THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
FAMILY COURT APPEAL Nos.135 AND 136 OF 2014
COMMON JUDGMENT: (Per Hon'ble Dr. Justice Shameem Akther)
Since the facts of the case, issue involved and the parties to
the litigation are one and the same in both these appeals, both
these appeals are taken up together and are being disposed of by
this common judgment.
2. FCA Nos.135 and 136 of 2014, under Section 19 of the
Family Courts Act, 1984, are filed by the appellant/husband-Sai
Prasad Moorthygari, challenging the common order, dated
24.06.2014, passed in FCOP Nos.21 of 2009 and 87 of 2010, by
the Judge, Family Court-cum-III Additional District Judge,
Warangal, whereby, the Court below, while dismissing the petition
filed by the appellant/husband under Section 13(1)(ia)&(ib) of the
Hindu Marriage Act for grant of divorce on the grounds of cruelty
and desertion (FCOP No.87 of 2010), allowed the petition filed by
the respondent/wife-Ram Kumari under Section 9 of the Hindu
Marriage Act seeking restitution of conjugal rights (FCOP No.21 of 2009), directing the appellant/husband to restore the conjugal rights within two months from the date of the said common order.
Dr.SA, J & NBK, J 2 FCA Nos.135 & 136 of 2014
3. We have heard the submissions of Sri P.Giri Krishna, learned counsel for the appellant/husband in both these appeals, Sri C.A.R.Seshagiri Rao, learned counsel for the respondent/wife in both these appeals and perused the record.
4. Learned counsel for the appellant/husband would contend that the Court below decided both the OPs against the weight of material evidence available on record. The appellant/husband meted out cruelty in the hands of respondent/wife in his marital life. The admitted fact is that both the parties are living separately since 12.04.2007. The Court below ought to have held that the respondent/wife had deserted the appellant/husband and granted divorce on that score. After marriage, counseling was held by Dr.Challa Subramanyam for leading amicable marital life. However, it did not work out due to the adamant attitude of the respondent/wife. There is evidence to establish that there was no intention on the part of the respondent/wife to cohabit with the appellant/husband. She wanted to live with her parents and is continuing to do the same. Learned counsel further contended that a false criminal case in C.C.No.46 of 2009 on the file of VI Additional Judicial Magistrate of First Class at Warangal, for the offences under Sections 498A of IPC and Sections 3 and 4 of the Dowry Prohibition Act was registered against the Dr.SA, J & NBK, J 3 FCA Nos.135 & 136 of 2014 appellant/husband, his parents and two sisters. One of the sisters (A4 in the said Crime) died pending trial of the case, due to the trauma meted out to her for foisting a false criminal case. The other sister (A5 in the said crime) left to USA. There is specific admission in the counter filed by the respondent/wife that till the date of marriage of sister of the appellant/husband on 17.08.2006, the relation between the appellant/husband and respondent/wife was good. However, the said sister of the appellant/husband also was roped in a false case. For no fault on their part, the appellant/husband, his parents and his sisters faced criminal trial, which caused a lot of mental trauma to all of them. However, the said criminal case ended in acquittal vide judgment, dated 21.01.2015, wherein, the learned Magistrate recorded several findings with regard to the innocence of the appellant/husband and his parents in the said crime. Further, the parties to the litigation are residing separately from the last fifteen years. There is no possibility of reconciliation and reunion between them. The marriage between the appellant/husband and the respondent/wife is totally unworkable, emotionally dead and beyond salvage. After about one and half decades of separation, it is not proper to ask the appellant/husband and respondent/wife to cohabit together again. Though there is overwhelming evidence on record to show Dr.SA, J & NBK, J 4 FCA Nos.135 & 136 of 2014 that the appellant/husband was subjected to cruelty and was deserted by the respondent/wife, the Court below erroneously declined to grant divorce to the appellant/husband and erred in directing him to restore the conjugal rights of the respondent/wife. Since the appellant/husband had proved the cruelty meted out to him by leading cogent and convincing evidence, the Court below ought to have granted decree of divorce dissolving the marriage between the appellant/husband and respondent/wife and ought to have rejected the counter claim of the respondent/wife for restitution of conjugal rights and ultimately prayed to set aside the common order under challenge and allow the appeals as prayed for.
