Telangana High Court
Mr.Sreeram Pydah vs Archana Pydah on 7 June, 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 NO.149 OF 2014 AND CIVIL
REVISION PETITION NOS.871, 1403 AND 1506 of 2021
COMMON JUDGMENT:
(as per Hon'ble Sri Justice K.Lakshman) The parties and the lis involved in the aforesaid appeal and revision petitions are one and the same, therefore, all the matters were heard together and decided by way of this common judgment.
2. Heard Mr. C.V. Mohan Reddy, learned senior counsel representing Mr. Katta Laxmiprasad, learned counsel for the appellant-husband, and Mrs. Vasudha Nagaraj, learned counsel for respondent No.1-wife. Respondent No.2 is not necessary party as per cause title. Perused the record.
3. The appellant in the aforesaid F.C.A.No.149 of 2014 is the husband, while respondent No.1 is the wife. Therefore, for the sake of convenience and to avoid confusion, the parties will be hereinafter referred to as the 'husband' and 'wife'. 2
4. Wife had filed a petition under section 9 of Hindu Marriage Act, 1955 (for short, 'the Act'), against the husband vide O.P.No.916 of 2010 seeking Restitution of Conjugal Rights contending as follows:
Her marriage with the husband was performed on 11.02.2008 as per Hindu Rites and Customs. It was an arranged marriage. It was second marriage to both of them.
Husband obtained decree of divorce with his first wife and thereafter, married the wife. He was blessed with two sons with the first wife. Likewise, wife also obtained decree of divorce with her first husband and thereafter, she married the husband. But, she did not bless with any children with her first husband.
Thus, the marriage of wife with the husband was performed on 11.02.2008. After the marriage, they went on Honeymoon to Bangkok. Husband is a permanent resident of USA. He is a green card holder and a citizen of USA. Therefore, wife joined the husband in USA.
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According to the husband, the marriage was not consummated and wife did not cooperate with him in consummation of marriage. He tried his level best to lead happy marital life with the wife, but there was no change in the attitude of the wife.
According to the wife, she was subjected to cruelty by the husband. She came back to India and filed the aforesaid O.P.No.916 of 2010 against the husband seeking Restitution of Conjugal Rights. It is the case of the wife that her husband is maintaining illicit relation with respondent No.2, i.e., Smt. Rekha. However, no relief was sought against her. It was contended by wife that husband subjected her to cruelty and necked her out from the matrimonial home. She went to USA on the strength of visa provided by the husband and she stayed there for about six months. Respondent No.2 used to send mails to her husband. Perusal of the said mails would reveal that he maintained extra-marital relationship with respondent No.2. Wife also attempted to commit suicide there. Husband called her relatives who live in Canada and sent wife there. When she tried to return to USA, husband cancelled 4 her air ticket. Thus, husband subjected wife to cruelty and left her company. The allegations made by wife against respondent Nos.1 and 2 are serious in nature. On return from USA, wife is staying with the parents of the husband at Athapur, i.e., 43, Ambience Fort Township, Attapur, Hyderabad. Even respondent No.2 came back to Bangalore and now staying there.
5. Husband filed counter contending that the said petition filed by the wife is not maintainable since the Superior Court of California, County of Santa Clara, U.S.A., has granted decree of dissolution of marriage on 20.04.2011. Wife is aware of the said fact. He has been living in USA for approximately 25 years and he is citizen of USA since 2002. Therefore, the question of Restitution of Conjugal Rights does not arise.
6. It is further contended by him that wife had already filed suit vide O.S.No.10 of 2011 against him for permanent injunction restraining the Superior Court of California, U.S.A., not to grant decree of divorce in his favour. Wife has also filed I.A.No.923 of 2011 for grant of interim stay. The said IA was 5 dismissed by the learned Family Court after hearing the parties. Therefore, in view of the order dated 20.04.2011 passed by the Superior Court of California, the said suit filed by wife vide O.S.No.10 of 2011 as well as the IA became infructuous.
