B Padmavathi, Khammam Dist vs B Balaji, R.R. Dist
2023 Latest Caselaw 818 Tel

      THE HONOURABLE SRI JUSTICE T.VINOD KUMAR
                                  AND
      THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

       CIVIL MISCELLANEOUS APPEAL.No.132 of 2016

JUDGMENT: (per Hon'ble Smt. Justice P.Sree Sudha)


       This Civil Miscellaneous Appeal is filed against the Order

of the trial Court in H.M.O.P.No.41 of 2010 dated 05.01.2016

passed by the learned Senior Civil Judge, Sangareddy.



2.     One      B.Balaji/petitioner/respondent          herein      filed

H.M.O.P.No.41 of 2010 for divorce against his wife

B.Padmavathi/respondent/appellant herein on the ground of

cruelty. The trial Court observed that the whole trouble started

from 04.01.2008 when respondent/wife lodged a complaint

against the petitioner/husband under Section 498-A IPC. He

was arrested and remanded to the Judicial Custody and

suspended from the service. She also filed several other cases

against him, it amounts to mental cruelty. As the couple were

living separately for the last 7 years and moving around to the

Courts, fighting with litigation, matrimonial bond has been

ruptured beyond repair and thus marriage between petitioner

and respondent was dissolved by granting decree of divorce.

Aggrieved by the said Order, respondent/wife preferred the

present Civil Miscellaneous Appeal.

3. She contended that it is the petitioner/husband who

treated her with cruelty, but the trial Court without appreciating

the facts properly granted divorce. In fact, her husband

compelled her to initiate legal proceedings against him as he

harassed her mentally and physically. The trial Court failed to

appreciate the compelling reasons under which she filed

complaint under Section 498-A and also complaint under

Domestic Violence Act. The trial Court wrongly held that there is

no possibility for both the parties to reconcile and live together

and it has not appreciated Exs.R1 to R37 in its correct

perspective. She further stated that her husband filed complaint

in the year 2005 and he also admitted in the cross-examination

that Gram Panchayat and village elders advised him to take her

back, but he did not respect their advice. Therefore, requested

the Court to set aside the Order of the trial Court in

H.M.O.P.No.41 of 2010 dated 05.01.2016.

4. Heard the arguments of both sides and perused the entire

evidence on record. The parties herein are referred to as

petitioner and respondent as arrayed in trial Court for the sake

of convenience.

5. The petitioner/husband filed H.M.O.P.No.41 of 2010 for

divorce against his wife on 25.08.2010. He stated that they are

Hindus by religion and their marriage was performed on

18.05.1994 as per their customary rites. He was working as

fitter in the Ordinance Factory. Both petitioner and respondent

belong to Schedule Tribes caste. He stated that he has to take

care of his parents, un-married brother and two children of his

another brother who was no more. These facts are already

informed to respondent and to her parents before marriage. But,

immediately after marriage, she insisted him to stay away from

his parents. She did not treat his parents properly and thus

they were compelled to live in village and she was not allowing

him to send money to his parents for their maintenance and

used to quarrel with him every month whenever he was sending

money to his parents. As she could not conceive, he provided

medical treatment to her and incurred Rs.5,00,000/- to correct

her infertility problem. She was leaving matrimonial house

frequently and going to her parent's house and abused him in

filthy language and through her brother she gave false

complaint on 18.03.2004 against him stating that he is

harassing her. Later compromise was entered between the

parties with the intervention of the elders and the said

compromise was reduced in writing in which it was mentioned

that the parents of both sides should not interfere in their

matrimonial affairs at least for a period of 6 months and she

should not restrain petitioner to render financial assistance to

his family, but within one month after the agreement his

brother-in-law took respondent to her parents house. When he

went there, they picked up quarrel with him and insulted him

and threatened to file Criminal case against him. She came

along with him on 10.11.2005, but on the next day her brother

came from Hyderabad and attacked him. He reported the matter

to Security Officer of the Ordinance Factory. When the

department people came to enquire the matter, the respondent

along with his family members left to Khammam. He gave

complaint on 20.11.2005 to S.H.O, Indrakaran to take action

against respondent and her family members. When they are

summoned by police, they gave an undertaking before police

that they will not call for Panchayaths and would not interfere

in their life. Even after the undertaking there was no change in

her attitude. He gave another complaint on 01.04.2007 before

the same S.H.O stating that his brother-in-law threatened to kill

him.

