter and filed a counter and denied
the material averments made by the petitioner. Her specific case is that after
her marriage with the petitioner, they never resided separately and they were
residing with the parents of the petitioner. She has also denied the allegation
that she was suffering from excessive white discharge or any other ailment. She
has also denied the allegation of the petitioner that when he sought the advice
of the doctors about excessive white discharge, she went to her parents house
and never returned and that she is unfit for marital life. Her specific case is
that the petitioner married one Mysamma @ Varalakshmi - daughter of one Gandam 
Venkateshwar Rao of Uppaluru Village of Undi Mandal and that now, he has been 
living with her. Her further case is that the petitioner had two children,
i.e., one son and one daughter, through his second wife and that the son born
through his second wife died, but the daughter is alive. Though she admitted
about of the filing of the criminal cases and maintenance case against the
petitioner, but her specific case is that the allegations made by her against
the petitioner in those cases are correct. Her further case is that at the time
of marriage, her parents paid an amount of Rs.10,000/- as dowry to the
petitioner and also gifted on acre of land towards 'Pasupu Kumkuma' and also 10
sovereigns of gold ornaments besides household articles to her, but the
petitioner and his parents took away the gold ornaments on the pretext that they
required money for business of the petitioner and subsequently, the petitioner
forced the respondent to sell away one acre of land given by her parents and,
therefore, the said land was sold away to one Madduru Venkatarao and that the
petitioner had taken away the entire sale consideration amount and
misappropriated the same. It is also her case that though she made efforts to
join the petitioner, but since the petitioner contacted second marriage, she was
forced to live in her parents house. It is also her case that the petitioner
became addicted to vices and that he was harassing her.

 5. On behalf of the petitioner, the petitioner himself was examined as
P.W.1 and Ex.A.1 - Certified copy of part of deposition of Goka Kameswari Bai -
P.W.1 in M.C.No.14 of 1987 on the file of the II Additional Munisif Magistrate's
Court, Kakinada was marked. On behalf of the respondent, the respondent herself
was examined as R.W.1 and one M.Ravi Kumar was examined as R.W.2 but no 
documents were marked. 

 6. The Court below, on appreciation of oral and documentary evidence
available on record, held that in the present proceedings, she deposed that she
lived with the petitioner for about five years, but in the earlier proceedings,
i.e., in M.C.No.14 of 1987 on the file of the II Additional Munisif Magistrate's
Court, Kakinada, she admitted that she did not return to her husband's house
after she left to her parents house and thus referring to the contents of
Ex.A.1, the Court below disbelieved the version of the respondent and came to
the conclusion that the petitioner has proved that the respondent deserted him
without any reasonable cause and further referring to the criminal cases filed
by the respondent against the petitioner, observed that the act of initiating
criminal proceedings by the respondent against the petitioner amounts to
cruelty. Holding so, the Court below allowed the petition by granting decree of
divorce by dissolving the marriage of the petitioner and the respondent.

 7. Smt. Anjana Devi, learned counsel for the appellant - wife submitted
that the order of the Court below is erroneous and not based on proper
appreciation of the evidence. Her main submission is that there is no evidence
on record to show that the respondent was unfit for marital life or that she was
suffering from mental disorder. It is her submission that only on the ground
that the respondent was suffering from mental disorder, the petitioner had left
her at her parents' house. It is also her submission that even subsequent
events have to be taken into consideration which go to show that the petitioner
married another woman and that he became father of two children through the
second wife and that he never tried to bring back the respondent from her
parents' house. It is also her submission that mere filing of cases against the
husband by a wife when she was harassed or when the husband re-married another 
woman does not amount to cruelty. In support of her contentions, she relied
upon the judgments of Division Bench of this Court in the cases between
P.Malleswaramma Vs. P. Prathap Reddy1 and M.R.Thulasi Kumari Vs. K.Krishnan2. 

 8. No representation for the respondent - husband in this appeal.

 9. We have considered the entire evidence on record. Admittedly, the
marriage of the petitioner and the respondent was solemnized on 05.05.1982.
Besides other allegations, the main allegation of the petitioner is that the
respondent is unfit for the marital life, and that she was suffering from
excessive white discharge. Admittedly, there is no medical evidence to
substantiate this allegation of the petitioner. If at all the respondent had
any health problems, the petitioner ought to have taken her to a competent
doctor and got her examined. Merely because a wife had some health problems 
that cannnot not a ground for granting divorce.

