Date of reserved for orders : 30.07.2026 Date of pronouncement : 25.09.2026 Date of uploading : 28.09.2026 APHC010211132009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI FRIDAY, THE 25th DAY OF SEPTEMBER 2026 PRESENT THE HONOURABLE SRI JUSTICE BATTU DEVANAND THE HONOURABLE SMT JUSTICE SUNITHA GANDHAM FAMILY COURT APPEAL Nos: 78 & 87 OF 2009 F.C.A.No.78 of 2015: Between: 1. SMT. KALLA VARALAKSHMI, W/o. Sankara Rao, R/o. Care of Sri S.S. Prakasha Rao, D.No. 45-35-46/A,Sangham Office, Akkayyapalem, ...Petitioner AND 1. KALLA SANKARA RAO, S/o. K.P. Naidu Employee, Visakhapatnam Port Trust R/o. D.No. 38-35-27 Marripalem, Visakhapatnam -530 008. ...Respondent Appeal under section________ against orders IA NO: 1 OF 2009(FCAMP 157 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to dispense with the filing of the Neat copy of Decree and order and the copy of 2 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 the Court fee in OP.No.174/2004 on the file of the Judge, Family Court, Visakhapatnam IA NO: 2 OF 2009(FCAMP 161 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondent not to marry pending this appeal Counsel for the Petitioner: G UMAPATHI SASTRY Counsel for the Respondent S V R SUBRAHMANYAM F.C.A.No.87 of 2009: Between: 1. SMT.KALLA VARALAKSHMI, W/o.Sankara rao, Hindu C/o.Sri S.S.Prakasha Rao, D.No.45-35-46/A, Sangham Office, Akkayyapalem, Visakhaptnam - 16. ...Petitioner AND 1. KALLA SANKARA RAO, S/o.K.P.Naidu Employee, Visakhapatnam Port Trust R/o.D.No.38-35-27, Marripalem, Visakhapatnam - 530 008. ...Respondent Appeal under section________ against orders allow this appeal by setting aside the common order dated 20.01.2009 passed by the Family Court, Visakhapatnam in OP No.283/2004 and dismiss the divorce petition filed in OP No.283/2004 and to allow her petition filed in OP No.174/2004 for restitution of conjugal rights with exemplary costs IA NO: 1 OF 2009(FCAMP 171 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased 3 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 dispense with the filing of the copies of the OP petition and counter in OP No.2383/2004 on the file of the Judge, Family Court, Visakhapatnam IA NO: 2 OF 2009(FCAMP 176 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to the suspend the operation of the order dt. 20-01-2009 in OP No. 283 of 2008 on the file of the judge, Family Court, Visakhapatnam, pending this Appeal Counsel for the Petitioner: G UMAPATHI SASTRY Counsel for the Respondent S V R SUBRAHMANYAM The Court made the following order: 4 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 THE HONOURABLE SRI JUSTICE BATTU DEVANAND THE HONOURABLE SMT JUSTICE SUNITHA GANDHAM FAMILY COURT APPEAL Nos: 78 AND 87 OF 2009 COMMON JUDGMENT: (Per Hon’ble Sri Justice Battu Devanand) Assailing the common order dated 20.01.2009 in O.P.Nos.283 of 2004 and 174 of 2004 made by the Judge, Family Court, Visakhapatnam dissolving the marriage between both the parties dated 09.02.2000, the appellant wife preferred these two appeals. 2. The parties are being referred to as per their positions before the trial Court in O.P.Nos.283 of 2004 for the sake of convenience and clarity. 3. Case of the petitioner in O.P.No.283 of 2004 is thus: a) The marriage between the petitioner and respondent took place on 09.02.2000 as per the Hindu Rites and caste customs at Visakhapatnam and their marriage was consummated. After 4th day of marriage, the respondent suddenly fell sick and became unconscious and then, he provided treatment to the respondent. Since from the inception, respondent is so adamant and reluctant to discharge her duties as dutiful wife and used to demand mother of the petitioner to attend household works. Respondent used to wake up suddenly and murmuring and shouts loudly as a mad person and threw away the house hold articles like hysteric patient and after close observation, petitioner came to know that the respondent has been suffering from unsound 5 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 mind and taking treatment under a psychiatrist and the said fact was suppressed by the parents. b) While the things stood thus, respondent went to her parent‟s house on the pretext to attend classes of 2nd year B.S.C and stayed there up to 27.03.2000 and on 29.04.2000, at the request of father of the respondent, petitioner went to their house at Chodavaram but there, respondent and his family members degraded the petitioner and as such, he returned to his house. The respondent used to come out of the matrimonial house on to the road and raise voice against the petitioner‟s family, without any reasonable cause. After completion of Ashadam, when the respondent came to matrimonial house, on 08.08.2000, the respondent suddenly created big problem and then, one Kalla Padmavathi advised the respondent