Telangana High Court
Mrs. Nirmala Helen , Nirmala Rao, Sec. vs R.D. Vinod Joseph , Vinod Dass , B.D. ... on 18 December, 2023
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
HONOURABLE SMT JUSTICE P.SREE SUDHA
F.C.A.No.47 of 2012
JUDGMENT:
(Per. Hon'ble smt. Justice P.Sree Sudha)
This appeal is filed aggrieved by the order and decree
dated 20.01.2009 passed by the learned Judge, Family Court,
Secunderabad, in F.C.O.P.No.247 of 2004 and Counter Claim.
2. Appellant herein is petitioner/wife and respondent herein
is respondent/husband in the aforesaid F.C.O.P. The parties will
be referred to as arrayed before the trial Court.
3. Brief facts of the case of petitioner/wife are as under:
Petitioner/wife filed the aforesaid F.C.O.P.No.247 of 2004
under Section 10 (1) (ix) (x) of the Divorce Act, seeking divorce
against the respondent/husband. It is stated in the petition that
the marriage between the petitioner and respondent took place
on 26.10.1994 as per Christian rites and customs at Secunderabad.
The petitioner came out of the house on 18.07.1993 as her parents
did not agree for marrying the respondent and initially their
marriage was performed by tying Pasupu Kommu around the
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neck of the petitioner and they lived together at Lalapet for about
three months and later the respondent joined his mother after the
death of his father and that they resided together for about one
month. Thereafter, disputes arose among the respondent and his
brother's family members and as such the petitioner and the
respondent shifted their residence to Chilkalguda and from there
to Alugaddabavi. It is further stated that the respondent used to
harass her mentally and physically by suspecting her character
and as such she went to her brother's house at Bombay.
Thereafter, the respondent addressed a letter to the petitioner
stating that he will rectify his suspicious character and requested
her to lead marital life with him and as such the petitioner joined
the respondent at Mettuguda residence and in spite of that there
was no change in the attitude of the respondent. Due to
unbearable harassment, the petitioner went into depression and
was admitted in Gandhi hospital and took treatment and that
after discharge, the petitioner converted into Christianity on
26.10.1994 and on the same day her marriage was performed with
the respondent according to Christian rites and customs and that
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they begot two children on 12.09.1996 and 19.10.2000
respectively. It is further stated that even though the respondent
opposed the petitioner studying B.Ed, she got admitted in B.Ed
on 26.01.2002. On 29.08.2002, when the petitioner approached the
respondent along with mediators viz., one Prameela and
Pochamma, he did not allow her to stay with him and kicked her
out from the house and as such the petitioner was residing with
her parents and depending on the earnings of her father.
Petitioner also maintaining her children, who were studying at St.
Ann's school and St. Patrick school respectively, with the help of
her parents. Efforts made by the petitioner to reconcile through
elders proved futile due to adamant nature of respondent.
Therefore, she requested the Court to dissolve their marriage by a
decree of divorce.
4. Respondent/husband filed a Counter denying all the
material allegations contained in the petition. He contended that
he never suspected the fidelity of the petitioner either before or
after marriage. The respondent was initially running a wine shop
and thereafter he stopped the said business at the behest of the
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petitioner and was running a Kirana shop and Fancy Bangle
store. It is further contended that the respondent never harassed
the petitioner either mentally or physically. The petitioner
converted into Christianity on 26.10.1994 voluntarily for
marrying the respondent who was a Christian. The respondent
did not oppose the petitioner from prosecuting B.Ed. as he paid
Rs.15,000/- towards fee. Further, the respondent supported the
petitioner to look after her ailing mother as she was suffering
from hip fracture. It is further contended that the petitioner did
not approach the respondent on 29.08.2002 along with one
Prameela and Pochamma, who is a social worker. Since July,
2004, the petitioner refused to stay at matrimonial home in spite
of several remainders, and insisted for divorce. The respondent
never denied the maintenance of children. The petitioner has
withdrawn the society of the respondent under the influence of
her father. The respondent has lot of love and affection towards
the children, however, the petitioner did not allow him even to
see the children. The income from kirana shop is sufficient to
lead decent life and for meeting household expenses and rent for
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shop. The petitioner saved Rs.2,45,000/- from the income of
fancy store and kept it with her and that she secured a job in
Banjara Hills in June, 2004 and was earning Rs.4,000/- per month.
