Marpally Ramreddy vs Marpally Jyothi
2022 Latest Caselaw 4781 Tel

                             THE HON'BLE JUSTICE G. SRI DEVI
                                                AND
                     THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
                                    C.M.A.NO.896 OF 2015
                        JUDGMENT (Per the Hon'ble Smt. Justice M.G.Priyadarsini)

The appellant herein is the husband and the respondent is his wife. He filed

O.P.No.11 of 2010 on the file of Senior Civil Judge, Zaheerabad under Section 13(1) (i‐a)

and (i‐b) of the Hindu Marriage Act, 1955 (for short 'the Act') against the respondent -

wife seeking divorce on the grounds of 'cruelty' and 'desertion'.

2. Vide the impugned order and decree dated 24.06.2014, the learned Trial

Judge dismissed the petition. Assailing the same, the present appeal is filed by the

husband.

3. The parties will be referred to as per their array in the original petition for the

sake of convenience.

4. Petition averments: The case of the appellant/petitioner - husband is that he

married the respondent on 09.05.2001 at Nagareshwar Temple, Humnabad Town, Bidar

District, Karnataka State, and that they lived together till 10.01.2008.

(i) That the respondent is sadist in nature apart from being adamant. The

respondent used to harass the petitioner and behave cruelly saying that she is highly

educated than the petitioner and earning more than the petitioner.

(ii) That the respondent used to frequently visit her mother's house at

Humnabad. As they do not have children, respondent blamed the petitioner as

impotent.

(iii) That the respondent left the company of the petitioner on 10.01.2008 and

started living separately.

(iv) That on 15.06.2010, the respondent got the petitioner abducted by engaging

10 members consisting of her relatives and other anti social elements and kept the

petitioner in lock for two days, forced him to execute a document and then he was

forcibly taken to a black magic practitioner at Hussanlly village of Humnabad Tq. And

when the relatives of the petitioner came with the police constables from Zaheerabad,

he was released.

(v) That thereafter the respondent filed a false criminal complaint in Cr.No.78 of

2010 for the offence under Sections 498‐A, 497 IPC and Sections 3, 4 and 6 of Dowry

Prohibition Act.

(vi) That as the respondent deserted the petitioner for more than two years,

having no other alternative, he filed the present petition seeking for dissolution of their

marriage.

5. Counter averments: In the counter affidavit filed by the respondent she had

admitted the marriage, but however denied that she has treated the petitioner cruelly

or harassed him. Her case is that petitioner is a law graduate and practicing as an

Advocate, and that she is also equally qualified with him.

(i) That she gave a complaint when the petitioner developed illegal contacts with

one Padma of Gudiwada and brought the said lady to Ranjole village in the year 2008.

The said Padma is already having two children and the petitioner is in total control of

the said lady.

(ii) That the petitioner started ill‐treating the respondent after the said Padma

came in his life. The petitioner himself is not allowing the respondent to enter into the

house and that she never deserted the petitioner, and she is living in a house near to the

house of the petitioner.

(iii) With these averments, the respondent sought to dismiss the petition and

stated that she has love and affection for the petitioner and wants to continue with the

said marriage and does not wish to dissolve the marriage.

6. Based on the above pleadings, the trial court framed the following issues for

trial:

1. Whether the petitioner has made out a case for dissolution of his marriage with the respondent dated 09.05.2001 on the ground of cruelty by the respondent and she deserted the petitioner?

2. To what relief?

7. In support of the case of the petitioner, he got examined himself as P.W.1 and

got marked Exs.P‐1 to P‐3.

8. On behalf of the respondent she got examined herself as R.W.1, and also got

examined one Penta Reddy, as R.W.2. No documents were marked on behalf of the

respondent.

9. The trial court considering the respective pleadings and the evidence on

record, held that the petitioner - husband failed to establish the grounds of cruelty and

desertion for dissolving his marriage with the respondent, and accordingly dismissed the

petition. Aggrieved by the same, the husband is before this court.

10. Learned counsel appearing for the appellant - petitioner - husband,

reiterating the averments made in the O.P., further submits that the respondent filed

Cr.No.78 of 2010 against the petitioner and his family members for the offences

punishable under Sections 498‐A, 497 of IPC and Sections 3, 4 and 6 of Dowry

Prohibition Act, 1961 and the same was numbered as C.C.No.401 of 2010 on the file of

Judicial I Class Magistrate, Zaheerabad. The said case ended in acquittal. He submits

that filing of false criminal case itself is sufficient for grant of a decree of divorce. In

support of his contention, learned counsel relied on the judgments reported in NITIN

RAMESH DHIWAR vs. ROOPALI NITIN DHIWAR1, RAJ TALREJA v. KAVITA TALREJA2,

DEVESH YADAV v. MEENAL3.