6. He further stated that his wife was having joint property

with one Rama, but she sold the same in the year 2007 and

gave the sale proceedings to her family members. On

28.12.2007, she broke open the lock and took away some

important documents in his absence and gave complaint

against him on 04.01.2008 under Section 498-A IPC in

Cr.No.2 of 2008 stating that he performed second marriage and

begot a child. She also filed D.V.C.No.8 of 2008 against him and

his parents claiming compensation of Rs.1,00,00,000/-. The

petitioner sold his plots for providing medical treatment of

respondent. The plots in the name of his brother are purchased

by selling ancestral land. The interim Orders were passed in the

D.V.C.No.8 of 2008 and it was published in news papers. She

implicated his parents who are residing in their native village

which is far away from his residence. He further stated that his

wife treated him cruelly and deserted him for not less than 10

years prior to the filing of the petition. As she deserted

deliberately and neglected him, he requested the Court to grant

divorce. He filed marriage card, mutual undertaking dated

18.03.2004, a copy of the complaint given by his brother-in-law

and his wife and a copy of the complaint in D.V.C.No.8 of 2008

and also the medical report of the respondent.

7. In a counter filed by the respondent/wife, she denied all

the allegations and stated that immediately after the marriage

on 18.05.1994 she joined company of her husband at Mylaram

Village of Medak District, where he was working in Central

Government Ordinance Factory. She stated that her father gave

an amount of Rs.1,50,000/- towards dowry, besides gold

ornaments worth Rs.1,00,000/- and household articles worth

Rs.1,00,000/-. They lived happily for a period of one year but

they have no issues. Thereafter, he demanded for the additional

dowry of Rs.10,00,000/-. When her parents gave the said

amount, he purchased house sites at Karmanghat, Champa Pet,

Kalabgur, near Chanda Nagar, a flat in Goutham Nagar, Patan

Cheruvu, near Sanga Reddy and also in Hyderabad. He also

invested in Real Estate business on many Binami names. He

also purchased the land to an extent of Acs.9 - 27 gts in

Sy.No.520/A, situated at Kampalli Village, Korivi Mandal,

Warangal. The petitioner and his parents also used to harass

the respondent by demanding her to bring additional dowry

from her parents. The petitioner also threatened that he will

perform second marriage. He had forced her to transfer all her

immovable landed properties in the name of Bhukya Babu Rao

who is brother of petitioner and also to other third parties.

8. She further stated that he tried to pour petrol and put

her on fire on two occasions but due to interference of the

public, he dropped his attempt. She stated that petitioner had

developed illicit intimacy with one Swathi, D/o. Y.James H.Rao

of the same locality and married her and they are also blessed

with two children. She gave complaint in Cr.No.2 of 2008 under

Section 498-A and 494 IPC and also D.P.Act and also filed

petition in D.V.C.No.8 of 2008, another petitioner under Section

125 of Cr.P.C. She further stated that petitioner is harassing

her mentally and physically and driven her away from the house

and leading the illegal marital life with said Swathi and blessed

with two children. He created the ground for cruelty for the

purpose of case and requested the Court to dismiss the case.

9. The petitioner was examined as P.W.1 and he examined

his mother as P.W.2 and marked Exs.P1 to P9 on his behalf.

The respondent was examined as R.W.1 and she examined her

father as R.W.2 and marked Exs.R1 to R37 on her behalf.

10. Now, it is for this Court to see whether the Order of the

trial Court in granting divorce is on proper appreciation of facts

or not?

11. The learned Counsel for the appellant/wife argued that

both petitioner and respondent belong to Scheduled Tribe

community. They clearly stated that their marriage was

performed according to their customary rights, as such petition

filed by the husband for divorce under Hindu Marriage Act was

not maintainable. The Family Court has no jurisdiction to

decide the issue and thus requested the Court to remand the

matter for framing of issue regarding jurisdiction. He relied

upon the decision of the Hon'ble High Court of Jharkhand in

the case of Baga Tirkey Vs. Pinki Linda and another,1 dated

08.04.2021, in which it was held as follows:

"14.There is no precedent which bars members of the Scheduled Tribe to approach the Family Court by filing any suit or proceedings relating to matters mentioned in Clauses-(a) to (g) of the Explanation to Section 7 of the FCA. If at all, such matter is filed, seeking adjudication under the law, applicable to them i.e., Customary Laws, they cannot resort to the provisions of Hindu Marriage act, 1955, if the parties are not governed by the Hindu Marriage Act, 1955. Reference is made to the decision of this Court in the case of Rajendra Kumar Singh Munda Vs. Smt. Mamta Devi in F.A.No.186 of 2008, vide judgment dated 20.08.2015. This Court affirmed the order of the Family Court, dismissing the suit for divorce, filed by a member of Schedule Tribe, under Section 13 of the Hindu Marriage Act, 1955, on the ground that the Hindu Marriage Act does not apply. Customary Laws are applicable in the matters of succession, where parties are governed by Customary Laws.

2021 SCC Online Jhar 1339

He also relied upon the Judgment of the Hon'ble Supreme Court

in the case of Jagmittar Sain Bhagat Vs. Director, Health

Services, Haryana, 2in which it was held that:

"9. Indisputably, it is settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings."

