Telangana High Court
Mrs. Nirmala Helen , Nirmala Rao, Sec. vs R.D. Vinod Joseph , Vinod Dass , B.D. ... on 18 December, 2023
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
HONOURABLE SMT JUSTICE P.SREE SUDHA
F.C.A.No.47 of 2012
JUDGMENT:
(Per. Hon'ble smt. Justice P.Sree Sudha) This appeal is filed aggrieved by the order and decree dated 20.01.2009 passed by the learned Judge, Family Court, Secunderabad, in F.C.O.P.No.247 of 2004 and Counter Claim.
2. Appellant herein is petitioner/wife and respondent herein is respondent/husband in the aforesaid F.C.O.P. The parties will be referred to as arrayed before the trial Court.
3. Brief facts of the case of petitioner/wife are as under:
Petitioner/wife filed the aforesaid F.C.O.P.No.247 of 2004 under Section 10 (1) (ix) (x) of the Divorce Act, seeking divorce against the respondent/husband. It is stated in the petition that the marriage between the petitioner and respondent took place on 26.10.1994 as per Christian rites and customs at Secunderabad. The petitioner came out of the house on 18.07.1993 as her parents did not agree for marrying the respondent and initially their marriage was performed by tying Pasupu Kommu around the 2 KL, J & PSS, J FCA No.47 of 2012 neck of the petitioner and they lived together at Lalapet for about three months and later the respondent joined his mother after the death of his father and that they resided together for about one month. Thereafter, disputes arose among the respondent and his brother's family members and as such the petitioner and the respondent shifted their residence to Chilkalguda and from there to Alugaddabavi. It is further stated that the respondent used to harass her mentally and physically by suspecting her character and as such she went to her brother's house at Bombay.
Thereafter, the respondent addressed a letter to the petitioner stating that he will rectify his suspicious character and requested her to lead marital life with him and as such the petitioner joined the respondent at Mettuguda residence and in spite of that there was no change in the attitude of the respondent. Due to unbearable harassment, the petitioner went into depression and was admitted in Gandhi hospital and took treatment and that after discharge, the petitioner converted into Christianity on 26.10.1994 and on the same day her marriage was performed with the respondent according to Christian rites and customs and that 3 KL, J & PSS, J FCA No.47 of 2012 they begot two children on 12.09.1996 and 19.10.2000 respectively. It is further stated that even though the respondent opposed the petitioner studying B.Ed, she got admitted in B.Ed on 26.01.2002. On 29.08.2002, when the petitioner approached the respondent along with mediators viz., one Prameela and Pochamma, he did not allow her to stay with him and kicked her out from the house and as such the petitioner was residing with her parents and depending on the earnings of her father. Petitioner also maintaining her children, who were studying at St. Ann's school and St. Patrick school respectively, with the help of her parents. Efforts made by the petitioner to reconcile through elders proved futile due to adamant nature of respondent. Therefore, she requested the Court to dissolve their marriage by a decree of divorce.
4. Respondent/husband filed a Counter denying all the material allegations contained in the petition. He contended that he never suspected the fidelity of the petitioner either before or after marriage. The respondent was initially running a wine shop and thereafter he stopped the said business at the behest of the 4 KL, J & PSS, J FCA No.47 of 2012 petitioner and was running a Kirana shop and Fancy Bangle store. It is further contended that the respondent never harassed the petitioner either mentally or physically. The petitioner converted into Christianity on 26.10.1994 voluntarily for marrying the respondent who was a Christian. The respondent did not oppose the petitioner from prosecuting B.Ed. as he paid Rs.15,000/- towards fee. Further, the respondent supported the petitioner to look after her ailing mother as she was suffering from hip fracture. It is further contended that the petitioner did not approach the respondent on 29.08.2002 along with one Prameela and Pochamma, who is a social worker. Since July, 2004, the petitioner refused to stay at matrimonial home in spite of several remainders, and insisted for divorce. The respondent never denied the maintenance of children. The petitioner has withdrawn the society of the respondent under the influence of her father. The respondent has lot of love and affection towards the children, however, the petitioner did not allow him even to see the children. The income from kirana shop is sufficient to lead decent life and for meeting household expenses and rent for 5 KL, J & PSS, J FCA No.47 of 2012 shop. The petitioner saved Rs.2,45,000/- from the income of fancy store and kept it with her and that she secured a job in Banjara Hills in June, 2004 and was earning Rs.4,000/- per month. The respondent closed fancy bangle store due to absence of the petitioner. The respondent gave some amount to the petitioner for purchasing gold ornaments. It is further stated that the petitioner and the respondent lived together at Mettuguda till July, 2004. Therefore, he requested the Court to direct the petitioner to join the respondent along with children at Mettuguda. The respondent also filed counter-claim vide OPSR No.4992 of 2004 on 07.12.2004 for restitution of conjugal rights.
