HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
F.C.A.No.317 OF 2009
ORDER: (Per Hon'ble Sri Justice K. Lakshman)
Heard Sri Raj Kumar Rudra, learned counsel representing Sri
C.V.L.Narasimha Rao, learned counsel for the appellant and none
appears for the respondent.
2. Feeling aggrieved and dissatisfied with the order and decree dated 24.09.2009 in F.C.O.P.No.45 of 2008 passed by the learned the Judge, Family Court, Secunderabad, appellant-husband preferred the present appeal.
3. The marriage of appellant-.husband with the respondent-wife was performed on 04.02.2001 at Bowenpally, Secunderabad as per Hindu rites and customs. It is an arranged marriage. After the marriage, they left to USA and they blessed with a male child on 04.09.2007. Thereafter disputes arose between them. According to the appellant, he had filed an application at USA seeking divorce under Ex.A5. He has also filed another application on 27.02.2007 under Ex.A6 seeking divorce at USA. According to him, respondent 2 subjected him to cruelty and therefore, he has filed FCOP.No.45 of 2008 contending as follows:-
(i) Since date of marriage, the respondent and her mother started unusual and silly attitude towards small and trivial things.
(ii) The mother of the respondent tried to overhear private conversation between appellant and respondent prior to marriage.
(iii) They left to USA. There also, respondent used to pass insulting comments on the appellant. She was using abusive language with the appellant.
(iv) The respondent came to India for four times during the period of seven years of her marital life and she hardly stayed for few days in her in-laws house and she used to send her luggage to her parent's house directly from the airport. Thus, respondent is cruel and sadistic which caused the appellant mental agony and humiliation. Therefore, he has filed two applications in USA seeking divorce.
4. The respondent filed counter denying the said allegations. However, she has admitted that during seven years of marital life there were trivial issues with normal wear and tear, but never turned into 3 argument. She never used any abusive language against the appellant. The mother of the appellant used to plead her to change the attitude of the appellant so that he would interact with them but the appellant used to say that his mother is a 'gayyali' and his father was egoistic. The parents of the appellant stated that astrologers suggested separation for them and second marriage for the appellant after seven years of marital life. After seven years of marriage, the marriage was never consummated, as the appellant could not consummate the marriage, he started avoiding the respondent to compensate and he used to take her for shopping malls, movies and restaurants. The respondent realized the deficiency.
5. In a medical checkup, it was found that appellant had a good sperm count, but suffered with 'erectile dysfunction'. The doctors advised a change in his lifestyle. The respondent cooperated with the lifestyle of the appellant and she never raised issue of physical relationship with him. They were happy together and he was a loving and caring husband. However, they blessed with a male child on 04.09.2007. Appellant came to India and she was not in a position to stay alone, she also came to Hyderabad. On receipt of notice in the present O.P from learned Family Court, she approached the appellant and pleaded to join her company. There is no change in the attitude of 4 the appellant. Though, they had no physical relationship, they never felt any problem. The appellant also reciprocated and he spent most of his time with her and treated her like a kid. They were happy together inspite of being no sexual life. The appellant was very affectionate to the child and also used to say that she was spark in his life and it is difficult for him to stay without her. The respondent continues to have same love and affection towards the appellant. She is ready and willing to forget the past and thereby, she filed counter claim seeking restitution of conjugal rights.
6. To prove the ground of cruelty, appellant herein had examined himself as PW.1 and filed Ex.A1 to Ex.A7. The respondent examined herself as RW.1 and filed Ex.B1 to Ex.B44.
7. On consideration of the entire evidence, both oral and documentary, vide impugned order dated 24.09.2009, learned Family Court dismissed the said F.C.O.P.No.45 of 2008 and allowed the counter claim filed by respondent and directed the appellant to join with the respondent.
