Telangana High Court
Kadarla Madhu Babu, vs Kadarla Madhuri And 2 Others, on 7 June, 2024
Bench: K.Lakshman, P.Sree Sudha
THE HON'BLE SRI JUSTICE K. LAKSHMAN
AND
THE HON'BLE SMT. JUSTICE P.SREE SUDHA
FAMILY COURT APPEAL No.110 of 2012
AND
CRIMINAL REVISION CASE No.1596 of 2009
COMMON JUDGMENT :
(Per Hon'ble Sri Justice K. Lakshman) Heard Sri S.Surender Reddy, learned counsel appearing for the appellant in F.C.A.No.110 of 2012, learned counsel for the petitioner in Crl.R.C.No.1596 of 2009 and Sri N.Ashok Kumar, learned counsel appearing for respondents in both the appeal and criminal revision case. Perused the record.
2. Feeling aggrieved and dissatisfied with the common order and decree dated 30.07.2009 in F.C.O.P.No.76 of 2008 and F.C.M.C.No.82 of 2008 passed by learned Judge, Family Court- cum-Additional District and Sessions Judge at Karimnagar, appellant-husband preferred F.C.A.No.110 of 2012 and Crl.R.C.No.1596 of 2009.
3. This Court vide order dated 24.09.2009 in Crl.R.C.M.P.No.2208 of 2009 in Crl.R.C.No.1596 of 2009 granted interim stay of the order dated 30.07.2009 passed in F.C.M.C.No.82 of 2008 on the file of the Judge, Family Court- 2 cum-Additional District and Sessions Judge, Karimnagar, on the condition of appellant-husband depositing 50% of the maintenance awarded therein and arrears, if any, shall be paid within four weeks. Monthly maintenance as indicated above shall be deposited by 10th of every succeeding month.
4. The appellant-husband had filed a petition under Section 13(1)(ia) of Hindu Marriage Act,1955 vide F.C.O.P.No.76 of 2008 against the respondent-wife seeking dissolution of marriage on the ground of cruelty.
i. The marriage with the respondent was performed on 19.08.2004 at Gopi Krishna Function Palace, Karimnagar, as per Hindu customs and rites.
ii. It is an arranged marriage.
iii. At the time of marriage, he was working in
Visual Soft Company at Hyderabad. After the
marriage, they lived happily for some time.
iv. They were blessed with a male child on
15.10.2005.
v. Thereafter, respondent started harassing the
appellant on one pretext or the other she started demonstrating dislike for the marriage relationship 3 and started insulting the appellant in the presence of neighbours.
vi. She used to call the appellant over phone during working hours stating that she is leaving home due to which he suffered a lot of tension. vii. She used to make disparaging comments against him and his parents.
viii. She used to leave the matrimonial home without intimating the appellant and his parents. She used to stay with her parents for days together due to which appellant suffered untold misery and humiliation. He has informed the said fact to the parents of respondent who also supported her, instead of convincing her.
ix. Several panchayats were held. Elders advised her to behave properly and lead happy marital life. x. Even then, there is no change in the attitude of the respondent.
xi. She has attempted to commit suicide by cutting her hand, she tried to hang herself with saree around 4 her neck and one midnight, the respondent sat on the neck of the appellant and tried to kill him. xii. Thus, the attitude of the respondent is incorrigible. Therefore, he took her to Dr.B.Preethi Swaroop, Neuro Psychiatrist at Hyderabad, who advised her to take treatment. But respondent and her parents refused to take treatment.
xiii. During pregnancy, doctor advised her to take complete bed rest. During the said period she did not allow the appellant and his parents to see her. xiv. Even after giving birth to the child, they have not allowed the appellant and his parents to see the child.
xv. She openly declared that she dislike the relationship with the appellant and not interested to join the society.
xvi. She married him against her will. Mother, sister and maternal uncle of the respondent supported her.
xvii. She made a complaint with Superintendent of Police, Karimnagar, who in turn referred the matter 5 to Women Police Station, Karimnagar, who advised the appellant to issue legal notice to the respondent. xviii. Accordingly, legal notice was issued and respondent also sent reply.
xix. Finally on 29.09.2007, she left the company of the appellant without informing him.
xx. The appellant went to the house of the respondent and requested her to join his company. xxi. But respondent informed the appellant that she will not come and join his company at any point of time and he can do whatever he wants. And her father also rudely behaved with the appellant. xxii. Thereafter, appellant along with his parents and elders went to the house of respondent and requested her parents to send her back. They bluntly refused.
