Telangana High Court
P.Venkataraman Sharma , P.Venkatram vs Smt.P.Jyothi on 29 February, 2024
Author: K.Lakshman
Bench: K.Lakshman
THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
FAMILY COURT APPEAL NOs.257 AND 258 OF 2010
COMMON JUDGMENT:
(per Hon'ble Smt Justice K.Sujana) F.C.A.No.257 of 2010 is filed against the common order dated 20.08.2010 passed by the Judge, Family Court, Hyderabad in F.C.O.P.No.417 of 2008, wherein the appellant herein filed petition for dissolution of marriage but the same was dismissed. F.C.A.No.258 of 2010 is filed against the common order dated 20.08.2010 in F.C.O.P.No.416 of 2010, wherein the trial Court allowed the petition filed by the wife who is the respondent herein for restitution of conjugal rights. Both these appeals are filed by the husband against the order of dissolution of marriage and order of restitution of conjugal rights.
2. F.C.A.No.257 of 2010 is filed by the appellant contending that the learned Judge ignored the crucial aspect regarding petition filed by the appellant and that the respondent/wife filed petition for restitution of conjugal rights only as a counter blast. The learned Judge failed to consider that marriage was not consummated and there is long duration of separation of eight years and has also not taken into consideration the cruelty, mental harassment and humiliation meted out by the appellant KL,J &SKS,J FCA.Nos.257 & 258 of 2010 2 from the beginning of their marriage. The trial Court failed to appreciate the evidence of Rws.2 and 3 in favour of Rw.1 who are only blood relatives and without appreciating the evidence on record erroneously dismissed the petition for dissolution of marriage. As such, he prayed the Court to allow the appeal by setting aside the decree in F.C.O.P.No.417 of 2008.
3. The appellant filed F.C.A.No.258 of 2010 contending that the trial Court erred in allowing the petition filed by the respondent/wife for restitution of conjugal rights, without observing that they are living separately for more than eight years and marriage was not consummated, but the respondent wrongly projected the evidence. The trial Court failed to appreciate the aspect of desertion for a lengthy period of more than eight years and the efforts made by the appellant to bring back the respondent to lead happy marital life through mediators and Raksha Social Organization. The trial Court relied on the evidence of respondent without giving weight to his evidence. Therefore, prayed the Court to allow the appeal by dismissing the order in F.C.O.P.No.416 of 2008.
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4. As the parties in both the appeals are same, they are disposed of by this common judgment and for the sake of convenience, the parties hereinafter referred to as appellant/husband and respondent/wife.
5. The trial Court delivered common judgment in F.C.O.P.Nos.416 and 417 of 2008 as the parties are same. F.C.O.P.No.417 of 2008 is filed by the wife who is the respondent in these appeals under Section 9 of the Hindu Marriage Act for restitution of conjugal rights stating that their marriage was performed on 10.08.2001 according to the customs of Hindu law and it is an arranged marriage. At the time of marriage her parents gave a sum of Rs.2,00,000/- apart from a gold ring and silver articles to the appellant and her parents also incurred Rs.3,00,000/- towards marriage expenses. The mother of the appellant/husband began to harass the respondent/wife on the ground of orthodox principles and acharams. The respondent/wife studied M.Com., M.Phil and working as Assistant Professor in Vasavi Engineering College and earning Rs.50,000/- per month and they lived together till 19.04.2008. Though both of them lived happily, during the year 2004 at the instance and dictates of mother of the appellant/husband that she is not willing and accepting the respondent/wife to stay along with them, she was KL,J &SKS,J FCA.Nos.257 & 258 of 2010 4 dropped at her parents' house by the husband stating that he will come and take her back. But thereafter she received a letter from Raksha Social Organization, conciliation took place and on the advice of the said Organization, they agreed to restore their family life. The Raksha Social Organization directed the appellant/husband to tell his mother not to interfere with the day to day family life of the spouses. Since then they are living together. As the respondent/wife could not conceive, the mother of appellant started harassing her on the ground that she is not a woman and not fit for family life. The respondent also went for fertility check up. Though both of them lived together till 19.04.2008, the appellant neglected her without any reason. Though the respondent was dropped at her parents' house, her husband used to meet her frequently either in the house of their known people or at hotels. The appellant used to pick her up especially on Saturdays and used to stay for couple of days. Later on, the appellant stopped meeting her inspite of her best efforts to contact him through phones. Therefore, she filed F.C.O.P.No.416 of 2008 for restitution of conjugal rights and her husband filed counter admitting the marriage and denied the other allegations contending that though the marriage was an arranged marriage, and celebrated on 10.08.2001, it was not consummated sofar, due to the reluctantness and arrogance of his wife. She used to refrain KL,J &SKS,J FCA.Nos.257 & 258 of 2010 5 him on the ground that they have to separate from his parents, to effect partition of his ancestral properties and his share should be transferred in her name. It is also stated that his wife deserted him on 02.03.2002 and ever since she did not turn up and inspite of his implorations, entreaties and attempts to touch his wife, she did not allow him. According to him, marriage was not consummated. The efforts made by him through elders and mediators became futile and their marriage was irretrievably broken down and he has no interest in marital life, as such prayed the Court to dismiss F.C.O.P.No.416 of 2008 and prayed the Court to allow his F.C.O.P.No.417 of 2008.
