Sri Sai Prasad Moorthygari vs Smt.Ram Kumari
2022 Latest Caselaw 6590 Tel

        THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
                          AND
      THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

      FAMILY COURT APPEAL Nos.135 AND 136 OF 2014


COMMON JUDGMENT: (Per Hon'ble Dr. Justice Shameem Akther)

      Since the facts of the case, issue involved and the parties to

the litigation are one and the same in both these appeals, both

these appeals are taken up together and are being disposed of by

this common judgment.


2.    FCA Nos.135 and 136 of 2014, under Section 19 of the

Family Courts Act, 1984, are filed by the appellant/husband-Sai

Prasad   Moorthygari,   challenging     the   common     order,   dated

24.06.2014, passed in FCOP Nos.21 of 2009 and 87 of 2010, by

the   Judge,   Family   Court-cum-III    Additional    District   Judge,

Warangal, whereby, the Court below, while dismissing the petition

filed by the appellant/husband under Section 13(1)(ia)&(ib) of the

Hindu Marriage Act for grant of divorce on the grounds of cruelty

and desertion (FCOP No.87 of 2010), allowed the petition filed by

the respondent/wife-Ram Kumari under Section 9 of the Hindu

Marriage Act seeking restitution of conjugal rights (FCOP No.21 of

2009), directing the appellant/husband to restore the conjugal

rights within two months from the date of the said common order.

Dr.SA, J & NBK, J

3. We have heard the submissions of Sri P.Giri Krishna, learned

counsel for the appellant/husband in both these appeals, Sri

C.A.R.Seshagiri Rao, learned counsel for the respondent/wife in

both these appeals and perused the record.

4. Learned counsel for the appellant/husband would contend

that the Court below decided both the OPs against the weight of

material evidence available on record. The appellant/husband

meted out cruelty in the hands of respondent/wife in his marital

life. The admitted fact is that both the parties are living separately

since 12.04.2007. The Court below ought to have held that the

respondent/wife had deserted the appellant/husband and granted

divorce on that score. After marriage, counseling was held by

Dr.Challa Subramanyam for leading amicable marital life.

However, it did not work out due to the adamant attitude of the

respondent/wife. There is evidence to establish that there was no

intention on the part of the respondent/wife to cohabit with the

appellant/husband. She wanted to live with her parents and is

continuing to do the same. Learned counsel further contended

that a false criminal case in C.C.No.46 of 2009 on the file of VI

Additional Judicial Magistrate of First Class at Warangal, for the

offences under Sections 498A of IPC and Sections 3 and 4 of the

Dowry Prohibition Act was registered against the Dr.SA, J & NBK, J

appellant/husband, his parents and two sisters. One of the sisters

(A4 in the said Crime) died pending trial of the case, due to the

trauma meted out to her for foisting a false criminal case. The

other sister (A5 in the said crime) left to USA. There is specific

admission in the counter filed by the respondent/wife that till the

date of marriage of sister of the appellant/husband on 17.08.2006,

the relation between the appellant/husband and respondent/wife

was good. However, the said sister of the appellant/husband also

was roped in a false case. For no fault on their part, the

appellant/husband, his parents and his sisters faced criminal trial,

which caused a lot of mental trauma to all of them. However, the

said criminal case ended in acquittal vide judgment, dated

21.01.2015, wherein, the learned Magistrate recorded several

findings with regard to the innocence of the appellant/husband and

his parents in the said crime. Further, the parties to the litigation

are residing separately from the last fifteen years. There is no

possibility of reconciliation and reunion between them. The

marriage between the appellant/husband and the respondent/wife

is totally unworkable, emotionally dead and beyond salvage. After

about one and half decades of separation, it is not proper to ask

the appellant/husband and respondent/wife to cohabit together

again. Though there is overwhelming evidence on record to show Dr.SA, J & NBK, J

that the appellant/husband was subjected to cruelty and was

deserted by the respondent/wife, the Court below erroneously

declined to grant divorce to the appellant/husband and erred in

directing him to restore the conjugal rights of the respondent/wife.

Since the appellant/husband had proved the cruelty meted out to

him by leading cogent and convincing evidence, the Court below

ought to have granted decree of divorce dissolving the marriage

between the appellant/husband and respondent/wife and ought to

have rejected the counter claim of the respondent/wife for

restitution of conjugal rights and ultimately prayed to set aside the

common order under challenge and allow the appeals as prayed

for.

