Smt. Vallala Madhavi vs Vallala Santhosh Kumar Yadav
2023 Latest Caselaw 198 Tel

 THE HON'BLE Dr.JUSTICE CHILLAKUR SUMALATHA
                     AND

      THE HON'BLE SMT JUSTICE M.G.PRIYADARSINI

                     F.C.A.No.69 OF 2019

JUDGMENT:- (Per Dr.CSL,J)

1.    The appellant-wife is before this Court challenging

the   order   that   is   rendered   by   the   Family    Court,

Secunderabad in HMOP.No.284 of 2017, dated 06.02.2019.


2.    Heard both sides.


3.    The respondent-husband filed a petition seeking the

Court to pass a decree of divorce invoking the grounds of

cruelty and desertion. The Family Court, Secunderabad,

which dealt with the matter, gave a finding to the effect

that the respondent-husband could not prove the ground

of cruelty, but succeeded in establishing the fact of

desertion on part of the appellant-wife. Thereby, the

Family court, Secunderabad, passed a decree of dissolving

the marriage between the spouses, which resulted in the

present appeal.

4. Making his submission, learned counsel for the

appellant contended that the appellant and the respondent

have got love and affection against each other. Learned

Dr.CSL,J & MGP,J FCA.No69 of 2019

counsel submitted that though a suggestion was put when

the respondent/husband was cross-examined that the

appellant-wife is ready to withdraw all the cases that are

filed against him and to join him, the respondent-husband

refused to take her to marital fold. That itself goes to show

that it is the respondent-husband who has committed the

acts of cruelty and desertion but not the appellant-wife.

Learned counsel also stated that as the appellant was

preparing and appearing for the examination held for post

of Police Constable, she resided at her parent's house for

the purpose of taking coaching. Learned counsel

contended that the coaching centre was nearby to the

house of her parents and therefore, obtaining required

permission from the respondent-husband, she started

staying at her parent's house and took coaching and

therefore that does not mean that she committed an act of

desertion. Learned counsel also submitted that

misunderstandings arose between the spouses due to the

involvement of the mother-in-law of the appellant and that

fact is known to the respondent-husband also. Learned

counsel further contended that the appellant did not carry

any iota of intention to desert the respondent-husband.

Dr.CSL,J & MGP,J FCA.No69 of 2019

But the said fact was not taken note by the learned Judge

of the Family Court, Secunderabad and thereby, the

learned Judge of the Family Court passed a wrong order.

Learned counsel, by submitting thus, seeks the Court to

set aside the impugned order. Also, during the course of

submission, learned counsel for the appellant-wife stated

that when the wife resides elsewhere due to the attitude

and cruelty of the husband, that does not amount to

desertion on part of the wife, relied upon the decision of the

division Bench of this Court in the case between

Sulochana v. M.Ramachari1, wherein at Para 23 of the

order, it was held as under:-

"23. If we apply the aforementioned legal principles to the facts of the present case, we have no hesitation to hold that in the absence of the respondent proving cruelty against the appellant, the Court below has committed a serious error in granting decree of divorce only on the ground of the parties living separately for a long time and that by such separation, the marriage has irretrievably broken down. In our opinion, though this ground may be supplementary to any other substantive grounds mentioned under Section 13 of the Act, the same cannot be a standalone ground.

2017 (4) ALD 206 (DB)

Dr.CSL,J & MGP,J FCA.No69 of 2019

Otherwise, as observed by the Supreme Court in Neela kumar's case (supra) and Darshan Gupta's case (supra), an unscrupulous husband may be benefited by the grant of divorce based on his own deeds and it encourages such unscrupulous husbands to drive away their wives and secure divorce by pleading that the marriage has irretrievably broken down. Though the respondent has made bald allegations against the appellant of her leading 'colourful life' and subjecting him to cruelty, he failed to let in any evidence in support of his allegations. As observed hereinbefore, even the Family Court has not held anything against the appellant. On the contrary, it has given a specific finding that the appellant has made out a reasonable ground to live separately from the respondent. In the light of these facts, we are of the opinion that the Family Court has committed a serious error in dissolving the marriage on the ground of irretrievable breaking down of the marriage between the parties. The respondent, having accepted the fact that he has been living with one Laxmi thereby admitting his misdeed, cannot be allowed to walk away with the advantage of securing dissolution of marriage with the appellant, his legally wedded wife. In view of the same, the decree in O.P.No.124 of 2006 cannot be sustained and the same is accordingly, set aside."

