Kodali Krishna Chaitanya vs Chava Kodali Nishi
2023 Latest Caselaw 1005 Tel

      THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

                                     AND

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

                           F.C.A. No.96 of 2019


JUDGMENT: (Per the Hon'ble Smt. Justice M.G. Priyadarsini)

       Assailing the judgment rendered by the Judge, Family Court

at Khammam, dated 16.04.2019 in F.C.O.P. No.129 of 2015, the

present appeal is preferred by the respondent therein.

2. By the impugned order, the learned Family Court allowed the

O.P. filed by the wife, respondent herein, under Section 13(1)(ia) of

the Hindu Marriage Act granting decree of divorce by dissolving the

marriage subsisting between the appellant and respondent dated

14.04.2012.

3. For the sake of convenience, hereinafter, the parties will be

referred to by their matrimonial status i.e., the appellant as

'husband' and the respondent as 'wife'.

4. The facts that are necessary for disposal of the present

appeal are that the marriage of respondent-wife with the appellant-

husband took place on 14.04.2012 at Sequel Resorts, Khammam

Town, as per Hindu rites and Customs. Wife is a B.Tech Graduate

with Post-Graduation in M.B.A. and the husband was working as

Software Engineer in U.S.A. at the time of marriage. In the 2 Dr.CSL,J & MGP,J F.C.A. No. 96 of 2019

marriage, the parents of wife paid Rs.20.00 lakhs out of Rs.40.00

lakhs agreed to be paid towards dowry. After the marriage, wife

joined the company of the husband at U.S.A. on 31.07.2012.

Subsequently, the husband started to harass the wife mentally and

physically with a demand to get the balance dowry amount and

also additional dowry. The couple visited India on 16.01.2013 and

although the wife was suffering with typhoid, husband insisted her

to return to U.S.A. as scheduled on 19.03.2013 in order to process

for H1 Visa and she left for U.S.A. along with husband on

26.03.2013 even though she was suffering with health problems.

Even after returning to U.S.A., her health condition did not

improve and the husband did not got her treated with doctor,

instead, he advised her to take the pills brought from India. After

getting H1 Visa, as the wife did not get placement, husband started

harassing her mentally stating that she had no intelligence and

had he married another girl, she would have got job easily. Even

for purchase of household articles, husband insisted her parents

for payment of Rs.3.00 lakhs and he made the wife to sleep on the

floor as the said demand was not met with by the parents of wife.

Even during weekends, husband used to be at home and never

used to take the wife out. When wife got an occasion to see the

emails of husband, she came to know that the husband is having

insane sexual behaviour and extra marital relations. The husband

and his parents used to harass the wife for getting additional 3 Dr.CSL,J & MGP,J F.C.A. No. 96 of 2019

dowry. The couple again visited India on 18.04.2015 and stayed

till 10.05.2015, during which period, the husband and his parents

harassed the wife both physically and mentally demanding

additional dowry and threatened that unless they are paid

Rs.50.00 lakhs towards additional dowry, they would not allow the

wife to join the husband. Even they insisted the father of wife to

transfer the landed property in the name of husband. While so, on

23.08.2015, the husband and his parents visited the house of

parents of wife at Khanapuram Haveli; abused the wife and her

parents in filthy language; beat the wife with hands and insisted

them to meet the demand for Rs.50.00 lakhs additional dowry and

the transfer of land in the name of husband. As the said demand

was not met with, husband left India leaving the wife with her

parents. Hence, the O.P. by the wife seeking dissolution of

marriage. Contesting the O.P., husband filed his counter denying

the allegations made in the O.P. as false and baseless.

5. Before the Court below, wife got examined herself as P.W. 1

apart from examining her father as P.W.2, maternal uncle as P.W.3

and an independent witness as P.W.4. Exs.A.1 to A.6 were marked

on her behalf and Exs.X.1 to X.12 were marked through P.W.4.

The husband got examined himself as R.W.1 and got marked

Exs.B.1 to B.13. The learned Family Court, considering the above

said evidence, allowed the O.P. granting decree of divorce by 4 Dr.CSL,J & MGP,J F.C.A. No. 96 of 2019

dissolving the marriage mainly on the ground that the parties are

residing separately for a period of four years. Aggrieved thereby,

the husband is before this Court by way of present appeal.

6. Heard the learned counsel for the appellant-husband. In

spite of several opportunities, there is no representation on behalf

of the respondent-wife. Perused the material available on record.

7. It is to be noted that at the time of admission of the appeal,

on 19.06.2019, although I.A. No. 1 of 2019 was filed seeking

suspension of the impugned judgment of the Court below, till date

no such order was passed. During the pendecny of the appeal,

this Court made several attempts to have conciliation between the

couple to avoid the divorce but the said measures did not yield any

result. In the process, though this Court insisted the counsel for

the respondent to get an affidavit from the wife to the effect that

she has not remarried so far, such affidavit has not been filed

having availed several adjournments.