5. On the other hand, the learned counsel for the

respondent/wife would contend that there is no iota of truth in the

allegations levelled against the respondent/wife by the

appellant/husband. The appellant/husband sought dissolution of

marriage on two aspects, i.e., cruelty and desertion. The Court

below elaborately dealt with these two aspects and recorded

categorical findings in paragraph Nos.32 and 33 of the impugned

common order that it is the appellant/husband who treated the

respondent/wife with cruelty and deserted her. The

respondent/wife never refused to join the company of the Dr.SA, J & NBK, J

appellant/husband. The Court below had clearly recorded a finding

that the appellant/husband has left the respondent/wife at her

brother's house on 12.04.2007 and within two years therefrom, he

filed the subject O.P.No.87 of 2010 seeking dissolution of marriage

on the ground of desertion, which is much before the expiry of

statutory period of two years. Furthermore, the appellant/

husband also failed to establish the two essential conditions of

desertion, viz., (i) the factum of separation, and (ii) the intention

to bring cohabitation permanently to an end (animus deserendi).

The appellant/husband further failed to prove that the

respondent/wife disliked the conjugal company of the

appellant/husband paving the way for desertion. When a legal

notice, dated 20.08.2008, was issued to the respondent/wife

calling upon her to join the company of the appellant/husband, a

reply notice, dated 12.09.2008, was issued expressing the

intention of the respondent/wife to join the company of the

appellant/husband on 24.09.2008 and accordingly, when the

respondent/wife went to the house of the appellant/husband to

join his company on 24.09.2008 along with the newly born child,

the appellant/husband and his mother ruthlessly driven her out.

The same is substantiated by cogent and convincing oral evidence

on record. Mere institution of a criminal case and its ending in Dr.SA, J & NBK, J

acquittal, that too extending benefit of doubt to the accused

therein is not a ground to dissolve the marriage in between the

parties. The appellant/husband miserably failed to prove cruelty

and desertion on the part of the respondent/wife. When the

respondent/wife is ready to join the company of the

appellant/husband with a very clear intention to perform her

matrimonial obligations, the Court below is justified in granting the

relief of restitution of conjugal rights. Under Hindu law, marriage

is sacrosanct. A man is not complete without his wife and it is the

wife, which makes him a complete man. Hindus conceive the

marriage as a sacrosanct, permanent, indissoluble and eternal

union. For Hindus, the marriage is a tie, which, once tied, cannot

be untied. Families are arranged on the idea of mutual

expectation of support and amity, which is meant to be

experienced and acknowledged amongst its members. Once this

amity breaks apart, the results can be highly devastating and

stigmatizing. The primary effects of such breakdown are felt

especially by women, who may find it hard to guarantee the same

degree of social adjustment and support that they enjoyed while

they were married. The Court below, after analyzing the entire

evidence available on record in correct perspective, rightly

dismissed the OP for dissolution of marriage and rightly allowed Dr.SA, J & NBK, J

the OP for restitution of conjugal rights. The grounds raised by the

appellant/husband in both these appeals are untenable. There are

no circumstances to interfere with the impugned common order

and ultimately prayed to dismiss the appeal.

6. In view of the above submissions made both the sides, the

points that arise for determination in both these appeals are as

follows:

     1. Whether       the        respondent/wife,               after
       solemnization      of   the       marriage,    treated      the
       appellant/husband with cruelty?

     2. Whether    the    respondent/wife            deserted      the

appellant/husband for a continuous period of not less than two years, immediately preceding the presentation of the petition for dissolution of marriage?

3. Whether the impugned common order, dated 24.06.2014, passed in FCOP Nos.21 of 2009 and 87 of 2010, by the Judge, Family Court-cum-III Additional District Judge, Warangal, is liable to be set aside and the appellant/husband is entitled for dissolution of marriage as sought for?

4. To what result?

POINTS:-

Dr.SA, J & NBK, J

7. To substantiate the case of the appellant/husband, the

appellant/husband himself got examined as RW.1 and one

M.Vishweshwar was examined as RW.2 and Exs.B1 to B3 were

marked. On behalf of the respondent/wife, the respondent/wife

herself got examined as PW.1, one Narahari Boom Reddy was

examined as PW.2 and one Sreepada Hanumantha Rao was

examined as PW.3 and Exs.A1 to A8 were marked.

8. It is an admitted fact that the marriage between the

appellant/husband and the respondent/wife was solemnized on

31.05.2006 at Hanamkonda. According to the respondent/wife, at

the time of marriage, her parents presented Rs.3,50,000/- cash,

4½ tulas gold, 2 Kgs silver and household articles worth

Rs.2,50,000/-, which are in the custody of the appellant/husband.

Immediately after the marriage, first night ceremony was arranged

at Golconda Hotel, Hyderabad. The marriage was consummated.