Thus according to the appellant, respondent subjected him to cruelty and deserted him.
5. Respondent had filed counter contending that the allegations made by the appellant are false and baseless. 6 i. At the time of marriage, appellant used to work as Programmer in Temple Techno Company at Hyderabad. ii. They put up family at Karimnagar and he used to come to his parents house once in a week.
iii. Before appellant coming to Karimnagar from Hyderabad his mother used to take away the respondent to her house located at Bhagathnagar, Karimnagar. She used to tutor him and used to make false allegations against the respondent. Appellant used to scold and beat the respondent indiscriminately.
iv. On the eve of first Deepavali festival, father of the respondent invited the appellant to observe the tradition and in a way observing the traditional custom. v. He has also presented a bracelet to the appellant.
Instead of accepting the gift, he has thrown the same away. Thus, appellant insulted respondent and her parents.
vi. Thereafter, appellant joined as Software Consultant in Visual Soft Company, Kukatpally, Hyderabad. vii. He has taken a house at S.R.Nagar, Hyderabad, and she joined the company of appellant at the said house. 7 There also, the appellant was adamant, egoistic, quarrelsome and suspective in nature.
viii. He has warned the respondent not to permit her parents to his house.
ix. He used to suspect her for every small thing. x. In the May, 2005, while she was carrying four months pregnancy the husband gave a specific warning not enter into his society. As such there was no alternative for the respondent but to join her parents. xi. She gave birth to a male child on 15.10.2005. xii. Inspite of knowing the said fact, and that the child was serious, he was in an incubator, appellant and his parents did not care to see him.
xiii. Naming ceremony was arranged and fortunately appellant and his parents attended the said function. xiv. But they left the said place, without intimating the respondent and her parents.
xv. When the boy was five months old, appellant, his parents, sisters and brother-in-law and some other elders came to her house under the guise of conducting panchayat. Sri Venu, brother-in-law of the appellant 8 informed the respondent that they have decided to give divorce to the respondent and asked the respondent to get ready for receiving the divorce notice from the Court of law. xvi. Appellant's parents threatened the father of the respondent. They have house arrested him. xvii. Appellant also threatened the respondent many times saying that he will give divorce by moving a divorce petition.
xviii. He got issued a legal notice dated 12.02.2007 for restitution of conjugal rights with an intention to show the general public that he was interested to lead conjugal life with the respondent.
xix. She was about to issue reply notice to the said legal notice.
xx. Surprisingly, he came to the house of the respondent and asked her parents to revive the marital relationship by forgetting all the past incidents with an assurance to lead a fresh marital life with the respondent.
xxi. A mutual agreement dated 26.02.2007 was entered between the appellant and respondent in the presence of elders and they have agreed to live fresh marital life. 9 xxii. On 26.02.2007, respondent joined the society of the appellant at Hyderabad, pursuant to the said agreement. xxiii. On the very day of her joining, appellant surprisingly and shockingly stated that he is not willing to lead any marital life with the respondent and only with an intention to make a ground for divorce, he has brought her to his house. Thus, he has cleverly formulated a new scheme to get rid of the respondent.
xxiv. He started coming to the house late in the night by leaving the respondent alone along with the children. He started behaving in an inhumane manner.
xxv. Once he held her hand, put a line mark with blade on her wrist, by which, she started bleeding from the slit. xxvi. While bleeding, he has informed his parents that the respondent attempted to commit suicide by cutting her hand and she is of unsound mind. The parents of respondent along with Mr.Narender, her maternal uncle came to Hyderabad.
xxvii. On 26.09.2007, appellant, his parents and sisters tried their level best to treat the respondent as an insane woman on the issue of cutting down at her wrist. 10 xxviii. At that particular point of time, appellant as well as his parents, sisters have formulated a plan, for revival of her marital relationship with a proposal to bring an additional dowry of Rs.6,00,000/-. She did not agree for the same.
xxix. On 29.09.2007, appellant indiscriminately beat the respondent, driven her out of his house by calling her parents.
xxx. Since 29.09.2007, she started leading her life miserably by depending on the income of her retired father. During one year, he never cared to see either the respondent or his son or paid single rupee for their maintenance.
xxxi. On 01.02.2008, the appellant along with his parents came to the house of the respondent and demanded her to make necessary arrangements for bringing additional dowry of Rs.6,00,000/-, failing which, he will file a petition seeking dissolution of marriage. Thus, the appellant insulted her and harassed her both mentally and physically.