5. On the other hand, the learned counsel for the respondent/wife would contend that there is no iota of truth in the allegations levelled against the respondent/wife by the appellant/husband. The appellant/husband sought dissolution of marriage on two aspects, i.e., cruelty and desertion. The Court below elaborately dealt with these two aspects and recorded categorical findings in paragraph Nos.32 and 33 of the impugned common order that it is the appellant/husband who treated the respondent/wife with cruelty and deserted her. The respondent/wife never refused to join the company of the Dr.SA, J & NBK, J 5 FCA Nos.135 & 136 of 2014 appellant/husband. The Court below had clearly recorded a finding that the appellant/husband has left the respondent/wife at her brother's house on 12.04.2007 and within two years therefrom, he filed the subject O.P.No.87 of 2010 seeking dissolution of marriage on the ground of desertion, which is much before the expiry of statutory period of two years. Furthermore, the appellant/ husband also failed to establish the two essential conditions of desertion, viz., (i) the factum of separation, and (ii) the intention to bring cohabitation permanently to an end (animus deserendi). The appellant/husband further failed to prove that the respondent/wife disliked the conjugal company of the appellant/husband paving the way for desertion. When a legal notice, dated 20.08.2008, was issued to the respondent/wife calling upon her to join the company of the appellant/husband, a reply notice, dated 12.09.2008, was issued expressing the intention of the respondent/wife to join the company of the appellant/husband on 24.09.2008 and accordingly, when the respondent/wife went to the house of the appellant/husband to join his company on 24.09.2008 along with the newly born child, the appellant/husband and his mother ruthlessly driven her out. The same is substantiated by cogent and convincing oral evidence on record. Mere institution of a criminal case and its ending in Dr.SA, J & NBK, J 6 FCA Nos.135 & 136 of 2014 acquittal, that too extending benefit of doubt to the accused therein is not a ground to dissolve the marriage in between the parties. The appellant/husband miserably failed to prove cruelty and desertion on the part of the respondent/wife. When the respondent/wife is ready to join the company of the appellant/husband with a very clear intention to perform her matrimonial obligations, the Court below is justified in granting the relief of restitution of conjugal rights. Under Hindu law, marriage is sacrosanct. A man is not complete without his wife and it is the wife, which makes him a complete man. Hindus conceive the marriage as a sacrosanct, permanent, indissoluble and eternal union. For Hindus, the marriage is a tie, which, once tied, cannot be untied. Families are arranged on the idea of mutual expectation of support and amity, which is meant to be experienced and acknowledged amongst its members. Once this amity breaks apart, the results can be highly devastating and stigmatizing. The primary effects of such breakdown are felt especially by women, who may find it hard to guarantee the same degree of social adjustment and support that they enjoyed while they were married. The Court below, after analyzing the entire evidence available on record in correct perspective, rightly dismissed the OP for dissolution of marriage and rightly allowed Dr.SA, J & NBK, J 7 FCA Nos.135 & 136 of 2014 the OP for restitution of conjugal rights. The grounds raised by the appellant/husband in both these appeals are untenable. There are no circumstances to interfere with the impugned common order and ultimately prayed to dismiss the appeal.
6. In view of the above submissions made both the sides, the points that arise for determination in both these appeals are as follows:
1. Whether the respondent/wife, after
solemnization of the marriage, treated the
appellant/husband with cruelty?
2. Whether the respondent/wife deserted the
appellant/husband for a continuous period of not less than two years, immediately preceding the presentation of the petition for dissolution of marriage?
3. Whether the impugned common order, dated 24.06.2014, passed in FCOP Nos.21 of 2009 and 87 of 2010, by the Judge, Family Court-cum-III Additional District Judge, Warangal, is liable to be set aside and the appellant/husband is entitled for dissolution of marriage as sought for?
4. To what result?
POINTS:-
Dr.SA, J & NBK, J 8 FCA Nos.135 & 136 of 2014
7. To substantiate the case of the appellant/husband, the appellant/husband himself got examined as RW.1 and one M.Vishweshwar was examined as RW.2 and Exs.B1 to B3 were marked. On behalf of the respondent/wife, the respondent/wife herself got examined as PW.1, one Narahari Boom Reddy was examined as PW.2 and one Sreepada Hanumantha Rao was examined as PW.3 and Exs.A1 to A8 were marked.