The couple led happy conjugal life for one month. Thereafter, the

appellant/husband, his parents and sisters started harassing the

respondent/wife, demanding additional dowry of Rs.10 lakhs. The

appellant/husband went to USA and stayed there for about one

and half month. The marriage of the sister of the

appellant/husband was fixed on 17.08.2006 and as such, the

respondent/wife along with her father went to Hyderabad to attend Dr.SA, J & NBK, J

the engagement function and marriage. While the

respondent/wife was staying with the appellant/husband, her in-

laws harassed her by showing several unchaste and mischievous

causes stating that when their first night ceremony took place at

Golconda Hotel, she mixed medicines to attract the

appellant/husband to her side and she was giving ash of Saibaba

to the appellant/husband to make him close to her. Apart from

the above, there were other allegations and counter allegations.

9. It is the case of the appellant/husband that on 12.04.2007,

when he returned from the office, the respondent/wife started

abusing him and his parents and requested him to drop her at her

brother's house. Accordingly, the appellant/husband dropped the

respondent/wife at her brother's house at Bandlaguda, Hyderabad.

Thereafter, the respondent/wife and her parents did not call him to

join her company. There is evidence of RW.1/husband that he

tried to contact the respondent/wife after dropping her at her

brother's house, but however, there was no response from her or

her parents and they did not allow him to contact the

respondent/wife. When he dropped the respondent/wife at her

brother's house, she was pregnant. The respondent/wife

demanded for separate residence and also demanded the

appellant/husband to leave his parents and reside with her and Dr.SA, J & NBK, J

handover his entire salary to her. Contrary to this, the evidence of

PW.1 (respondent/wife) is that she was beaten by the

appellant/husband and was dropped at his brother's house and

thereafter, she reached her parents' house. The

appellant/husband did not visit her at her parents' house situated

at Warangal. It is also the evidence of PW.1/wife that she was

beaten by the appellant/husband when she was pregnant and

without any cause/fault, she was dropped at her brother's house

and she has given birth to a male child on 04.09.2007. The

evidence of RWs.1 and 2 (appellant/husband and his father) is that

they were not informed about the birth of child and when

RW.1/husband went to see the child, he was allowed to see the

child and was insulted by the parents of the respondent/wife in

front of family members and relatives and as such, he felt

humiliated. The evidence of RW.1/husband further reveals that he

was not invited to the naming ceremony of the child. Contrary to

this, the evidence of PWs.1 to 3 is that the appellant/husband and

his parents were invited for the naming ceremony of the child, but

they did not respond to the same. There is also evidence on

record that pursuant to the legal notice, dated 20.08.2008, got

issued by the appellant/husband under Ex.A1, a reply notice,

dated 12.09.2008, under Ex.A3 was got issued by the Dr.SA, J & NBK, J

respondent/wife informing the appellant/husband that the

respondent/wife is joining the appellant/husband at his house on

24.09.2008 and to provide conducive environment to her by

withdrawing the allegations made in Ex.A1 notice; and when the

respondent/wife went to the house of the appellant/husband along

with her father (PW.2), elder brother and her people, her mother-

in-law ruthlessly driven her away. Contrary to this, the evidence

of RWs.1 and 2 is that on that day, the respondent/wife came to

the house of the appellant/husband with some unsocial elements,

created galata and was carrying the copies of legal notices. The

respondent/wife admitted about her going to the house of the

appellant/husband along with new born child, her brother, father

and some people. If at all the respondent/wife was intending to

resume her conjugal life with the appellant/husband harmoniously,

in such an event, it was not necessary for her to go to the house of

the appellant/husband along with some people. There is evidence

to show that the respondent/wife carried the copies of legal notices

and distributed the copies of legal notices in the locality, which was

unwarranted. Such behavior does not demonstrate the intention

of PW.1/wife to join the conjugal life peacefully with the

appellant/husband. All these circumstances demonstrate that

there were strained relations in between the couple. As per the Dr.SA, J & NBK, J

admission made by the PW.1/wife in the counter filed by her, when

there were cordial relations among the appellant/husband and the

respondent/wife, till the marriage of one of the sisters of the

appellant/husband on 17.08.2006. However, both the sisters of

the appellant/husband were made accused in the criminal case in

C.C.No.46 of 2009.