The respondent closed fancy bangle store due to absence of the
petitioner. The respondent gave some amount to the petitioner
for purchasing gold ornaments. It is further stated that the
petitioner and the respondent lived together at Mettuguda till
July, 2004. Therefore, he requested the Court to direct the
petitioner to join the respondent along with children at
Mettuguda. The respondent also filed counter-claim vide OPSR
No.4992 of 2004 on 07.12.2004 for restitution of conjugal rights.
5. Initially, the trial Court, vide order dated 27.12.2005,
allowed FCOP No.247 of 2004 dissolving the marriage between
the petitioner and respondent. Aggrieved by the same, the
respondent/husband filed F.C.A.No.12 of 2006 and this Court,
vide judgment dated 26.08.2008, allowed the said appeal and
remanded back the matter to the trial Court with a direction to
dispose of the appeal afresh along with the counter-claim.
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6. In order to substantiate her case, the petitioner/wife
examined P.Ws.1 and 2 and got marked Exs.A-1 to A-3. On the
other hand, the respondent/husband, examined R.Ws.1 and 2
and no document was marked on his behalf.
7. The trial Court, on consideration of entire material
available on record, while dismissing FCO.P. filed by the
petitioner/wife, allowed the counter-claim of the
respondent/husband for Restitution of Conjugal Rights, vide
order dated 20.01.2009.
8. Aggrieved by the aforesaid order, the present appeal has
been preferred by the appellant/petitioner/wife contending that
since the respondent/husband subjected her to physical and
mental cruelty and there was no possibility of living together, she
sought for a decree of divorce on the ground of cruelty and
desertion, however, the trial Court, without considering the said
facts, dismissed the FCOP and allowed the counter-claim of the
respondent. The trial Court also failed to consider the events
transpired between the parties prior to 26.10.1994. The
respondent/husband deliberately filed the counter-claim for
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restitution of conjugal rights only to harass the petitioner. The
trial Court failed to notice the fact that even though the
petitioner/wife approached the respondent/husband along with
mediators viz., Prameela and Pochamma, he refused to receive
the petitioner/wife into matrimonial home on 29.08.1992 and
thereby she filed the petition for divorce. The trial Court erred in
not affording an opportunity to the petitioner/wife for filing
rejoinder to the counter-claim of the respondent/husband. It is
further contended that the trial Court failed to consider the
behavior and conduct of the respondent as the respondent on
many occasions in Open Court itself attributed the alleged illegal
relationship against the petitioner/wife with others and thus the
attitude of the respondent/husband amounts to cruelty. The trial
Court failed to consider that the respondent/husband has not
paid any amount to the petitioner/wife towards her maintenance
and that non-payment of maintenance itself is sufficient to
discard the claim of the respondent/husband. Therefore, she
requested the Court to set aside the impugned order of the trial
Court.
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9. Despite service of notice, the respondent/husband did not
turn up as per the proceedings dated 18.10.2023. Heard learned
Counsel for the appellant/wife and perused the impugned order
including the material available on record.
10. The main contention of the appellant/petitioner/wife is
that the respondent/husband subjected her to cruelty mentally
and physically by suspecting her character and restrained her
from prosecuting further studies and also deserted her for the last
two years and, therefore, she requested the Court to set aside the
order of the trial Court and grant a decree of divorce. On the
other hand, the respondent/husband contended that he was
looking after the petitioner/wife and their children with love and
affection and that he never restrained her from pursuing further
studies and, therefore, he requested for restitution of conjugal
rights.
