Telangana High Court
Smt.N.Madhuri vs B.Jaganmohan Chary on 13 February, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P.SREE SUDHA
FAMILY COURT APPEAL No.418 OF 2012
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr.Vijay B. Paropakari, learned counsel for the appellant. Despite service of notice, there is no representation on behalf of the respondent.
2. Feeling aggrieved and dissatisfied with the order and decree dated 31.12.2010 passed in O.P.No.987 of 2009 by the Judge, Family Court, Hyderabad, the appellant/wife filed the present appeal.
3. The appellant/wife had filed a petition under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (for short, 'the Act') vide FCOP No.987 of 2009 seeking dissolution of her marriage dated 21.08.2008 with the respondent/husband on the ground of cruelty on the following grounds:-
i. Her marriage with the respondent was solemnized on 21.08.2008 as per Hindu custom and rites.
ii. At the time of marriage, a sum of Rs.2 lakhs in cash, 15 tulas of gold ornaments, furniture worth of Rs.50,000/-, three gold 2 rings, Rs.23,000/- towards clothes, silver worth of Rs.38,000/-, apart from that a sum of Rs.5.5lakhs was given to him. iii. They have no issues.
iv. She did MBA.
v. The parents of the respondent told her that he studied M.Com,
MBA.
vi. On nuptial day i.e. on 22.08.2008 during the reception,
respondent's family members picked up quarrel with the parents of the appellant with regard to vodibiyyam programme. vii. Thereafter disputes arose between them. viii. On the next day i.e. on 23.08.2008 the appellant and respondent together went to Tirupati, where the respondent told that because of the appellant, he lost Rs.10,000/- and taken Rs.4000/- from the appellant.
ix. On 06.11.2008, he picked up quarrel with her, beat and abused her in filthy language, snatched her mobile phone and threw it on the ground. On 07.11.2008, he locked the gate of their house and did not allow her to go her office.
3x. On 04.12.2008, he celebrated house warming ceremony in their up-stair portion without informing her, though she was in the house.
xi. When he is undergoing training at cochin, he asked the appellant to bring Rs.20,000/-, then the appellant and brother of the respondent by name Brahma Chary went to Cochin with cash of Rs.20,000/-.
xii. On 22.02.2009, when the parents of the appellant visited the house of respondent's parents, the respondent demanded her Rs.5 Lakhs to purchase a house at Karimnagar. When her parents refused, the respondent kicked her on her back. xiii. On 23.02.2009 his mother warned her that she should not stay in her in-laws house if she fails to arrange Rs.5 Lakhs. xiv. He sent some unknown persons to her parents house who threatened her and her parents with dire consequences. xv. She lodged a complaint with Women Police Station, CCS, against the respondent and his family members. xvi. On 13.04.2009, the appellant got issued notice but he did not give reply.
4xvii. Their relationship was totally strained and there is no possibility for their reunion and thus she sought decree of divorce.
4. On the other hand, the respondent, denying the allegations made by the appellant against him filed counter on the following grounds:-
i. The parents of the appellant are not in a position to bear the marriage expenses.
ii. She did not attend any household work. iii. She, being the employee used to leave the house at 5.00 a.m. and used to return home by 5 or 8 P.M. He used to drop her at her workplace.
iv. She harassed him and his family by filing false criminal cases and a case in Cr.No.327 of 2009 was registered against them and the same is pending on the file of XIII Metropolitan Magistrate, Hyderabad.
v. In spite of his best efforts, the appellant and her parents did not respond.
vi. He never demanded any dowry from her parents and he met all the marriage expenses.5
5. To prove the said ground of cruelty, the appellant/wife examined herself as P.W.1 and filed Exs.P.1-wedding card, Ex.P.2- marriage photographs, Ex.P.3-office copy of notice, dated 13.04.2009, Ex.P.4-postal receipts, Ex.P.5-reply notice, dated 11.05.2009 and Ex.P.6 copy of report, dated 26.05.2009. respondent/husband did not examine himself or any other witness on his behalf to prove his case, but marked First Information Report in Cr.No.327 of 2009 as Ex.R.1.