6. F.C.O.P.No.417 of 2008 was filed by the appellant/husband stating about their marriage and that their marriage was not consummated. It is also alleged that the respondent was very adamant and she was not cooperating with him in having sexual life on the ground that he has to be separated from his parents, to effect partition of their ancestral properties and his share should be transferred in her name. She deserted him on 02.03.2002 and since then she did not turn up and reiterated the same facts which were stated in the counter in F.C.O.P.No.416 of 2008. The respondent/wife filed counter stating the facts which were stated in F.C.O.P.No.416 of 2008.
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7. To prove their case, on behalf of the husband he himself was examined as Pw.1 and Exs.P.1 to P.6 are marked. On behalf of the respondent/wife, she herself was examined as Rw.1, Rw.2- brother and Rw.3-sister of the respondent were examined but no documents were marked on her behalf.
8. Basing on the evidence on record, the trial Court came to the conclusion that the husband is not entitled for dissolution of marriage and allowed the petition filed by the wife for restitution of conjugal rights. Against the same, these appeals are filed.
9. Heard Sri P. Venugopal, learned counsel representing Sri V.Narasimha Murthy, learned counsel appearing for the appellant and Sri S.V.Ramana, learned counsel appearing for the respondent.
10. Learned counsel for the appellant would submit that the marriage of the appellant and respondent was not consummated though it was performed in the year 2001 and there is long desertion between the couple and there is no possibility of reunion. He further contended that the trial Court without properly appreciating the evidence on record dismissed the petition of appellant for dissolution of marriage without observing KL,J &SKS,J FCA.Nos.257 & 258 of 2010 7 the cruelty meted out by him and the long term desertion. Hence, prayed the Court to allow the appeals.
11. Learned counsel for the respondent would submit that there are no infirmities in the judgment of trial Court. The respondent is ready to join the company of appellant and there are no merits in the appeal. Hence, prayed the Court to dismiss the appeals.
12. The contention of appellant is that their marriage was not consummated and the respondent/wife was not cooperating with him in sexual life. It is also contended that the respondent used to utter vulgar language, she did not care anybody and also neglected his parents. His further contention is that the respondent demanded him to desert his parents, effect partition of the ancestral properties and transfer his share in her name. She used to threaten him and his family members that she will commit suicide and foist false cases against them.
13. According to the respondent/wife, they lived happily till 19.04.2008. Thereafter they used to meet at weekends and they also consulted fertility doctor. The appellant left her in her parents house in the month of August, 2006 on the ground that they are going to demolish their house and construct a new house KL,J &SKS,J FCA.Nos.257 & 258 of 2010 8 in that place. Both the couple are interested to live together, but the parents of the appellant are reluctant to accept her. The appellant studied C.A. & ICWA and working in Gulf Oil and the respondent/wife studied M.Com., M.Phil, and working as Assistant Professor in Vasavi Engineering College. Both are highly educated, but the appellant is disputing consummation of marriage whereas, wife is not supporting the same. The Raksha Social Organization also held mediation and conciliation, where the respondent expressed her view to the elders of the said Organization that appellant be advised to consult a Doctor or fertility centre and she is also ready to go for medical checkup but the mother of the appellant did not agree for the said proposal.
