K Anuroopa, Hyderabad vs K Rama Krishna, Hyderabad
2023 Latest Caselaw 3560 Tel

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

       FAMILY COURT APPEAL Nos.75 AND 97 OF 2016

COMMON JUDGMENT: (Per Hon'ble Sri Justice K. Lakshman)

      Lis involved in both the appeals and the parties are one and the

same. Therefore, both the appeals were heard together and decided by

way of this common order.

      2. Heard Mr. Kowturu Pavan Kumar, learned counsel for the

appellant/wife and Mr. Vedula Srinivas, learned senior counsel

representing Smt. Vedula Chitralekha, learned counsel appearing for

the respondent.

      3. Feeling aggrieved and dissatisfied with the common order

dated 15.02.2016 passed in O.P.No.3 of 2012 and O.P.No.793 of 2011

by the Judge, Family Court, City Civil Court at Hyderabad, the wife

preferred these two appeals.

Facts

of the case:-

4. The marriage of the appellant/wife with the respondent/

husband was solemnized on 10.06.2006 at Eluru West Godavari

district as per Hindu rites and customs. It is an arranged marriage.

They stayed together in Vengalrao Nagar, Hyderabad in June and

July, 2006. After marriage, respondent/husband secured a good job in

USA and as such in the month of July, 2006, he left for USA. The

appellant/wife also joined the respondent/husband in USA in

February, 2007. They blessed with a baby boy on 15-12-2007 at

Eluru. Both the appellant as well as respondent along with their son

stayed in USA from May, 2008 to November, 2008. Thereafter,

matrimonial disputes arose between them.

5. The respondent/husband had filed O.P.No.98 of 2009 which

is re-numbered as O.P.No.1645 of 2010 against the appellant/wife

seeking dissolution of marriage on the ground of cruelty and

desertion. The same was dismissed on the ground that the

respondent/husband did not sign petition himself in terms of Rule 6 of

the Family Court Rules. Therefore, respondent/husband had filed

O.P.No.3 of 2012 seeking dissolution of marriage on the ground of

cruelty and desertion contending as follows:-

i. The appellant /wife did not cooperate with him to join in

USA and she insisted him to take up employment in India

preferably in Hyderabad.

ii. After much persuasion, she went to USA.

iii. On 26.02.2007 she became pregnant. After confirmation

of pregnancy, the attitude of the appellant/wife became

very adamant and abnormal and she persisted him to

travel to India against medical advise.

iv. During October, 2007, she returned to India and

delivered a male child at Eluru on 15.12.2007.

v. On persuasion by respondent/husband and his parents,

the appellant/wife along with her son again went to USA

in November, 2008. Within a short period, she

complained joint pains and returned to India in the month

of November, 2008 and underwent treatment at

Hyderabad. During that period, at the request of the

appellant/husband, her son was taken by the respondent's

parents to Nizamabad so that she would not be disturbed

during her treatment.

vi. Thereafter, though the appellant/wife fully recovered

from the illness, there was no proper response from her

about her plan to travel back to USA in spite of repeated

request.

vii. There was a total communication failure from the side of the

appellant/wife. Even as the respondent was inquiring with

the appellant/wife via e-mails to send her the air tickets,

there was no reply from her. As such, having become vexed

with the attitude of the appellant/wife, the respondent/

husband had got an OP filed in Nizamabad court for divorce.

viii. In the intervening night of 7/8.10.2010, he came to New

Delhi where he was detained by the immigration authorities

at Indira Gandhi International Air Port and was confined in

the Air Port Police Station and a Police Officer of

Hyderabad, brought him to Women Police Station at CCS,

Hyderabad on 10.10.2010.

ix. Later he came to know that the wife had filed a police

complaint alleging dowry harassment which was

registered as a case in Cr.No.318 of 2010 on 27.05.2010

against the respondent/husband and his parents, brother

and sister.

x. At that time, his father was working as Additional

District Judge, Asifabad, Adilabad district.

xi. On 25.10.2010 the appellant/wife has sent a complaint to

the Hon'ble Chief Justice of the then High Court of

Andhra Pradesh against the father of the

respondent/husband and as a result he was placed under

suspension and an enquiry was ordered. Thus,

respondent/husband and his entire family members were

put to mental and physical harassment, besides the

respondent/husband was put in jail.

xii. The acts of the appellant/wife not only amount to cruelty

and also desertion without justifiable reasons.