8. Attacking the said judgment, learned counsel for the appellant would submit that learned Family Court failed to appreciate the evidence both oral and documentary. Learned Family Court failed to consider the admissions made by respondent during 5 cross-examination. Respondent has made the life of the appellant miserable with which he chosen to file divorce petition in USA twice. He has paid maintenance. Learned Family Court failed to appreciate that respondent and her family members used to say that the appellant is impotent and with the constant pressure by them and also the respondent's promise that she will change her attitude, the appellant accepted for having children through artificial insemination. Learned Family Court failed to appreciate the admission made by respondent during cross-examination that even without the physical relationship, she felt the biological need in her marriage life. There is no love and affection exists between the parties. The marriage of the appellant with the respondent was irretrievably broken and there is no scope for them to live together. On 01.11.2009, respondent and her family members went to the house of the appellant's brother where the appellant is temporarily staying and created big mess, assaulted the appellant, his parents and wife of his brother. She has filed a complaint for the offences punishable under Sections 498-A and 323 of IPC.
9. Vide impugned judgment dated 21.05.2015, learned Magistrate acquitted the appellant and his parents vide C.C.No.911 of 2014. Thus, he was subjected to mental cruelty by the respondent. 6
10. In compliance with the order dated 02.08.2023, learned counsel for the appellant had filed proof of service vide USR No.80478 of 2023 dated 21.08.2023 along with postal cover returned un-served with an endorsement "No such addressee" and email sent by respondent dated 10.08.2023. Respondent has narrated the entire facts. She is in USA and hold a job for herself and her sons's survival. Her income is the only source for their food, clothing, shelter and her son's schooling and other expenses for his upbringing. She has no other source of income to fulfill her needs especially her growing son's needs. She need to plan 1-2 years ahead for trip to India to afford to buy tickets, 6-8 months prior to take permission from her office. Her son is a 10th grader and school is reopening next week for the new academic year. She will not get permission to excuse her son from the school during his ongoing school tenure, or else he loses his admission. Her husband Srinivas Vadde knows all these constraints as her husband lived there in US before moving to India and they worked in the same company so should be aware of the rules.
11. She further stated that her husband is in touch with her son and they talk very often as per their convenience. He knows how their son's schooling and schedule is and how hard their son is putting efforts to get good score. She requested learned counsel for the 7 appellant, if possible, please ask her husband to give her a clarity on this. She don't want to give divorce to her husband. She need him. He needs her and their son needs both of them, his parents together.
12. It is opt to note that learned counsel for the appellant had filed 23 pages of written arguments. The aforesaid facts would reveal that there are disputes between appellant and respondent with regard to consummation of their marriage. However, they blessed with a male child on 04.09.2007. At present, respondent and her son is in USA. Boy is 16 years old and prosecuting his 10th grade.
13. As discussed supra, to prove cruelty, appellant himself examined as P.W1 and he has not examined any other witness. He is mainly relying on Ex.A3-Medical Certificate relating to him, Ex.A4-Report issued by Mercy Rogers Clinic for women, Ex.A5- Divorce petition and Ex.A6-Divorce petition. Whereas, respondent filed Ex.B1 to Ex.B44 documents. On consideration of the said evidence both oral and documentary, learned Family Court mentioned important events during seven years of marital life between appellant and respondent and the same are as follows:-
(a) The appellant married the respondent on
04.02.2001 as per Hindu rites and customs.
(b) They both left for USA on 10.02.2001.
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(c) In the month of May, 2002 the respondent came
to India to attend Sastipurthi function of father of the appellant.
(d) The appellant came to India in the month of June 2005 the respondent came to India to see her father who has undergone bypass surgery.
(e) In November 2005 the respondent came to India to attend the marriage of her sister and brother of the appellant.
(f) On 15.3.2006 the appellant filed divorce
petition at USA which is marked as Ex.A5.
(g) On 27.02.2007 the appellant filed another
divorce petition at USA under Ex.A6.
(h) In the month of May, 2007 the respondent came
to India for Sreemantam at her in-laws house.
