Shetty Mruthyunjaya Rao vs Smt. Shetty Saritha

Telangana High Court

Shetty Mruthyunjaya Rao vs Smt. Shetty Saritha on 7 June, 2024

Author: K. Lakshman

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.233 of 2018
JUDGMENT:

(Per Hon'ble Sri Justice K. Lakshman) Heard Sri B.Mayur Reddy, learned Senior Counsel representing Sri P.Radhive Reddy, learned counsel appearing for the appellant and Sri Grandhi Gopala Krishna Murthy, learned counsel appearing for the respondent. Perused the record.

2. Feeling aggrieved and dissatisfied with the order and decree dated 29.12.2017 in O.P.No.1151 of 2012 passed by the learned Principal Judge, Family Court, Hyderabad, the appellant-husband preferred the present appeal. The appellant-husband filed the aforesaid O.P.No.1151 of 2012 under Section 13(1)(ia) of the Hindu Marriage Act, 1955 read with Section 7 of the Family Courts Act, 1984 seeking dissolution of marriage on the ground of cruelty, contending as follows;

i) The appellant marriage with the respondent was performed on 15.05.2011 at Rajadhani Gardens Function 2 Hall, Kothapet, Hyderabad, as per Hindu Rites and Customs and it is an arranged marriage.

ii) Before the said marriage, the appellant used to stay in U.S.A.

iii) He married in the year 2003 in India.

iv) After the marriage, appellant and his first wife left to U.S.A. Later, the appellant was constrained to leave U.S.A. as his mother fell sick.

v) But unfortunately his first wife who got employed in U.S.A. in a good company, was earning very well, refused to come back to India.

vi) Ultimately, it led to irretrievable breakdown of the marriage and they sought divorce.

Accordingly, they have obtained divorce with mutual consent on 18.06.2008. Thus, it is appellant's second marriage.

vii) The appellant explained about his first marriage, divorce obtained to the respondent before marriage and she has accepted.

viii) Then only, the aforesaid marriage was solemnized on 15.05.2011.

ix) After the marriage, nuptial ceremony was arranged.

x) The said nuptial ceremony was a failure as the respondent did not cooperate with the appellant for consummation of the said marriage.

xi) She avoided the conjugal life on one or other pretext.

xii) The said fact was brought to the notice of her father.

xiii) There was no proper cooperation from him and also to the respondent, which led to biological inconvenience to the appellant herein.

xiv) The basic purpose of marriage has been defeated deliberately by the respondent. The respondent after marriage stayed in the matrimonial home hardly for thirty to forty days.

xv) She constantly demanded the appellant to leave his parents house and put up separate house.

xvi) The appellant did not agree for the same. xvii) She used to abuse him and his family members in filthy and un-parliamentary language.

xviii) She is very rigid on her own stand and she doesn't listen to anybody.

xix) She is a woman with different outlook and her acts are always to defame the appellant and his parents. xx) She has a habit of lying for even small things. xxi) While she was in the house of the appellant, she always used to either sleep or watch T.V. Thus, she never cooperated with the appellant in leading conjugal life. xxii) As per the tradition, a newly wedded bride should not stay in the house of parents-in-law in the Hindu calendar month "Ashadam", therefore, on 26.06.2011 the respondent's father took her to his house.

xxiii) While going to her house respondent took all her ornaments presented by her father in the marriage along with her belongings.

xxiv) After completion of Ashadam month, appellant went to her parents' house on 10.08.2011 to bring her back for the Shravanapatti formality.

xxv) Respondent and her father putforth the illegal demand to the appellant to purchase an independent bungalow or lead a separate life leaving his parents alone. xxvi) He tried to convince the respondent and her father that it is not proper for the appellant to leave his old aged parents more particularly his mother who is suffering with serious old age ailments, his father is also a senior advocate and due to ill health of his mother, his father is not practicing seriously.

xxvii) The said facts were not understood by either respondent or by her parents and there is no change in their attitude.

xxviii) The respondent used to quarrel with the appellant and his parents always.

xxix) The respondent went to her parent's house on 13.08.2011 on the eve of Rakhi festival and she did not turn up.

xxx) The maternal grandfather of the appellant expired on 11.11.2011 at NIMS Hospital, Hyderabad. The said fact was informed to the respondent and her father. Though, they 6 stayed at a distance of 5 kilometers from the house of appellant, they did not come in time.