12. The learned Counsel for the respondent herein/husband

submitted that they are Hindus and thus their marriage was

performed according to the customary rights of Hindus. Perusal

of the wedding card filed under Ex.P1 shows that it is personal

card of the petitioner to invite his friends and relatives. The

issue of jurisdiction has to be raised at the earliest point of time

before the trial Court but the wife has not raised the said

objection in her counter, as such no evidence was let in by both

the parties regarding the said fact. Therefore, the learned

Counsel for the appellant cannot raise the issue of jurisdiction

at the belated stage. No doubt both the parties belong to

Scheduled Tribes, but it was claimed in the petition that they

are Hindus. There is no dispute regarding their marriage. Their

marriage was performed on 18.05.1994 and the application for

(2013) 10 SCC 136

divorce was filed on 25.08.2010 i.e, after 16 years. Appellant

herein contested H.M.O.P.No.41 of 2010 by engaging an

Advocate, in fact she also filed several cases against her

husband in different forums, therefore the argument of the

appellant regarding jurisdiction cannot be accepted at appellate

stage.

13. Appellant herein contended that her husband demanded

additional dowry of Rs.10,00,000/- and her parents gave him

the said amount, with that amount he purchased several

properties. Whereas, the petitioner/husband stated that

properties in the name of his brother were purchased by selling

ancestral properties. He himself stated that he has 2 to 3 acres

of agricultural lands and he was getting a salary of Rs.1500/-

per month in the year 1991. He purchased a house plot in the

name of respondent/wife in the year 2007. He also purchased

another plot in her name, but she sold away the same. He

further stated that he has 4 plots under registered document in

his name and there is some agricultural land which is situated

at Kompally Village of Warangal District.

14. The respondent/wife stated that in D.V.C.No.8 of 2008,

maintenance was granted in her favour and also an Order

restraining the petitioner and his parents from alienating the

movable and immovable properties was granted, but later D.V.C

was dismissed for non-appearance. In the cross-examination

she stated that Exs.R2 to R5 and R7 were executed by her

father in favour of third parties. She has not filed any document

to show that land was transferred by her in favour of P.W.1 or

his family members. It was suggested that P.W.1 purchased

certain house plots in her name with his own money under

Ex.R13 and she sold the same to the third parties under Ex.R15

and R22 and it was also suggested that brother of P.W.1

purchased plots with his own money under Exs.R19 to R21. It

is suggested that PW.1 and another purchased the plots jointly

with their own money under Exs.R6, R8 to R12, R14, R23, R24,

R27 and R28 and she is not concerned with them. It was

suggested that the name of Swathy was shown as vendee under

Exs.R25, R29, R30 and R32, but she denied all the above

suggestions. Though the respondent/wife for the first time in

her counter in divorce O.P contended that her husband

demanded Rs.10,00,000/- and the same was paid by her

parents but, she has not stated the same version in her earlier

complaint under Section 498-A. Her evidence was supported by

her father and he stated that she is the only daughter.

Respondent stated that she is having 3 brothers and her father

is an agriculturist, her father is not doing business and

depending on the income of the agriculture, as such she has not

filed any other document to show that she paid Rs.10,00,000/-

as additional dowry. Therefore, her contention regarding

payment of Rs.10,00,000/- as dowry to her husband and P.W.1

purchased all the properties with the said amount cannot be

believed.

15. The main contention of the petitioner/husband is that

she filed several cases against him and also gave complaint to

the department officials, as such he was suspended when a

complaint was filed under Section 498-A and he was compelled

to roam around Courts and before the enquiry authorities.

Whereas, the appellant herein stated that he performed another

marriage with Swathi and blessed with two children and he

along with his family members harassed her mentally and

physically, as such she filed first complaint under Section

498-A, 14 years after the marriage. As he performed another

marriage, she filed complaint under Bygamy and also filed

D.V.C and for maintenance against him. The

petitioner/husband admitted that he also gave complaint

against his brother-in-law and family members of his wife to the

Security Officer of their department and also before S.H.O,

Indrakaran in the year 2005 and the same was admitted by his

mother. This clearly shows that both the parties approached

the concerned authorities and gave complaints against each

other and Panchayats are also conducted between them and

they also gave undertaking but did not keep up the same. The

respondent/wife stated that he performed another marriage and

blessed with two children and neglected her. Therefore, in the

light of the above facts, it cannot be said that mere filing of

number of cases by the wife amounts to cruelty against her

husband.

16. The petitioner/husband stated that respondent/wife

broke open the lock and took away some important documents

in his absence and later gave complaint under Section 498-A.

