Nuthalapati Srinvias vs Nuthalapati Suma
2023 Latest Caselaw 1008 Tel

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

          FAMILY COURT APPEAL No.111 OF 2011


JUDGMENT:-
1.     Questioning the validity in the findings given and the

consequential conclusion arrived at by the Additional Family

Court, Hyderabad, in O.P.No.889 of 2007 through orders

dated 11.01.2011, the present Appeal is preferred.


2.     The appellant moved an application invoking the

grounds of cruelty and desertion seeking a decree of divorce

dissolving the marriage that was solemnized between him and

the respondent.     The Court, through the impugned order,

negatived his request.

3. Heard Sri V.Sudhakar Reddy, learned counsel appearing

for the appellant. Despite service of notice, none appeared for

the respondent.

4. Stating that the Family Court ought to have relieved the

appellant from the bondage, learned counsel for the appellant

submitted that the respondent foisted series of false cases

against the appellant and that apart, his mother, sister and

brother-in-law were also implicated. Learned counsel

Dr.CSL,J & MGP,J FCA.No.111 of 2011

submitted that the criminal case, alleging that the appellant

and his family members committed offence punishable under

Section 498-A IPC, ended in acquittal and the revision

preferred also stood dismissed. Learned counsel contended

that the respondent filed a Domestic Violence Case and the

proceedings in the said Domestic Violence Case were

quashed. Learned counsel also stated that it is the second

marriage of the respondent with the appellant and the

respondent filed a false criminal case against her first

husband and extracted money as permanent alimony and the

said fact was indeed established before the Family Court.

Learned counsel stated that the respondent behaved cruelly

with the appellant and ultimately deserted him. But, without

appreciating all these facts, the Family Court erred in

dismissing his application filed for divorce and therefore, by

allowing the present appeal, justice may be done. Learned

counsel finally submitted that even the marriage is liable to

be dissolved on the ground of irretrievable break down of

relationship since several years.

5. The version projected by the appellant through the

application filed by him seeking divorce is that his marriage

with the respondent was performed on 19.11.2004 at

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Tirumala Tirupati Devasthanams and thereafter, the

respondent joined him to lead marital life. However, they

resided together only for about 10 days and thereafter, the

respondent started quarreling with him on one pretext or the

other and made his life miserable. The respondent openly

proclaimed that her marriage was performed against her will.

She initially demanded to set up a separate family and when

the appellant agreed and obtained small portion of a house,

she expressed her disinterest to stay with the mother of the

appellant. She left the house and went to her parent's house

for 16th day festival which would be performed as per caste

customs and did not return back. She filed Maintenance

Case with false allegations and also gave complaint to police

stating that the appellant and his family members committed

offence punishable under Section 498-A IPC. After elaborate

trial, the Court acquitted them. Though mediators were sent

by the appellant to convince the respondent, their attempts

did not yield any fruitful result. During enquiry, the

appellant came to know that the respondent married one

Kavuri Sambasiva Rao and refused to join him and filed a

Maintenance Case against him and obtained maintenance

and thereafter, she filed a criminal case against him i.e., her

Dr.CSL,J & MGP,J FCA.No.111 of 2011

first husband under Section 498-A IPC and later, dropped the

case on receiving substantial amount from him. It appears

that marriage is a profitable game to her and her parents and

thus, the marriage is liable to be dissolved.

6. The respondent filed counter admitting the marital tie

and filing of a criminal case against the appellant and his

family members. She also admitted filing of a Domestic

Violence Case against the appellant. She sought the Court to

dismiss the O.P. by awarding exemplary costs.

7. The Family Court, which dealt with the matter,

subjecting the evidence of PW1, RW1, Exs.P1 & P2 and

Exs.R1 to R9 to scrutiny, came to a conclusion that the

appellant failed to prove his case.

8. The contents of Ex.P1 goes to show that the criminal

case that was levelled against the appellant and his family

members, ended in acquittal. During the course of hearing,

learned counsel for the appellant brought to the notice of this

Court the contents of the order in Criminal Revision Case

No.1777 of 2007, which stood pending before High Court of

Andhra Pradesh at Amaravathi. In the said case, the Court,

concurring with the opinion expressed by the trial Court that

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the allegations levelled against the appellant and his family

members in the criminal case are omnibus in nature,

dismissed the said Revision case that was preferred by the

respondent herein challenging the judgment of acquittal.

