Telangana High Court
G.Sujatha vs G.Narsimhulu on 13 February, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SRI JUSTICE P. SREE SUDHA
FAMILY COURT APPEAL No.438 OF 2017
JUDGMENT:
(per Hon'ble Sri Justice K. Lakshman) Heard Sri Mummaneni Srinivas Rao, learned counsel, representing Sri Cheruku Ramesh, learned counsel for the appellant/wife and Sri Muppu Ravinder Reddy, learned counsel appearing for respondent Nos.2 and 3.
2. Feeling aggrieved and dissatisfied with the order and decree dated 09.06.2017 passed by the learned Judge, Family Court at L.B. Nagar, Ranga Reddy District, in F.C.O.P.No.547 of 2012, appellant/wife preferred the present appeal.
3. Respondent No.1/husband had filed a petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, vide F.C.O.P.No.547 of 2012, against the appellant/wife seeking dissolution of marriage on the ground of cruelty. 2
KL, J & PSS,J FCA. No.438 of 2017 Vide impugned order and decree dated 09.06.2012, learned Family Court allowed the said petition and dissolved the marriage of the appellant/wife with respondent/husband solemnized on 20.05.1998, by way of decree of divorce. Feeling aggrieved by the same, the appellant/wife preferred the present appeal with a delay of two days in preferring the appeal. The said delay has been condoned by this Court vide order dated 14.09.2023.
4. During the pendency of the present appeal, respondent No.1/husband died on 08.05.2021. Therefore, respondent Nos.2 and 3, the legal heirs/ children of appellant and respondent No.1, filed I.A.No.3 of 2022 to bring them on record as the LRs of deceased respondent No.1, along with delay condonation petition and set-aside abatement order petition vide I.A.Nos.1 and 2 of 2022 respectively. The said applicated were allowed by this Court vide order dated 08.06.2023. 3
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5. Respondent Nos.2 and 3 - legal heirs/children of appellant/wife and respondent No.1/husband, contended that though the dispute is between appellant and respondent No.1 with regard to decree of divorce, they are entitled to come on record as legal heirs of appellant and respondent No.1. They have also placed reliance on a judgment of the High Court of Andhra Pradesh in Vadalasatti Samrajyamma v. Vadalstti Nagamma 1. Relevant portion of the same is extracted below:
"10. A decree dissolving a marriage involves termination of status of the wife. If the husband dies subsequent to the passing of the decree and the wife seeks to set aside the decree, the question would be whether the wife would be the widow of the deceased or a divorcee. If the wife succeeds in having the decree set aside, she will be entitled to inherit the properties of the husband as a Class II heir. Such a right cannot be claimed and will be lost unless legal representatives of the deceased husband are impleaded. The judgment dissolving the marriage is a judgment in rem and will not merely involve the personal status of the wife, but would involve her property rights. The principle of "Actio personalis cum moritur persona"
will not be applicable and the proceedings to set aside an exparte decree will not abate. Section 21 of the Act makes the provisions of the Civil Procedure Code applicable to the proceedings under the Act. the provisions of Order 22, Rule 4 can be applied to bring on record the legal representatives of the deceased party to the proceedings."
1 AIR 1994 AP 13 4 KL, J & PSS,J FCA. No.438 of 2017 Relying on the said principle, this Court vide order dated 08.06.2023, allowed the LR application filed by respondent Nos.2 and 3 and they were brought on record.
6. In the light of the same, the questions that fall for consideration before this Court are as to,
1. Whether the Family Court is right in granting decree of divorce by dissolving the marriage of the appellant with respondent No.1 performed on 20.05.1998, on the ground of cruelty?
2. If not, to what relief?
7. Respondent No.1/husband filed the aforesaid F.C.O.P.No.547 of 2012 against appellant/wife seeking dissolution of marriage on the ground of cruelty contending as follows:
a. Their marriage was performed on 20.05.1998 as per Hindu Rights and Customs.
b. It is an arranged marriage.5
KL, J & PSS,J FCA. No.438 of 2017 c. Their marriage was consummated and they blessed with two children i.e., respondent Nos.2 and 3 herein.
d. The appellant/wife and respondent No.1/ husband are government teachers.
e. From the date of their marriage, appellant/wife was suspicious against respondent No.1/husband as if he was having illegal contacts with other women. She used to harass him both physically and mentally.
f. Appellant/wife was (3½) years older than respondent No.1/husband and her sub-caste is different to his sub-caste. The said aspects were suppressed by appellant/wife at the time of marriage.
g. She was adamant, suspicious and impatient in nature.
h. She does not have adjustable mind.
i. She has never shown interest to take care of the welfare of old parents of respondent No.1/husband.6
KL, J & PSS,J FCA. No.438 of 2017 j. She started harassing respondent No.1 suspecting that he has illegal contacts with one of the tenants. She got them vacated.
k. Respondent No.1 has purchased a mortgaged house by paying an amount of Rs.8,00,000/- in the name of appellant. She created litigation.
l. She gave a complaint against respondent No.1 with Asmita Resource Centre at West Maredpally with all false and baseless allegations.
m.Her sister is an advocate. With her help, she subjected respondent No.1 to cruelty, both physically and mentally.
n. She has filed a petition under Section 12 of the Domestic Violence Act, 2005, vide D.V.C.No.1 of 2010.
o. She has lodged a complaint against respondent No.1 for the offence punishable under Section 498-A of I.P.C. with the police, Rajendranagar Police Station, who in turn registered a case in Crime No.1022 of 2011.