She filed the said documents in O.P for divorce also. As per the

cross-examination of P.W.1 & R.W.1, one house plot is in the

name of appellant herein/wife and other properties were in the

name of her husband and some of the properties were in the

name of Swathi. Even a suggestion was given to P.W.2 who is

mother of the petitioner/husband that the marriage of P.W.1

was performed with Swathi and they are blessed with two

children. She stated that she did not know the same. It was also

suggested that both of them living in a house constructed at

Isnapur, but she stated that she does not know anything. She

gave evasive answers. The fact that some of the properties were

in the name of Swathi and the fact that appellant herein could

not conceive any children clearly shows that

petitioner/husband is living together with Swathi even during

the existence of the marriage with the appellant herein.

17. Though the petitioner/husband stated that he provided

Rs.5,00,000/- for treatment of respondent/wife, he did not file

any prescription and not filed any record to substantiate his

version. He might have provided medical treatment but the fact

that he spent Rs.5,00,000/- is not established.

18. As per the Order in Maintenance Case, Rs.5,000/- per

month towards her maintenance and Rs.1,000/- towards

medical expenses was granted and as per the demand of the

respondent/wife, he paid Rs.1,50,000/- but she stated that he

was not paying regularly.

19. The petitioner/husband stated that from the date of

marriage his wife was not taking care of his parents and picking

up quarrel with him when he was rendering financial assistance

to his parents, but in the undertaking given after the first

complaint, it was clearly mentioned that his wife should not

restrain him from sending amount to his parents, this

substantiates the version of the petitioner/husband. The

learned Counsel for the petitioner/husband argued that wife

restrained husband from looking after his parents and it

amounts to cruelty as per the recent decision of the Hon'ble

Supreme Court. The trial Court considering the litigation

between the parties for more than 7 years, observed that the

matrimonial bond was ruptured beyond repair and held that it

amounts to mental cruelty, but the learned Counsel for the

petitioner/husband also relied upon the Judgment of the

Hon'ble Supreme Court in the case of K.Srinivas Rao Vs.

D.A.Deepa dated 22.02.2013,3 in which it was held that -

"when the marriage is irreparably broken down, husband is

entitled for the grant of decree of divorce. The wife fought the

litigation for more than 10 years and is depending entirely on her

parents, therefore, her future must be secured by directing the

husband to give her permanent alimony and thus directed

husband to pay Rs.15,00,000/- to the wife by way of permanent

alimony in three instalments." In this case wife was not blessed

2013(3) ALD 11 (SC)

with children but the husband was living with another woman

and blessed with three children. As the husband is working as

fitter in the Ordinance factory and central Government

employee, if the marriage is dissolved, she is deprived of

pensionary benefits at the fag end of life.

20. The petitioner/husband filed H.M.O.P.No.41 of 2010 for

divorce on 25.08.2010, from then onwards parties are not

residing together for more than 12 years. Even in the case of

Naveen Kohli Vs. Neelu Kohli,4 the Hon'ble Supreme Court

held as follows:

"74. ....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."

21. In view of the above discussion and the position of law as

enunciated in the Supreme Court, this Court finds that it is not

possible for both the parties to reside together amicably and

admittedly they are not living together for the past 12 years.

(2006) 4 SCC 558

Therefore, no purpose would be served in continuing the marital

tie and there is irretrievable break down of marriage. Therefore,

this Court finds that the Order of the Court below in dissolving

the marriage by granting a decree of divorce does not call for

any interference in this appeal. However, having regard to the

fact that during the subsistence of the first marriage, the

respondent herein/husband had contracted 2nd marriage and

begotten two children, this Court is of the view that the

respondent/husband is to be directed to pay permanent

alimony to the appellant/wife. Considering the nature of the

work of the respondent/husband and the properties in his

name and also the house plot in the name of appellant/wife,

this Court finds that the permanent alimony quantified in a

sum of Rs.20,00,000/- would be just and reasonable.

22. Accordingly, the respondent/husband is directed to make

a payment of Rs.20,00,000/- to the appellant/wife as

permanent alimony. Upon making such payment by the

respondent/husband, the appellant/wife would not be entitled

to any further payment in the MC case, which she is presently

receiving. Since the appellant has filed the sale deeds under

Exs.R-1 to R-34 pertaining to the respondent/husband herein

before this Court, the Registry is directed to return all the

documents to the respondent/husband except the document

which is in the name of appellant/wife.

23. For the foregoing reasons, the Civil Miscellaneous Appeal

is disposed of. No costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE T.VINOD KUMAR

_________________________ JUSTICE P.SREE SUDHA

DATED: 17.02.2023 tri

THE HONOURABLE SRI JUSTICE T.VINOD KUMAR AND THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

CIVIL MISCELLANEOUS APPEAL No. 132 of 2016

DATED:17.02.2023

TRI