THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
FAMILY COURT APPEAL NO.49 OF 2011
JUDGMENT: (per Hon'ble Smt Justice K.Sujana)
This appeal is preferred by the appellant against order dated
18.10.2010 made in F.C.O.P.No.239 of 2009 on the file of the Family
Court, at Hyderabad, whereunder, the learned Judge dissolved the
marriage of appellant and respondent. Appellant is husband and
respondent is wife. The wife filed F.C.O.P.No.239 of 2009 for dissolution of marriage under Section 13(1) (ia) and (ib) of Hindu Marriage Act, 1955 (for short 'Act, 1955') on the grounds of cruelty and desertion. Challenging the impugned judgment, the present appeal is filed.
2. The appellant/husband filed this appeal stating that the learned Judge erred in granting the decree of divorce and directing him to pay the sum of Rs.3,00,000/- towards permanent alimony to respondent/wife and also to deposit a sum of Rs.5,00,000/- towards marriage expenses of their daughter Ms.Swati. Further, the learned Judge ought to have seen that the respondent/wife has filed the case on the ground of desertion and cruelty, whereas, no ground was made for grant of decree of divorce. The learned Judge ought to have KL,J & SKS,J FCA.No.49 of 2011 2 seen that appellant/husband is affectionate towards respondent/wife and their daughter and was meeting all their expenditure, necessities and all the earnings of respondent/wife were invested in acquiring properties for the welfare of their daughter apart from his contribution. In the absence of any evidence on the cruelty, the order impugned is illegal and there was no cruelty. He further stated that except the evidence of interested persons i.e., the mother and brother of the respondent, there is no evidence on record on behalf of respondent/wife and granting permanent alimony of Rs.3,00,000/- to the respondent/wife who is working as an Officer in Nationalized Banks with a service of more than 15 years and also directing to pay a sum of Rs.5,00,000/- to daughter for her marriage who is a major and pursuing her studies abroad, is illegal.
3. For the sake of convenience, the parties are referred to as arrayed in F.C.O.P.No.239 of 2009.
4. The petitioner in F.C.O.P.No.239 of 2009 filed divorce petition under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, stating that her marriage with respondent was celebrated on 25.08.1988 at Mehdi Function Hall, Lakdi-ka-pul, Hyderabad, as per Hindu customs. By the date of marriage, petitioner was working in Andhra Bank, Mahaboobnagar Branch and respondent was working at the State Bank of India, Bijineypalli Branch, near Mahaboobnagar. Few KL,J & SKS,J FCA.No.49 of 2011 3 days after the marriage, petitioner observed that respondent did not show interest on petitioner and kept himself away from the household affairs. When the petitioner questioned the respondent about his attitude, he used to pick up quarrel and state that she has no right to question his whereabouts. Later, through letters of respondent, the petitioner came to know that respondent had an affair with another woman at Vijayawada and he used to go to Vijayawada frequently under the guise of visiting his parents in Guntoor. When petitioner questioned about the said letters, he snatched the said letters and forcibly burnt them stating that she has no right to question him. During the period they lived together, their marriage was consummated and they were blessed with a daughter on 31.10.1989. Because of the behavior of respondent, petitioner suffered mentally and physically. After the child was born, the respondent visited the hospital and has seen the child. Thereafter, he did not visit the petitioner and the child. The respondent attended the first birthday celebrations of the child and immediately left the home.
5. The petitioner contended that in the year 1991 after a gap of six to seven months, the respondent along with his brother came to the house of her parents and requested for reconciliation. Accordingly, he joined the petitioner in a separate rented house KL,J & SKS,J FCA.No.49 of 2011 4 nearby the house of parents of the petitioner and stayed with petitioner and their daughter only for a period of one or two months. He again started absconding and staying away from them. On 31.10.1991 on second birthday of their daughter Swati, one unknown lady came to the house of the petitioner. When petitioner questioned the respondent about the said woman, he stated that she has taken care of him during his stay at Bijineypalli, Mahaboobnagar. Petitioner was forced to take care of the said woman who is a stranger. Later, when the parents of the petitioner questioned the respondent about the said woman, he sent her away but did not give up his affairs with the said woman or discontinued his affairs.
6. The petitioner further contended that the respondent has not even provided minimum household expenses for maintenance of their child and due to his inhuman and irresponsible behavior, along with her daughter she left the house and started living with her parents in the month of March, 1994 and living there ever since.