8. It is an admitted fact that the marriage between the appellant/husband and the respondent/wife was solemnized on 31.05.2006 at Hanamkonda. According to the respondent/wife, at the time of marriage, her parents presented Rs.3,50,000/- cash, 4½ tulas gold, 2 Kgs silver and household articles worth Rs.2,50,000/-, which are in the custody of the appellant/husband. Immediately after the marriage, first night ceremony was arranged at Golconda Hotel, Hyderabad. The marriage was consummated. The couple led happy conjugal life for one month. Thereafter, the appellant/husband, his parents and sisters started harassing the respondent/wife, demanding additional dowry of Rs.10 lakhs. The appellant/husband went to USA and stayed there for about one and half month. The marriage of the sister of the appellant/husband was fixed on 17.08.2006 and as such, the respondent/wife along with her father went to Hyderabad to attend Dr.SA, J & NBK, J 9 FCA Nos.135 & 136 of 2014 the engagement function and marriage. While the respondent/wife was staying with the appellant/husband, her in- laws harassed her by showing several unchaste and mischievous causes stating that when their first night ceremony took place at Golconda Hotel, she mixed medicines to attract the appellant/husband to her side and she was giving ash of Saibaba to the appellant/husband to make him close to her. Apart from the above, there were other allegations and counter allegations.
9. It is the case of the appellant/husband that on 12.04.2007, when he returned from the office, the respondent/wife started abusing him and his parents and requested him to drop her at her brother's house. Accordingly, the appellant/husband dropped the respondent/wife at her brother's house at Bandlaguda, Hyderabad. Thereafter, the respondent/wife and her parents did not call him to join her company. There is evidence of RW.1/husband that he tried to contact the respondent/wife after dropping her at her brother's house, but however, there was no response from her or her parents and they did not allow him to contact the respondent/wife. When he dropped the respondent/wife at her brother's house, she was pregnant. The respondent/wife demanded for separate residence and also demanded the appellant/husband to leave his parents and reside with her and Dr.SA, J & NBK, J 10 FCA Nos.135 & 136 of 2014 handover his entire salary to her. Contrary to this, the evidence of PW.1 (respondent/wife) is that she was beaten by the appellant/husband and was dropped at his brother's house and thereafter, she reached her parents' house. The appellant/husband did not visit her at her parents' house situated at Warangal. It is also the evidence of PW.1/wife that she was beaten by the appellant/husband when she was pregnant and without any cause/fault, she was dropped at her brother's house and she has given birth to a male child on 04.09.2007. The evidence of RWs.1 and 2 (appellant/husband and his father) is that they were not informed about the birth of child and when RW.1/husband went to see the child, he was allowed to see the child and was insulted by the parents of the respondent/wife in front of family members and relatives and as such, he felt humiliated. The evidence of RW.1/husband further reveals that he was not invited to the naming ceremony of the child. Contrary to this, the evidence of PWs.1 to 3 is that the appellant/husband and his parents were invited for the naming ceremony of the child, but they did not respond to the same. There is also evidence on record that pursuant to the legal notice, dated 20.08.2008, got issued by the appellant/husband under Ex.A1, a reply notice, dated 12.09.2008, under Ex.A3 was got issued by the Dr.SA, J & NBK, J 11 FCA Nos.135 & 136 of 2014 respondent/wife informing the appellant/husband that the respondent/wife is joining the appellant/husband at his house on 24.09.2008 and to provide conducive environment to her by withdrawing the allegations made in Ex.A1 notice; and when the respondent/wife went to the house of the appellant/husband along with her father (PW.2), elder brother and her people, her mother- in-law ruthlessly driven her away. Contrary to this, the evidence of RWs.1 and 2 is that on that day, the respondent/wife came to the house of the appellant/husband with some unsocial elements, created galata and was carrying the copies of legal notices. The respondent/wife admitted about her going to the house of the appellant/husband along with new born child, her brother, father and some people. If at all the respondent/wife was intending to resume her conjugal life with the appellant/husband harmoniously, in such an event, it was not necessary for her to go to the house of the appellant/husband along with some people. There is evidence to show that the respondent/wife carried the copies of legal notices and distributed the copies of legal notices in the locality, which was unwarranted. Such behavior does not demonstrate the intention of PW.1/wife to join the conjugal life peacefully with the appellant/husband. All these circumstances demonstrate that there were strained relations in between the couple. As per the Dr.SA, J & NBK, J 12 FCA Nos.135 & 136 of 2014 admission made by the PW.1/wife in the counter filed by her, when there were cordial relations among the appellant/husband and the respondent/wife, till the marriage of one of the sisters of the appellant/husband on 17.08.2006. However, both the sisters of the appellant/husband were made accused in the criminal case in C.C.No.46 of 2009.