Dr.CSL,J & MGP,J FCA.No69 of 2019

5. Opposing the submission made by the learned

counsel for the appellant and the applicability of the

aforementioned decision, learned counsel for the

respondent-husband contended that without any

reasonable cause, the appellant-wife left the company of

the respondent-husband. Learned counsel submitted that

within short time after marriage, the appellant-wife left to

her parent's house and stayed there under the guise of

taking coaching for appearing for Police Constable

Examination. Learned counsel contended that during that

time, the appellant-wife became pregnant. But she failed to

inform the said fact to her husband and without his

knowledge and consent, she got the pregnancy terminated.

Learned counsel stated that the appellant-wife could not

secure the job. He submitted that, later, the couple

delivered a child, but the appellant-wife did not return to

the house of the respondent-husband and started staying

at her parent's house only without any justifiable cause.

That apart, she started filing series of cases against the

respondent-husband and his family members and the

respondent-husband started attending different Courts.

Learned counsel also submitted that even in her counter or

Dr.CSL,J & MGP,J FCA.No69 of 2019

in her evidence, the appellant-wife did not show any

justifiable cause as to why she did not join her husband

and that itself goes to show that she deserted him without

justifiable cause. Learned counsel further submits that

filing of series of cases against the husband without there

being any reason itself amounts to cruelty.

6. In this regard, learned counsel for the respondent-

husband relied upon the decision of the Hon'ble Apex

Court in the case between Sivasankaran v.

Shanthimeenal2. Learned counsel ultimately contended

that though the respondent-husband proved and

established both the grounds i.e. cruelty and desertion, the

trial Court went wrong in holding that the respondent-

husband could not establish the ground of cruelty.

However, learned counsel states that the Family Court,

Secunderabad, passed a decree of divorce on the ground of

desertion and therefore, the order rendered needs no

interference.

7. A perusal of record goes to show that the learned

Judge gave finding basing on the evidence of PW1, Exs.A1

2021 (5) ALD 286 (SC)

Dr.CSL,J & MGP,J FCA.No69 of 2019

to A3, RWs 1 & 2 and Exs.B1 & B2. As rightly put forth by

the learned counsel for the respondent-husband, neither in

the counter nor in the chief affidavit filed by her in lieu of

her chief examination, the appellant-wife stated in clear

terms as to why she started residing at her parent's house

since 2013. No material is on record to show that she at

least made an attempt to join her husband. Also, she did

not state that due to justifiable grounds or cause, she,

leaving her matrimonial home, started residing at her

parent's house for a long period extending upto five years.

No specific instances or reasons are shown as to why the

appellant-wife left the husband for such a long period.

8. When the order of the Family Court is gone through,

we find that the learned Judge had indeed discussed the

merits of the case at length. Also, the perfect and

established legal position is applied. Thereby, the learned

Judge had come to a just conclusion. The respondent-

husband succeeded in establishing the ground of desertion

and therefore, the Family Court, Secunderabad, basing on

the said ground, passed a decree of divorce. None of the

grounds urged or the points projected by the appellant

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invalidate the reasoned order of the Family Court,

Secunderabad. Therefore, we are of the opinion that the

present appeal lacks merits.

9. Resultantly, the Appeal stands dismissed without

costs.

10. Miscellaneous petitions, if any pending, shall stand

closed.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA

_____________________________ JUSTICE M.G.PRIYADARSINI

Date:11.01.2023.

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Dr.CSL,J & MGP,J FCA.No69 of 2019

THE HON'BLE Dr.JUSTICE CHILLAKUR SUMALATHA AND

THE HON'BLE SMT JUSTICE M.G.PRIYADARSINI

F.C.A.No.69 OF 2019

Date:11.01.2023.

ysk

Dr.CSL,J & MGP,J FCA.No69 of 2019