10. As on the date of disposal of the subject FCOP Nos.21 of

2009 and 87 of 2010, the proceedings in the subject criminal case

in C.C.No.46 of 2009 was not terminated. Later, the proceedings

in the said criminal case were terminated, wherein, a clear

acquittal was recorded in favour of the appellant/husband and his

parents. This Court had received the judgment in the said

C.C.No.87 of 2010 as additional material papers, by order dated

19.07.2022, passed in I.A.No.1 of 2022. Further, to receive a

copy of the judgment in the said criminal case, there was no

objection from the side of the respondent/wife. A perusal of the

said judgment, dated 21.01.2015, would reveal that the

respondent/wife lodged a complaint with Hanamkonda Police

Station which was registered as C.C.No.46 of 2009 for the offences

under Sections 498A of IPC and Sections 3 and 4 of the Dowry

Prohibition Act against the husband, his parents and two sisters.

The police, on completion of investigation, filed charge sheet Dr.SA, J & NBK, J

before the Court against A1 to A5. One of the sisters (A4 in the

said Crime) died pending trial of the case and hence, case against

her was abated. The other sister (A5 in the said crime) left to USA

and hence, the case against her was split up and numbered as

C.C.No.586 of 2014. Learned Magistrate, after adverting to the

case in great detail, acquitted the appellant/husband and his

parents (A1 to A3) for the offences mentioned supra. There is

some discussion in relation to the respondent/wife approaching the

house of the appellant/husband on 24.09.2008 in the judgment in

C.C.No.46 of 2009. The same is extracted below.

"PW.1 has stated that on 24.9.2008 she along with her parents went to the house of the accused at Vijayanagar Colony, Hyderabad and then all the accused persons did not allow them into their house and they closed the doors of the house stating that they would not allow her unless she brings Rs.10 lakhs and a diamond necklace as additional dowry. She has further stated that they waited till afternoon, but A.1 went to the office leaving them to their fate and A.2 to A.5 abused her in filthy language, beat her and sent her out of their house. PW.2 has stated that on 24.9.2008, he, PW.1, his wife and others went to the house of accused, but, the accused persons did not allow them into their house and A.1 and A.2 questioned them as to why they came there again. PW.4 has stated that he, PWs.1 and 2, and his sister Vijaya Lakshmi (LW.3) went to the house of the accused at Hyderabad, but they did not allow them into their house. PW.5 has stated that in September, 2007, he, PWs.1 and 2, Vijaya Lakshmi (LW.3) and PW.3 went to the house of the accused situated at Vijayanagar Colony, Hyderabad to leave PW.1 there and A.1 was not present in the house then and A2 and A.3 were present and they had negotiations with them (A2 and A3) to receive PW.1, but they refused to receive PW.1 stating that A.1 is not present and they do not want to take responsibility of the same. This evidence of PW.5 is totally contrary to the evidence of PW.1, 2 and 4. Further, PWs.1 and 2 did not speak about PWs.4 and 5 following them to the house of the accused at Hyderabad.

As stated by PW.1, on 24.09.2008, she along with her parents went to the house of the accused persons at Vijayanagar Colony, Dr.SA, J & NBK, J

Hyderabad, but, the accused persons did not allow them into their house and then they returned to Warangal and since then she is staying at her parents' house. She has further stated that she gave Ex.P1-report in Hanamkonda Police Station against the accused on 27.11.2008. Thus, there is a delay of more than two months in reporting the alleged incident to the police. PW.1 did not offer any explanation for the said delay caused in reporting the incident to the police.

For the foregoing reasons, this Court is disabled to hold that the accused persons have subjected PW.1 to cruelty with a demand to bring additional dowry and thereby they have committed the offences punishable under Section 498-A of Indian Penal Code and Section 4 of the Dowry Prohibition Act. These points are answered accordingly in favour of the accused and against the prosecution."

11. The material placed on record establishes that there is no

demand of dowry of Rs.3,50,000/- and other valuables in the

marriage by the appellant/husband. Further, there is no demand

for additional dowry of Rs.10 lakhs, as contended by the

respondent/wife. False allegations of dowry harassment are made

not only against the appellant/husband, but also against his

parents and sisters; and one of the sisters died during the

pendency of the criminal proceedings. The material placed on

record indicates that there was no role of the sisters in the alleged

harassment, but however, they were roped in the subject crime

and were forced to face criminal trial. Registration of criminal case

against a person and making him/her face criminal trial without

there being any fault on his/her behalf would certainly put them to

trauma and turmoil and constitute sufficient ground to dissolve the Dr.SA, J & NBK, J

marriage in between the parties. Such material evidence is

present in favour of the appellant/husband.