xxxi) On 24.11.2011, respondent and her father came to appellant's house and at that particular point of time, a close relative of the appellant was present.

xxxii) They abused the parents of the appellant in filthy and unparliamentary language.

xxxiii) They have demanded to stay in a separate house, otherwise, they will lodge a case against the appellant and his parents for dowry harassment.

xxxiv) The respondent insulted the appellant saying that even after working in U.S.A. for 11 years, he is still living in a two bedroom flat which belongs to his parents. xxxv) He always acts as a puppet in the hands of his parents.

xxxvi) She removed her 'Mangalasutram' and threw on the appellant and left the house on 24.11.2011. xxxvii) Since then, she is staying in her parents' house. xxxviii) On 18.02.2012, Sri A.Balaiah, President of Sagara Sangam called the appellant to the Sangam and he tried to 7 resolve the disputes. All the efforts made by the said Balaiah and Sangam went in vain. In fact, they agreed for settlement of the issue after discussing with father of the respondent after the marriage of brother of respondent. xxxix) Surprisingly, on 16.05.2012, appellant received a notice from the said Balaiah dated 14.05.2011 directing the appellant to attend the meeting on 20.05.2011. The appellant sent a reply requesting the said Sangam to furnish a copy of the complaint lodged by the respondent and expressed his inability to attend the meeting. On 19.05.2012 on receipt of his letter, the said Sangam sent copy of the complaint to him and postponed the meeting.

3. The father of the respondent Sri M.Yadaiah came in his car bearing No.AP29S 1817 along with an Assistant Sub- Inspector of Police from Women Police Station, Saroornagar, and a Constable from Madhapur Police Station to the office of appellant at Ayyappa Society, Madhapur and they took him to Women Police Station, Saroornagar at 01:30 PM. They have requested the appellant and his father to wait in the Police Station to enable the elders of the Sagara Sangam. 8 i. The respondent, her father, younger brother Mr.Sirish along with their Advocate were present in the Police Station. They have registered a case in crime No.73 of 2012 against the appellant and his parents for the offence under Section 498-A of Indian Penal Code and arrested him on 19.05.2012 late in the night and he was kept in Men's Police Station, Saroornagar, on that night.

ii. Next day on 20.05.2012 Sunday afternoon, he was produced before the Magistrate, who in turn, remanded the appellant for judicial custody for a period of 14 days. iii. He was sent to Cherlapally Central Prison. On 21.05.2012 he was released on bail.

iv. He came to know about the pregnancy of the respondent only on going through the contents of the said complaint.

v.     In fact, it was a shock to him.

vi.    She also lodged a complaint against the appellant under

Section 12 of Domestic Violence Act. Thus, the respondent subjected the appellant to cruelty.

4. Respondent has filed counter denying the said allegations.

i. She never subjected the appellant to cruelty. In fact, the appellant and his parents continuously demanded to bring gold bangles and silver articles and also additional dowry.

ii. After going to the matrimonial home, appellant and his parents harassed the respondent both mentally and physically.

iii. The appellant is a Software Engineer and he used to come home late in the night and sleep away separately from the respondent by saying he does not want to continue conjugal life with her.

iv. She reported the said fact to her mother-in-law who did not care and on the other hand, she advised the respondent to keep quite, otherwise they will neck her out of the house.

v. Thus, her in-laws continuously harassed her to bring gold bangles and silver articles.

vi.            She got pregnant.
                                  10



vii.         Her in-laws took her to Vijaya Diagnostic Centre,

Himayatnagar, on 27.06.2011 where HIV test was conducted. Her in-laws took her to Secunderabad Nursing Home on 26.07.2011 for medical examination, where the pregnancy was forcibly removed. All the expenses are thrown on the head of her father. viii. At the time of Rakhi festival, her mother-in-law did not allow her to go to her brother to tie Rakhi and she picked up a big quarrel and beat her.

ix. Her husband and father-in-law supported her mother-in-law and abused her in filthy and unparliamentary language. Finally, she was sent to her parents' house for Dasara and thereafter her husband did not take her back.

x. She made several efforts to join the society of the appellant.

xi. Her father also made all the efforts to pacify the issue.

xii. The caste elders including Mr.Balaiah also made all the efforts to pacify the issues. But they could not succeed due to the adamant attitude of appellant and 11 his father. Therefore, she was compelled to approach women police station by way of lodging a complaint. She was also compelled to file D.V.C.