11. Petitioner/wife, who was examined as P.W.1, stated in her
evidence that the respondent/husband is a very suspicious
characteristic person and whenever he went outside, he used to
lock the door of the house from outside and being vexed with the
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attitude of the respondent, she went to her brother's house at
Bombay and thereafter the respondent through letters requested
her to come and lead marital life with him as he has rectified his
suspicious character and as such the petitioner joined the
company of the respondent. P.W.1 further stated that since there
was no change in the attitude of the respondent, she went into
depression and was admitted into hospital and after discharge
from the hospital, she was converted into Baptism on 26.10.1994
and on the same day their marriage was performed and that out
of their marital life, two children were born. She further stated
that since she admitted into B.Ed course on 26.01.2002, the
respondent did not allow her to stay with him and thereafter she
approached the respondent on 29.08.2002 along elders viz.,
Prameela and Pochamma, a social worker, but, he did not allow
her into matrimonial home and kicked her out of the house and
as such she has been residing with her parents along with
children. P.W.2, who is the father of P.W.1, stated that he tried to
settle the issue amicably through one Prameela and Pochamma, a
social worker, but the efforts made by him became futile. The
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trial Court observed that there is no evidence regarding the
events transpired between the parties prior to 26.10.1994 and as
such it cannot be considered. The trial Court further held that
P.W.1 could not examine the mediators i.e., Prameela and
Pochamma, a social worker, and as such the effort made by her
for reconciliation between the parties was not established. P.W.1
further stated that, on 26.10.2005, the respondent in the open
Court attributed illegal relationship against her with others and
as such it amounts to cruelty. However, the trial Court observed
that no such docket order was filed by the petitioner in support of
her contention.
12. Appellant/petitioner/wife filed I.A.No.1 of 2023 seeking
permission to file certain copies of documents viz., copy of the
order dated 25.06.2007 in F.C.O.P.No.123 of 2006; copy of the
judgment dated 26.08.2008 passed in F.C.A.No.12 of 2006; copy of
the order dated 27.12.2005 passed in F.C.O.P.No.247 of 2004; copy
of interim direction passed by this Court in FCAMP No.327 of
2010 in F.C.A.No.143 of 2007 dated 16.04.2010; copy of the
petition filed by the petitioner and copy of the counter filed by
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the respondent in M.P.No.98 of 2022 in M.C.No.74 of 2004; copies
of petition, chief and cross-examination of the respondent in
M.P.No.105 of 2021 in M.C.No.74, as additional material papers.
Since the said documents are crucial and necessary for proper
adjudication of the matter, this Court finds it reasonable to allow
the said application and accordingly, the said I.A.No.1 of 2023
was allowed on 01.08.2023.
13. F.C.O.P.No.123 of 2006 was filed by the petitioner/wife
seeking permanent custody of her two minor children aged 5 and
9 years respectively and to declare her as permanent guardian.
The trial Court, vide order dated 25.06.2007, granted custody of
the minor son in favour of the petitioner and minor daughter in
favour of the respondent and that visitation rights were also
granted to both the parties on every Sundays and public holidays.
Against the said order, the petitioner/wife filed F.C.A.No.143 of
2007. It seems during the pendency of the proceedings, the
daughter, who was in the custody of the respondent, came to the
house of the petitioner and that on application filed by the
petitioner, this Court by order dated 16.06.2010 directed the
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Principal, St. Anthony's Girls High School, Secunderabad, to
allow the child (DV Alisha Simaran) to continue her studies in the
school, while staying with her mother. Petitioner also filed
M.C.No.74 of 2004 and that the trial Court granted maintenance
and thereafter she filed M.P.No.98 of 2022 against the respondent
for enhancement of maintenance from Rs.2,000/- to Rs.30,000/-
per month. Respondent also filed M.P.No.105 of 2021 for
cancellation of maintenance order dated 27.12.2005 passed in
M.C.No.74 of 2004 stating that the petitioner/wife is a practicing
advocate and is earning Rs.50,000/- to Rs.70,000/- per month. It
is further stated that their daughter got married and their son is
working in a private organization and earning Rs.30,000/- per
month and that they got sufficient means to maintain themselves.
