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   IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA
                      PRADESH

                  CMA.Nos.470 and 573 of 2006


Between:
Kalapatapu Lakshmi Bharati,
W/o K.Sai Kumar
                                                       ... Appellant
And
Kalapatapu Sai Kumar,
S/o Late Suryaprakash Rao


                                                     ... Respondent

JUDGMENT PRONOUNCED ON 31.8.2016

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY AND HON'BLE SRI JUSTICE G.SHYAM PRASAD

1. Whether Reporters of Local newspapers : No may be allowed to see the Judgment?

2. Whether the copies of judgment may be marked to Law Reporters/Journals? : Yes

3. Whether Their Ladyship/Lordships wish to see the fair copy of the Judgment? : Yes

____________________________ JUSTICE C.V.NAGARJUNA REDDY

_______________________ JUSTICE G.SHYAM PRASAD

CVNR, J & GSP, J CMA.No.470 & 573 of 2006 Dt:31.8.2016

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY

AND HON'BLE SRI JUSTICE G.SHYAM PRASAD CMA.Nos.470 and 573 of 2006

% 31.8.2016 Between:

# Kalapatapu Lakshmi Bharati, W/o K.Sai Kumar ..... Appellant

And:

$ Kalapatapu Sai Kumar, S/o Late Suryaprakash Rao

.....Respondent

< Gist:

> Head Note:

! Counsel for the appellant: Mr. V.V.Prabhakara Rao

^ Counsel for the Respondent: Mr. B.Krishna Mohan

? Cases Referred:

1. 2007 (3) ALT 62 (SC)

2. (2006) 4 SCC 558

CVNR, J & GSP, J CMA.No.470 & 573 of 2006 Dt:31.8.2016

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY AND HON'BLE SRI JUSTICE G.SHYAM PRASAD

CMA.Nos.470 and 573 of 2006

Date:31.8.2016

Between:

Kalapatapu Lakshmi Bharati, W/o K.Sai Kumar ..... Appellant

And:

Kalapatapu Sai Kumar, S/o Late Suryaprakash Rao ....Respondent

Counsel for the appellant: Mr. V.V.Prabhakara Rao

Counsel for the respondent: Mr. B.Krishna Mohan

The Court made the following:

CVNR, J & GSP, J CMA.No.470 & 573 of 2006 Dt:31.8.2016

COMMON JUDGMENT: (per Hon'ble Sri Justice C.V.Nagarjuna Reddy)

These two Civil Miscellaneous Appeals arise out of

common order, dated 25.11.2005, in HMOP.Nos.310 of 2004

and 270 of 2005 on the file of the learned I Additional Senior

Civil Judge, Guntur.

The appellant in both these appeals filed HMOP.No.310 of

2004 under Section-13(i)(a) and (i)(b) of the Hindu Marriage

Act, 1955 (for short 'the Act') for dissolution of marriage. The

respondent has filed HMOP.No.270 of 2005 under Section-9 of

the Act for restitution of conjugal rights.

It is the pleaded case of the appellant that her marriage

with the respondent was solemnised on 13.10.1995 as per

Hindu rites; that out of their wedlock, a male child by name Sri

Vatsava was born on 29.6.1997; that at the time of the

marriage, the respondent's family made the appellant believe

that the former was the Managing Director of Vinayak Sai

Investment Limited; that the business was in a good condition;

that after the marriage, the appellant came to know that there

was a complete downfall in the business of the respondent; that

as the financial crises engulfed the family, the appellant joined

SSR College, Nizamabad as a Lecturer; that the respondent used

to take the appellant's entire salary and ill-treat her; and that

the respondent used to cause mental torture to the appellant due

CVNR, J & GSP, J CMA.No.470 & 573 of 2006 Dt:31.8.2016

to inferiority complex due to his lesser educational

qualifications than the appellant.

The appellant further pleaded that the respondent was in

heavy debts, as a result of which, a number of creditors have

filed cases against him at Nizamabad; that on one occasion,

some of the creditors along with rowdies beat the respondent

and took away two vehicles belonging to him; that he has sent

the appellant to her maternal house demanding to bring money;

that out of love and affection, the appellant's father had

arranged a sum of Rs.3 lakhs; that having noticed the problems

being faced by the appellant, her mother-in-law had suggested

to her to go over to Hyderabad with his son and continue her

higher education; that as per the said advice, the appellant has

put up her family at Hyderabad and joined as a Research

Scholar for Ph.D in Micro-Biology during June 1999, with the

financial assistance of her father; that even during her stay at

Hyderabad, the respondent used to visit the appellant frequently

and cause mental torture to her; that the respondent used to

spread scandalous remarks against the appellant; that due to the

sadistic behaviour of the respondent, the appellant was forced to

discontinue her Ph.D Course; that later, when the appellant

applied for a seat in the University of Louisiana, U.S.A., her visa

application was rejected due to the handiwork of the

CVNR, J & GSP, J CMA.No.470 & 573 of 2006 Dt:31.8.2016

respondent; that, at last, the appellant secured a seat in a

University in U.S.A. during, 2002, but, due to the intervention of

the respondent, all her efforts were nullified; that the

respondent has stopped all his activities at Nizamabad and

totally shifted to Hyderabad by joining the appellant; that as the

respondent has become penniless, he stepped up his harassment

towards the appellant; that in spite of the appellant's parents

and her paternal uncle requesting the respondent to mend his

ways, he did not heed to their request; that on one day, the

respondent has locked the appellant, her child and her parents

in a room and went away and did not return till night; that after

his return, he abused the appellant in filthy language and

assaulted herself and her child and the mother of the appellant

was badly beaten up; that being thrown out, the appellant has

returned to Guntur and started living with her parents there;