6. On consideration of entire evidence both oral and documentary, vide impugned order and decree dated 31.12.2010, learned Judge, Family Court dismissed the said FCOP holding that there are no serious allegations against the respondent or his family members. Certain allegations appears to be material allegations. The appellant failed to prove the same. Admittedly, the appellant got very much love and affection towards respondent. The appellant failed to examine any witness to prove the said allegations including the incidents narrated by her.
7. Aggrieved with the order and decree dated 31.12.2010, the appellant/wife preferred the present appeal on the following grounds:
i. The trial Court failed to appreciate her evidence as P.W.1 and consider documents Exs.P.1 to P.6 filed by her. 6 ii. The trial Court failed to see that though the respondent filed counter, he did not enter into witness box to substantiate his pleas.
iii. The trial Court erred in concluding that the appellant failed to prove harassment and cruelty by the respondent, though she specifically pleaded and deposed the specific instances of harassment. Nothing was elicited in her cross-examination by the respondent with regard to said instances. iv. The trial Court ignored Ex.P.6 First Information Report, which establishes the harassment.
v. The trial Court ignored the evidence of P.W.1 with regard to the incident occurred on 23.02.2009, beating of P.W.1 and her father by the respondent and his family members, calling of 108 for ambulance, but the trial Court only picked up stray admission in her evidence that the 108 ambulance was called by her father to create alibi to the criminal case. With the said submissions, she sought to set aside the order impugned herein.
8. Mr.Vijay B. Paropakari, learned counsel for the appellant reiterated the aforesaid grounds and also placed reliance on the 7 principle laid down by the Apex Court in Smt. Roopa Soni vs. Kamalnarayan Soni 1, the Full Bench Judgment of High Court of Judicature for the State of Telangana and Andhra Pradesh at Hyderabad in Panati Madhusudhana Reddy vs. Maddali Renuka 2. @ Suhasini 3, a Division Bench of this Court in V.Padmaja vs. Veerla Mohan Rai 4, a Divison Bench of Madras High Court in V.Satyapriya vs. P.Venkatesh Prabu 5, a Division Bench of the Apex Court in Vidhyadhar vs. Manikrao 6.
9. According to the learned counsel for the appellant, the respondent subjected the appellant to cruelty and it is irretrievable breakdown of marriage. There is no possibility of re-union. As discussed supra, despite service of notice, there is no representation on behalf of the respondent.
10. There is no dispute that the marriage of the appellant with the respondent was solemnized on 21.08.2008 as per Hindu rites and customs. It is an arranged marriage. They have no issues. She did her MBA. Respondent is also double Post Graduate i.e. M.Com, MBA. 1 2023INSC814 2 2016(4) ALD 584 (DB) 3 2016(4) ALD 584 (DB) 4 2022 (5) ALD (TS) (DB) 5 Madras High Court17-12-1999 6 AIR1999SC1441 8
11. According to the appellant, the following are the cruel acts committed by the respondent/husband:-
i. On nuptial day i.e. on 22.08.2008 during reception, respondent's family members picked up quarrel with the parents of the appellant with regard to vodibiyyam programme. ii. Thereafter disputes arose between them. iii. On the next day i.e. on 23.08.2008 the appellant and respondent together went to Tirupati where the respondent told that because of the appellant, he lost Rs.10,000/- and taken Rs.4000/- from the appellant.
iv. On 06.11.2008, respondent picked up quarrel with the appellant, beat and abused her in filthy language, snatched her mobile phone and threw it on the ground. On 07.11.2008, he locked the gate of their house and did not allow her to go her office. v. On 04.12.2008, he celebrated house warming ceremony in their up-stair portion without informing her, though she was in the house.
vi. When he is undergoing training at Cochin, he asked the appellant to bring Rs.20,000/-, then the appellant and brother of 9 the respondent by name Brahma Chary went to Cochin with cash of Rs.20,000/-.
vii. On 22.02.2009, when the parents of the appellant visited the house of respondent's parents, the respondent demanded her Rs.5 Lakhs to purchase a house at Karimnagar. When her parents refused, the respondent kicked her on her back. viii. On 23.02.2009 his mother warned her that she should not stay in her in-laws house if she fails to arrange Rs.5 Lakhs. ix. He sent some unknown persons to her parents house who threatened her and her parents with dire consequences. x. She lodged a complaint with Women Police Station, CCS, against the respondent and his family members. xi. On 13.04.2009, the appellant got issued notice to respondent but he did not give reply.
xii. Their relationship was totally strained and there is no possibility for their reunion.