During cross-examination of the respondent/husband on
12.07.2022, he admitted that he gave an undertaking in writing in
O.P.No.247 of 2004 under Ex.R2 dated 28.09.2005. It was
suggested to him that in the said undertaking, he agreed to
provide maintenance and educational expenses to the minor
children, but he failed to comply the same, but he denied the said
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suggestion. He stated that after taking over custody of his
daughter, she resided with him for four years. He further
admitted that in spite of a direction by the trial Court in
O.P.No.247 of 2014 dated 20.01.2019, the petitioner/wife along
with children did not join him and that he has not filed any
execution petition to enforce the said order. He also stated that
the petitioner/wife became an advocate and is earning
substantial amount. P.W.1 in her cross-examination stated that
she had two tolas of Gold chain, a set of ear-rings, one nose-stud
and finger ring on 18.07.1993. She further stated that her father
(P.W.2) was running a watch mechanic shop at Secunderabad,
and he is having assets at Bombay and also doing business at
Bombay and that her brothers were looking after their business.
She further stated that she left the matrimonial house on
26.01.2002, but not in the month of July, 2004. P.W.1 also
admitted that when they were living together, her husband used
to pay the school fee of their children and after separation, she
has been paying the school fee. P.W.1 clearly stated that she is
not willing to join the respondent even if he is willing to take
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back her. As per the documents filed before the Court, it is
evident that the petitioner/wife became an advocate and is living
independently.
14. Admittedly, both the parties were not living together for
the past 20 years. Allegations and counter-allegations were made
by both the parties. Therefore, we are of the considered view that
no purpose would be served in continuing the marital
relationship between the parties after long separation.
15. The foundation of a sound marriage is tolerance,
adjustment and respecting one another. Tolerance to each other's
fault to a certain bearable extent has to be inherent in every
marriage. Petty quibbles, trifling differences should not be
exaggerated and magnified to destroy what is said to have been
made in heaven. All quarrels must be weighed from that point of
view in determining what constitutes cruelty in each particular
case and as noted above, always keeping in view the physical and
mental conditions of the parties, their character and social status.
A too technical and hypersensitive approach would be counter-
productive to the institution of marriage. The Courts do not have
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to deal with ideal husbands and ideal wives. It has to deal with
particular man and woman before it. The ideal couple or a mere
ideal one will probably have no occasion to go to Matrimonial
Court.
16. The marriage between parties is admittedly an
intercaste religious marriage. Petitioner married respondent
against the will of her parents and she converted into
Christianity before marriage. She mainly contended that he
was suspecting her character and it amounts to cruelty. She
also stated that she tried to join him on 29.08.2002 with the
assistance of social workers, but he had not permitted her
and it amounts to desertion. She filed application for divorce
on 23.09.2004 and it was numbered on 29.09.2004. The
respondent/husband stated that she deserted him in the
year 2004, but she denied the same. No doubt, she could not
examine the said social workers i.e., Prameela and
Pochamma, but her father stated that they made efforts for
amicable settlement through the said workers, but it was not
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materialized. Both the children are with the petitioner.
Initially, daughter was with the respondent for four years,
but later she joined her mother. Petitioner/wife pursued her
B.Ed and LL.B and started practicing as an Advocate and she
contended that even during the pendency of proceedings, he
was suspecting her character. Though his counter-claim for
restitution of conjugal rights was allowed, he has not taken
any steps to take her back into marital-fold. Attributing
unchastity to the wife amounts to mental cruelty, but the
trial Court erred in appreciating the facts.
Respondent/husband did not contest the appeal even after
service of notice. The marriage between the parties was
totally unworkable and emotionally dead as the parties are
residing away from each other for the past two decades. This
Court finds that it is just and reasonable to dissolve the
marriage between the parties solemnized on 26.10.1994 by a
decree of divorce on the ground of cruelty.
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17. In the result, the appeal is allowed by setting aside the
impugned order and decree dated 20.01.2009 passed by the
learned Judge, Family Court, Secunderabad, in F.C.O.P.No.247 of
2004 and Counter Claim. Consequently, the marriage between
the parties is hereby dissolved by a decree of divorce. There shall
be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
________________________
JUSTICE K.LAKSHMAN
_________________________
JUSTICE P.SREE SUDHA
18.12.2023
Gsn/tri.
