B Srinivas, Warangal vs Bajjuri Goli Madhavi, Warangal ...
2023 Latest Caselaw 833 Tel

 THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

                            AND

     THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI


            F.C.A.Nos.38 of 2016 and 170 of 2017

COMMON JUDGMENT: (per Justice MGP,J)


      Inasmuch as both the appeals are filed against the

common order dated 16.10.2015 made in F.C.O.P.Nos.218

of 2010 and F.C.O.P.No.128 of 2012 respectively, on the

file of the Judge, Family Court, Warangal, they are being

disposed of by this common judgment. By the impugned

common order, the learned trial Judge while dismissing

F.C.O.P. No. 218 of 2010 filed by the husband, appellant

herein, seeking divorce and allowed F.C.O.P. No. 128 of

2012 filed by the wife, respondent herein, for restitution of

conjugal rights.

2. The appellant in both the appeals is the husband and

the respondent is the wife. For the sake of convenience,

hereinafter, the parties will be referred to as 'husband' and

'wife'. Since the facts in both the O.Ps. are more or less

common, the facts stated in O.P. No. 218 of 2010 are

Dr.CSL, J & MGP, J Fca_38_2016 and Fca_170_2017

referred in these appeals as common evidence was adduced

therein.

3. The facts, in brief, which led to filing of the present

appeals are as under:-

Marriage between the parties was solemnized on

19.08.2006 as per Hindu caste customs and traditions and

after the marriage, the couple lived together happily for a

period of three months. Since the wife was insisting him to

put up separate residence and did not allow him for

conjugal life, a panchayat was conducted before the elders

at the instigation of husband and at the intervention of

elders, the wife allowed the husband for conjugal life and

during their wedlock, a female child was born on

25.09.2008. After the birth of the child, the wife remained

at her parents' house and in spite of his best efforts, as the

wife did not join his company, the husband again placed

the matter before the elders and also before the Police.

However, the wife did not join his company and voluntarily

deserted his society in September, 2008. Therefore, the

husband sought for divorce on the ground of cruelty and

voluntary desertion. The wife filed her counter contending

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inter alia that two months after the marriage, husband

started ill-treating her demanding for additional dowry at

the instigation of his other family members and that she

was treated as maid-servant. As she gave birth to a female

child, her husband and his family members demanded

Rs.1.00 lakh on the occasion of 21st day ceremony of the

child and as the said demanded was not meted by her

parents, her husband and in-laws did not turn up for the

21st day ceremony. However, due to the intervention of

elders, husband took her back in the month of November,

2008 and eventually, in the month of November, 2009, as

the husband and his family members, beat her black and

blue, she returned back to her parents' house

apprehending danger to her life. As the elders' mediation

did not yield any result to take her back, she lodged a

complaint with the Police. It was pleaded that the husband

never attempted to see her child and that she was always

ready and willing to join the conjugal society of the

husband.

4. Both the F.C.O.Ps. were clubbed and common

evidence was adduced in F.C.O.P.No.218 of 2010. On

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behalf of the husband, P.Ws.1 to 3 were examined and on

behalf of wife, R.Ws.1 to 3 were examined. No

documentary evidence was let in by either of the party.

5. Considering the pleadings and evidence brought on

record by both the parties, the learned trial Court

dismissed the divorce petition filed by the husband and

allowed the petition filed by the wife seeking restitution of

conjugal rights. Aggrieved thereby, the present appeals

have been filed by the husband.

6. The learned counsel for the appellant submits that

the wife had deliberately deserted the company of the

husband-appellant in the month of September, 2008

without there being any sufficient reason and that there is

no evidence to disprove the claim of the husband-appellant

in this regard. Since the relationship between the husband

and wife are severely strained, after lapse of 14 years, the

question of restitution of conjugal rights does not arise.

The factum of wife filing O.P. No. 128 of 2012 after lapse of

about 1 year and 8 months of filing of O.P. No. 218 of 2010

by the husband-appellant, itself proves that there are no

bona fides in the O.P. filed by the wife seeking restitution of

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conjugal rights. It is contended that inasmuch as the wife

had harassed the husband to put up separate residence

and in the process, as she did not allow him for conjugal

life and left his society without any intimation, the trial

Court ought to have granted divorce on the ground of

cruelty and voluntary desertion.