7. Further, the petitioner submitted that in the year 1995 her parents constructed a portion in which petitioner and their daughter were living separately from September 1996. The respondent, on coming to know that petitioner is residing separately in the house constructed by her parents, again visited petitioner and her parents KL,J & SKS,J FCA.No.49 of 2011 5 in the year 1997 and pleaded to forgive him by stating that he will stay with petitioner and their daughter and will take their responsibility. The petitioner accepted the respondent for the second time also only with a view to protect their marital relationship. The respondent started living with the petitioner and their daughter and got himself transferred to Hyderabad. Even after that he was irregular to his duties and petitioner came to know that respondent has received several warnings for negligence and arrogance.
8. In the year 1999 due to the pressure of respondent, the petitioner shifted to a bigger house. The parents of the petitioner provided the terrace over the existing house. Petitioner applied for loan and constructed a house and shifted to that house in November 2001 along with respondent and their daughter. The respondent did not take care of their daughter at all and did not extend his help financially. The respondent was transferred to Karimnagar in July 2005 and started residing there and visiting petitioner during weekends initially, later, fortnightly and thereafter stopped visiting the petitioner and their daughter completely.
9. After a gap of two years, the respondent and his father came to petitioner for reconciliation but even then she did not find any change in the behavior of respondent towards her and their daughter. The respondent, right from the date of marriage did not KL,J & SKS,J FCA.No.49 of 2011 6 provide anything as husband to petitioner or as father to their child and he always had relationships with other woman. The petitioner sent her daughter abroad for further studies by taking educational loan as there was no financial support from her husband. The marriage between the petitioner and respondent became only name sake. Though the respondent is working as an Officer in State Bank of India, Mogulapalli branch and drawing sufficient amount, he has not taken any responsibilities of petitioner and their daughter. Therefore, the petitioner stated that there is no scope for reunion with respondent. Therefore, she prayed the Court below to grant divorce on the ground of cruelty and desertion. She further prayed to grant permanent alimony in order to discharge the responsibilities in performing the marriage of her daughter.
10. The respondent filed counter admitting the marriage with petitioner and their child out of their wedlock and as well as the employment of spouses but denied all the other allegations made in the petition. He contended that petitioner was working in the Office of Ombudsman in the Reserve Bank of India on deputation from the Andhra Bank and that due his periodical transfers to the placed outside Hyderabad, he could not stay with petitioner. He denied all the other allegations made against him attributing relationship with other woman. He further contended that petitioner is highly arrogant KL,J & SKS,J FCA.No.49 of 2011 7 and adamant in behavior and without his knowledge, she managed to get herself transferred to Hyderabad. He also contended that petitioner was being supported by her parents in showing disrespect and discourtesy towards him and on his persuasions, she agreed to stay with him. The allegation that respondent introduced some unknown lady to petitioner was invented for the purpose of the petition. He stated that his wife is responsible for spoiling the marital relationship by deserting him. From 1998 to 2004 the respondent stayed with petitioner and their daughter, whileso, he used to pay Rs.4500/- per month towards rent through bankers cheques.
11. It was further stated in the counter affidavit that the petitioner never applied for loan for constructing house and it was her parents who constructed the house with their own expenses. He contended that petitioner was in the habit of dictating terms to him and treated him like a slave and he was never involved in any affairs with any other woman as alleged by petitioner. The respondent is always ready and willing to join the matrimonial house and he is anxious to take care of his daughter and look after the needs of petitioner for the sake of his daughter. As such, he prayed the Court below to dismiss the petition.
12. On behalf of petitioner PWs.1 to 3 were examined and Exs.P1 to P7 were marked. Per contra, the respondent himself got examined KL,J & SKS,J FCA.No.49 of 2011 8 as RW.1 and no documents were marked on his behalf. Basing on the pleadings and the evidence on record and after hearing both sides, the learned Family Court Judge dissolved the marriage of petitioner and respondent vide order dated 18.10.2010.
13. Heard Sri Srikanth Reddy, learned counsel for appellant. No representation on behalf of respondent.
14. Learned counsel for appellant/husband would submit that appellant is ready to join the respondent and their daughter but it was the respondent who is responsible for their separation. He further submitted that due to his job transfer to several places, he was compelled to stay away from wife and daughter. Therefore, there is no cruelty and desertion as stated by respondent. He contended that without there being any evidence on record the Court below erred in dissolving the marriage. As such, prayed this Court to set aside the impugned judgment by allowing this appeal.