12. Full Bench of High Court of Judicature for the State of Telangana and Andhra Pradesh at Hyderabad in Panati Madhusudhana Reddy (supra), with majority held that in determining the relief to be granted, the circumstance of irretrievable 10 breakdown of marriage should be borne in mind. The Full Bench also considered that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act. In cases where, on account of the bitterness between the parties, the marriage is beyond repair, it must be taken to be an irretrievable breakdown of marriage and a weighty circumstance, among others, necessitating severance of the marital tie. While scrutinizing the evidence on record to determine whether the grounds alleged are made out, and in determining the relief to be granted, the circumstance of irretrievable breakdown can certainly be borne in mind. (K. Srinivasa Rao vs. D.A.Deepa-2013 (3) ALD 11 SC; V. Bhagat vs. D.Bhagat-((1994) 1 SCC 337); Navin Kohli vs. Neelu Kohli (2006) 4 SCC 558).
13. It was also held that it is difficult to prove the mental cruelty by direct evidence and therefore, it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. Cruelty must be evaluated on the peculiar facts and circumstances of the case before the Court. No uniform test or standard can be prescribed. Mental cruelty is a state of mind. Mental 11 cruelty is difficult to establish by direct evidence. A feeling of anguish, disappointment and frustration in one spouse, caused by the conduct of the other, can only be appreciated on assessing the attending facts and circumstances in which the couple have been living. Inferences must be drawn from attending facts and circumstances taken cumulatively. It would not be proper to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient, by itself, to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record, and then draw a fair inference whether the petitioner has been subjected to mental cruelty due to the conduct of the other. A degree and proof in matrimonial disputes and preponderance of probabilities also to be considered. The Court while adjudicating the matrimonial disputes have to adopt human approach.
14. In Smt. Roopa Soni (supra), the Apex Court held that the marriage of irretrievably broken down is to be factually determined and firmly established. For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by 12 the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children.
15. In V.Padmaja (supra) a Division Bench of this Court on consideration of the several judgments of the Apex court including Naveel Kohli (supra), on examination of the facts therein that the marriage between the parties was totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, granted divorce. In Satyhpriya (supra), the Division Bench of Madras High Court took the same view.
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16. In Vidhyadhar (supra), the Apex Court held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. (AIR 1927 Privy Council 230).
17. As discussed supra, in the present case also, the respondent failed to enter into witness box to disprove the allegations made by the appellant particularly to disprove the ground of cruelty. Similar view was also taken by the Apex Court in Seethakathi Trust Madras vs Krishnaveni 7.
18. In the light of the aforesaid principles laid down, coming to the case on hand, as discussed supra, the parties have stayed together for only about seven months. Right from the nuptial day, disputes arose between them. They do not have any issues out of their wedlock. They are residing separately prior to issuance of Ex.P.3 notice dated 13.04.2009. The said aspects were not considered by the Family Court 7 AIR 2022 SC 58 14 in the impugned order. In fact, finding of the Family Court that "Admittedly, the petitioner/appellant got very much love and affection towards the respondent." is contrary to the record and without any basis.
19. In the light of the discussion, we are of the considered opinion that the impugned order is not on consideration of actual facts and law including the evidence both oral and documentary. Therefore, the impugned order is liable to set aside.
20. In the result, this appeal is allowed. The impugned order dated 31.12.2010 passed in O.P.No.987 of 2009 by the Judge, Family Court, Hyderabad, is hereby set aside. The O.P.No.987 of 2009 is allowed. The marriage dated 21.08.2008 between the appellant and the respondent is dissolved by way of decree of divorce.
Consequently, pending miscellaneous petitions if any, shall stand closed.
________________________ JUSTICE K. LAKSHMAN ________________________ JUSTICE P.SREE SUDHA Date:13.02.2024 Vvr