 10. As far as filing of criminal cases by the respondent against the
petitioner is concerned, it has to be seen that mere filing of criminal cases
cannot be treated as treating the husband with cruelty. In P.Malleswaramma's
case (1 supra), this Court held that mere filing of criminal cases relating to
matrimonial disputes cannot be treated as an act of cruelty by wife. The
circumstances under which the wife filed the criminal cases against her husband
and relatives of the husband have to be critically examined. Whether there is
any truth in the allegation made by the wife and whether she exercises her legal
rights have to be considered. When a husband re-marries another woman, 
naturally the wife will be at liberty to initiate criminal proceedings against
the husband for the offence punishable under Section 494 IPC. Similarly, when
the husband harasses a wife demanding dowry, she has every right to initiate
criminal proceedings alleging dowry harassment. Therefore, it all depends upon
the facts and circumstances of each case. Where, in a case, it is proved that
without any basis and without any truth and only for the purpose of harassing
the husband or his close relatives husband wife initiated criminal proceedings,
such an act may be treated as an act of cruelty. Merely because a criminal case
ended in acquittal is no ground to hold that the allegations made by the wife in
those proceedings are utterly false. In criminal case, charges have to be
proved beyond reasonable doubt. The standard of proof, i.e., appreciation of
evidence in criminal cases differs from the standard of proof, i.e.,
appreciation of evidence in civil proceedings. Conclusions can be drawn on
preponderance of probability in a civil case, but the same cannot be done in a
criminal case. There may be many reasons for passing a judgment in a criminal
case. While dealing with matrimonial cases, the family Court has to examine all
the aspects thoroughly. The Court should examine as to which party is at fault
and who is responsible for the trouble and whether a party is justified in
living separately.

 11. Ex.A.1 is referred as a part of deposition of Goka Kameswari Bai -
P.W.1 in M.C.No.14 of 1987 on the file of the II Additional Munisif Magistrate's
Court, Kakinada. Normally, a part of deposition should not be marked, and the
entire deposition of a witness has to be considered to decide whether a
particular sentence amounts to admission or not. Be that as it may, even if it
is accepted that the wife admitted that she has been living with her parents
from the time when the petitioner had left her at her parents house, it has to
be seen as to who is guilty of desertion. A reading of the entire evidence
gives an impression that it is the petitioner who had left the respondent at her
parents' house and subsequently did not take any steps to bring her back. The
following admission of the petitioner clinches the issue:-

"Except the reason mentioned in the petition that the respondent was not willing
for sexual intercourse due to excessive white discharge, there is no other
reason for filing of this petition for divorce. There is no documentary
evidence to show that I got medically treated the respondent."

 12. The petitioner, in his deposition, also admitted as follows:-
"I did not go to the respondent's parents' house after filing of the M.C."

 13. On the other hand, the evidence of the respondent shows that her
parents gave Rs.10,000/-, 10 sovereigns of gold ornaments and also one acre of
land towards 'Pasupu Kumkuma' to the petitioner at the time of marriage and that
the petitioner has taken away her entire gold ornaments and one acre of land was
also sold away. Of course, the respondent has also categorically stated that
she is not willing to join the petitioner as he re-married another woman.

 14. Thus, the main contention of the petitioner seeking divorce appears
to be excessive white discharge and his opinion that the respondent is unfit for
sexual intercourse. As discussed above, since the petitioner failed to adduce
any medical evidence on this aspect, his contention cannot be accepted. More
so, excessive white discharge cannot be a ground for dissolution of marriage
under the relevant provisions of the Hindu Marriage Act, 1955. We are of the
view that the Court below failed to consider that there is no evidence to prove
that it is the respondent who deserted the petitioner. Similarly, the Court
below failed to examine the admission made by the petitioner himself which goes
to show that the main reason for filing of petition for divorce is the
allegation that the respondent was suffering from excessive white discharge and
the opinion of the petitioner that she is unfit for sexual intercourse.

 15. In view of the above, we are of the opinion that the Court below
committed error by not appreciating the evidence in proper perspective. The
impugned order cannot sustain and the same is liable to be set aside.

 16. In the result, the Civil Miscellaneous Appeal is allowed by setting
aside the decree and order dated 27.08.1998 passed in O.P.No.4 of 1993 by the
Senior Civil Judge, Tadepalligudem, West Godavari District. However, in the
circumstances, no costs. 

?1 AIR 2006 AP 4 
2 2010 (5) ALD 126 (DB)