10. As on the date of disposal of the subject FCOP Nos.21 of 2009 and 87 of 2010, the proceedings in the subject criminal case in C.C.No.46 of 2009 was not terminated. Later, the proceedings in the said criminal case were terminated, wherein, a clear acquittal was recorded in favour of the appellant/husband and his parents. This Court had received the judgment in the said C.C.No.87 of 2010 as additional material papers, by order dated 19.07.2022, passed in I.A.No.1 of 2022. Further, to receive a copy of the judgment in the said criminal case, there was no objection from the side of the respondent/wife. A perusal of the said judgment, dated 21.01.2015, would reveal that the respondent/wife lodged a complaint with Hanamkonda Police Station which was registered as C.C.No.46 of 2009 for the offences under Sections 498A of IPC and Sections 3 and 4 of the Dowry Prohibition Act against the husband, his parents and two sisters. The police, on completion of investigation, filed charge sheet Dr.SA, J & NBK, J 13 FCA Nos.135 & 136 of 2014 before the Court against A1 to A5. One of the sisters (A4 in the said Crime) died pending trial of the case and hence, case against her was abated. The other sister (A5 in the said crime) left to USA and hence, the case against her was split up and numbered as C.C.No.586 of 2014. Learned Magistrate, after adverting to the case in great detail, acquitted the appellant/husband and his parents (A1 to A3) for the offences mentioned supra. There is some discussion in relation to the respondent/wife approaching the house of the appellant/husband on 24.09.2008 in the judgment in C.C.No.46 of 2009. The same is extracted below.
"PW.1 has stated that on 24.9.2008 she along with her parents went to the house of the accused at Vijayanagar Colony, Hyderabad and then all the accused persons did not allow them into their house and they closed the doors of the house stating that they would not allow her unless she brings Rs.10 lakhs and a diamond necklace as additional dowry. She has further stated that they waited till afternoon, but A.1 went to the office leaving them to their fate and A.2 to A.5 abused her in filthy language, beat her and sent her out of their house. PW.2 has stated that on 24.9.2008, he, PW.1, his wife and others went to the house of accused, but, the accused persons did not allow them into their house and A.1 and A.2 questioned them as to why they came there again. PW.4 has stated that he, PWs.1 and 2, and his sister Vijaya Lakshmi (LW.3) went to the house of the accused at Hyderabad, but they did not allow them into their house. PW.5 has stated that in September, 2007, he, PWs.1 and 2, Vijaya Lakshmi (LW.3) and PW.3 went to the house of the accused situated at Vijayanagar Colony, Hyderabad to leave PW.1 there and A.1 was not present in the house then and A2 and A.3 were present and they had negotiations with them (A2 and A3) to receive PW.1, but they refused to receive PW.1 stating that A.1 is not present and they do not want to take responsibility of the same. This evidence of PW.5 is totally contrary to the evidence of PW.1, 2 and 4. Further, PWs.1 and 2 did not speak about PWs.4 and 5 following them to the house of the accused at Hyderabad.
As stated by PW.1, on 24.09.2008, she along with her parents went to the house of the accused persons at Vijayanagar Colony, Dr.SA, J & NBK, J 14 FCA Nos.135 & 136 of 2014 Hyderabad, but, the accused persons did not allow them into their house and then they returned to Warangal and since then she is staying at her parents' house. She has further stated that she gave Ex.P1-report in Hanamkonda Police Station against the accused on 27.11.2008. Thus, there is a delay of more than two months in reporting the alleged incident to the police. PW.1 did not offer any explanation for the said delay caused in reporting the incident to the police.
For the foregoing reasons, this Court is disabled to hold that the accused persons have subjected PW.1 to cruelty with a demand to bring additional dowry and thereby they have committed the offences punishable under Section 498-A of Indian Penal Code and Section 4 of the Dowry Prohibition Act. These points are answered accordingly in favour of the accused and against the prosecution."