11xxxii. He along with his parents necked her out of the matrimonial home.
xxxiii. Therefore, she was compelled to lodge a complaint with Women Police Station, Karimnagar on 08.03.2008 who in turn registered a case in crime No.26 of 2008 against the appellant and his parents for the offence under Section 498-A of I.P.C. and Section 4 of Dowry Prohibition Act.
xxxiv. During reconciliation proceedings before the Lok Adalat, appellant refused to take the respondent and her child to his company.
xxxv. She has also filed F.C.M.C.No.82 of 2008 seeking maintenance. With the said submissions she sought to dismiss the aforesaid O.P. filed by appellant and she has filed counter claim seeking restitution of conjugal rights.
6. To prove the said cruelty, appellant-husband examined himself as Pw-1, his father as Pw-2, his maternal uncle as Pw-3, his Junior Maternal Grand Mother as Pw-4 and landlord as Pw-5. He has filed Exhibits P-1 to P-5 documents. 12
7. To prove her claim in F.C.O.P.No.76 of 2008 and F.C.M.C.No.82 of 2008, respondent examined herself as RW-1, her mother as RW-2, her maternal uncle as RW-3, her maternal aunt's husband as Rw-4 and Association elder as Rw-5. She did not file any document.
8. On consideration of the entire evidence both oral and documentary vide impugned order, learned Family Court dismissed the aforesaid O.P. filed by appellant-husband and allowed the counter claim filed by respondent seeking restitution of conjugal rights.
9. Vide the said common order, learned Family Court granted an amount of Rs.4,000/- per month to the respondent and Rs.2,000/- to her son towards monthly maintenance. Challenging the said common order, appellant-husband preferred the aforesaid appeal and has filed the aforesaid criminal revision case.
10. The aforesaid facts would reveal that the marriage of appellant with the respondent was performed on 19.08.2004 and it is an arranged marriage. They lead their happy marital life for sometime and blessed with a male child on 15.10.2005. He is 13 19 years now and he became major. Thereafter, matrimonial disputes arose between them.
11. According to the appellant, respondent subjected him to cruelty. She has attempted to commit suicide by cutting her hand, she tried to hang with her saree around her neck and one midnight she sat on his neck and tried to kill him. According to appellant, respondent's behavior was abnormal and therefore he has taken her to Dr.B.Preethi Swaroop, Neuro Psychiatrist at Hyderabad, who advised her to take treatment. But the respondent and her parents refused to take treatment and supported the respondent.
12. To prove the said attempt to commit suicide by the respondent by cutting her hand, he had examined himself as Pw-1 and his father as Pw-2. But their evidence is not useful to prove the same. Appellant failed to prove that the respondent tried to hang herself with her saree around her neck by producing any evidence. Of course, there is no evidence with regard to the allegations made by him that the respondent sat on his neck and tried to kill him on a midnight. The said allegation made on respondent is improbable. She is a woman 14 and she cannot sit on the neck of appellant and she try to kill him. Even with regard to consulting Dr.B.Preethi Swaroop, Neuro Psychiatrist at Hyderabad, except filing Ex.P-4 prescription, there is no other evidence. By filing Ex.P-4 medical prescription, he cannot prove that respondent was suffering with Psychiatric problem.
13. It is not in dispute that there is exchange of notices and reply. Though the appellant herein had issued Ex.P2 legal notice requesting the respondent to join his Company, he has not filed any petition under Section 9 of Hindu Marriage Act against the respondent seeking restitution of conjugal rights. It is the specific case of the respondent that while she was planning to issue reply to Ex.P-2 legal notice dated 12.02.2007, appellant along with his parents came to her and took her to his company. They have also entered into Ex.P-3 agreement dated 26.02.2007. Pursuant to the said agreement, she joined his company.