Thus, according to respondent No.1/husband, appellant/wife subjected him to cruelty.7
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8. Appellant/wife denied the said allegations. According to her, respondent No.1 is aware of her sub- caste and also the fact that she is (3½) years older than him. He only harassed her. She never harassed him on any ground as alleged by him. She has filed a petition vide O.P.No.1145 of 2011 seeking maintenance. Since, respondent No.1 has harassed her, she has filed the aforesaid complaint with the police and also D.V.C.No.1 of 2010. Respondent No.1/husband filed the said O.P. seeking dissolution of marriage only to get rid of her from matrimonial home.
9. To prove the said ground of cruelty, respondent No.1-husband examined himself as PW.1 and filed Ex.P.1 to P.6 documents. To disprove the same, appellant/wife examined herself as RW.1. She did not file any documents.
10. On consideration of the entire evidence, both oral and documentary, vide impugned order and decree dated 8 KL, J & PSS,J FCA. No.438 of 2017 09.06.2017, learned Family Court granted decree of divorce on the grounds that appellant/wife harassed respondent No.1/husband by suspecting that he has illegal intimacy with several women and sending him for medical examination or subjecting him for medical examination, amounts to cruelty. Both the parties were living separately since 25.04.2011 i.e., for more than (6) years, without any co-habitation. Appellant/wife did not express her willingness to join the marital life with respondent No.1. Further, she has filed D.V.C.No.1 of 2010 and lodged a complaint against respondent No.1 for the offence punishable under Section 498-A of I.P.C., subsequent to living separately. Therefore, the marriage of appellant/wife with respondent No.1/ husband has been broken. Though elders tried for amicable settlement, the same could not be arrived and there is no possibility of both the parties living together in view of the unresolved disputes between them.
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11. Sri Mummaneni Srinivas Rao, learned counsel, representing Sri Cheruku Ramesh, learned counsel appearing for appellant/wife, would submit that during the pendency of the present appeal, respondent No.1/husband died on 08.05.2021. Appellant herein is a teacher. She does not want to be a divorced widow of deceased respondent No.1. Learned counsel would further submit that a suit vide O.S.No.12 of 2012 was filed seeking declaration of title over the house and the same is pending.
12. As discussed supra, though respondent No.1/husband levelled several allegations against the appellant/wife, he did not examine any witness to prove the same. At the same time, he has not filed any documents in proof of the same.
13. However, during cross-examination, respondent No.1 has categorically admitted that one Ms.Neelima, who was his tenant residing in the same house, has 10 KL, J & PSS,J FCA. No.438 of 2017 vacated the house and that he does not know where she is residing thereafter. He has also admitted about purchase of house at Bhavani Nagar and that he did not mention the name of the person who conducted panchayat for mediation between him and appellant/wife. He did not mention the dates of the said panchayat and the place where the panchayat was conducted. He did not mention the names of friends and also their neighbors to whom the appellant/wife has spread rumors about his illicit relation. He left home on 25.04.2011 and he met his daughter in a hostel at Hayathnagar during April, 2013. He has filed a petition seeking visitation rights of his children. He attempted to commit suicide and the same was informed to Sarwajana Sankshema Mandali, who advised him not to commit suicide. Respondent No.1 further admitted that he does not know whether the said Mandali spoke to Ms.Neelima, his tenant who got vacated from their locality. 11
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14. As discussed supra, the appellant herein had filed O.P.No.1145 of 2011 seeking maintenance to her children on their behalf. The same was allowed.
15. As discussed supra, respondent No.1 failed to prove the ground of cruelty by producing cogent evidence. Without considering the said aspects, learned Family Court granted decree of divorce vide the impugned order.
16. In fact, learned Family Court granted decree of divorce by observing that appellant herein had filed D.V.C.No.1 of 2010 and implicated respondent No.1 in a criminal case for the offence punishable under Section 498-A of I.P.C. They were living separately since 25.04.2011 i.e., more than (6) years and the marriage of appellant with respondent No.1 has been broken.
17. It is relevant to note that when the wife is subjected to harassment by the husband, she has every right to lodge a complaint against the husband for the offence punishable under Section 498-A of I.P.C. She is also 12 KL, J & PSS,J FCA. No.438 of 2017 entitled to file an application under Section 12 of the D.V.C. Act against the husband, seeking certain reliefs. Mere filing of D.V.C. and lodging a complaint against the husband, does not amount to.
18. It is relevant to note that on the ground of irretrievable breakdown of marriage, neither the Family Court nor this Court can grant decree of divorce. It is not a ground to seek decree of divorce. In fact, Law Commission made a recommendation to include the said ground of irretrievable breakdown of marriage as a ground to obtain decree of divorce. The said fact was also mentioned by the Hon'ble Apex Court in Naveen Kohli v. Neelu Kohli 2.
19. Thus, the impugned order and decree is not on consideration of evidence, both oral and documentary. It is not a reasoned order. Therefore, it is liable to be set aside.
2 (2006) 4 SCC 558 13 KL, J & PSS,J FCA. No.438 of 2017
20. Accordingly, the Family Court Appeal is allowed setting aside the impugned order and decree dated 09.06.2017 passed by the learned Judge, Family Court at L.B. Nagar, Ranga Reddy District, in F.C.O.P.No.547 of 2012. There shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the Family Court Appeal shall stand closed.
___________________ K. LAKSHMAN, J ___________________ P. SREE SUDHA, J 13th February, 2024 GSP/PN