11. The material placed on record establishes that there is no demand of dowry of Rs.3,50,000/- and other valuables in the marriage by the appellant/husband. Further, there is no demand for additional dowry of Rs.10 lakhs, as contended by the respondent/wife. False allegations of dowry harassment are made not only against the appellant/husband, but also against his parents and sisters; and one of the sisters died during the pendency of the criminal proceedings. The material placed on record indicates that there was no role of the sisters in the alleged harassment, but however, they were roped in the subject crime and were forced to face criminal trial. Registration of criminal case against a person and making him/her face criminal trial without there being any fault on his/her behalf would certainly put them to trauma and turmoil and constitute sufficient ground to dissolve the Dr.SA, J & NBK, J 15 FCA Nos.135 & 136 of 2014 marriage in between the parties. Such material evidence is present in favour of the appellant/husband.
12. Be that as it may. The marriage between the parties was solemnized on 31.05.2006 and they lead marital life for only one month thereafter. The respondent/wife levelled serious allegations against the appellant/husband for not maintaining the sanctity of marriage and even went to the extent of lodging a report with the police not only against him, but also against his parents and sisters. However, the said criminal case ended in acquittal, be it by extending benefit of doubt or for not proving the allegations beyond all reasonable doubt. Eventually, one of the sisters died during the pendency of criminal case and the other sister left to USA. Right from the beginning, the matrimonial relationship between the parties was not normal. The spouses stayed together at the matrimonial home hardly for one year. The conduct of the respondent/wife in approaching the police complaining against her husband, his parents and sisters are bound to cause mental trauma to all of them. The cumulative effect of all these circumstances on the mind of the respondent/wife, in our considered view, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the respondent/wife. Matrimonial matters are matters of delicate Dr.SA, J & NBK, J 16 FCA Nos.135 & 136 of 2014 human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse.
13. Here, it is apt to state that irretrievable breakdown of marriage by itself is not a ground for divorce under Hindu Marriage Act, 1955. But where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the Courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others, necessitating severance of marital tie. A marriage, which is dead for all purposes, cannot be revived by the Court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up, there is hardly any chance of their springing back to marital life on account of artificial reunion created by the Court's decree. Courts can dissolve a marriage as irretrievably broken down when the Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving and it is broken beyond repair.
14. In Naveen Kohli v. Neelu Kohli1, a three-Judge Bench of the Hon'ble Apex Court observed as follows:
1
(2006) 4 Supreme Court Cases 558 Dr.SA, J & NBK, J 17 FCA Nos.135 & 136 of 2014 "Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
15. The Hon'ble Apex Court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which, the divorce could be granted (see Samar Ghosh Vs. Jaya Ghosh2; Sukhendu Das Vs. Rita Mukherjee3).
16. In the instant case, as pointed out in the foregoing paragraphs, registration of criminal case on false allegations against the appellant/husband, his parents and sisters and putting them to trial certainly causes physical and mental cruelty. So, it can be safely concluded that the respondent/wife had treated the appellant/husband with cruelty, which constitute sufficient cause under Section 13(1)(ia) of the Hindu Marriage Act to dissolve the marriage in between the parties. Further, the other evidence led 2 (2007) 4 Supreme Court Cases 511 3 (2017) 9 Supreme Court Cases 632 Dr.SA, J & NBK, J 18 FCA Nos.135 & 136 of 2014 on behalf of the appellant/husband to demonstrate the conduct of the respondent/wife and the respondent/wife staying away from the matrimonial home of the appellant/husband would also constitute mental cruelty to the appellant/husband by the respondent/wife. Under these circumstances, we feel that the differences between the parties to the litigation are of such magnitude that it would be practically impossible for them to reunite and cohabit again. We also feel that with these many differences between the couple, if the appellant/husband is compelled to live with the respondent/wife by a verdict of Court, it is not safe to him as well as the respondent/wife and may lead to unwelcome consequences. Since the marriage between the parties is emotionally dead, totally unworkable, beyond salvage and has broken irretrievably as discussed above, we deem it appropriate to dissolve the marriage between the parties by granting a decree of divorce.
17. Accordingly, both the appeals are allowed, by setting aside the common order, dated 24.06.2014, passed in FCOP Nos.21 of 2009 and 87 of 2010, by the Judge, Family Court-cum-III Additional District Judge, Warangal. The marriage solemnized between the parties on 31.05.2006, shall stand dissolved by a Dr.SA, J & NBK, J 19 FCA Nos.135 & 136 of 2014 decree of divorce under clause (ia) and (ib) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955.
Miscellaneous petitions, if any, pending in these appeals, shall stand closed. There shall be no order as to costs.
____________________ Dr. SHAMEEM AKTHER, J _____________________ NAGESH BHEEMAPAKA, J th 08 December, 2022 BVV