14. It is relevant to note that the said agreement is named as 'fresh marital agreement' and it is dated 26.02.2007. In the said agreement there is specific mention about the 15 communication gap and understanding between the parties due to the parents of both the parties out of their love and affection. Thereafter, they have realized that the said gap was due to their parents' intervention. As per the opinion of appellant, respondent was taken to her parents' house in October, 2006. Due to the past incidents they were not in a position to lead happy marital life by staying together. In the meanwhile, appellant had issued a legal notice dated 12.02.2007. Respondent expressed her willingness to join the company of appellant. Therefore, instead of blaming each other, they have decided to lead their happy marital life on the following conditions.
i) Friends and relatives shall not involve in their marital life unnecessarily.
ii) Both the appellant and respondent shall cooperate with each other cent percent.
iii) They shall not resort to any act both physical and mental.
iv) Both the appellant and respondent shall respect their in-laws. They will see that there won't be any problem in future and decide to lead happy marital life.16
15. Despite the said agreement, according to the respondent, there was no change in the attitude of the appellant herein. However, he has filed the aforesaid O.P. on 04.02.2008.
16. Thereafter, she has filed the aforesaid M.C.No.82 of 2008 seeking maintenance.
17. As discussed supra, on the complaint lodged by respondent, the police have registered the aforesaid Crime No.26 of 2008 and on completion of investigation, the Investigating Officer laid charge sheet against the appellant and his parents. The same was taken on file vide C.C.No.83 of 2009.
18. According to the respondent, to get acquittal in the said case, appellant and his parents cleverly hatched a plan to take the respondent to the company of appellant. She believed the appellant keeping her welfare and welfare of her son, she joined the company of appellant. The said fact was deposed by her in the said C.C.No.83 of 2009. Her parents also deposed in the said lines. Basing on the said evidence, observing that the respondent and her parents, PWs 1 to 3 turned hostile and that the appellant and respondent are leading happy marital life, vide judgment dated 29.04.2010, learned Magistrate acquitted the 17 appellant. Thus according to respondent, they have hatched a plan to see that the said C.C.No.83 of 2009 will end in acquittal. According to respondent, appellant preferred the present appeal in the year, 2009.
19. As discussed supra, believing the appellant, she joined the company of the appellant. During the said period, they were blessed with a second child on 22.07.2012 and they continued their cohabitation till October-2013. Thereafter, the appellant again necked her and her children out of the marital house. The aforesaid facts are not in dispute.
20. PW-1 during cross examination admitted the said facts. He has further admitted that out of five years of their marital life, respondent stayed with him for a period of only five months. When respondent became pregnant, doctor advised her to take complete bed rest. Parents of respondent took her to their house while she was carrying second month pregnancy. When she was carrying fourth month pregnancy, he brought the respondent to his house and she stayed with him for one month. He did not attend the Sreemantham ceremony conducted by the parents of respondent. However, according to him, just one day 18 before the ceremony, he was informed about the same and as he had urgent work in his office, he could not attend the said Sreemantham Ceremony, however, his parents attended the said ceremony. He admitted that his son was kept in incubator after delivery. However, he has denied a suggestion that neither his parents nor appellant did not care to see the child.
21. He has further admitted that he along with his parents attended the naming ceremony of the child and after having meals only, he left the house of the respondent. At the time of naming ceremony, parents of the respondent informed that as she underwent cesarean operation, they would send the respondent in sixth month of baby and they have accepted for the same. When the child was three months old, his mother went to the house of respondent's parents and brought the respondent and child to their house at Bhagathnagar, Karimnagar, on the same day, he took the respondent and child to Hyderabad as the condition of the child was not good and took the child to Care hospital.