7. It is further contended by the husband that the marriage of husband with the wife was not consummated and the attempts for consummation of marriage made by him several times from the night of their nuptials until the wife returned from USA could not fructify. There are exchange of mails between them which would reveal the said fact. Wife herself had a detailed discussion with the husband's sister about the attempts they made to consummate the marriage. His brother-in-law, Dr. Ashok, being a physician called the husband to find out the reasons. Husband and wife also changed address in USA hoping that the difference in the environment would change their relationship. Even then, there is no change. Wife has also shared with the husband about similar problems of physical relationship that her sister in Canada had. Since he was in meditation, he could not take 6 it anymore and left the house. On return from USA, wife used to stay in Bangalore and started her practice. Wife has informed the husband that she was a very successful criminal layer in Bangalore High Court and that she had won many cases. She has also joined as a member of legal team at Tata Cellular Tele Services. Husband has presented a diamond necklace worth Rs.2.5 lakhs to the wife as a wedding gift. Thus, husband has filed a detailed counter narrating the incidents right from the marriage. But he did not enter into the witness box to depose the said facts. Though husband engaged a lawyer by name Sri K. Ranganathan and filed the aforesaid detailed counter, he did not choose to cross-examine PW-1 (wife). He did not file any documents also.
8. Perusal of record would reveal that respondent No.2 was set ex parte and she has filed I.A.No.2293 of 2011 to set aside the ex parte order against her. The same was dismissed. Respondent No.2 has filed a revision vide C.R.P.No.1251 of 2012. This Court vide order dated 19.03.2012 permitted respondent No.2 to appear before the learned Family Court at the time of cross-examination and directed the learned Family 7 Court to take the counter filed by respondent No.2. Thus, both respondent Nos.1 and 2 have filed counters. But they did not choose to cross-examine PW-1 (wife) and failed to enter into witness box to depose the aforesaid facts. They have not filed any documents. Whereas, to prove her claim of Restitution of Conjugal Rights, wife examined herself as PW-1 and filed Exs.P1 to P3. Ex.P1 is the Marriage Card, Ex.P2 is an invitation card got printed from husband side and Ex.P3 are the marriage photographs and other photographs of husband and wife.
9. On consideration of entire evidence both oral and documentary, vide impugned order dated 10.06.2014, learned Family Court allowed O.P.No.916 of 2010 by granting decree of Restitution of Conjugal Rights in favour of the wife directing the husband to join her company within two months from the date of the order. Learned Family Court also awarded a sum of Rs.10,000/- towards costs directing husband to pay the same to the wife. Feeling aggrieved by the said order dated 10.06.2014, husband preferred the present appeal i.e., F.C.A.No.149 of 2014.
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10. It is also relevant to note that wife has also filed F.C.O.P.No.1930 of 2017 against the husband under Section-18 of the Hindu Adoption and Maintenance Act, for grant of monthly maintenance @ Rs.10,00,000/-. On receipt of notice, husband has filed an application vide I.A.No.113 of 2020 under Order-VII, Rule-11 (a) and (d) read with 151 of CPC to reject the said F.C.O.P.No.1930 of 2017 contending that a decree of divorce was granted by the Superior Court of California, U.S.A., therefore, there is no relationship of wife and husband between them. Thus, the wife is not entitled to claim any maintenance, therefore, the said FCOP is not maintainable and is liable to be rejected. Learned IV Additional District Judge - cum - I Additional Family Court, Ranga Reddy District at L.B. Nagar, vide order dated 23.03.2021, dismissed the said I.A.No.113 of 2020. Challenging the same, the husband filed a revision vide C.R.P. No.871 of 2021.