14. After going through the version of the respondent, it seems that she is ready to join the company of appellant and she denied that she demanded for partition of ancestral property, to transfer the share of appellant in her name and also to deposit huge amounts in her name. When the respondent is also working as Assistant Professor, the version of appellant is not reliable with regard to partition of property and other allegations. At one stage he deposed that his wife is not willing to join his company, and at another stage, he deposed that his co-brother came to him and asked him to take back his wife but he was not willing to take her KL,J &SKS,J FCA.Nos.257 & 258 of 2010 9 back. In cross-examination he stated that he has no interest to lead family life with the respondent. Simply because he is not interested to lead marital life, the marriage cannot be dissolved. Admittedly, either of them did not go for second marriage, though he claimed that desertion is also one of the ground for dissolution of marriage, but the same was not proved as the respondent/wife deposed that till the year 2006 they lived together and lead happy marital life. Later also the appellant/husband used to pick up her at the weekends and they spent happily, which shows that the allegations made by the appellant are baseless.
15. In view of the said contradictory statements of husband and on flimsy grounds petition is filed for dissolution of marriage. There are no grounds to allow the petition. As such there are no infirmities in the order of the Family Court in dismissing the petition for dissolution of marriage. The respondent/wife filed petition for restitution of conjugal rights and she is willing to join the company of her husband. Both are highly educated and they are in their respective jobs and hail from respected families. However, the husband, except stating that the wife is cruel, that she is not cooperating for consummation of marriage and also demanding for separation from his parents, there is no other evidence placed on record in support of his allegations. Even KL,J &SKS,J FCA.Nos.257 & 258 of 2010 10 assuming that the wife has demanded for separation and for properties as well, it is noticed that she has not filed any criminal or civil cases against her husband seeking monetary relief with an intention to harass him. This clearly shows that there is no truth in the testimony of husband.
16. Though the contention of husband is that as they are living separately since long time, their marriage is broken down irretrievably, therefore, on that ground marriage can be dissolved, whereas, the said power can be exercised under Article 142 of the Constitution of India, by the Hon'ble Supreme Court, but not by this Court. Further, the Hon'ble Supreme Court in Dr. Nirmal Singh Panesar Vs Paramjit Kaur Panesar @ Ajinder Kaur Panesar 1, in Paragraph Nos.18 and 19 it is observed as under :
"18. However, in our opinion, one should not be oblivious to the fact that the institution of marriage occupies an important place and plays an important role in the society. Despite the increasing trend of filing the Divorce proceedings in the courts of law, the institution of marriage is still considered to be a pious, spiritual, and invaluable emotional life-net between the husband and the wife in the Indian society. It is governed not only by the letters of law but by the social norms as well. So many other relationships stem from and thrive on the matrimonial relationships in the society. Therefore, it would not be desirable to accept the formula of "irretrievable break down of marriage" as a strait-jacket formula for the grant of relief of divorce under Article 142 of the Constitution of India.
1 2023 SCC Online SC 1297 KL,J &SKS,J FCA.Nos.257 & 258 of 2010 11
19. So far as the facts of the present case are concerned, as stated earlier, the appellant-husband is aged about 89 years and respondent-wife is aged about 82 years. The respondent all throughout her life has maintained the sacred relationship since 1963 and has taken care of her three children all these years, despite the fact that the appellant-husband had exhibited total hostility towards them. The respondent is still ready and willing to take care of her husband and does not wish to leave him alone at this stage of life. She has also expressed her sentiments that she does not want to die with the stigma of being a "divorcee"
woman. In contemporary society, it may not constitute to be stigma but here we are concerned with the respondent's own sentiment. Under the circumstances, considering and respecting the sentiments of the respondent wife, the Court is of the opinion that exercising the discretion in favour of the appellant under Article 142 by dissolving the marriage between parties on the ground that the marriage has irretrievably broken down, would not be doing "complete justice" to the parties, would rather be doing injustice to the respondent. In that view of the matter, we are not inclined to accept the submission of the appellant to dissolve the marriage on the ground of irretrievable break down of marriage."
17. The only contention of the appellant/husband is that marriage was not consummated and his wife demanded him to separate from his parents, demanded to deposit money and transfer his share in her favour. But the same is not tenable as cruelty and desertion are not proved by the husband.
18. On the other hand, the wife is willing to join her husband and her evidence shows that they lived happily and because of his parents, the disputes arose. As such, on flimsy grounds divorce petition is filed by the husband and the wife has established that there is no fault on her part to live separately from the husband. As such there are no infirmities in the order of the trial Court.
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19. In view of the above discussion, there are no merits in these appeals and the same are liable to be dismissed. Accordingly, both the Family Court Appeals are dismissed. There shall be no order as to costs.
Miscellaneous applications, if any, pending in these Appeals shall stand closed.
_________________ K.LAKSHMAN, J ______________ K. SUJANA, J Date :29.02.2024 Rds