Telangana High Court
Ponnala Suresh Babu vs Ponnala Swarna on 9 January, 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.429 OF 2018 & 321 OF 2009
COMMON JUDGMENT:
(per Hon'ble Smt Justice K.Sujana) These appeals are preferred by the appellant/husband, aggrieved by the order dated 23.11.2009 in O.P.No.48 of 2007 on the file of the Family Court Cum III Additional District Judge, at Warangal, whereunder, the Family Court dismissed the petition filed by the husband, praying to grant decree of divorce dissolving marriage with his wife. The wife filed counter claim for restitution of conjugal rights. Against the order of dismissal of dissolution of marriage, the appellant/husband filed F.C.A.No.429 of 2018 and against the decree of restitution of conjugal rights, he filed F.C.A.No.321 of 2009.
2. Since both the appeals arise out of the same order and the parties are also same, they are being disposed of by this common judgment.
3. F.C.A.No.321 of 2009 is filed stating that the Family Court erred in holding that appellant/husband is guilty of KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 2 dowry harassment though the appellant/husband and his parents were acquitted for offences under Sections 498-A of the Indian Penal Code (for short 'IPC') and 3 and 4 of the Dowry Prohibition Act vide judgment dated 02.01.2009 in C.C.No.1058 of 2007 (marked as Ex.A3). The Family Court ought to have seen that though the respondent/wife has pleaded in the counter claim that the appellant/husband is leading adultery life with some other women and harassing her physically and mentally, the said allegation is not substantiated and the same amounts to cruelty. The Family Court neither discussed the issue, nor recorded any finding in this regard and it is settled principle of law that making unfounded allegations by one against other amounts to cruelty which entails dissolution of marriage.
4. Further, contended that the Family Court ought to have seen that the respondent/wife categorically pleaded in her counter claim, as well as, counter in O.P.No.48 of 2007 that disputes arose between the parties and they could not be sorted out in spite of intervention of the elders. The Family Court erred in entertaining counter claim filed by respondent/wife seeking restitution of conjugal rights without paying requisite Court fee. The Family Court ought to have seen that respondent/wife KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 3 made unfounded allegations against the appellant/husband and his parents though the competent Court acquitted him in C.C.No.1058 of 2007.
5. The petitioner/husband filed F.C.A.No.429 of 2018 on the same grounds as that of F.C.A.No.321 of 2009 and prayed this Court to set aside the impugned order dated 23.11.2009 in O.P.No.48 of 2007.
6. Heard Smt Shivani, learned counsel for appellant/husband, and Sri Jithender Rao Veeramala, learned counsel for respondent/wife.
7. Learned counsel for appellant would submit that the marriage between appellant and respondent was performed in the November, 2004 and after ten days of the marriage, the respondent/wife began to state that she does not want to lead marital life with appellant/husband and she does not want to continue the marital tie. Thereafter, in February 2005 the respondent/wife left the house of appellant/husband and started living with her parents in Labour Colony. She filed several criminal cases against the appellant/husband. There is a desertion between the appellant/husband and KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 4 respondent/wife for so long and there is no ray of hope of reunion of the parties. He would contend that the Family Court erred in not appreciating the evidence on record and instead of dissolving the marriage, it has allowed the petition of respondent/wife under Section 9 of the Hindu Marriage Act, claimed by the respondent/wife in counter claim. Therefore, even after that as they are not living together, there is no purpose served in dismissing the divorce petition. As such, prayed this Court to allow the appeals by setting aside the impugned order dated 23.11.2009.
8. On the other hand, learned counsel appearing for respondent/wife opposed the submissions of learned counsel for appellant/husband, stating that there are no grounds to allow the appeal and it is because of the adamant attitude of appellant/husband, the respondent/wife decided not to stay with him. As such, prayed this Court to dismiss the appeal.
9. Now the points for determination are:
1. Whether the appellant/husband is entitled for the relief of dissolution of marriage?
2. Whether the judgment of the Family Court needs any interference?
KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 5 POINT Nos.1 & 2:
10. The brief facts of the case are that appellant is a resident of Kazipet and working as Junior Clerk in the Railways. In November 2004 the parents of the respondent approached the parents of appellant for marriage alliance with appellant. After negotiations between the two parties the marriage ceremony was decided at the house of the parents of respondent on 28.11.2004 at 10:45 a.m., and accordingly, the marriage ceremony was performed as per Hindu customs and rites. Thereafter, nuptial ceremony was also celebrated at the house of the appellant. On the date of nuptial ceremony, the respondent did not co-operate for cohabitation. When the appellant enquired with respondent as to why she has married him, she replied that the marriage was performed against her will and pleasure and it was a forcible thrust on her by her parents. The appellant thought that in few days she may reconcile and change her attitude but it did not happen as he wished. After ten days of the marriage the respondent began stating that she does not want to lead marital life with appellant and she does not want to continue the marital tie.
KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 6
11. Thereafter, the respondent became violent not only against appellant but also against his parents. She also attacked appellant and his parents and caused injury to them and behaved most inhumanly and left the Society of appellant by leaving the house and went to the house of her parents in Labour Colony in the month of February 2005. The appellant could not approach neither the Police, nor the elders because of the events happened in short span of time i.e., within 10 days of marriage.