6. The appellant/wife filed counter admitting marriage etc.,

however, denying the allegations made against her, contended as

follows:-

i. At the time of the marriage herself and respondent/husband

were working as software Engineers at Hyderabad.

ii. The respondent/husband and his parents forced her to resign

from job. They did not even allow her to serve notice period as

per the company rules.

iii. With great difficulty, she went to USA where she lead her life

miserably. After some time, she became pregnant.

iv. Respondent/husband failed to provide medical aid during that

time.

v. She was not interested to come to India for delivery with an

intention to support her husband financially. She obeyed his

wish and came to India in the month of September, 2007 for

delivery.

vi. He always told her that she and her parents are not upto their

range. After birth of the child, she reached Nizamabad on

17.02.2008 where respondent's father was working as District

Judge. During her stay at Nizamabad, his parents insisted her to

bring money, gold and silver articles from her father's

retirement benefits.

vii. In May, 2008, she went to USA along with her boy, thereafter,

within 15 days, her husband went to Germany, leaving her and

the boy at his sister's house in Connecticut.

viii. In the month of July, 2008, his parents came to USA and stayed

there for few months and tortured her mentally and physically.

ix. On 28.09.2008, she was admitted in emergency hospital for

knee operation and the parents of her husband left for India

without staying in USA.

x. Respondent/husband and his family members predicted that she

would die with HIV etc., and warned her to hand over the child

to them.

xi. She was forced to come to India on 04.11.2008 and on

8.11.2008 her in-laws came to take the minor child. On

14.11.2009, her in-laws came to her for passport of the minor

boy and threatened her to see her end as his father-in-law is a

judge.

xii. Her father-in-law, acting as GPA holder on behalf of her

husband, filed a petition vide OP No.6 of 2010 before the

learned Senior Civil Judge, Nizamabad for divorce and the

same was transferred to the Family Court, Hyderabad and

renumbered as OP No.1645 of 2010.

xiii. She is always ready to join with the respondent/husband.

xiv. She was forced to lodge a complaint against her husband and

in-laws for the offence punishable under Section 498-A of IPC.

xv. Respondent and his family members retained her original

certificates and denied to return.

xvi. Vexed with their attitude, she sent a complaint to the Hon'ble

Chief Justice. Then her certificates were given to her in the

Family Court.

xvii. The appellant/wife also filed a petition vide O.P.No.793 of 2011

under Section 9 of the Hindu Marriage Act, seeking for

restitution of conjugal rights.

7. To prove the contentions, respondent/husband has examined

himself as P.W.1 and his father as P.W.2 and marked Exs.P.1 and P.2

documents. Whereas, appellant/wife has examined herself as R.W.1,

her father as R.W.2 and family friend as R.W.3 and marked Exs.R.1 to

R.8 documents.

8. On consideration of evidence both oral and documentary,

vide common order dated 15.02.2016, learned Judge, Family Court,

Hyderabad, allowed O.P.No.3 of 2012 filed by husband seeking

dissolution of marriage dated 10.06.2006 between the parties.

However, learned Judge, dismissed the petition vide O.P.No.793 of

2011filed by the appellant/wife seeking restitution of conjugal rights.

9. Feeling aggrieved and dissatisfied with the said common

order, appellant/wife preferred the present appeals.

10. Mr. Kowturu Pavan Kumar, learned counsel for the

appellant/wife would contend that the respondent's father being

judicial officer filed O.P.No.98 of 2009 in the Court where he was

working by obtaining alleged General Power of Attorney (GPA) from

his son. The same was dismissed to the learned Senior Civil Judge's

Court, Bhodhan, where it was re-numbered as O.P.No.6 of 2010. The

same was transferred to the Family Court, Hyderabad and re-

numbered as O.P.No.1645 of 2010. The same was dismissed on

21.09.2011 on the ground that the party has not signed as per the

Family Court Rules. The respondent/husband retained the original

certificates of the appellant/wife. Therefore, she was constrained to

send a complaint to the Chief Justice of the then High Court of

Andhra Pradesh who placed the respondent/husband's father under

suspension. After filing of the O.P. No.793 of 2011 under Section 9 of

the Hindu Marriage Act, she has lodged a complaint with police who

registered the same for the offence punishable under Section 498-A of

IPC against the respondent/husband and his family members. In fact,

she was forced to lodge such a complaint. He would further submit

that wife is ready to join with the husband. The respondent failed to

prove desertion and cruelty by producing sure and safe evidence.