11. It is also apt to note that in the aforesaid F.C.O.P.No.1930 of 2017, wife has filed an interlocutory application vide I.A.No.602 of 2018 seeking interim monthly maintenance of Rs.5,00,000/-. Vide order dated 11.08.2021, 9 learned Family Court allowed the said petition in part awarding monthly interim maintenance of Rs.30,000/- from the date of petition i.e., 04.09.2017 and accordingly, directed the husband to pay the same on or before 10th of every English Calendar month. The arrears of interim maintenance shall be payable in three equal monthly installments commencing from September, 2021. Challenging the same, the husband filed C.R.P.No.1403 of 2021. Challenging the very same order dated 11.08.2021, the wife also filed a revision vide C.R.P.No.1506 of 2021 seeking enhancement of interim monthly maintenance granted by the learned Family Court.
12. There is no stay in F.C.A.No.149 of 2014. It is relevant to note that wife did not file any Execution Petition to execute the order passed by the learned Family Court.
13. In C.R.P.Nos.1403 and 871 of 2021, this Court vide order dated 07.01.2022, granted stay of all further proceedings in F.C.O.P.No.1930 of 2017 till 21.01.2022. Thereafter, vide order dated 11.01.2022, this Court extended the said interim order until further orders subject to the condition of husband 10 depositing before the Court below the entire arrears of maintenance granted by the learned Family Court within two (2) weeks from the date of order and shall continue to deposit the said amount as ordered by the learned Family Court. This Court also made it clear that in case of any default in depositing the said amount, the interim order granted by this Court stands vacated. On such deposit, wife was permitted to withdraw 1/4th of the amount deposited by the husband without furnishing any security. This Court also directed the Registry to list CRPs along with FCA, after obtaining necessary orders from the Hon'ble the Chief Justice. This Court also made it clear that if for any reason, the matters are not listed on 03.03.2022, on which date, the FCA was said to be coming up for hearing, it is open for the learned counsel for the parties to make mention for listing of cases.
14. The aforesaid facts would reveal that though the respondents in aforesaid O.P.No.916 of 2010 filed detailed counters, they did not choose to cross-examine PW-1 (wife), did not enter into witness box and they have not filed any documents. Though husband has contended that the 11 aforesaid OP filed by wife is not maintainable in view of the decree of divorce granted by the Superior Court of California, U.S.A., dissolving the marriage of husband with the wife, he has not filed any document to prove the said facts. Husband has also contended that wife is aware of the said proceedings and she has participated in the said proceedings. She has also preferred an appeal before the learned Family Court challenging the said order passed by the Superior Court of California. According to wife, it is not an appeal and it is only a representation. However, neither she has stated the said fact before the learned Family Court nor the husband filed copies of the said documents.
15. Admittedly, the petition filed by wife, vide F.C.O.P.No.1930 of 2017 seeking maintenance is pending. As discussed supra, learned Family Court decided the aforesaid O.P.No.916 of 2010 filed by wife only relying on the evidence produced by wife. Learned Family Court also observed that after service of notice, husband did not appear before the Court, but one advocate by name Sri K. Ranganathan filed Vakalat on behalf of him along with permission petition under 12 Section 13 of Family Court Act. The said fact was recorded in the docket and the matter was posted for counter and no reconciliation was taken place. Learned Family Court has mentioned about filing of counters by husband and respondent No.2 and also mentioned about the order dated 20.04.2011 passed by the Superior Court of California, U.S.A. Learned Family Court also referred the counter filed by respondent No.2 that she has nothing to do with the matrimonial life of wife and husband and she has made as party only to settle the dispute of the wife. Thus, the impugned order is only on consideration of the pleadings and evidence of PW-1 (wife) and there is no consideration of the contentions of the husband, more particularly, with regard to the maintainability of the aforesaid OP filed by wife seeking restitution of Conjugal Rights in view of the order dated 20.04.2011 passed by the Superior Court of California, U.S.A. The appellant-husband has explained the said reasons in the present appeal.
16. In the light of the aforesaid discussion, we are of the considered view that the matter has to be remanded back to 13 the learned Family Court to decide O.P.No.916 of 2010 along with F.C.O.P.No.1930 of 2017.