5. To prove the said cruelty, appellant-husband had examined himself as PW-1, his father as PW-2 and his driver as PW-3. He has filed Exs.P-1 to P-10 documents.

6. To disprove the said cruelty, respondent examined herself as RW-1, her father as RW-2, Doctor who treated her as RW-3 and her cousin as RW-4. She has also filed Exs.R1 to R4.

7. On consideration of the entire evidence both oral and documentary vide impugned order dated 29.12.2017, the learned Principal Judge, Family Court, Hyderabad dismissed the O.P.No.1151 of 2012 filed by the husband holding that the appellant failed to prove the cruelty.

8. Feeling aggrieved by the said order, the appellant- husband had preferred the present appeal contending that the learned Family Court failed to consider that the respondent-wife stayed with the appellant-husband in his 12 house only for thirty to forty days. She never cooperated with him in consummation of marriage. Therefore, due to non cooperation of the respondent, the marriage was not consummated. She has lodged a complaint against the appellant for the offence under Section 498-A of I.P.C. and sent him to jail. She has also filed D.V.C. against him. The said C.C.No.221 of 2012 was ended in acquittal and she did not prefer any appeal. Vide order dated 19.09.2016 in D.V.C.No.14 of 2013, learned Magistrate directed the appellant herein to pay an amount of Rs.12,000/- per month to the respondent towards interim maintenance from the date of filing of the D.V.C. He was also directed to pay the arrears of maintenance within one month. He was further directed to pay compensation of Rs.5,00,000/- within one month and costs of Rs.10,000/-.

9. Feeling aggrieved by the said order, the appellant has preferred an appeal vide criminal appeal No.812 of 2016. Vide order dated 13.03.2019, learned appellate Court allowed the said order by setting aside the order dated 19.09.2016 in D.V.C.No.14 of 2013. The respondent preferred a revision 13 vide Crl.R.C.No.443 of 2019 and the same was also dismissed on 07.09.2022. Thus, the respondent implicated the petitioner in the aforesaid criminal cases. Thus, respondent subjected him to cruel acts.

10. The appellant (PW-1) during cross examination categorically admitted that he lived with the respondent after marriage for about 30 to 40 days. He has further admitted that on nuptial ceremony there was no consummation as respondent suffered with pain due to her menstrual period. After 15 days of marriage, he and respondent had consummation. Initially he informed about her non- cooperation for consummation to his parents and her father. However, he denied a suggestion that unless he received the demands he kept himself away from the respondent, not cooperated for sexual intercourse. He used to come late nights. He knew about the pregnancy confirmation of the respondent before the Station House Officer, Women Police Station, Saroornagar on 19.05.2012. Lastly, the respondent visited his residence along with her father and brother, namely, Sirish on 24.11.2011 and left on the same day, after 14 she fought with his family. Appellant and his parents went to the residence of the respondent to bring her back after Ashadam on 10.08.2011. He has denied a suggestion that he and his parents got aborted the respondent, as such, they never performed the Sravanapatti formality and asked the father of the respondent to complete the said formalities. He has further admitted that Doctor M.Kasturi (RW-3) is a Gynecologist who is their family Doctor. He has denied a suggestion that he and his parents took the respondent to RW-3. As per Ex.P8, RW3 is a consulting doctor at Secunderabad Nursing Home. He has taken the respondent to Vijaya Diagnostic, Himayatnagar for medical test.

11. PW-3 is his car driver. However, he has denied to a suggestion that when the respondent suffered with a bleeding during pregnancy, immediately, she was taken to Secunderabad Nursing Home for abortion which was on the advice of RW-3. He has also denied to a suggestion that he and his parents got admitted the respondent in Secunderabad Nursing Home on 26.07.2011 and discharged on 31.07.2011 and she was treated by RW3. He has also denied to a 15 suggestion that PW3 his driver brought medicine from Mediplus at Ramakrishna Nagar at Bagh Amberpet on the prescription of RW3. Sri R.Chandrashekar resident of Malakpet is his mother's sister's husband. He never witnessed any of the aforesaid cases. He has also denied to a suggestion that he abused the respondent before Sri A.Balaiah saying "Daridaram Munda" and snatched the cell phone of the respondent in order to not to communicate with her parents. He also admitted about the notice sent by Sagara Sangam and panchayat held. He also further admitted that he and his parents made best efforts to resolve the issues.