7. On the other hand, the learned counsel appearing on

behalf of respondent-wife has submitted that it is the

husband who had not allowed her to join his society upon

the delivery of female child and without there being any

cause, he deserted her and that the wife was always ready

and willing to join the conjugal society of the husband.

Therefore, evaluating the evidence on record, the Court

below has rightly dismissed the divorce petition and

granted the relief of restitution of conjugal rights and the

impugned order needs no interference by this Court.

8. Heard the learned counsel for the parties and

perused the material available on record.

9. Before we analyze the respective pleadings and the

evidence filed by both the parties, it is seen that the battle

for the reliefs as sought for by both the husband and wife

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is more than a decade. Both the husband and the wife

have spent agonizing amounts of time in this litigation.

The female child born out of the wedlock has also been

affected by the present litigation. As per the pleadings of

the respective parties, upheavals in the marriage started

just three months into the marriage. The main ground of

the husband seeking divorce is that after three months of

conjugal life, the wife started demanding him to put up

separate residence from his family members and in that

connection, she has increased her harassment and not

even allowed for conjugal life. In that connection, a

panchayat was held before the elders and the wife has

joined the conjugal life and in the month of September,

2008, a female child was born to them. Within one week

thereafter, the wife left the conjugal society of the husband,

deserted him voluntarily and started residing with her

parents. However, as per the evidence adduced by the

wife, after her delivering a female child, the husband and

his family members started demanding Rs.1.00 lakh as

additional dowry and that they did not turn up for the 21st

day ceremony of the child. As the husband and his family

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members did not took back the wife and the child, upon

the mediation of elders and approaching the police, in the

month of November, 2008, the husband took the wife and

child to his house by receiving Rs.50,000/- as additional

dowry. Again, after lapse of three months, the husband

started harassing and ill-treating the wife physically and

mentally demanding balance amount of Rs.50,000/-.

Finally, in the month of February, 2009, the husband, his

parents and sisters beat the wife black and blue, drove her

out of their house threatening with dire consequence. The

husband, as P.W.1, reiterated his stand before the Court

below. P.W.2, his brother-in-law deposed that the wife

harassed the husband and she did not allow the husband

for conjugal life. P.W.3, an independent witness, simply

deposed that within a short period of marriage, the wife

deserted the husband.

10. In the cross-examination, the wife-R.W.1 denied the

suggestion of her demanding and harassing the husband

for putting up separate residence away from his parents.

R.W.2, a mediator to the panchayat, deposed that the

husband and his parents started harassing and ill-treating

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the wife demanding additional dowry and that they treated

her as maid servant. It is his evidence as the parents of

wife did not meet the demand of additional dowry of

Rs.1.00 lakh, the husband and his family members did not

turn up to see the female child. R.W.3 testified as to the

harassment meted out by the husband and his family

members to the wife for additional dowry and their demand

for Rs.1.00 lakh at the time of cradle ceremony. As rightly

observed by the Court below, the husband in his cross-

examination has categorically admitted that he did not see

the child as he was in Hyderabad in company meeting; that

he did not go to hospital to see the child even after his

return from Hyderabad. The evidence of husband

discloses that he did not try to see his child and that he

does not know the name of the child and the class in which

she is studying. Except the bald allegation that the wife

was insisting for separate residence, in the entire evidence,

the husband did not speak about any specific instance or

manner of alleged cruelty. As rightly pointed out by the

Court below, the husband failed to provide the details of

elders of panchayat attended on his side. The Court below,

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on evaluation of entire evidence in proper perspective, has

rightly dismissed the F.C.O.P. filed by the husband for

divorce and allowed the F.C.O.P. filed by the wife for

restitution of conjugal rights. No grounds are made out to

interfere with the impugned common order passed by the

Court below.

11. In the result, both the appeals stand dismissed

confirming the common order passed by the Judge, Family

Court, Warangal dated 16.10.2015 in F.C.O.P. Nos. 218 of

2010 and 128 of 2012. No order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

______________________________ Dr. CHILLAKUR SUMALATHA, J

______________________ M.G. PRIYADARSINI, J

February, 2023 Tsr

Dr.CSL, J & MGP, J Fca_38_2016 and Fca_170_2017

THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA AND THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

F.C.A.Nos.38 of 2016 and 170 of 2017

Date: 28-09-2022