THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
FAMILY COURT APPEAL No.1 OF 2021
JUDGMENT: (Per Hon'ble Dr. Justice Shameem Akther)
This Family Court Appeal, under Section 19 of the Family
Courts Act, 1984, is filed by the appellant/wife, challenging the
order, dated 26.08.2019, passed in F.C.O.P.No.1567 of 2016, by
the Judge, Additional Family Court, City Civil Court, Hyderabad,
whereby, the petition filed by the appellant/wife under Sections
2(ii)(viii)(d)(ix) of the Dissolution of Muslim Marriages Act, seeking
divorce against the respondent/husband, was dismissed.
2. We have heard the submissions of Smt D.Pramada learned counsel, appearing for Sri. D.Devendar Rao, learned counsel for the appellant/wife and perused the record.
3. On 12.10.2022, this Court ordered notice to the respondent/husband and also permitted personal service of notice on the respondent/husband. Learned counsel for the appellant/wife has filed a memo before this Court vide USR No.95908 of 2022, along with the postal track record, which reveals that notice on the respondent of the husband is served. In 2 Dr.SA, J & NBK,J FCA No.1 of 2022 spite of service of notice, respondent/husband did not choose to appear before this Court.
4. Learned Counsel for the appellant/wife would contend that though there is substantial evidence of the appellant/wife who deposed as PW.1 which proves cruelty on the part of respondent/husband, the Court below erroneously disbelieved the same. Furthermore, the respondent/husband had attributed illegal intimacy to the appellant/wife with one Mesam Razvi. All the acts of the respondent/husband constitute cruelty against the appellant/wife. It is a fit case to grant divorce between the appellant/wife and respondent/husband. The Court below did not consider the same and erroneously dismissed the subject FCOP and ultimately prayed to set aside the order under challenge and allow the appeal as prayed for, dissolving the marriage in between parties to the litigation.
5. The subject FCOP was filed for dissolution of marriage by the appellant/wife against respondent/husband on the ground of cruelty. The appellant/wife, who deposed as PW.1, in her evidence, deposed certain acts such as beatings by the respondent/husband etc., and sustaining injuries at the hands of the respondent/husband. The respondent/husband has also 3 Dr.SA, J & NBK,J FCA No.1 of 2022 specifically attributed illegal intimacy to the appellant/wife with one Mr.Mesam Razvi and that she is staying away from him. The facts remains that the appellant/wife had begotten two children through the respondent/husband. The respondent/husband did not lead any cogent and convincing evidence to substantiate that the appellant/wife had developed any illegal intimacy, as alleged. Such an unproven allegation against a woman, that too on her chastity, would certainly constitute mental cruelty. There is also evidence of causing physical cruelty by the respondent/husband to appellant/wife.
6. In view of these circumstances, the Court below ought to have dissolved the marriage in between the appellant/wife and respondent/husband by granting a decree of divorce. It did not do so. Having regard to the facts and circumstances of the case, we deem it appropriate to dissolve the marriage in between the appellant/wife and respondent/husband that took place on 16.04.2009, by granting a decree of divorce.
7. Accordingly, this appeal is allowed, by setting aside the impugned order 26.08.2019 passed in F.C.O.P.No.1567 of 2016 by the Judge, Additional Family Court at Hyderabad. The marriage performed in between the appellant/wife and the 4 Dr.SA, J & NBK,J FCA No.1 of 2022 respondent/husband on 16.04.2009 stands dissolved by a decree of divorce under Section 2(ii)(viii)(d)(ix) of the Dissolution of Muslim Marriage Act.
Miscellaneous petitions, if any, pending in this appeal, shall stand closed. There shall be no order as to costs.
_______________________ Dr. SHAMEEM AKTHER, J _______________________ NAGESH BHEEMAPAKA, J 15th November, 2022 DSU / BVV