not to misbehave and on that, the respondent threw away sacred thread i.e. pusthelathadu stating that she does not want to continue matrimonial relationship and demanded for divorce. Thereafter, they lead marital life for some period and on 23.08.2001, when the respondent begot a child, petitioner and his family members went to see the respondent and then, her parents demanded an amount of Rs.16,000/- towards hospital expenses and thereafter, respondent did not join the petitioner. Though he tried to take back the petitioner through mediators and also by addressing letter to the respondent dated 04.07.2002, respondent failed to join and on the other hand, gave report to the employer of the petitioner making allegations and also gave report to the SHO, IV Town L & O Police Station of the offence under Section 6 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 498A I.P.C and the said case in C.C.No.751 of 2002 was ended in acquittal vide Judgment dated 30.09.2003. Further, respondent also filed a case in M.C.No.207 of 2001 and as per the order in that case, petitioner has been paying maintenance. Respondent willfully deserted the petitioner from 24.03.2002 and thereby, subjected the petitioner to prove guilt. 4) The Respondent filed counter admitting their marriage and birth of the child and by denying the other averments made in the petition, wherein, inter alia contended that without there being any reason, petitioner attributed the disease to her, never cared to provide any treatment to her and created false story to get divorce. Petitioner was addicted to vices particularly womanizing and though she tried to join the petitioner to continue their marital life, he failed to take back her, and with other formal grounds prayed to dismiss the petition. 5. O.P.No.174 of 2004: a) Averments of the counter filed by the wife in O.P.No.283 of 2004 and petition in this case, and averments of the petition filed by the husband in O.P.No.283 of 2004 and counter in this case are one and the same and as such, they are not reiterated to avoid repetition. 6. During enquiry, petitioner himself examined as PW1 and he has got examined PWs 2 & 3, and no documents are filed and as against the said evidence, respondent examined herself as RW1 and she has got examined RW2, and filed Ex.B.1/postal cover. 7 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 7. At the culmination of enquiry, the trial Court dismissed the petition filed by the wife seeking restitution of conjugal rights in O.P.No.174 of 2004 and allowed the petition filed by the husband for dissolution of marriage in O.P.No.283 of 2004 vide common order dated 20.01.2009. Feeling aggrieved by the said common order and decree, respondent wife preferred these two instant appeals urging the following grounds: i) The order of the trial Court is highly unjust, improper and contrary to law. (ii) The trial Court committed grave error in holding that there was desertion as contemplated under Section 13(1) (ib) of the Hindu Marriage Act. (iii) The trial Court should have seen that there was no desertion for a period of two years prior to filing of the petition in O.P.No.283 of 2004. (iv) The trial Court should have seen that absolutely, there is no evidence except the bald assertions of PW1. (v) The trial Court should have seen that petitioner husband filed O.P.No.417 of 2002 for judicial separation, appellant gave report of the offence under Section 498A and filed O.P.No.174 of 2004 for restitution of conjugal rights in March, 2004 and thus, the lis is pending ever since the year 2002. (vi) The trial Court failed to see that the petitioner has not proved the allegation of cruelty. (vii) The trial Court failed to consider the conduct of the appellant that she was always ready to join the petitioner to lead marital life. 8 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 (viii) The trial Court failed to assign justifiable reasons, came to wrong conclusion and committed grave error. (ix) The trial Court failed to see that the petitioner did not examine the crucial witnesses including doctor and elders, and with other formal grounds prayed to allow the appeals. 8. Heard both sides. 9. On hearing both sides and upon perusing the material available on record including the common order dated 20.01.2009, the points that would arise for consideration in both the appeals are: i) Whether the petitioner in O.P.No.283 of 2004 established his case to grant divorce on the ground of desertion and cruelty? ii) Whether the petitioner in O.P.No.174 of 2004 established her case to grant decree of restitution of conjugal rights? (iii) Whether the common order passed by the learned Judge, Family Court, Visakhapatnam is sustainable in facts and law? iv) To what relief? 