22. During the seventh month of his son, respondent and the child were brought to his house. He along with his parents 19 and elders visited the house of the respondent's parents and demanded them to send the respondent to their house. He brought the respondent in an Auto. He has denied a suggestion that he has abused respondent parents and maternal uncle in filthy language saying that they never visit their house, he was going to beat them with cheppal. However, he stated that he only asked them not to visit their house as the differences arose between the appellant and respondent on account of their conduct only. On the next day, he took the respondent and child to Hyderabad and set up residence in another house at S.R.Nagar. The said house was in the first floor. Chilumula Sudarshan is his paternal uncle, Sri Kadarla Laxminarayana is his junior maternal uncle, Smt.Amruthamma is his junior maternal grandmother and Dursheti Venkataswamy is the husband of his senior maternal aunt.
23. On 12.02.2007 he got issued a legal notice calling the respondent to join his company. However, he has denied a suggestion that after issuance of the said notice, he and his parents visited the house of the respondent and requested her to join his company. However, he has admitted about entering into Ex.P3 agreement on 26.02.2007. Subsequent to Ex.P3 20 agreement, appellant and respondent set up family at Balaji Nagar, Kukatpally and it was an independent house.
24. On 08.03.2008 respondent has lodged a complaint against the appellant and his parents in Women Police Station, Karimnagar. However, he has denied a suggestion that on filing the said complaint only, he has filed the aforesaid O.P. on 04.02.2008. Since 29.09.2007, he has not sent any maintenance to the respondent and the child. On 10.02.2007 he gave a representation to the Superintendent of Police, Karimnagar against the respondent. His father retired from service on 31.12.2007. After respondent leaving his company, subsequently he returned all her sarees to the respondent on the advice of the officials of Women Police Station, Karimnagar. Even if the respondent is willing to join his company today itself, he is not ready to take her back. Even two days back people from Communist Party Office telephoned to his father and demanded him to visit their office.
25. PW2 is the father of PW1. He has deposed most of the things as stated by his son Pw-1. During cross examination, he has admitted that within 10 to 15 days after the marriage 21 respondent and appellant set up family at Hyderabad. Whatever he knows about the differences between the appellant and respondent, he came to know about those differences through appellant only. He visited the house of appellant and respondent at Hyderabad two times. He noticed adamant behavior of the respondent on two occasions. He has not stated the same in his affidavit filed in lieu of chief examination. He does not know whether the appellant and respondent visited his daughter's house at Jagtial while she was pregnant. Though they have attended 21st day ceremony of the child, they went away without taking food. Their relatives and well wishers 25 in number have also attended the said function but they have not served any food. The respondent and her parents abused them. Therefore, they left the said place without having food. When the child was five months old, PW2, his wife, appellant, two daughters and sons-in-law visited the house of respondent's parents and they brought the respondent and child to their house. On 26.02.2007, appellant and respondent had set up a family at Hyderabad. On 29.09.2007 respondent reverted to residing with her parents.
22
26. PW-3 is a maternal uncle of Pw-1. During cross examination he was admitted that he never visited the house of appellant and respondent while they were together living at Hyderabad. Therefore, his evidence is not useful to prove the cruelty.
27. PW-4 is Junior Maternal grandmother of Pw-1. During cross examination she has admitted that she never visited the house of the appellant and respondent when they lived together at Hyderabad. Whatever happened between them at Hyderabad, she came to know about the same through PW-1 only. She has also attended 21st day ceremony of the child and she had meals. Appellant, his parents and some of his relatives did not partake in their meals. Therefore, her evidence is also not useful to prove the cruelty.
28. PW5 is landlord. In the month of May or June, 2006 respondent's mother along with relatives came to the said house and informed about the quarrels between the parties. Inspite of his advice they took away the respondent to their house. Two months later appellant again brought the respondent to his house. Then respondent lived with appellant for 15 days. 23 During the said short period also there was quarrel between the appellant and respondent. After staying 15 days, appellant took the respondent to her parents house and dropped her. Thereafter, she did not return to the said house. Appellant stayed there till April, 2007. Thereafter, he has vacated the said house. However, during cross examination, he has admitted that he does not know the reasons for quarrel between the appellant and respondent as it was their internal family affair. He knows that appellant had filed a petition seeking dissolution of marriage. Therefore, his evidence is also not useful to prove cruelty.
29. The aforesaid facts would reveal that the marriage of the appellant with the respondent performed on 19.08.2004. They were blessed with two male children on 15.10.2005 and 22.07.2012.