15. Having regard to the rival contentions made and the material placed on record, the point for determination is whether the impugned judgment needs any interference?
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16. To prove her case, the wife got herself examined as PW.1, her mother as PW.2 and her brother as PW.3. To prove the cruelty, the petitioner and her brother categorically deposed that right from the date of marriage the respondent got himself transferred to various places and started living away from petitioner intentionally. They also deposed that respondent was in relationship with another woman and when he was questioned about the same by the petitioner, he used to pick up quarrel and shout at her stating that petitioner has no right to question him. It was contended that respondent never took care of his wife and child and never assisted petitioner in financial terms for the education of their child.
17. Per contra, the respondent alleged that it was petitioner who spoiled the marital relationship due to her arrogant and adamant attitude. He contended that petitioner was in the habit of dictating terms to him and treated him like a slave and he was never involved in any affairs with any other woman, as alleged by petitioner. He further contended that he is ready and willing to join the matrimonial house and he is anxious to take care of his daughter and look after the needs of petitioner for the sake of his daughter. He alleged that from 1998 to 2004 he stayed with petitioner and their daughter, whileso, he used to pay Rs.4500/- per month towards rent through bankers cheques.
KL,J & SKS,J FCA.No.49 of 2011 10
18. The marriage of the petitioner and respondent took place in the year 1988 and both of them admitted that they lived together up to 2005 and after that they started living separately. Further, the respondent admitted that out of 21 years of their marital life, they could live together only for a period of eight years. Though respondent alleged that he wanted to take care of his daughter and wife, he did not make any effort for the same at any point of time.
19. It is noticed that though respondent deposed that along with his father, he made efforts for reconciliation but no petition was filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. It is further noticed that the respondent is completely unaware of his daughter's birthday celebration, when she was admitted in school, how much amount was paid towards her school fee, when she was admitted in college and how much fee was paid towards her educational expenses during her college days. Though he deposed that he purchased about four plots in the name of his daughter, no document is filed to prove the same. Though he alleged that he used to pay Rs.4500/- towards rent through bankers cheques, there is no documentary evidence to prove the same.
20. It is further noticed that though respondent has deposed that he is ready to take care of his wife and daughter, he has not taken KL,J & SKS,J FCA.No.49 of 2011 11 any efforts to do the same and right from November 2005 petitioner and respondent are living separately without any wife and husband relationship between them. F.C.O.P.No.239 of 2009 was filed in the year 2009. According to respondent, along with his father, he went to the house of petitioner and convinced the petitioner to live together and that in 21 years of marital life, they lived together only for a period of eight years.
21. The evidence on record and the admissions of respondent clearly show that the respondent is at fault and the petitioner has a genuine reason to live separately from him. It is clear that the respondent neglected the petitioner and their daughter and never spent any amount towards their necessities, needs and educational expenses of their daughter. Moreover, he never tried to meet his daughter and has not even filed any petition before the Family Court for visitation rights. Thus, it is proved that there was desertion and failure to discharge marital obligations on part of respondent/husband and he was not providing any maintenance to the petitioner/wife and their daughter and was living with another woman which amounts to cruelty and the same forced the petitioner/wife to live separately and independently.
22. In view of the above discussion, this Court is of the opinion that the Family Court has rightly dissolved the marriage between the KL,J & SKS,J FCA.No.49 of 2011 12 appellant/husband and respondent/wife herein and there is no illegality in awarding the respondent/wife with permanent alimony of Rs.3,00,000/- and a sum of Rs.5,00,000/- towards marriage expenses of their daughter Ms.Swati. There are no grounds made out by the appellant/husband to set aside the order of the Family Court in F.C.O.P.No.239 of 2009 and there is no need to interfere with the impugned order dated 18.10.2010. Therefore, this Court is of the opinion that there are no merits in the appeal and the same is liable to be dismissed. Accordingly, the appeal is dismissed. There shall be no order as to the costs.
As a sequel, the miscellaneous petitions, if any, pending in this appeal shall stand closed.
____________________ K. LAKSHMAN, J __________________ K.SUJANA, J Date : 31.10.2023 PT KL,J & SKS,J FCA.No.49 of 2011 13 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA P.D. JUDGMENT IN FAMILY COURT APPEAL No.49 OF 2011 (Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana) Date: 31.10.2023 PT