Telangana High Court

Naldiga Venkata Venugopala Chary vs Smt. Sunanda on 3 November, 2023

Bench: K.Lakshman, K. Sujana

             HON'BLE SRI JUSTICE K. LAKSHMAN
                                   AND
              HON'BLE SMT. JUSTICE K. SUJANA

                         F.C.A.No.35 OF 2012
ORDER: (Per Hon'ble Sri Justice K. Lakshman)

      Heard Sri V. Srinivasulu, learned counsel for the appellant and

none appears for the respondent.

2. Challenging the order dated 07.12.2010 in F.C.O.P.No.154 of

2009 passed by the learned Judge, Family Court, Warangal, appellant-

husband preferred the present appeal.

3. Appellant-husband married one N.Padmasri on 03.06.1987 and

blessed with two children namely Spandana and Snehitha. She met

with an accident on 03.01.1999, wherein she and her second daughter

succumbed to injuries.

4. After the death of his wife, appellant married the respondent on

11.03.2001 to take care of his first daughter namely Spandana and

also to look after him. They blessed with a son namely N.Parthu.

Thereafter matrimonial disputes arose between them.

5. Appellant had filed F.C.O.P.No.154 of 2009 against the

respondent seeking dissolution of marriage on the grounds of cruelty

as well as desertion contending as follows:-

(i) After marriage, they lived happy life and they blessed

with son namely N.Parthu who is aged about six years.

(ii) After passing of some time, respondent started

exerting pressure on the appellant in order to part with the

money to meet the expenses of her family members.

(iii) Accordingly, the appellant to the extent possible

contributed money to the family of respondent oftenly. He

had spent more than Rs.1,00,000/- for the treatment of the

father of respondent.

(iv) Respondent started pressurizing the appellant to part

with an amount of Rs.4,00,000/- in order to purchase a jeep

to her brother to run between Boinapally and Gangadhara

X-Roads. Appellant did not heed to the said request of the

respondent.

(v) Keeping the same in mind, respondent started

harassing the mother of the appellant and his daughter

namely Spandana.

(vi) Respondent used to leave conjugal society of the

appellant frequently even without informing him during his

absence.

(vii) On 05.01.2003, respondent had unnecessarily picked

up quarrel with the appellant without any basis and

inconsequence of the same on 05.01.2003 afternoon, when

the appellant went to the office, she left the conjugal society

of the appellant without informing him and ever since

thereafter respondent started residing at her brother's house

and till date she did not turn up.

(viii) Thereafter respondent has filed M.C.No.01 of 2005

claiming maintenance and she has also filed DVC.No.19 of

2012.

6. Thus, according to appellant, respondent had deserted him and

also subjected him to cruelty. With the said contentions, he had filed

the aforesaid F.C.O.P.No.154 of 2009 against the respondent seeking

dissolution of marriage.

7. Respondent filed counter denying the said allegations.

According to her appellant started demanding additional dowry and he

necked out her in order to contact another marriage. She has tolerated

the same keeping in mind the position of the appellant holding in the

society and welfare of her son. But, there is no change in the attitude

of the appellant. She never subjected the appellant to cruelty and she

never deserted him.

8. To prove the said allegations of cruelty and desertion, appellant

examined himself as PW.1 and filed Ex.A1-Xerox Certified copy of

order in MC.No.01 of 2005. Whereas to disprove the said allegations

leveled against the respondent, she examined herself as RW.1. On

consideration of the entire evidence both oral and documentary,

learned Family Court, vide impugned order dated 07.12.2010

dismissed the said O.P filed by appellant stating that appellant failed

to establish both grounds i.e., cruelty and desertion by producing

proper and reliable evidence.

9. Feeling aggrieved by the said order, appellant preferred the

present appeal on the following grounds:

i. The learned Family Court wrongly came to conclusion

that the appellant herein necked out the respondent from

the matrimonial home basing on the counter and the

chief examination affidavit of the respondent whose

evidence was eschewed.

ii. The learned Family Court erred in holding that the

evidence of his mother and daughter is not mandatory to

prove his case.

iii. The learned Family Court wrongly held that there was

no harassment by the respondent to the appellant, his

mother and to his daughter, basing on the evidence

which was eschewed.

iv. The learned Family Court did not notice that the

respondent left the company of the appellant more than

two years from the date of filing the OP.

v. The learned Family Court did not see that respondent

did not elicit anything from cross-examination of P.W.1

except giving suggestions which are denied by the

witness.

vi. It is well settled law that suggestions denied by the

witness have no evidentiary value.

10. As stated above, the marriage of appellant with respondent was

performed on 11.03.2001 and it is a second marriage to the appellant.

They blessed with a son namely 'N.Parthu'. He was aged about six

years at the time of filing of OP i.e., in the year 2009.

11. It is not in dispute that appellant and his first wife blessed with

two daughters namely Spandana and Snehitha and his first wife and

second daughter died in an accident. To take care of his first daughter

and himself, he married respondent on 11.03.2001. According to him,

after six years of giving birth to his son, the respondent started

harassing the appellant by exerting pressure on him to extend financial

support to her family members including her father and her brother.

But he has not examined any witness to prove the same. Whereas,

respondent examined herself as RW.1.

12. Thus, filing of an application under Section 125 of Cr.P.C

claiming maintenance by respondent and her son is not cruelty. She

has also filed an application under Section 12 of the Protection of

Women from Domestic Violence Act, 2005 (43 of 2005) vide

DVC.No.19 of 2012 claiming certain relief against the appellant.

Filing such an application against the husband by wife is not cruelty.

The aforesaid acts does not constitute the cruelty as contended by the

appellant.

13. The Hon'ble Apex Court relying on its judgment in Naveen

Kohli vs. Neelu Kohli 1 and also three judges bench judgment in

Samar Ghosh vs. Jaya Ghosh 2 in paragraph No.101 observed as

incidents of cruelty:-

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

(2006) 4 SCC 558

(2007) 4 SCC 511

wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

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

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.

(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) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(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.

14. To prove his contention, appellant did not examined any

witness. It is also relevant to note that according to the appellant,

respondent deserted him on 05.01.2003 by leaving his conjugal

society without informing him. But, he did not take any steps either to

seek restitution of conjugal rights or by way of conducting mediation

or panchayat. The said fact was admitted by him during

cross-examination. Admittedly, no panchayat was held and appellant

did not seek intervention of elders to resolve the dispute.

15. The appellant failed to examine his daughter i.e.., Spandana and

his mother to prove the desertion as well as cruelty. Appellant cannot

seek dissolution of marriage on flimsy grounds. He has to prove the