5. Initially, the trial Court, vide order dated 27.12.2005, allowed FCOP No.247 of 2004 dissolving the marriage between the petitioner and respondent. Aggrieved by the same, the respondent/husband filed F.C.A.No.12 of 2006 and this Court, vide judgment dated 26.08.2008, allowed the said appeal and remanded back the matter to the trial Court with a direction to dispose of the appeal afresh along with the counter-claim.
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6. In order to substantiate her case, the petitioner/wife examined P.Ws.1 and 2 and got marked Exs.A-1 to A-3. On the other hand, the respondent/husband, examined R.Ws.1 and 2 and no document was marked on his behalf.
7. The trial Court, on consideration of entire material available on record, while dismissing FCO.P. filed by the petitioner/wife, allowed the counter-claim of the respondent/husband for Restitution of Conjugal Rights, vide order dated 20.01.2009.
8. Aggrieved by the aforesaid order, the present appeal has been preferred by the appellant/petitioner/wife contending that since the respondent/husband subjected her to physical and mental cruelty and there was no possibility of living together, she sought for a decree of divorce on the ground of cruelty and desertion, however, the trial Court, without considering the said facts, dismissed the FCOP and allowed the counter-claim of the respondent. The trial Court also failed to consider the events transpired between the parties prior to 26.10.1994. The respondent/husband deliberately filed the counter-claim for 7 KL, J & PSS, J FCA No.47 of 2012 restitution of conjugal rights only to harass the petitioner. The trial Court failed to notice the fact that even though the petitioner/wife approached the respondent/husband along with mediators viz., Prameela and Pochamma, he refused to receive the petitioner/wife into matrimonial home on 29.08.1992 and thereby she filed the petition for divorce. The trial Court erred in not affording an opportunity to the petitioner/wife for filing rejoinder to the counter-claim of the respondent/husband. It is further contended that the trial Court failed to consider the behavior and conduct of the respondent as the respondent on many occasions in Open Court itself attributed the alleged illegal relationship against the petitioner/wife with others and thus the attitude of the respondent/husband amounts to cruelty. The trial Court failed to consider that the respondent/husband has not paid any amount to the petitioner/wife towards her maintenance and that non-payment of maintenance itself is sufficient to discard the claim of the respondent/husband. Therefore, she requested the Court to set aside the impugned order of the trial Court.
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9. Despite service of notice, the respondent/husband did not turn up as per the proceedings dated 18.10.2023. Heard learned Counsel for the appellant/wife and perused the impugned order including the material available on record.
10. The main contention of the appellant/petitioner/wife is that the respondent/husband subjected her to cruelty mentally and physically by suspecting her character and restrained her from prosecuting further studies and also deserted her for the last two years and, therefore, she requested the Court to set aside the order of the trial Court and grant a decree of divorce. On the other hand, the respondent/husband contended that he was looking after the petitioner/wife and their children with love and affection and that he never restrained her from pursuing further studies and, therefore, he requested for restitution of conjugal rights.