12. Be that as it may. The marriage between the parties was

solemnized on 31.05.2006 and they lead marital life for only one

month thereafter. The respondent/wife levelled serious allegations

against the appellant/husband for not maintaining the sanctity of

marriage and even went to the extent of lodging a report with the

police not only against him, but also against his parents and

sisters. However, the said criminal case ended in acquittal, be it

by extending benefit of doubt or for not proving the allegations

beyond all reasonable doubt. Eventually, one of the sisters died

during the pendency of criminal case and the other sister left to

USA. Right from the beginning, the matrimonial relationship

between the parties was not normal. The spouses stayed together

at the matrimonial home hardly for one year. The conduct of the

respondent/wife in approaching the police complaining against her

husband, his parents and sisters are bound to cause mental

trauma to all of them. The cumulative effect of all these

circumstances on the mind of the respondent/wife, in our

considered view, amounts to mental cruelty caused due to the

stubborn attitude and inexplicably unreasonable conduct of the

respondent/wife. Matrimonial matters are matters of delicate Dr.SA, J & NBK, J

human and emotional relationship. It demands mutual trust,

regard, respect, love and affection with sufficient play for

reasonable adjustments with the spouse.

13. Here, it is apt to state that irretrievable breakdown of

marriage by itself is not a ground for divorce under Hindu Marriage

Act, 1955. But where marriage is beyond repair on account of

bitterness created by the acts of the husband or the wife or of

both, the Courts have always taken irretrievable breakdown of

marriage as a very weighty circumstance amongst others,

necessitating severance of marital tie. A marriage, which is dead

for all purposes, cannot be revived by the Court's verdict, if the

parties are not willing. This is because marriage involves human

sentiments and emotions and if they are dried-up, there is hardly

any chance of their springing back to marital life on account of

artificial reunion created by the Court's decree. Courts can

dissolve a marriage as irretrievably broken down when the Court is

convinced beyond any doubt that there is absolutely no chance of

the marriage surviving and it is broken beyond repair.

14. In Naveen Kohli v. Neelu Kohli1, a three-Judge Bench of

the Hon'ble Apex Court observed as follows:

(2006) 4 Supreme Court Cases 558 Dr.SA, J & NBK, J

"Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that 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.

15. The Hon'ble Apex Court, in a series of judgments, has

exercised its inherent powers under Article 142 of the Constitution

of India for dissolution of a marriage where the Court finds that

the marriage is totally unworkable, emotionally dead, beyond

salvage and has broken down irretrievably, even if the facts of the

case do not provide a ground in law on which, the divorce could be

granted (see Samar Ghosh Vs. Jaya Ghosh2; Sukhendu Das

Vs. Rita Mukherjee3).

16. In the instant case, as pointed out in the foregoing

paragraphs, registration of criminal case on false allegations

against the appellant/husband, his parents and sisters and putting

them to trial certainly causes physical and mental cruelty. So, it

can be safely concluded that the respondent/wife had treated the

appellant/husband with cruelty, which constitute sufficient cause

under Section 13(1)(ia) of the Hindu Marriage Act to dissolve the

marriage in between the parties. Further, the other evidence led

(2007) 4 Supreme Court Cases 511

(2017) 9 Supreme Court Cases 632 Dr.SA, J & NBK, J

on behalf of the appellant/husband to demonstrate the conduct of

the respondent/wife and the respondent/wife staying away from

the matrimonial home of the appellant/husband would also

constitute mental cruelty to the appellant/husband by the

respondent/wife. Under these circumstances, we feel that the

differences between the parties to the litigation are of such

magnitude that it would be practically impossible for them to

reunite and cohabit again. We also feel that with these many

differences between the couple, if the appellant/husband is

compelled to live with the respondent/wife by a verdict of Court, it

is not safe to him as well as the respondent/wife and may lead to

unwelcome consequences. Since the marriage between the parties

is emotionally dead, totally unworkable, beyond salvage and has

broken irretrievably as discussed above, we deem it appropriate to

dissolve the marriage between the parties by granting a decree of

divorce.

17. Accordingly, both the appeals are allowed, by setting aside

the common order, dated 24.06.2014, passed in FCOP Nos.21 of

2009 and 87 of 2010, by the Judge, Family Court-cum-III

Additional District Judge, Warangal. The marriage solemnized

between the parties on 31.05.2006, shall stand dissolved by a Dr.SA, J & NBK, J

decree of divorce under clause (ia) and (ib) of sub-section (1) of

Section 13 of the Hindu Marriage Act, 1955.

Miscellaneous petitions, if any, pending in these appeals,

shall stand closed. There shall be no order as to costs.

____________________ Dr. SHAMEEM AKTHER, J

_____________________ NAGESH BHEEMAPAKA, J th 08 December, 2022 BVV