Also, it is brought to the notice of this Court that the

proceedings in the Domestic Violence Case that were initiated

against the appellant and his family members were quashed

by the High Court of Judicature at Hyderabad through orders

in Crl.P.No.6076 of 2007, dated 17.06.2010. Even as per the

version of the respondent, she did not reside along with the

appellant for more than two months. She made different

allegations against the appellant and his family members,

including demand for additional dowry, property, etc.

However, specific instances are not narrated anywhere in the

counter filed. That apart, none of the allegations levelled are

observed to be genuine by the competent criminal Court.

9. By all the material that is brought on record, it is also

abundantly clear that the spouses i.e., the appellant and the

respondent are living separately since more than 17 years.

Submitting that foisting false cases itself amounts to mental

cruelty and that long period of continuous separation is a

ground to pass a decree of divorce, learned counsel for the

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appellant relied upon the decision of the Hon'ble Apex Court

in the case between K.SRINIVAS RAO Vs D.A.DEEPA1. In the

said decision, dealing with the term "cruelty" and the aspect

of irretrievable break down of marriage, the Court at Paras 10

& 11 of the judgment held as follows:-

"10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term 'cruelty'. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.

11. In Samar Ghosh this Court set out illustrative cases where inference of 'mental cruelty' can be drawn. This list is obviously not exhaustive because each case presents it's own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh. We have reproduced only the instances which are relevant to the present case.

(2013) 5 Supreme Court Cases 226

Dr.CSL,J & MGP,J FCA.No.111 of 2011

"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) * * *

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the

Dr.CSL,J & MGP,J FCA.No.111 of 2011

resultant danger or apprehension must be very grave, substantial and weighty.

(vii)-(ix) * * *

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi)-(xiii) * * *

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded 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. In such like situations, it may lead to mental cruelty."

At Paras 30 & 31, the observations made are as under:-

30. It is also to be noted that the appellant-husband and the respondent- wife are staying apart from 27-4- 1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in

Dr.CSL,J & MGP,J FCA.No.111 of 2011

Samar Ghosh2, if we refuse to sever the tie, it may lead to mental cruelty.

31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree.

10. Learned counsel, on the same aspect also placed

reliance upon the decision of the Hon'ble Apex Court in the

case between K.SRINIVAS Vs.K.SUNITHA3. When the entire

material that is brought on record by way of evidence is

perused, what we could find is that the respondent left her

matrimonial home basing on trivial issues and as she could

not adjust herself with the family members of the appellant.

(2007) 4 SCC 511

(2014) 16 Supreme Court Cases 34

Dr.CSL,J & MGP,J FCA.No.111 of 2011

On leaving the matrimonial home, she started filing cases one

after the other. The appellant started challenging the acts of

the respondent in doing so by knocking the doors of relevant

and higher forums.

11. All these facts goes to show that the relationship is

irretrievably broke down and no hope as of now survives for

the couple to live together hereafter. That apart, what we

could find is that the attitude of the respondent is the root

cause for all sufferings.

12. Having perceived all these aspects, the Family Court

ought to have passed a decree of divorce, though not on the

ground of cruelty, but as the ground of desertion is

established. Therefore, we are of the considered view that the

order of the Family Court which is under challenge, requires

interference and is liable to be set-aside.

13. Resultantly, the Appeal is allowed. The order that is

rendered by the Additional Family Court, Hyderabad, in

O.P.No.889 of 2007, dated 11.01.2011, is set-aside.

Consequently, the petition filed by the appellant for grant of

divorce is allowed. The marriage between the appellant and

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the respondent is therefore dissolved through a decree of

divorce. There shall be no order as to costs.

14. Miscellaneous petitions, if any pending, shall stand

closed.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA

______________________________ JUSTICE M.G.PRIYADARSINI Dt. 01.03.2023 ysk

Dr.CSL,J & MGP,J FCA.No.111 of 2011

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

FAMILY COURT APPEAL No.111 OF 2011

Dt. 01.03.2023 ysk