17. Accordingly, the order dated 10.06.2014 is set aside and the matter is remanded back to the learned Family Court to decide O.P.No.916 of 2010 along with F.C.O.P.No.1930 of 2017 filed by wife seeking restitution of Conjugal Rights and maintenance, strictly, in accordance with law, by affording an opportunity to the wife and husband and also respondent No.2 in O.P.No.916 of 2010.
18. As discussed supra, husband has filed a petition under Order VII Rule 11(a) and (d) of CPC vide I.A.No.113 of 2010 in F.C.O.P.No.1930 of 2017 to reject the F.C.O.P.No.1930 of 2017 on the ground that there is no relationship between husband and wife in view of the order dated 20.04.2011 passed by the Superior Court of California, U.S.A. The said IA was dismissed by the learned Family Court on 23.03.2021. Challenging the said order, husband filed C.R.P.No.871 of 2021. The said contention raised by husband including the jurisdiction is a mixed question of law and fact. The husband has to face trial 14 in FCOP and he has to take the said plea during trial. Therefore, the said aspect cannot be considered to reject the petition in FCOP. In the light of the aforesaid discussion, C.R.P.No.871 of 2021 is liable to be dismissed and is accordingly dismissed.
19. As discussed supra, vide order dated 11.08.2021 in I.A.No.602 of 2018, the learned Family Court granted interim maintenance of Rs.30,000/- per month to the wife and challenging the said order, husband filed C.R.P.No.1403 of 2021. Seeking enhancement of the said monthly maintenance, wife filed C.R.P.No.1506 of 2021. As discussed supra, this Court granted interim stay subject to the condition of husband depositing before the Court below the entire arrears of maintenance granted by the learned Family Court within two (2) weeks from the date of order and shall continue to deposit the said amount as ordered by the learned Family Court. According to husband, he has been paying the said amount in compliance with the said order granted by this Court. It is not in dispute that wife is staying along with the parents of the husband at Athapur, Hyderabad. Smt. Vasuda Nagaraju, 15 learned counsel for wife also admitted the said fact during the course of hearing. Therefore, the said fact is not in dispute. It is also not in dispute that husband has been paying the said amount in compliance with the order dated 07.01.2022.
20. In the light of the aforesaid discussion, C.R.P.Nos.1403 and 1506 of 2021 are dismissed confirming the order dated 11.08.2021 in I.A.No.602 of 2018 in F.C.O.P. No.1930 of 2017 passed by the learned Family Court.
21. As discussed supra, the said O.P.No.916 of 2010 is of the year 2010 and F.C.O.P.No.1930 of 2017 is of the year 2017. Therefore, the learned Family Court shall make an endeavour to dispose of both the OPs, strictly, in accordance with law, as expeditiously as possible, preferably, within a period of six (6) months from the date of receipt of a copy of this order. Till disposal of the said OPs, husband shall continue to pay the aforesaid amount of Rs.30,000/- per month to the wife towards her maintenance. Liberty is granted to both wife and husband to take all the defences and 16 pleas which they have taken in the present appeal as well as in the aforesaid revisions.
22. In the result, F.C.A.No.149 of 2014 is allowed by setting aside the order dated 10.06.2014 and the matter is remanded back to the learned Family Court to decide O.P.No.916 of 2010 along with F.C.O.P.No.1930 of 2017 filed by wife seeking restitution of Conjugal Rights and maintenance, strictly, in accordance with law, by affording an opportunity to the wife and husband and also respondent No.2 in O.P.No.916 of 2010. C.R.P.Nos.1403, 1506 and 871 of 2021 are dismissed. There shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the Family Court Appeal and revision petitions shall stand closed.
___________________ K. LAKSHMAN, J ________________ K. SUJANA , J Date: 7th June, 2024 PVT/VSU 17 THE HON'BLE SRI JUSTICE K. LAKSHMAN AND THE HON'BLE SMT. JUSTICE K. SUJANA FAMILY COURT APPEAL NO.149 OF 2014 AND CIVIL REVISION PETITION NOS.871, 1403 AND 1506 of 2021 (as per Hon'ble Sri Justice K. Lakshman) Date: 7th June, 2024 PVT/VSU