Without considering the said aspects, the Family Court allowed the

petition vide O.P.No.3 of 2012 filed by the respondent/husband

seeking dissolution of marriage and dismissed the petition vide

O.P.No.793 of 2011 filed by the appellant/wife seeking restitution of

conjugal rights. With the said submissions, he sought to allow both the

appeals.

11. Whereas, Sri Vedula Srinivas, learned Senior counsel,

representing Smt Vedula Chitralekha, learned counsel for the

respondent/husband would contend that the Family Court on

consideration of entire evidence both oral and documentary and also

considering the fact that the marriage between the parties is

irretrievably broken, granted divorce and dismissed the application

filed by the wife seeking restitution of conjugal rights. There is no

error in it. Even in the impugned order, there is a specific finding that

there is no scope for re-union of the parties and the marriage is

irretrievably broken. With the said submissions, he sought to dismiss

both the appeals.

12. From the aforesaid discussion and perusal of the record

would reveal the following undisputed facts:-

i. The marriage of the parties was solemnized on 10.06.2006 as

per the Hindu rites and customs and it is an arranged marriage.

ii. Before marriage, both of them were working as software

Engineers.

iii. Husband left for USA in July, 2006. Thereafter, appellant/wife

joined him in USA in February, 2007.

iv. Before that they stayed for two months in Vengalraonagar,

Hyderabad.

  v.    She became pregnant in USA.

 vi.    She came back to India and blessed with a son on 15.12.2007 at

        Eluru.

vii.    Thereafter, she went to USA along with the boy stayed there

        from May, 2008 to November, 2008.

viii. The respondent's father was a judicial officer. He had filed

O.P.No.98 of 2009 seeking dissolution of marriage on the

ground of cruelty and desertion in the Court of Principal Senior

Civil Judge, Nizamabad to which he is a Presiding Officer by

obtaining GPA from his son. The same was transferred to the

learned Senior Civil Judge, Bhodhan, Nizamabad and re-

numbered as O.P.No.6 of 2010. The said O.P. was again

transferred to Family Court, Hyderabad and renumbered as

O.P.No.1645 of 2010.

ix. He has filed an application stating that he not pressing the

ground of desertion in the said O.P. However, vide order dated

21.09.2011, the said OP was dismissed as not maintainable

since the respondent/husband did not sign the petition by

himself in terms of Rule 6 of Family Court Rules,2005.

x. Wife had filed a petition vide O.P.No.793 of 2011 under

Section 9 of the Hindu Marriage Act, seeking restitution of

conjugal rights.

xi. She has also filed a complaint against respondent/husband and

his parents and the same was registered as a case in Cr.No.318

of 2010 on 07.05.2010.

xii. She has also lodged a complaint with the Chief Justice of the

then High Court of Andhra Pradesh against the father of the

respondent/husband. He was placed under suspension and

enquiry was conducted and the charges leveled against him

were not proved. Thus, he was exonerated.

13. According to the respondent/husband, the criminal activities

of the appellant/wife are as follows:-

i. The appellant/wife harassed the respondent/husband to take up

employment in India preferably in Hyderabad.

ii. She has not shown inclination to travel USA to join company of

the husband.

iii. After confirmation of pregnancy, her attitude became more

adamant and abnormal.

iv. She persisted with her wish to travel India even against medical

advice.

v. She joined husband in USA in May, 2008 and then she

complained joint pains, returned to India and underwent

treatment.

vi. Despite sending mails by the respondent/husband to come to

USA, there was no response from her.

vii. He was arrested in Delhi Airport on the complaint lodged by

her.

viii. She has also lodged a complaint against his parents, sister and

brother.

ix. She has sent a complaint against his father with the Chief

Justice of the then High Court of Andhra Pradesh who placed

the father of her husband under suspension and initiated

enquiry.

x. Thus, according to the respondent/husband, the appellant/wife

subjected him and his parents to cruelty and deserted him.