10. Admitted Facts: That the marriage of the petitioner and respondent was solemnized on 09.02.2000 at Visakhapatnam as per Hindu Rites and cast customs. Out of their lawful wedlock, respondent begot a child on 23.08.2001 and since 2001, they have been living separately. Petitioner absolved from the offences under 9 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 Section 498A IPC in C.C.No.751 of 2002 and he has been paying maintenance as per the order in M.C.No.207 of 2001. 11. During enquiry, trial Court consolidated both the petitions as husband filed petition seeking dissolution of marriage in O.P.No.283 of 2004 and wife filed petition in O.P.No.174 of 2004 seeking restitution of conjugal rights and recorded evidence in O.P.No.283 of 2004. So, point No.1 and 2 are taking up together for common discussion and to avoid repetition. 12. Point 1 and 2: (a) Petitioner filed the petition on the grounds of desertion and cruelty and as per Section 13(1) (ia) and (ib) of the Hindu Marriage Act (hereinafter referred to as „the Act‟), any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party, has, after the solemnization of the marriage, treated the petitioner with cruelty; or has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Wife filed petition under Section 9 of the Act. As per Section 9, if a husband or wife leaves or stops living with the other spouse without a valid or reasonable excuse, the aggrieved partner can file petition seeking restitution of conjugal rights, to continue their marital tie. During enquiry, both the petitioner and respondent filed examination-in-chief affidavits in lieu of their chief examinations by reinstating the averments of petition and counter, and 10 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 PW1 got examined independent witness and marriage elder as PW Nos.2 and 3 and no documents are filed, and respondent has got examined marriage elder as RW2 and filed Ex.B.1/postal cover. (b) It came in the evidence of petitioner that right from the beginning, respondent is so arrogant, failed to act as dutiful wife, harassed his mother to attend household duties, has been suffering from schizophrenia disease and the said fact is suppressed by the parents of the respondent, he provided treatment to the respondent, she failed to change her attitude and committed the acts of cruelty, he has placed the disputes before the marriage elders Smt. Kalla Sarojini Devi and Kalla Padmavathi, they also found fault with the respondent, petitioner has several responsibilities to look after the welfare of his mother and his sister, respondent misbehaved with the petitioner and his mother, used to wake up during nights, murmur and shout loudly as a mad person. Further, respondent is in the habit of leaving matrimonial house so as to spend time with her parents and she does not have any interest to lead marital life. Further, on several occasions, he raised dispute before the elders, but the respondent failed to change her attitude, when the respondent begot a male child, he went to see the child and then also, he was humiliated by the parents of the respondent, he also raised disputes before other marriage elders and though they advised the respondent and her parents to mend their behavior, they failed to change their attitude. Further, after giving birth to the male child also, respondent failed to join him to lead marital life for 11 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 several months, finally, she joined him on 23.03.2002 and again, left the matrimonial house and finally, she left the matrimonial house on 08.06.2002 and he filed a petition seeking restitution of conjugal rights, he spent sleepless nights, lost reputation, was acquitted in the criminal case and since the respondent does not have any interest to continue matrimonial relationship, he withdrew the petition which is filed seeking restitution of conjugal rights. (c) Refuting the said evidence, respondent testified that at the time of marriage, their parents gave dowry, Adapadachu lanchanam, gold and silver ornaments to the petitioner, petitioner is in the habit of coming home at the night in a drunken state of mind and he has committed the acts of cruelty and on several occasions driven her out, she raised disputes before elders namely Kalla Sarojini, Saragadam Ramu and when she gave birth to the male child also, petitioner made galata, did not care her and the child and after eleven months of giving birth to the male child only, petitioner took her to the matrimonial house and others and thereafter also, petitioner harassed her and demanded to bring additional dowry, she expressed her unwillingness to bring additional dowry, placed the matter before the elders, but petitioner failed to change his attitude and finally, on 07.06.2022, petitioner dropped her at her parents‟ house. Further, till 09.06.2002, petitioner did not enter her name as well as the name of their child in his service register as nominees and then, she had approached the Labour Officer, Visakhapatnam Port Trust and then only, their names are entered, petitioner promised before the Labour Officer, 12 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 Visakhapatnam to take care of her and their child but failed to do so and filed O.P.No.417 of 2002 seeking judicial separation and subsequently, withdrew the said petition, she never committed the acts of cruelty, she always ready and willing to join the petitioner and she never deserted the petitioner at any point of time. (d) Before delving into the material elicited in the cross examinations of PW1 & RW1, the evidence of PW Nos.2, 3 and RW2, it is to be mentioned that as seen from the common order dated 20.01.2009 passed by the learned trial court, except reproducing the evidence of all the witnesses, has not appreciated evidence which is available on record in respect of all issues i.e. desertion, cruelty, alleged ill-health of the respondent, demand of dowry, mediations done by the several elders, admissions of both parties and simply assigned reasons that since 2002, they have been living separately, PW1 has no interest to take back the respondent even if the respondent is willing to join and further, marriage of the petitioner and respondent has been irretrievably broken down. Except the aforementioned reasons, the learned trial court has not at all appreciated the evidence. Being the first appellate court and final fact finding court, this Court has to re-examine and re-appreciate the entire oral as well as documentary evidence on record. (e) As regards desertion, even according to the husband, the wife left the matrimonial home on 08.06.2002, whereas the wife stated that the husband dropped her at her parents‟ house on 07.06.2002. The husband presented 13 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 O.P.No.283 of 2004 on 20.05.2004. Thus, on the husband‟s own showing, the statutory period of two years contemplated by Section 13(1)(ib) had not been completed immediately preceding the presentation of the petition. The learned Family Court failed to properly consider this statutory requirement. Consequently, the ground of desertion was not available to the husband on the date of presentation of the petition. (f) Insofar as health condition of the respondent is concerned, as per the version of petitioner, respondent suddenly wake up in the middle of night, screaming, throwing things around, and behaving like a mad person, respondent has been suffering from schizophrenia and unsoundness of mind and has been taking treatment, her parents suppressed health condition of the respondent and as such, he provided treatment, but there is no change in the health condition of the respondent. To substantiate the said contention, absolutely there is no evidence. In the cross examination, he had categorically admitted that he never showed the respondent to any doctor to provide treatment as stated by him in his chief examination. In the cross examination of respondent, it is not at all suggested to her that she has been suffering either from unsoundness of mind or schizophrenia disease, took treatment prior to her marriage, her parents suppressed the said fact and that after marriage, petitioner provided treatment to her. (g) As per Section 13 (1) (iii), the marriage may be dissolved by a decree of divorce on the ground that when other party has been incurably of unsound 14 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the petitioner and as per the explanation, the expression „mental disorder‟ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia and further, the expression „psychopathic disorder‟ means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment. Petitioner utterly failed to prove the allegation of health condition of the respondent. (h) In this regard, it is to be noted that in Sharda v. Dharmpal1, the Hon‟ble Supreme Court recognized that mental disorder under Section 13(1)(iii) must be of such a nature that the spouse cannot reasonably be expected to live with the other and a few strong instances indicating a short temper and somewhat erratic behavior on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder and relevant portions are extracted hereunder: “11. It is trite law that for the purpose of grant of a decree of divorce what is necessary is that the petitioner must establish that unsoundness of mind of the respondent is incurable or his/her mental disorder is of such a kind and to such an extent that he cannot reasonably be expected to live with his/her spouse. Medical testimony for arriving at such finding although may not be imperative but 1 (2003) 4SCC 493 15 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 undoubtedly would be of considerable assistance to the court. We may, however, hasten to add that such medical testimony being the evidence of experts would not leave the court from the obligation of satisfying itself on the point in issue beyond reasonable doubt. Relevance of medical evidence, therefore, cannot be disputed. 