(i) On 04.09.2007 they blessed with a male child.
(j) After delivery of the respondent the parents of
both parties went to USA to assist the respondent.
(k) The parents of the appellant went back to India within one month.
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(l) The appellant came to India on 05.01.2008 on receiving phone call that his parents are unwell.
(m) The respondent called him three or four times informing ill heath of the child in the month of January, 2008 after he came to India.
(n) The appellant filed the present petition on 21.04.2008.
(o) On 30.01.2008 he went back to USA.
(p) On 30.04.2008 he returned to India but not
informed about filing of present petition.
(q) The appellant purchased a house and executed
a gift deed in favour of his brother during pendency of this proceedings on 22.11.208 under Ex.B44 relevant encumbrance certificate to show the same.
(r) The appellant made a complaint to U.S.
Consulate about US Citizenship application filed by the respondent stating that he has not applied US Citizenship for his wife during pendency of this proceedings.
(s) On 25.06.2008 the respondent applied for US Citizenship and obtained in the month of October, 2008. 10
14. The learned Family Court gave a finding that problems between appellant and respondent started with artificial insemination and for that reason, in the month of February 2007, appellant filed divorce petition at USA. Then the respondent conceived through an artificial insemination. The petitions filed by the appellant are in the month of March 2006 and another in the month of February 2007. Though, there are some trivial issues between the parties, they can lead their life happily. There are no serious issues. Inspite of respondent not having any physical disability, she expressed her readiness and willingness to join the company of appellant for his love. With the said findings, Family Court dismissed the said FCOP.No.45 of 2008 and allowed the counter claim filed by respondent and directed the appellant-husband to join the company of respondent-wife.
15. In the written arguments filed by appellant, he has reiterated that the said marriage is not consummated and the same is also accepted by respondent. She also stated that she wanted to live with appellant even without physical relationship and also accepts that she feels the biological need. With the same, it is understood that the respondent just needs the appellant herein as a name sake husband for the society and for her monitory needs. The respondent insulted, humiliated and pestered the appellant herein with her frigidity and her 11 parents mentally disturbed him calling impotent etc. But appellant failed to prove the same by producing relevant evidence. Except himself, he has not examined any other witness to prove the same.
16. In the written arguments, he further stated that Consummation happens only on the basis of love. The appellant developed hate towards the respondent because of her cruel and psychopathic behavior. He has also referred pregnancy complications.
17. As discussed supra, the said aspects were considered by the learned Family Court in the impugned order. In the email dated 10.08.2023 addressed by respondent to the counsel for appellant, she has specifically pleaded that she is interested to stay with the appellant and she did not want divorce even her son needs the love and affection of both the parents i.e., appellant and respondent.
18. Learned counsel for the appellant relied upon the principle laid down by the Hon'ble Apex Court in Sivasankaran vs. Santhimeenal 1. In the said case the Hon'ble Apex Court considered the fact that repeated filing of cases/complaints against husband would amount to 'cruelty' for the purpose of granting divorce under Act. In the present case, respondent filed only one complaint against the appellant and his parents and the Learned Magistrate acquitted the appellant and his 1 2021 (5) ALD 286 (SC) 12 parents for the offences under Section 498-A and 323 of IPC and thus it does not amounts to cruelty as contended by the appellant. Therefore the facts of Sivasankaran's case are different to the facts of the present case.
19. As discussed supra, the appellant failed to prove cruelty by producing evidence. Considering the same, learned Family Court dismissed the O.P filed by the appellant. The impugned order is a reasoned order and well founded. It does not require interference by this Court in the present appeal. Appellant failed to make out any case to interfere with the said reasoned and well founded order passed by the learned Family Court. This appeal is liable to be dismissed and accordingly it is dismissed. There shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending shall stand closed.
_________________ K. LAKSHMAN, J _______________ K. SUJANA, J 31.10.2023 ssy