30. It is also not in dispute that after filing of the aforesaid F.C.O.P.No.76 of 2008 by the appellant-husband seeking dissolution of marriage, respondent filed F.C.M.C.No.82 of 2008 and during the pendency of C.C.No.83 of 2009, the appellant took the respondent to his company. She joined with 24 the appellant. Thereafter they lead their marital life happily for some time. During the said period, they were blessed with second child namely Medhamsh on 22.07.2012. According to the parties they stayed together till October, 2013.
31. It is also relevant to note that during the pendency of the present appeal, the respondent had filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 vide D.V.C.No.131 of 2017 on the file of the Additional Judicial Magistrate of First Class at Karimnagar, against the appellant seeking certain reliefs and the same is pending. It is also not in dispute that the respondent had filed a petition vide G.W.O.P.No.93 of 2018 on the file of the Family Court-cum-IV Additional District and Sessions Judge at Karimnagar, seeking permanent custody of the above said two children and the said O.P. was dismissed on 06.01.2023. However, visitation rights were granted to her. But she did not prefer any appeal challenging the said order.
32. The aforesaid facts would reveal that the parties lived together for some time and they were blessed with two male children. Now, first child became major and second child is aged 25 about 12 years. According to the respondent, appellant took both the children to his company forcibly. Therefore, she has filed the aforesaid G.W.O.P.No.93 of 2018 and the same was dismissed on 06.01.2023.
33. According to the appellant, respondent attempted to commit suicide twice by cutting her hand with blade and by hanging. She also sat on his neck and tried to kill him during midnight.
34. As discussed supra, appellant failed to prove the aforesaid three aspects. Respondent sitting on his neck during midnight and tried to kill him is improbable. Appellant made several allegations against the respondent herein. According to him, respondent is suffering with mental disorder. Therefore, he has consulted Dr.B.Preethi Swaroop, Neuro Psychiatrist at Hyderabad, who advised the respondent to take treatment. Respondent refused to take treatment. But the said fact was not proved by the respondent by producing any evidence except filing the aforesaid Ex.P4 medical prescription.
35. As per the said prescription Dr.B.Preethi Swaroop, is a Neuro Pshychiatrist. On perusal of Ex.P4 we cannot come to a 26 conclusion that respondent is suffering with mental disorder. Their marriage was performed on 19.08.2004 and they were blessed with two children i.e., 15.05.2005 and 22.07.2012. Having lead marital life for long period and after giving birth to two male children, appellant cannot contend that the respondent is suffering with mental disorder. Mere allegation is not sufficient. He has to prove the said allegation by producing legally acceptable evidence. In the present case, the appellant herein failed to prove the same.
36. Cruelty is not defined in any statute. Family Court and this Court have to come to a conclusion with regard to the cruelty basing on the evidence and more particularly the specific incidents mentioned by the spouse. Burden of establishing the said cruelty lies on the appellant.
37. As discussed supra, in the present case, appellant herein failed to prove the aforesaid cruel acts by producing legally acceptable evidence. They have entered into Ex.P3 agreement dated 26.02.2007 wherein they have admitted that parents of both the parties involved in their life, which lead to disputes. Therefore, they have agreed to live normal marital life. 27 The said agreement is dated 26.02.2007. Therefore by entering into the said agreement, leading normal life and giving birth to second son on 22.07.2012, appellant has waived all the alleged cruel acts alleged to have committed by the respondent.
38. In V.Bhagat v. D.Bhagath 1 the Hon'ble Apex Court delineated the concept of mental cruelty as conduct that imposes such significant mental anguish and suffering upon one party that cohabitation with the other becomes untenable. This distress must reach a threshold where the parties cannot reasonably be expected to reside together harmoniously.
39. In Dastane Vs Dastane 2 and Samar Ghosh v. Jaya Ghosh 3 the Apex Court elucidated that when assessing the issue of cruelty, consideration must be given to the social stature, educational background and the societal milieu in which the parties operate. The feasibility of the parties reconciling and resuming conjugal life is also a pertinent factor. Importantly, what may constitute cruelty in one instance may not necessarily meet the criteria in another. The determination of cruelty hinges upon the specific facts and circumstances unique to each case. 1 (1994) 1SCC 337: AIR 1994 SC 710 2 AIR 1975 SC 1534 3 (2007) 4 SCC 511 28
40. As discussed supra, the appellant herein failed to prove the cruelty by producing legally acceptable evidence. The evidence of PWs 2 to 4 is not helpful to him, since all of them never visited the house of appellant and respondent. They have deposed as informed by the appellant (PW-1).