12. A sound mind indisputably is a key to a happy married life. A party to the marriage must, thus, have normal and sound mind so as to live a happy marital life. A disorder of thought, behaviour and mind leading to unsoundness of mind may give rise to a cause of action for filing an application under Section 13(1)(iii) of the Hindu Marriage Act. The burden of proof of the existence of requisite degree of mental disorder is on the spouse making the claim on that state of fact. 13. The decisions rendered by various courts of this country including this Court lead to a conclusion that a decree for divorce in terms of Section 13(1)(iii) of the Act can be granted in the event the unsoundness of mind is held to be not curable. A party may behave strangely or oddly inappropriate and progressive in deterioration in the level of work may lead to a conclusion that he or she suffers from an illness of slow growing developing over the years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. A few strong instances indicating a short temper and somewhat erratic behaviour on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder.” (i) Further, in Kollam Chandra Sekhar v. Kollam Padma Latha2, the Hon‟ble Supreme Court reiterated that mere allegation of mental illness or occasional abnormal conduct cannot by itself constitute a ground for dissolution of marriage unless the statutory requirements are clearly proved. (j) In cases alleging schizophrenia as a ground, the burden lies on the party seeking to establish, by acceptable medical and legal evidence, and the disorder must be shown to be of continuous or recurrent nature and of such intensity that the parties are unable to lead a normal and peaceful matrimonial life, and the spouse seeking relief cannot reasonably be expected to live with the other spouse. 2 (2014) 1 SCC 225 16 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 (k) Except oral testimony of the petitioner, neither documentary nor oral supportive evidence is there to come to conclusion with regard to the health condition of the respondent. Mere allegation of ill-health of the respondent, that too, a serious allegation like unsoundness of mind and schizophrenia disease shall not be taken into consideration. (l) Coming to cruelty, the expression „cruelty‟ has not been exhaustively defined in the Hindu Marriage Act. Whether particular conduct amounts to cruelty depends upon the facts and circumstances of each case. The burden, however, remains upon the party seeking divorce to establish the pleaded acts of cruelty. In Dr. N.G. Dastane v. Mrs. S. Dastane 3, the Hon‟ble Supreme Court reiterated the ordinary rule that the burden lies upon the party who asserts a fact. In a matrimonial proceeding, the petitioner seeking dissolution on the ground of cruelty must therefore establish the conduct complained of and its legal character as cruelty. (m) In Samar Ghosh v. Jaya Ghosh4, the Hon‟ble Supreme Court laid down illustrative guidelines regarding mental cruelty. The Court emphasised that the matrimonial life has to be assessed as a whole; mere trivial irritations, ordinary wear and tear, coldness, rudeness or isolated incidents do not necessarily constitute cruelty. The conduct must be of such a nature and 3 (1975) 2 SCC 326 4 (2007) 4 SCC 511 17 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 degree that the wronged spouse cannot reasonably be expected to continue the matrimonial relationship. (n) Now, it is to be seen that whether the petitioner proved the aspect of cruelty to answer the point in the affirmative and in his favour. In the cross examination, PW1 has categorically admitted that since 09.06.2002, they have been living separately and within a month, he has got issued Ex.B.1/legal notice dated 24.07.2002 and filed O.P.No.417 of 2002 under Section 10 of the Act seeking judicial separation and further, respondent got issued reply notice showing her willingness to join him, however, denied suggestion that without giving any time to the respondent, he has got issued legal notice and without waiting for the reply, he had filed petition in O.P.No.417 of 2002. PW1 further admitted that he has not filed any petition seeking restitution of conjugal rights whereas, respondent filed petition seeking restitution of conjugal rights and having filed O.P.No.417 of 2002 seeking judicial separation, he has mentioned in his chief examination that