(i) Learned counsel further submits that both the parties are living separately and

that by filing false case, which ended in acquittal, the respondent has subjected the

petitioner to cruelty and there are no chances of reunion, and the claim of the

petitioner may be allowed and the decree of divorce may be granted, allowing both the

parties to lead their lives as per their choice. In support of this submission, learned

counsel relied on the judgments of the Apex Court reported in K.SRINIVAS RAO vs.

D.A.DEEPA4 and SAMAR GHOSH vs. JAYA GHOSH5

(ii) Learned counsel for the petitioner, on instructions, further submits that the

petitioner is willing to give an amount of Rs.7,00,000/‐ as permanent alimony and hence

the same may be taken into consideration.

(iii) With these submissions, he sought to set aside the impugned order and to

allow the appeal.

11. On the other hand, learned counsel for the respondent - wife submits that

though the petitioner has levelled allegations against the respondent that she has ill‐

treated him and that he was abducted by the respondent, he failed to prove the same

2012 LawSuit (Bom)1020

2017(14) SCC 194

2022LawSuit(P&H)605

(2013)5 SCC 226

(2007)4 SCC 511

by leading any cogent and convincing evidence, and the trial court has rightly eschewed

the said allegations made by the petitioner.

(i) He submits that as there were compromise talks between the parties, the

respondent turned hostile in the criminal case and it resulted in acquittal of the

petitioner - accused of the charges leveled against him.

(ii) He submits that the petitioner is having illegal contact with one Padma and

they are residing in the same house and forced the petitioner to leave the company of

the petitioner and she is residing in a house, which is near to the house of the petitioner

and that she was always ready and willing to join the petitioner.

(iii) Learned counsel further submits that the petitioner is having illegal contact

with the said Padma and he also executed a sale deed in her favour on 09.03.2017, and

in the said sale deed, the petitioner is shown as vendor, and the said Padma is shown as

vendee and the petitioner is shown as her husband and the address of both these

vendor and the vendee is shown as one and the same. This circumstance would

clinchingly prove that petitioner and the said Padma are residing in the same address

and this also proves her averments made in the counter affidavit. Therefore, it cannot

be said that the respondent deserted the petitioner, and in fact, she was forced to leave

the company of the petitioner. Learned counsel submits that photo copy of the sale

deed dated 09.03.2017, may be received as additional document.

(iv) Therefore, he submits that it cannot be said that the petitioner proved his

grounds of 'cruelty' and 'desertion' and hence he cannot seek for divorce. He submits

that the respondent has still love and affection for the petitioner and that his petition

for divorce may be dismissed, and the order and decree of the trial court may be

confirmed.

12. In view of the above rival contentions and having regard to the facts and

circumstances of the case, the issue that arises for our consideration is:

13. Whether the appellant / petitioner is able to prove the grounds of 'cruelty'

and 'desertion' for seeking divorce under Section 13(1)(i‐a)(i‐b) of the Act, and if so,

whether the impugned order and decree of the trial court requires to be interfered

with?

14. The main allegation of the petitioner is that the respondent has foisted a

false case against him and his family members under Sections 498‐A and 497 IPC and

Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961, and the said case ended in

acquittal. Therefore filing false criminal case itself, has to be taken as a ground of

'cruelty'.

15. The respondent was examined as P.W.1 in C.C.No.401 of 2010. In her

deposition she has categorically deposed that there was no demand of dowry and under

wrong impression and ill‐advise, she has lodged the above said false crime against the

petitioner. Based on this evidence, the Trial Court has acquitted the petitioner of the

charge levelled against him.

16. Thus it is clear that the respondent in the criminal case has admitted that she

has filed a false case against the petitioner and his family members.

17. In the decision relied on by the learned counsel for the petitioner / appellant

in Nitin Ramesh Dhiwar vs. Roopali Nitin Dhiwar (1 supra), the High Court of Bombay

held as under:

"In our view, filing of false criminal complaint itself amounts to cruelty within the meaning of Section 13(i)(a) of the Hindu Marriage Act. A similar view was taken by the Division Bench of this Court in Family Court Appeal No.158 of 2008. The Division Bench had taken into consideration the judgment and order passed by the Trial Court of acquitting the Appellanttherein for the offence punishable under Section 498‐A r/w 34 of the Indian Penal Code and also the deposition of the Appellant in the Trial Court. Taking our overall view, the impugned judgment and order passed by the Family Court will have to be quashed and set aside and the appeal filed by the Appellant will have to be allowed."