14. In view of the allegations and counter allegations, it is

relevant to note that in the petition filed by the husband, he has

categorically stated that despite sending e-mails, the appellant/wife

failed to respondent and there was no reply. Having vexed with the

attitude of the appellant/wife, he got filed O.P.No.3 of 2012 seeking

divorce. Thus, he failed to explain or prove as to the steps taken by

him to take the appellant to his company. He has not sent any notice

asking her to join his company. He did not even filed any application

under Section 9 of the Hindu Marriage Act seeking restitution of

conjugal rights.

15. On the other hand, he has filed an application vide

O.P.No.98 of 2009 on the file of the Principal Senior Civil Judge,

Nizamabad, where his father was working as Presiding Officer, by

giving GPA to his father. The said OP was filed against the

appellant/wife seeking dissolution of marriage on the grounds of

cruelty as well as desertion. Thereafter, an application was filed by his

father, stating that he is not pressing the ground of desertion.

However, said O.P. was transferred to the Senior Civil Judge,

Bhodhan, Nizamabad, and the same was re-numbered as O.P.No.6 of

2010. Later it was transferred to the Family Court, Hyderabad and re-

numbered as O.P.No.1645 of 2010. The same was dismissed on the

ground that the respondent/husband did not sign the petition himself in

terms of Rule 6 of the Family Court Rules.

16. In this regard, it is relevant to refer certain admissions made

by his father (P.W.2) during cross-examination:-

"It is true that the earlier OP was dismissed as it was not signed by the respondent/husband. It is true that I had put an application to withdraw the ground of desertion from the main case and I signed on I.A.No.___/2010 in O.P.No.1654 of 2010. It is true that the OP No.1645 of 2010 was initially instituted in Principal Senior Civil Judge, Nizamabad, thereafter transferred to Bodhan and finally to Hyderabad. It is true that initially the OP No.1645 of 2010 is filed before Principal Senior civil Judge's Court to which I was Presiding. I do not know as to whether institution of case when I am having interest shall not be instituted in the court where I am Presiding as per the Civil Services Conduct Rules. Immediately after registering main OP, I addressed a letter to the PDJ, Nizamabad by requesting him to transfer the main OP to any other court as I am having interest in the matter. The check

and put up of the main OP was written by the Superintendent of PSJ court and I ordered for the registration of OP on the basis of his submission made therein. On the date of institution of said OP, I presided over the court. As per my knowledge the separate affidavit and petition is not necessary to file as per Rule 32 of GPA Civil Rules of Practice."

17. He has further admitted during cross-examination as

follows:-

"It is true that 498-A case, MC case were filed by respondent subsequent to institution of OP No.1645 of 2010. It is true that the respondent always tried to pacify the dispute with my son and resume her marital life with my son but myself and my wife are not agreeing for the same. It is true that the petition given against me by respondent to Hon'ble Chief Justice of AP High Court is also subsequent to filing of the OP No.1645 of 2010. Witness volunteers that she has given petition to Hon'ble the Chief Justice, High Court of AP on 25.10.2010 before the meeting conducted at his brother Mr.pradeep's House. Myself and my wife are not ready to take back the respondent into her family as the P.W.1 is against for receiving her. "

18. The aforesaid facts would reveal that the respondent

husband instead of taking steps to take his wife to his company either

by way of approaching elders and well wishers or by filing proper

applications seeking restitution of conjugal rights, but filed an

application seeking dissolution of marriage on the ground of cruelty

and desertion. Therefore, he executed GPA i.e. Ex.R.5 dated

11.07.2009 authorizing his father to file petition. In fact, the said OP

was filed in the court where his father was Presiding.

19. According to the appellant/wife, the respondent/husband

and his parents retained her original certificates which made her to

submit a complaint to the Hon'ble the Chief Justice of the then High

Court of Andhra Pradesh to take action against the respondent's father

for abuse of his official position. On filing of the said complaint only,

they have returned her original certificates in Family court during the

pendency of the aforesaid proceedings. There is no rebuttal evidence

by the respondent/husband on the same.