it is filed for restitution of conjugal rights. Further, petitioner has categorically admitted that he is not willing to take back respondent even she is willing to join him, continue their marital relationship and on the other hand, respondent having filed petition seeking restitution of conjugal rights, she had always showed willingness to join the petitioner, though he attributed the allegation that she has been suffering from unsoundness of mind and schizophrenia disease. Having filed petition in O.P.No.417 of 2002 under Section 10 of the Act, he withdrew the said petition and the explanation offered by him is that respondent is not willing to join him. 18 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 The admissions of RW1 assume considerable significance. The respondent‟s conduct in filing O.P.No.174 of 2004 seeking restitution of conjugal rights is inconsistent with an intention to permanently abandon the matrimonial relationship. Her conduct, viewed along with her reply expressing willingness to join the husband, supports her case that she was always willing to continue their matrimonial tie. On the other hand, petitioner expressly stated that he was unwilling to take her back. (o) It is also undisputed fact that basing on the report given by the respondent, criminal case was filed of the offence under Section 498A of IPC and at the culmination of trial, petitioner is acquitted of the said offence. Respondent also categorically admitted that case under Section 498A IPC was ended in acquittal, she has not preferred any appeal and thereafter, she also filed the petition seeking restitution of conjugal rights and since June, 2002, they have been living separately, petitioner has been paying maintenance in the connected matter and denied the suggestion that petitioner never harassed and she deserted the petitioner and has no interest to join the petitioner to lead marital life. It is settled principle of law that acquittal in the criminal case under Section 498A of IPC is not a ground to grant divorce to the petitioner and in the criminal case, respondent made certain allegations and having considered the material placed before the court, petitioner acquitted of the offence under Section 498A IPC and in the present case at hand, petitioner attributed several allegations of cruelty, unsoundness 19 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 of mind, desertion, adamant attitude of the respondent etc. seeking dissolution of marriage. seeking dissolution of marriage. (p) As per the aforementioned principles laid down by the Hon‟ble Apex Court, petitioner must prove the alleged cruelty caused towards him by the respondent and as per the version of the respondent, though her parents gave dowry lanchanams, petitioner demanded to bring additional dowry and motorcycle, her parents had given motorcycle to the petitioner. It is the further evidence of the respondent that even after giving birth to the male child, petitioner failed to take her back to lead marital life and did not enter their names in his service register and after giving report to the Labour Officer, Visakhapatnam Port Trust only, petitioner entered their names in his service register. Petitioner also categorically admitted that upon giving report by the respondent to his officer, he has entered their names in his service register. (q) The evidence of PW2 does not materially advance the husband‟s case. Though PW2 stated that he knew both parties and referred to the alleged adamant conduct of the wife, his cross-examination reveals that his knowledge regarding several material aspects was limited. He admitted that he did not know the marriage elder on the wife‟s side and that the petitioner‟s sister had intervened in the disputes. (r) The evidence of PW3 is also of limited assistance. Though he stated that the wife used to quarrel and shout at night and frequently leave the matrimonial home, in cross-examination he admitted that he did not know 20 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 even the name of the respondent and that he was a friend of PW1. He further stated that he did not know the relief claimed in the petition and had signed his chief-examination affidavit at the house of PW1. His evidence, therefore, cannot safely be treated as independent and reliable proof of the serious allegations made against the wife. (s) On the other hand, RW2, who was acquainted with both families and had arranged the marriage proposal, supported the wife‟s version regarding the matrimonial disputes, the intervention of elders and the husband‟s conduct. Her evidence cannot be rejected merely because she was acquainted with the parties. The evidentiary value of her testimony has to be assessed with reference to the whole record. (t) On an overall appreciation