12. He has started a new company in the name and style of 'Launch Ship Technology Solutions Private Limited' in April, 2011 along with his partner Sri Chakrapani Tummalapalli. His partner expired in the year 2012-13. His father and himself are the Directors of the said company.

13. PW-2 is the father of PW1. His deposition is also on the same lines.

14. PW-3 is Driver of the PW-1 who deposed that respondent hardly stayed in the appellant house about one and half month only. During the said period, she used to quarrel with the appellant on one pretext or the other. She always used to sleep or watch T.V. She gave a complaint with Women Police Station, Saroornagar, on 19.05.2012 against the appellant and his parents. He has also deposed about filing of D.V.C. No.14 of 2013 and according to him after undergoing torture including sending him to jail by the respondent on filing D.V.C. with false allegations, finally appellant filed the aforesaid O.P.

15. During the cross examination, PW3 has admitted that in the year, 2011 one lady by name Laxmi used to work as a maid servant and used to stay at ground floor. She only used to work with appellant's family. He came to know about the Police complaint filed by respondent against the appellant. He has not witnessed personally when the appellant was brought him to Police Station. Sri N.Chandrashekar, is relative of appellant's father. PW-3 stayed outside the police station but Advocate Sudha Rani and father and brother of respondent were present in the Police Station. He used to take 17 appellant's family to hospital and he never took respondent to RW-3 Hospital. There was Mediplus Medical shop at Ramakrishna Nagar, Bagh Amberpet.

16. Respondent was examined as RW-1 and during the cross examination she has admitted that she has lodged a complaint with Sagara Sangam Community and also with Police and that appellant was sent to jail. To a specific question she has admitted that she has not withdrawn the criminal cases and if the appellant had taken back to her to his company she would have withdrawn the said criminal cases. She has also admitted about filing of D.V.C. No.14 of 2013 in the aforesaid appeal.

17. She was three months pregnant at the time of admission into hospital on 26.07.2011. She has undergone some test that was prescribed in Ex.12. She underwent all the tests. She has filed only HIV report and she has not filed remaining reports of the test, as she felt the same are not necessary. She is a Post Graduate and not working at the present. Her brother is a milk vendor. According to her, her husband is working as a CEO of a Company and getting 18 salary of Rs.2,00,000/- per month. Her father also deposed on the same lines.

18. It is relevant to note the deposition of RW-3-doctor who treated the respondent. According to her, respondent initially used to come to her and after her marriage for irregular periods. She treated her for the said problem. One day respondent came to her with three months "Amenoria" (not getting periods for 3 months) with bleeding. When she examined her, she was pregnant and bleeding. She advised respondent/RW-1 for admitting into Secunderabad Nursing Home and was admitted. She was being treated for threatened abortion. After admission and treatment, the bleeding was stopped. After treatment she was discharged. After sometime (after few days) she again came back with bleeding. Then, they have conducted scanning which showed missed abortion (the baby is already dead and it is not viable). They have evacuated (cleaned) and discharged her.

19. However, during cross examination, RW3-Doctor has admitted that as per Exhibit P-9 as on 26.07.2011 when there is no pregnancy, but contra to the same, she has issued a 19 certificate stating that by then respondent (Rw-1) was three months pregnancy as per Ex.R-14 she thought that it was three months pregnancy but it was three months "Amenoria".

20. The aforesaid facts would reveal that the marriage of the appellant with the respondent is a second marriage to him. According to him he has informed the said facts to the respondent and on knowing only she has accepted for the said marriage. However, the said fact is not in dispute.

21. According to the appellant, respondent did not cooperate with him in consummation of marriage. Ultimately, the marriage was consummated and the said fact was admitted the appellant in his cross examination.

22. There is dispute with regard to pregnancy and abortion. Rw-3/Doctor who treated Rw-1 during cross examination categorically mentioned that three months period is "AMENORIA" but not pregnancy. However, it is also a disputed fact.