41. On consideration of the said aspects only, learned Family Court dismissed the F.C.O.P. filed by the appellant- husband and allowed the counter claim filed by the respondent- wife seeking restitution of conjugal rights. There is no error in it.
42. Sri S.Surender Reddy, learned counsel for the appellant-husband on instructions would submit that though the said counter claim filed by the wife seeking restitution of conjugal rights was allowed, but she has not taken any steps. She did not even file any execution petition. She did not avail the aforesaid visitation rights. She refused to cohabitate with the appellant. But as discussed supra, appellant failed to prove the said aspects.
43. With regard to claim made by respondent and her son in F.C.M.C.No.82 of 2008, on consideration of evidence that 29 the appellant was working in a software company and getting handsome salary, learned Family Court awarded an amount of Rs.4,000/- per month to the wife and Rs.2,000/- per month to the son towards maintenance.
44. It is the case of the appellant-husband that respondent-wife is also highly qualified, she used to work earlier and therefore, she has not entitled for maintenance. She did not cooperate with the appellant in leading normal life. Despite the Doctor advising her to take treatment for her mental disorder, but she refused to take the treatment. There was financial crisis in the software field and employment of the appellant was not certain. Without considering the said aspects, learned Family Court granted an amount of Rs.4,000/- per month to the respondent and Rs.2,000/- per month to his son towards maintenance.
45. In the light of the aforesaid discussion, it is relevant to note that respondent and her son have filed a petition under Section 125 of Cr.P.C. vide F.C.M.C.No.82 of 2008 against the appellant herein seeking maintenance. As on the said date 30 appellant-PW1 was working in Mega Soft Company. There was a recession in the software field.
46. To prove the same, appellant has filed Ex.P5 news item published in a newspaper. During cross examination, he has admitted that his last pay was Rs.20,000/- per month. In February, 2007, Pw-1 was getting salary of Rs.40,000/- per month.
47. On consideration of the said aspects, learned Family Court awarded an amount of Rs.4,000/- per month to the respondent-wife and Rs.2,000/- per month to his son.
48. During the pendency of the present appeal, respondent had filed the aforesaid G.W.O.P.No.93 of 2018 contending that appellant has taken both her children to his company forcibly.
49. As discussed supra, now, first child became major and he is with the appellant. Therefore, he is not entitled for said maintenance. However, appellant failed to prove that respondent is working and she has income source. Therefore, the respondent is entitled for the said amount of Rs.4,000/- per 31 month towards maintenance as awarded by the learned Family Court vide order dated 30.07.2009 in F.C.M.C.No.82 of 2008. There is no error in the said order.
50. As discussed supra, on consideration of the entire evidence both oral and documentary, learned Family Court dismissed the O.P. filed for dissolution of marriage and allowed the counter claim filed by respondent seeking restitution of conjugal rights. It is a reasoned order and well found and there is no error in it. Appellant has failed to make out any case to interfere with the said Order and Family Court Appeal is liable to be dismissed and accordingly, F.C.A.No.110 of 2012 is dismissed.
51. In the light of the aforesaid discussion, more particularly considering the fact that the first son of the parties is staying with the appellant and therefore, Crl.R.C.No.1596 of 2009 is allowed holding that respondent is entitled for an amount of Rs.4,000/- per month towards maintenance as awarded by the learned Family Court and however, their first son namely Kadarla Abhiram is not entitled for maintenance as awarded by the learned Family Court since he is staying with the 32 appellant. Therefore, Crl.R.C.No.1596 of 2009 is allowed in part to the aforesaid extent.
As a sequel, the miscellaneous petitions, if any, pending in the appeal shall stand closed.
_________________________ JUSTICE K.LAKSHMAN __________________________ JUSTICE P.SREE SUDHA Dated: 07.06.2024 smk/ns