11. Petitioner/wife, who was examined as P.W.1, stated in her evidence that the respondent/husband is a very suspicious characteristic person and whenever he went outside, he used to lock the door of the house from outside and being vexed with the 9 KL, J & PSS, J FCA No.47 of 2012 attitude of the respondent, she went to her brother's house at Bombay and thereafter the respondent through letters requested her to come and lead marital life with him as he has rectified his suspicious character and as such the petitioner joined the company of the respondent. P.W.1 further stated that since there was no change in the attitude of the respondent, she went into depression and was admitted into hospital and after discharge from the hospital, she was converted into Baptism on 26.10.1994 and on the same day their marriage was performed and that out of their marital life, two children were born. She further stated that since she admitted into B.Ed course on 26.01.2002, the respondent did not allow her to stay with him and thereafter she approached the respondent on 29.08.2002 along elders viz., Prameela and Pochamma, a social worker, but, he did not allow her into matrimonial home and kicked her out of the house and as such she has been residing with her parents along with children. P.W.2, who is the father of P.W.1, stated that he tried to settle the issue amicably through one Prameela and Pochamma, a social worker, but the efforts made by him became futile. The 10 KL, J & PSS, J FCA No.47 of 2012 trial Court observed that there is no evidence regarding the events transpired between the parties prior to 26.10.1994 and as such it cannot be considered. The trial Court further held that P.W.1 could not examine the mediators i.e., Prameela and Pochamma, a social worker, and as such the effort made by her for reconciliation between the parties was not established. P.W.1 further stated that, on 26.10.2005, the respondent in the open Court attributed illegal relationship against her with others and as such it amounts to cruelty. However, the trial Court observed that no such docket order was filed by the petitioner in support of her contention.
12. Appellant/petitioner/wife filed I.A.No.1 of 2023 seeking permission to file certain copies of documents viz., copy of the order dated 25.06.2007 in F.C.O.P.No.123 of 2006; copy of the judgment dated 26.08.2008 passed in F.C.A.No.12 of 2006; copy of the order dated 27.12.2005 passed in F.C.O.P.No.247 of 2004; copy of interim direction passed by this Court in FCAMP No.327 of 2010 in F.C.A.No.143 of 2007 dated 16.04.2010; copy of the petition filed by the petitioner and copy of the counter filed by 11 KL, J & PSS, J FCA No.47 of 2012 the respondent in M.P.No.98 of 2022 in M.C.No.74 of 2004; copies of petition, chief and cross-examination of the respondent in M.P.No.105 of 2021 in M.C.No.74, as additional material papers. Since the said documents are crucial and necessary for proper adjudication of the matter, this Court finds it reasonable to allow the said application and accordingly, the said I.A.No.1 of 2023 was allowed on 01.08.2023.
13. F.C.O.P.No.123 of 2006 was filed by the petitioner/wife seeking permanent custody of her two minor children aged 5 and 9 years respectively and to declare her as permanent guardian. The trial Court, vide order dated 25.06.2007, granted custody of the minor son in favour of the petitioner and minor daughter in favour of the respondent and that visitation rights were also granted to both the parties on every Sundays and public holidays. Against the said order, the petitioner/wife filed F.C.A.No.143 of 2007. It seems during the pendency of the proceedings, the daughter, who was in the custody of the respondent, came to the house of the petitioner and that on application filed by the petitioner, this Court by order dated 16.06.2010 directed the 12 KL, J & PSS, J FCA No.47 of 2012 Principal, St. Anthony's Girls High School, Secunderabad, to allow the child (DV Alisha Simaran) to continue her studies in the school, while staying with her mother. Petitioner also filed M.C.No.74 of 2004 and that the trial Court granted maintenance and thereafter she filed M.P.No.98 of 2022 against the respondent for enhancement of maintenance from Rs.2,000/- to Rs.30,000/- per month. Respondent also filed M.P.No.105 of 2021 for cancellation of maintenance order dated 27.12.2005 passed in M.C.No.74 of 2004 stating that the petitioner/wife is a practicing advocate and is earning Rs.50,000/- to Rs.70,000/- per month. It is further stated that their daughter got married and their son is working in a private organization and earning Rs.30,000/- per month