8. The learned counsel for the appellant has vehemently argued

that the learned Family Court having held all the points in favour

of the husband on the plea of dissolution of marriage, ought not to

have decreed the O.P. on the mere ground that the parties are

living separately for a period of four years. It is contended that the

marriage took place on 14.04.2012 and that the couple led happy 5 Dr.CSL,J & MGP,J F.C.A. No. 96 of 2019

marital life till 10.05.2015, on which date the husband left India

for U.S.A. However, the wife filed a false criminal case for the

offence under Section 498-A IPC stating that on 23.08.2015, the

husband and his parents came to her house at Khammam, abused

her and her parents in filthy language, beat her with hands on the

demand of transfer of land in the name of husband and for

payment of additional dowry of Rs.50.00 lakhs. In fact, the

husband left India for U.S.A. on 10.05.2015 and on the alleged

date of incident, he was not at all present in India. Although the

wife sought for divorce on the ground of cruelty, she has utterly

failed to prove the said ground and having held that the wife has

not proved any allegation against the husband, the learned Family

Court ought not to have granted the decree of divorce, more

particularly having negatived all the points against the wife.

Therefore, the learned counsel for the appellant seeks to set aside

the impugned order by dismissing the O.P.

9. Per contra, the learned counsel appearing on behalf of

respondent-wife has contended that since the marriage has broken

down beyond repair and as there is no possibility of reunion of

couple, the learned Family Court has rightly granted decree of

divorce and therefore, the said judgment needs no interference by

this Court.

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                                                                  F.C.A. No. 96 of 2019

10. The wife filed the O.P. seeking decree of divorce on the

ground of cruelty on account of demand for additional dowry and

on the ground of behaviour of husband in sending emails to gays

and girls. To substantiate her stand, wife examined herself as

P.W.1 apart from examining P.Ws.2 to 4 and marking Exs.A.1 to

A.6. To substantiate her stand as to the behaviour of husband in

sending emails to gays and girls, she got examined P.W.4 and

through him, got marked Exs.X.1 to X.12 i.e., emails of husband,

C.D. and pen drive. Analyzing the evidence of P.W.1 and P.W.2

particularly the admissions of P.W.1 in the cross-examination, the

learned Family Court came to the conclusion that the wife has not

established the alleged cruelty meted out by the husband or the

demand of additional dowry. As regards the behaviour of husband

in light of evidence of P.W.4 and Exs.X.2 to X.10, the learned

Family Court at para 24 observed as under:-

"24. This court finds reason with the contention of the counsel for the respondent respecting the secondary evidence and the proof pertaining to secondary evidence and therefore, this court is of the considered opinion that Ex.X.2 to X.10 can be said to have been not proved from the above aspect pertaining to secondary evidence. In other words, since Exhibits X.2 to X.10 are not downloaded from the mail ID of the respondent, the same can be said to have been not proved. Thus this court is also of the opinion that respondent as RW.1 has disproved the contention of the petitioner respecting exhibits X.2 to X.10."

However, considering the plea of the wife that the marriage has

broken down irretrievably and there cannot be any possibility of 7 Dr.CSL,J & MGP,J F.C.A. No. 96 of 2019

reunion, the learned Family Court has granted decree of divorce by

allowing the F.C.O.P.

11. The Apex Court in Naveen Kohli v. Neelu Kohli1, at para

Nos. 72 to 76, observed as under:-

"72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented the petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties. Yet, if it is found that the break down is irreparable, then divorce should not be withheld. The consequence of preservation in law of the unworkable marriage which has long ceased to be effective or bound to be a source of greater misery for the parties.

73. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute.

74. We have been principally impressed by the consideration that 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 matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever the 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.

75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of solvage, public interest lies in the recognition of that fact.

76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist."

    (2006) 4 SCC 558
                                   8                       Dr.CSL,J & MGP,J
                                                         F.C.A. No. 96 of 2019

12. In the present case, as observed above, in order to save the

matrimonial life, this Court made endeavour for mediation which

yielded no result.

13. It is no-doubt true that the learned Family Court did not

convince with the evidence adduced by the wife regarding cruelty,

demand of additional dowry and alleged behaviour of husband in

sending emails to gays and girls. However, considering the fact

that the husband and wife parted their ways and are living

separately for a considerable period, the learned Family Court has

granted divorce by dissolving the marriage between the parties on

the sole reason that there is no possibility for reunion of the parties

in order to live together. Even during the pendency of the appeal,

though several measures are taken by this Court for conciliation,

the parties did not come forward for reunion, which shows that the

marriage between the parties has irretrievably broken down. As

held by the Apex Court, when the marriage between the parties has

irretrievable broken down, any attempt to force the parties to live

together would tantamount to causing mental cruelty and would

only prolong the mental agony of the parties for the rest of their

lives. Therefore, this Court finds no fault with the findings of the

learned Family Court in granting decree of divorce by dissolving the

marriage between the parties and the appeal is liable to be

dismissed.

                                  9                      Dr.CSL,J & MGP,J
                                                       F.C.A. No. 96 of 2019

14. In the result, the appeal stands dismissed confirming the

judgment of the learned Family Court, dated 16.04.2019 in

F.C.O.P. No. 129 of 2015 in granting decree of divorce by dissolving

the marriage, dated 14.04.2012 that took place between the

parties. No order as to costs.

Miscellaneous Petitions, if any pending, shall stand closed.

_________________________________ DR. CHILLAKUR SUMALATHA, J

________________________ M.G. PRIYADARSINI, J 01-03-2023 tsr 10 Dr.CSL,J & MGP,J F.C.A. No. 96 of 2019

THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

AND

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

F.C.A. No.96 of 2019

DATE: 01 -03-2023