18. A Division Bench of this court in the decision reported in P.PADMA v.

P.CHENNAIAH6 held that making false, scandalous, malicious and baseless charges

against the husband by wife, prima facie amounts to cruelty and on the basis of same,

husband is entitled to decree of divorce. The relevant portion is thus:

"49. In the instant case, we are of the opinion that false, scandalous malicious and baseless charges are made against respondent by the appellant which prima facie amount to cruelty and on the basis of the same, the respondent is entitled to a decree of divorce. So the order of the Trial Court, therefore, does not warrant any interference by this Court in appeal."

19. Thus from the above judgments it is clear that filing of false criminal case

against the husband by the wife amounts to 'cruelty' and on that ground alone, the

2022(1)ALD 103(TS)(DB)

husband is entitled for a decree of divorce. In view of the above, the petitioner herein is

entitled for decree of divorce and the other grounds raised by the respondent - wife

need not be gone into.

20. It is to be noticed that the marriage between the parties was performed on

9.5.2001 and they lived together till 10.01.2008 and thereafter respondent is residing

separately, and she filed false criminal case against the petitioner and his family

members, which ended in acquittal. Further, in his evidence, petitioner as P.W.1

categorically deposed that the respondent voluntarily deserted him. A perusal of the

cross‐examination of P.W.1, it could be seen that nothing could be elicited by the

respondent in this regard. As already noted above, in the criminal case filed by the

respondent under Sections 498‐A and 497 of IPC, and Sections 3, 4 and 6 of the Dowry

Prohibition Act, 1961, the respondent has categorically deposed that there was no

demand of dowry and under wrong impression and ill advise, she has lodged the above

said false criminal case against the appellant. In the present petition, respondent was

examined as R.W.1, and in her cross‐examination she has admitted that she has lodged

Cr.No.78 of 2010 against the appellant and his relatives only out of anger. This

circumstance, in light of the law laid down in the above referred cases, clearly proves

that petitioner was subjected to 'cruelty'.

21. Further even during the hearing of this appeal, this court has also made

attempts to reconcile the matter, but it yielded no result. The husband is not willing to

take the respondent back, whereas the respondent is not agreeing for divorce. The fact

remains that since 2008 i.e. for about fourteen years, the parties are residing separately.

22. The Apex Court in the decision reported in K.SRINIVAS RAO vs. D.A.DEEPA (4

supra), held as under:

"In the ultimate analysis, we hold that the respondent‐wife has caused, by her conducted, mental cruelty to the appellant - husband and the marriage has irretrievably broken down. Dissolution of marriage will relive both sides of pain and anguish. In this Court, the respondent -wife expressed that she wants to go back to the appellant - husband, but, that is not possible now. The appellant‐husband is not willing to take her back. Even if, we refuse decree of divorce to the appellant‐husband, there are hardly any chances of the respondent - wife leading a happy life with the appellant - husband because a lot of bitterness is created by the conduct of the respondent - wife."

23. In another judgment the Apex Court in RAJ TALREJA v. KAVITA TALREJA7,

the Apex Court held that filing of false cases and making reckless allegations against her

husband, his family members and colleagues, amounts to 'cruelty'. The Apex Court

considering the facts and circumstances of that case, granted divorce. However, the

Apex Court also granted permanent alimony to the wife therein considering the status

of the parties.

24. In the present case, the petitioner is an Advocate and the respondent is also

equally qualified and she is working as a teacher. Having regard to the facts and

circumstances and to put a quietus to the issue, we are inclined to grant divorce to the

husband and also a reasonable amount of Rs.10,00,000/‐ to the respondent wife

payable by the petitioner - husband towards permanent alimony.

(2017) 14 SCC 194

25. Accordingly for the foregoing reasons, the impugned order and decree of the

trial court is set aside and the petition filed by the petitioner for divorce is allowed on

the ground of cruelty under Section 13(1)(i‐a) of the Act and the marriage between the

petitioner and the respondent performed on 09.05.2001 is dissolved and petitioner is

granted a decree of divorce. The issue framed is answered accordingly.

26. The petitioner shall pay an amount of Rs.10,00,000/‐ (Rupees ten lakhs only)

to the respondent within a period of three months from today towards permanent

alimony. Failing which, it is open to the respondent to seek for execution of the same in

accordance with law.

27. In the result, the appeal is accordingly allowed to the extent indicated above.

28. Interlocutory Applications pending, if any, shall stand closed. No order as to

costs.

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ G. SRI DEVI,J

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ M.G.PRIYADARSINI,J DATE: 21‐‐09--2022 AVS