Amberin Haider Amberin Naqvi vs Syed Saif Ali Naqvi
2022 Latest Caselaw 5845 Tel

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


              FAMILY COURT APPEAL No.1 OF 2021

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


      This Family Court Appeal, under Section 19 of the Family

Courts Act, 1984, is filed by the appellant/wife, challenging the

order, dated 26.08.2019, passed in F.C.O.P.No.1567 of 2016, by

the Judge, Additional Family Court, City Civil Court, Hyderabad,

whereby, the petition filed by the appellant/wife under Sections

2(ii)(viii)(d)(ix) of the Dissolution of Muslim Marriages Act, seeking

divorce against the respondent/husband, was dismissed.

2. We have heard the submissions of Smt D.Pramada learned

counsel, appearing for Sri. D.Devendar Rao, learned counsel for

the appellant/wife and perused the record.

3. On 12.10.2022, this Court ordered notice to the

respondent/husband and also permitted personal service of notice

on the respondent/husband. Learned counsel for the

appellant/wife has filed a memo before this Court vide USR

No.95908 of 2022, along with the postal track record, which

reveals that notice on the respondent of the husband is served. In

Dr.SA, J & NBK,J FCA No.1 of 2022

spite of service of notice, respondent/husband did not choose to

appear before this Court.

4. Learned Counsel for the appellant/wife would contend that

though there is substantial evidence of the appellant/wife who

deposed as PW.1 which proves cruelty on the part of

respondent/husband, the Court below erroneously disbelieved the

same. Furthermore, the respondent/husband had attributed illegal

intimacy to the appellant/wife with one Mesam Razvi. All the acts

of the respondent/husband constitute cruelty against the

appellant/wife. It is a fit case to grant divorce between the

appellant/wife and respondent/husband. The Court below did not

consider the same and erroneously dismissed the subject FCOP

and ultimately prayed to set aside the order under challenge and

allow the appeal as prayed for, dissolving the marriage in between

parties to the litigation.

5. The subject FCOP was filed for dissolution of marriage by the

appellant/wife against respondent/husband on the ground of

cruelty. The appellant/wife, who deposed as PW.1, in her

evidence, deposed certain acts such as beatings by the

respondent/husband etc., and sustaining injuries at the hands of

the respondent/husband. The respondent/husband has also

Dr.SA, J & NBK,J FCA No.1 of 2022

specifically attributed illegal intimacy to the appellant/wife with

one Mr.Mesam Razvi and that she is staying away from him. The

facts remains that the appellant/wife had begotten two children

through the respondent/husband. The respondent/husband did

not lead any cogent and convincing evidence to substantiate that

the appellant/wife had developed any illegal intimacy, as alleged.

Such an unproven allegation against a woman, that too on her

chastity, would certainly constitute mental cruelty. There is also

evidence of causing physical cruelty by the respondent/husband to

appellant/wife.

6. In view of these circumstances, the Court below ought to

have dissolved the marriage in between the appellant/wife and

respondent/husband by granting a decree of divorce. It did not do

so. Having regard to the facts and circumstances of the case, we

deem it appropriate to dissolve the marriage in between the

appellant/wife and respondent/husband that took place on

16.04.2009, by granting a decree of divorce.

7. Accordingly, this appeal is allowed, by setting aside the

impugned order 26.08.2019 passed in F.C.O.P.No.1567 of 2016 by

the Judge, Additional Family Court at Hyderabad. The marriage

performed in between the appellant/wife and the

Dr.SA, J & NBK,J FCA No.1 of 2022

respondent/husband on 16.04.2009 stands dissolved by a decree

of divorce under Section 2(ii)(viii)(d)(ix) of the Dissolution of

Muslim Marriage Act.

Miscellaneous petitions, if any, pending in this appeal, shall

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

_______________________ Dr. SHAMEEM AKTHER, J

_______________________ NAGESH BHEEMAPAKA, J

15th November, 2022 DSU / BVV