that the appellant has admitted her son in a school at Guntur

and she has joined as a Lecturer in GVR College, Guntur for

eking out her livelihood; that all her efforts to adjust with the

respondent proved futile; that as a last hope, the appellant has

taken the respondent to Dr. K.R.Reddy, a famous Psychiatrist in

2002; and that after the counselling, the doctor has prescribed

some medicines to the respondent, who on coming out of the

hospital, beat the appellant in the hospital premises itself saying

CVNR, J & GSP, J CMA.No.470 & 573 of 2006 Dt:31.8.2016

that the medicines would be used by mental patients and that he

was not such a patient.

On behalf of the appellant, she examined herself as P.W-1

and marked Exs.A-1 to A-6 on her side. On behalf of the

respondent, he has examined himself as R.W-1 and also

examined R.Ws.2 to 4 and got Exs.B-1 to B-4 marked.

On appreciation of the oral and documentary evidence,

the lower Court has dismissed HMOP.No.310 of 2004 and

allowed HMOP.No.270 of 2005.

Heard learned counsel for both the parties and perused

the record.

The evidence on record, as discussed by the lower Court,

would clearly show that serious differences cropped up between

the appellant and the respondent and that the repeated efforts

made by the elders for reconciliation proved futile. Of course,

the lower Court has accepted the plea of the respondent that it is

only due to the adamant attitude of the appellant and her

parents, that the parties could not sink their differences and live

together. The fact, however, remained that the appellant and the

respondent are living separately from 2002 onwards, which

means that 14 years had expired since the time they started

living separately.

CVNR, J & GSP, J CMA.No.470 & 573 of 2006 Dt:31.8.2016

In Samar Ghosh Vs. Jaya Ghosh1, the Supreme Court held

that once the parties are separated and the separation has

continued for a sufficient length of time and one of them has

presented a petition for divorce, it can well be presumed that the

marriage is broken down and that the Court, no doubt, would

seriously make an endeavour to reconcile the parties; yet, if it is

found that the breakdown is irreparable, then divorce should

not be withheld. It has further held that the consequences of

preservation in law of the unworkable marriage which has long

ceased to be effective are bound to be a source of greater misery

for the parties. The Apex Court referred to and relied upon its

earlier judgment in Kohli Vs. Neelu Kohli2, wherein it is held as

under:

"We have been principally impressed by the consideration that once the marriage has broken down beyond, repair, it would be unrealistic for the law not to take notice of the fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

2007 (3) ALT 62 (SC)

(2006) 4 SCC 558

CVNR, J & GSP, J CMA.No.470 & 573 of 2006 Dt:31.8.2016

Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.

Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.

The other majority view, which is shared by most jurists, acceding to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.

When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High court in deciding this matter is far from satisfactory."

CVNR, J & GSP, J CMA.No.470 & 573 of 2006 Dt:31.8.2016

One of the instances indicated by the Supreme Court in

Samar Ghosh (1 supra), which may be relevant in dealing with

the case of mental cruelty is as under:

"Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."

In the light of the undisputed fact that the parties have

been living separately for nearly 14 years, there may be no

escape from the conclusion that the marriage has irretrievably

broken down. As held by the Supreme Court, a long time

separation itself would lead to mental cruelty. Therefore,

irrespective of the findings of the lower Court on the failure of

the appellant to prove mental cruelty, she is entitled to a decree

for dissolution of marriage on the sole reason that there is no

possibility for reunion of the parties in order to live together.

Since the marriage between the parties has irretrievably broken

down, any attempt to force the parties to live together would

tantamount to causing mental cruelty and would only prolong

the mental agony of the parties for the rest of their lives.

CVNR, J & GSP, J CMA.No.470 & 573 of 2006 Dt:31.8.2016

In the afore-mentioned facts and circumstances of the

case, HMOP.No.310 of 2004 is decreed and HMOP.No.270 of

2005 is dismissed. Both the appeals are allowed.

As a sequel to disposal of the appeals, interim order, dated

22.6.2006, in CMAMP.No.927 of 2006 is vacated and

CMAMP.No.927 of 2006 filed by the appellant for interim relief

is disposed of as infructuous.

____________________________ JUSTICE C.V.NAGARJUNA REDDY

______________________ JUSTICE G.SHYAM PRASAD 31st August 2016 Note:

LR copies to be marked.

B/o DR