of the evidence, the petitioner has failed to establish the pleaded acts of cruelty. The allegations regarding the respondent‟s alleged mental illness are unsupported by medical or other reliable evidence. The evidence of PWs.2 and 3 suffers from material infirmities. The petitioner‟s own admission that he was unwilling to take the wife back, despite her willingness to join him, is also significant. (u) It is true that the parties have been living separately for a considerable period. However, mere long separation, by itself, cannot be treated as an independent statutory ground for divorce. The learned Family Court proceeded substantially on the premise that the marriage had irretrievably broken down. Irretrievable breakdown of marriage is not one of the statutory 21 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 grounds available to the Court under Section 13 of the Hindu Marriage Act. Unless the requirements of a statutory ground are established, a decree of divorce cannot be granted solely on the ground of long separation. Further, only the Hon‟ble Apex Court has the power to dissolve a marriage on the ground of irretrievable break down in exercise of its extraordinary jurisdiction under Article 142 of the constitution. (v) Therefore, this Court is of the considered view that the petitioner failed to prove either desertion or cruelty or ill-health of the respondent. Consequently, the decree dissolving the marriage is unsustainable and is liable to be set aside. (w) With regard to the aspect of respondent‟s claim for restitution of conjugal rights, Section 9 of the Hindu Marriage Act enables a spouse who has been withdrawn from the society of the other spouse, without reasonable excuse, to seek restitution of conjugal rights. The material on record shows that the wife has consistently asserted her willingness to resume their relationship and filing of O.P.No.174 of 2004 itself is a material circumstance evidencing such willingness. (x) The petitioner‟s own evidence establishes that he was unwilling to take the wife back even if she expressed willingness to join him. In such circumstances, the evidence does not establish that the respondent had withdrawn from the society of the petitioner without reasonable excuse. Rather, the record indicates that the petitioner declined to continue their 22 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 marital tie. So, the respondent has established her entitlement to the relief sought under Section 9 of the Hindu Marriage Act. The learned Family Court committed an error in dismissing O.P.No.174 of 2004 without properly appreciating the wife‟s consistent stand and the husband‟s admissions in cross-examination. The filing of proceedings by the respondent for restitution of conjugal rights, her expression of willingness to join the husband, and the husband‟s categorical refusal to take her back are relevant circumstances which cannot be ignored while determining the parties‟ respective conduct. (y) All the factors on a cumulative consideration suggest that the self serving statements of petitioner do not inspire the confidence and the same appears to be far from the truth, and in the light of the significant probabilities showed on behalf of the respondent, case of the petitioner pales into insignificance. So, it can safely be held that the petitioner failed to establish his case and respondent has clearly established her case. Hence, point Nos.1 and 2 are answered in the negative and against the petitioner. 13. Point No.3: This Court has gone through the common order of the trial court and for the reasons assigned by this Court and upon re-appraisal of the facts and evidence, this Court gave finding in point Nos.1 & 2 against the petitioner. The trial court has not assigned any reasons while allowing the common order and as such, common order and decree passed by the trial court are not sustainable in facts and law. Hence, this point is answered accordingly. 23 DEV, J & SUN, J FCA.Nos.78 & 87 of 2009 F.C.A.No.78 of 2009: 14. In the result, and in view of the foregoing reasons, this appeal is allowed, and the common order and decree dated 20.01.2009 in O.P.No.174 of 2004 passed by the Judge, Family Court, Visakhapatnam are hereby set aside. F.C.A.No.87 of 2009: 15. In the result, and in view of the foregoing reasons, this appeal is allowed, and the common order and decree dated 20.01.2009 in O.P.No.283 of 2004 passed by the Judge, Family Court, Visakhapatnam are hereby set aside. As a sequel thereto, pending miscellaneous petitions, if any, shall stand closed. _____________________________ JUSTICE BATTU DEVANAND ______________________________ JUSTICE SUNITHA GANDHAM 25.09.2026 Vns Whether the order is : ✓ Speaking Yes/No / Reasoned Yes/No ✓ Reportable Yes/No / Non-Reportable Yes/No