and that they got sufficient means to maintain themselves. During cross-examination of the respondent/husband on 12.07.2022, he admitted that he gave an undertaking in writing in O.P.No.247 of 2004 under Ex.R2 dated 28.09.2005. It was suggested to him that in the said undertaking, he agreed to provide maintenance and educational expenses to the minor children, but he failed to comply the same, but he denied the said 13 KL, J & PSS, J FCA No.47 of 2012 suggestion. He stated that after taking over custody of his daughter, she resided with him for four years. He further admitted that in spite of a direction by the trial Court in O.P.No.247 of 2014 dated 20.01.2019, the petitioner/wife along with children did not join him and that he has not filed any execution petition to enforce the said order. He also stated that the petitioner/wife became an advocate and is earning substantial amount. P.W.1 in her cross-examination stated that she had two tolas of Gold chain, a set of ear-rings, one nose-stud and finger ring on 18.07.1993. She further stated that her father (P.W.2) was running a watch mechanic shop at Secunderabad, and he is having assets at Bombay and also doing business at Bombay and that her brothers were looking after their business. She further stated that she left the matrimonial house on 26.01.2002, but not in the month of July, 2004. P.W.1 also admitted that when they were living together, her husband used to pay the school fee of their children and after separation, she has been paying the school fee. P.W.1 clearly stated that she is not willing to join the respondent even if he is willing to take 14 KL, J & PSS, J FCA No.47 of 2012 back her. As per the documents filed before the Court, it is evident that the petitioner/wife became an advocate and is living independently.
14. Admittedly, both the parties were not living together for the past 20 years. Allegations and counter-allegations were made by both the parties. Therefore, we are of the considered view that no purpose would be served in continuing the marital relationship between the parties after long separation.
15. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter- productive to the institution of marriage. The Courts do not have 15 KL, J & PSS, J FCA No.47 of 2012 to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.
16. The marriage between parties is admittedly an intercaste religious marriage. Petitioner married respondent against the will of her parents and she converted into Christianity before marriage. She mainly contended that he was suspecting her character and it amounts to cruelty. She also stated that she tried to join him on 29.08.2002 with the assistance of social workers, but he had not permitted her and it amounts to desertion. She filed application for divorce on 23.09.2004 and it was numbered on 29.09.2004. The respondent/husband stated that she deserted him in the year 2004, but she denied the same. No doubt, she could not examine the said social workers i.e., Prameela and Pochamma, but her father stated that they made efforts for amicable settlement through the said workers, but it was not 16 KL, J & PSS, J FCA No.47 of 2012 materialized. Both the children are with the petitioner. Initially, daughter was with the respondent for four years, but later she joined her mother. Petitioner/wife pursued her B.Ed and LL.B and started practicing as an Advocate and she contended that even during the pendency of proceedings, he was suspecting her character. Though his counter-claim for restitution of conjugal rights was allowed, he has not taken any steps to take her back into marital-fold. Attributing unchastity to the wife amounts to mental cruelty, but the trial Court erred in appreciating the facts.
Respondent/husband did not contest the appeal even after service of notice. The marriage between the parties was totally unworkable and emotionally dead as the parties are residing away from each other for the past two decades. This Court finds that it is just and reasonable to dissolve the marriage between the parties solemnized on 26.10.1994 by a decree of divorce on the ground of cruelty.
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17. In the result, the appeal is allowed by setting aside the impugned order and decree dated 20.01.2009 passed by the learned Judge, Family Court, Secunderabad, in F.C.O.P.No.247 of 2004 and Counter Claim. Consequently, the marriage between the parties is hereby dissolved by a decree of divorce. There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
________________________ JUSTICE K.LAKSHMAN _________________________ JUSTICE P.SREE SUDHA 18.12.2023 Gsn/tri.