23. But the fact remains that both the appellant and respondent are residing separately from 24.11.2011. The 20 appellant had filed the aforesaid O.P. only on 08.08.2012. The appellant is aged about 50 years now. Respondent is aged about 47 years. Though the marriage was performed on 15.05.2011, appellant has filed the aforesaid O.P. on 08.08.2012. Assuming for a moment that they stayed together only for a period of one year two months, but according to the appellant, she left his company on 24.11.2011. According to the respondent, the appellant necked her out. But the fact remains that both are living separately from 24.11.2011.

24. It is also not in dispute that at the instance of respondent, C.C.No.221 of 2012 was registered against the appellant for the offence under Section 498-A of I.P.C. and vide judgment dated 30.09.2014 he was acquitted. It is also not in dispute that respondent had filed D.V.C.No.14 of 2013 and vide order dated 19.09.2016, learned Magistrate directed the appellant to pay the amounts in the manner stated supra. Appellant herein had preferred an appeal vide Criminal Appeal No.812 of 2016 and the same was allowed on 13.03.2019.

25. She has filed Crl.R.C.No.443 of 2019 challenging the said order and the said Crl.R.C. was also dismissed on 07.09.2012. It is not in dispute that the appellant was remanded in the aforesaid criminal case and he was sent to jail. The said fact was admitted by the respondent during cross examination. Thus, there is strained relationship between the appellant and respondent.

26. As discussed supra, according to the appellant, respondent did not cooperate with him in leading conjugal life and more particularly in consummation of marriage. Ultimately, the marriage was consummated. They are living separately from 24.11.2011. Thus, they have filed the aforesaid cases against each other. Thus it appears there is a strained relationship between the appellant and the respondent.

27. It is also relevant to note that both of them are highly educated. It is second marriage to the appellant. Therefore, according to this Court, there is no possibility of reunion. It is also apt to note that efforts were made for reunion of the parties. Respondent has approached her caste association 22 i.e., Sagara Sangam Community who issued notice. Even then, the said Sagam elders or the parents of the appellant and respondent failed to resolve the issues between the appellant and respondent. The said aspects were not considered by the learned Family Court in the impugned order.

28. Cruelty is not defined in any statute. Family Court and this Court has to examine facts of each case basing on the evidence and come to a conclusion whether the said acts constitute cruelty. Cruelty includes mental cruelty.

29. As discussed supra, though the respondent lodged a complaint against the appellant for the offence under Section 498-A of I.P.C. and the said case ended in acquittal, she did not prefer any appeal. Of course, mere lodging of the complaint against the husband for the offence under Section 498-A of I.P.C. is not a cruelty. At the same time, when the said case was ended in acquittal, respondent-wife did not prefer any appeal. He was sent to jail during crime stage i.e., Crime No.73 of 2012. Thus, it amounts to cruelty. She has also filed the aforesaid D.V.C.No.14 of 2013 and the same was allowed in part.

30. Feeling aggrieved by the same, appellant preferred an appeal and the same was allowed. The respondent filed the aforesaid Crl.R.C. and the same was also dismissed on 07.09.2005 and the said order attained finality. The said facts disrupted the relation between the appellant and respondent and strained their relation, further.

31. As discussed supra, appellant is aged about 50 years as on today and respondent is aged about 47 years. They are staying separately from 24.11.2011. According to respondent, her husband is working as a CEO of a Company and earning an amount of Rs.2,00,000/- per month towards salary. Even the appellant agreed that he started the Company along with his partner, who died in the year 2012-13. His father and appellant are the Directors of the said Company. The said aspects were not considered by the learned Family Court in the impugned order.

32. In the light of the aforesaid discussion, it is not on consideration of entire material on record including the evidence both oral and documentary.

33. Accordingly, the Family Court Appeal is allowed and the impugned order and decree, dated 29.12.2017, passed in F.C.O.P.No.1151 of 2012 by the learned Judge, Family Court, Secunderabad, is set aside and consequently, F.C.O.P.No.1151 of 2012 is allowed and the marriage of appellant with the respondent performed on 15.05.2011 is dissolved by way of granting decree of divorce on condition of appellant paying an amount of Rs.10,00,000/-(Rupees Ten Lakhs only) to the respondent towards permanent alimony within two months from the date of receipt of a copy of this order. Failing which, liberty is granted to the respondent to take steps in accordance with law. No costs.

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