12. Later, the appellant, along with his parents, went to the house of the parents of respondent and met with adverse situation. The parents of respondent became angry over them under the impression created by the respondent and began abusing them in filthy language. Therefore, having no option, the appellant and his parents left the house of respondent disappointedly and approached the caste elders and reported the matter to them. The elders convened a meeting at a temple in Kazipet and called the respondent and her family. The respondent appeared before the elders but she could not face the facts revealed by the appellant.
KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 7
13. Before the caste elders, the first allegation against the respondent was that she took away her mangalasuthram from her body exhibiting before them that she would sell it in the market and repay the loan amount of motor cycle which was presented at the time of marriage through finance. The second allegation was that the motor cycle was taken away by the financier when the amount was not paid and part of the amount was reimbursed by the respondent by selling the mangalasuthram.
14. The respondent could not answer to any of the allegations made against her and left the meeting abruptly. Thus, the meeting ended without transacting further. The appellant submitted that the respondent and her parents approached the elders again and requested them to affect panchayat. The elders again convened meeting at Public Garden, Hanumkonda. Though the parents of respondent requested the elders to convene a meeting, they did not arrive at the venue. Later, their gundas attacked the house of appellant and started abusing in filthy language and went away by threatening that the appellant has to face consequences that may come in future. The appellant submits that the episode continued between the parties for more than two years. The marriage ties between the KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 8 appellant and respondent were irretrievably broken and there is no scope for any future reconciliation between the parties. As such, the appellant filed divorce petition before the Family Court.
15. The respondent filed counter along with counter claim seeking restitution of conjugal rights stating that her marriage with appellant was performed on 28.11.2004. At the time of marriage her parents gave Rs.80,000/- towards dowry and fulfilled other formalities to their status. At the time of marriage, the appellant was working as a private videographer. She further states that the marriage was consummated and they led matrimonial life at the residence of appellant in Kazipet. Later, she was subjected to cruelty after the appellant secured job in South Central Railways for want of more dowry and for motorbike, etc.
16. The respondent further stated that the appellant and his parents never approached the elders for taking her to the society of appellant and when her parents approached them, they ill treated her parents and a panchayat was convened at Kazipet. The appellant and his parents demanded for presentation of hero honda motorcycle in the name of appellant.
KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 9 The parents of respondent purchased the hero honda motorcycle in the name of appellant by taking private finance and by getting the vehicle under hypothecation. Since the installments were not paid properly, the vehicle was seized by the financer. In that connection, a panchayat was convened. The respondent informed the elders that the only remedy is to sell away the gold chain in her neck containing mangalasuthram or otherwise, to pledge the same somewhere to secure money to get the motorcycle released from the financer.
17. Thereafter, she pledged the gold chain, took Rs.5000/- and paid the said amount to the financer but the vehicle was not released on the ground that entire arrears need to be paid. The Mangalasuthram was tied to a cotton thread worn by her. She could not release the gold chain from the gold shop.
18. The respondent submitted that appellant and his parents ill-treated her and she was driven out from the society of the appellant. She was subjected to physical and mental cruelty. Finally, a complaint was given in the Mills Colony Police Station and FIR No.90/2007 dated 23.03.2007 under Section 498-A of IPC and Sections 3 and 4 of the Dowry Protection Act, was issued.
KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 10
19. Though the parents of respondent made several efforts through elders for restitution of conjugal rights, the appellant and his parents did not co-operate. The appellant secured employment in the South Central Railways, Kazipet, after three months of the marriage i.e., during February 2005. After securing the job, the appellant and his parents developed evil thought to get divorce with respondent and to marry another girl to secure more dowry. For this reason, the appellant and his parents ill-treated the respondent during her stay. The respondent also alleged that appellant developed illegal contacts with another woman and leading adulterous life and she also mentioned the same in the criminal complaint given in the Mills Colony Police Station.
20. The respondent also stated that in spite of cruelty meted by her in the hands of appellant and his parents, she is left with no other alternative except to get conciliations through the process of the Court as her parents are unable to support her for long time. As such, prayed this Court to grant decree of restitution of conjugal rights.
KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 11
21. To prove his case, the appellant/husband himself got examined as PW.1 and got examined PW.2 and got marked Exs.A1 to A5. The respondent/wife herself got examined as RW.1 and also got examined RWs.2 and 3 and got marked Ex.B.1.
22. Having regard to the evidence on record and the submissions made, the Family Court passed order, as stated supra.
23. As seen from the record, according to appellant/husband, the marriage was not consummated as the respondent/wife has not cooperated and proclaimed that she is not interested in appellant. Admittedly, the appellant and respondent are living separately from the year 2005. Both of them have admitted that they had disputes and several times the panchayat convened meetings to settle the dispute but nothing was fruitful. The respondent also filed criminal case against the appellant and his parents under Sections 498-A and 306 of IPC vide C.C.No.1058 of 2017. It was alleged that appellant is leading adulterous life with another woman.
KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 12
24. The appellant filed Ex.A3 - certified copy of judgment in C.C.No.1058 of 2007 acquitting him for the offence punishable under Section 498-A of IPC. Further, though the respondent alleged that that the appellant is living in adulterous life with another women, there is no evidence on record to prove the same. The respondent also alleged that on 18.03.2006 the appellant beat her which resulted in fracture to her left elbow and she was examined by Dr.Vijayachander Reddy. She also filed Ex.B1 to prove the same, but the same was not stated in her petition and there is no pleading about the said fact.
25. At the time of considering the O.P., in the year 2009 the Family Court observed that as both the parties are having lot of future before them, it is just and proper to order for restitution of conjugal rights in favor of respondent as was claimed by her in the counter claim. Further, the Family Court erroneously discussed the evidence on record with regard to filing of criminal case under Section 498-A of IPC and under Sections 3 and 4 of the Dowry Prohibition Act stating that unless and until there is some prima facie case, the Police ought not to have registered crime and filed charge sheet against appellant and basing on the said aspect, the Family Court has disbelieved the evidence of appellant and believed the evidence of respondent, whereas, KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 13 the acquittal of appellant in criminal case was not considered by the Family Court, which was pronounced by the trial Court on 02.01.2009 whereas, the impugned judgment is dated 23.11.2009 i.e., ten months after the acquittal of this appellant in criminal case.
26. Learned counsel for appellant/husband relied on the judgment of the Hon'ble Supreme Court in Samar Ghosh Vs. Jaya Ghosh 1. The relevant paragraph Nos.102 and 103 read as under:
"102. When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than sixteen-and-a-half years (since 27-8-1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent.
103. The High Court in the impugned judgment seriously erred in reversing the judgment of the learned Additional Sessions Judge. The High Court in the impugned judgment ought to have considered the most important and vital circumstance of the case in proper perspective that the parties have been living separately since 27-8- 1990 and thereafter, the parties did not have any interaction with each other. When the appellant was 1 2007 4 SCC 511 KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 14 seriously ill and the surgical intervention of bypass surgery had to be resorted to, even on that occasion, neither the respondent nor her father or any member of her family bothered to enquire about the health of the appellant even on telephone. This instance is clearly illustrative of the fact that now the parties have no emotions, sentiments or feelings for each other, at least since 27-8-1990. This is a clear case of irretrievable breakdown of marriage. In our considered view, it is impossible to preserve or save the marriage. Any further effort to keep it alive would prove to be totally counterproductive."
27. In the present case also, the appellant and respondent are living separately without any interaction with each other, whereas, this Court has no jurisdiction to grant divorce on the ground of irretrievable break down of marriage as it is not a ground under Section 13 of the Hindu Marriage Act. The said principle was laid down by the Hon'ble Apex Court in Anil Kumar Jain Vs. Maya Jain 2. The Apex Court only have the power under Section 142 of the Constitution of India. Learned counsel for appellant/husband also relied on the judgment of the Hon'ble Supreme Court in Naveen Kohli Vs. Neelu Kohli 3. The relevant paragraph Nos.86, 87 and 88 read as under: 2
2009 10 SCC 415 3 2006 4 SCC 558 KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 15 "86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.
87. The High Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties.
88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties.
Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life."
KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 16
28. As seen from the record, in the present case also, the appellant and respondent are living separately from the year 2005 and the respondent filed criminal cases against appellant due to which the appellant and his parents were remanded to judicial custody. The appellant also faced departmental enquiry and was imposed a minor penalty of withholding of one increment. As such, it can be said that the matrimonial bond between the parties is beyond repair and the marriage between the parties is only for name sake and the marriage has been wrecked beyond the hope of salvage. The trial Court erroneously concluded that the appellant subjected the respondent to cruelty without there being any evidence and wrongly concluded that without any prima facie case, the Police ought not to have registered a criminal case under Section 498-A of IPC even though the said case ended in acquittal during the pendency of O.P. Viewed from any angle, the trial Court has not discussed the evidence in proper perspective. Therefore, no purpose would be served if the order and decree dated 23.11.2009 in O.P.No.48 of 2007 is not set aside. Accordingly, point Nos.1 and 2 are answered.
KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 17
29. In view of the above discussion, this Court is of the considered view that it is proper to dissolve the marriage between appellant/husband and respondent/wife. Hence F.C.A.No.429 of 2018 and F.C.A.No.321 of 2009 are allowed setting aside the order dated 23.11.2009 in O.P.No.48 of 2007 passed by the Family Court Cum III Additional District Judge, at Warangal, as such, the marriage between the appellant/husband and respondent is dissolved.
As a sequel, the miscellaneous petitions, if any, pending in these appeals shall stand closed.
____________________ K. LAKSHMAN, J __________________ K.SUJANA, J Date :09.01.2024 PT KL,J & SKS,J FCA.Nos.429 of 2018 & 321 of 2009 18 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA P.D. COMMON JUDGMENT IN FAMILY COURT APPEAL Nos.429 OF 2018 & 321 OF 2009 (Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana) Date: 09.01.2024 PT