20. The aforesaid facts would reveal the intention of

respondent/husband in obtaining divorce from respondent either hook

or crook. In the said course of action, he has filed the aforesaid OP by

sending GPA to his father who did not file it properly. Therefore, he

cannot blame the appellant/wife for his own mistake. Thus, the

respondent/husband failed to prove cruelty and desertion by producing

sure, safe and relevant evidence.

21. Learned Family Court without considering the said aspects,

in paragraph No.22 of the impugned order held that while there is no

evidence regarding the alleged demand for additional dowry etc., there

is reason to believe that R.W.1 was not readily prepared to join the

company of P.W.1 in USA. No doubt, it is the aspiration of an average

middle class person to get a highly paid job and to settle well in life

and for this purpose a good job in the USA is considered as a desirable

option. In this context, the anxiety of PW1 to remain in USA, is

understandable. Any non-cooperation on the part of RW1 regarding

this aspect would have seriously dampened the enthusiasm of P.W.1.

22. The said finding of the Family Court is without any basis,

contrary to the record evidence. The said finding is on presumptions

and assumptions, Family Court has to decide O.P.No.3 of 2012 filed

by the husband seeking dissolution of marriage against wife on the

grounds of cruelty and desertion basing on the evidence both oral and

documentary and material available on record. The Family court

cannot go beyond the same.

23. In paragraph No.23 of the impugned order, the Family

Court held that however, minor differences of opinion which should

not be allowed to escalate beyond proportion, but RW1 has chosen to

file a number of cases against PW1 and his family members and she

had got even PW1 arrested at the Airport. The institution of marriage

is built on mutual trust and sentiments and positive feelings for each

other. Once this structure is disturbed, it would be a difficult task to

heal the emotional wounds and to rebuild trust. But if one of the

parties involved resorts to filing a number of cases against the other

parties in a vengeful manner, there would hardly be any scope for re-

approachment between them.

24. The said finding is contrary to record and evidence. As

discussed supra, it is the husband who filed the aforesaid OP No.98 of

2009 before the Court in which his father was working. He did not

take any steps to get the appellant/wife to his company either by

approaching elders and well wishers or initiating mediation or

conciliation proceedings or by way of filing appropriate application

under Section 9 of the Hindu Marriage Act seeking restitution of

conjugal rights. He has straightaway filed the said OP seeking

dissolution of marriage on the ground of cruelty and desertion which

he has failed to prove. In fact, he failed to file the said OP in

accordance with law, more particularly by signing himself in terms of

Rule 6 of Family Court Rules. Therefore, the same was dismissed vide

order dated 21.09.2011. He has filed the present OP No.3 of 2012

seeking dissolution of marriage against the appellant/wife on the

ground of cruelty and desertion. In fact, as admitted by his father/

P.W.2 that his father has filed application stating that he is not

pressing ground of desertion in the said OP.

25. As discussed supra, P.W.2 categorically admitted that the

complaint lodged by R.W.1 was on 27.05.2010 i.e. after filing of

O.P.No.98 of 2009, she has filed MC No.193 of 2010 under Section

125 of Cr.P.C. seeking maintenance after filing of the said OP.

Except, the aforesaid two cases, she has not filed any other case. Even

then, the Family Court in paragraph No.23, gave a finding that she has

filed number of cases against the respondent/husband and his family

members which is factually incorrect. The arrest of the

respondent/husband at Delhi Airport is subsequent to the filing of the

said OP. Therefore, the respondent/husband cannot blame wife for his

own wrong.

26. However, as discussed supra, the respondent/husband has to

prove cruelty and desertion by producing sure, safe and relevant

evidence. To prove his case, the respondent/husband has examined

himself as P.W.1 and his father as P.W.2. He has filed Ex.P.1wedding

card and P.2- marriage photograph. Except that, he has not filed any

other document or examined any independent witness.

27. Whereas, to prove the allegations made by the respondent/

husband are false, the appellant/wife had examined herself as R.W.1,

her father as R.W.2 and family friend as R.W.3. It is apt to note that

the respondent did not elicit anything during cross-examination of

R.Ws.1 to 3 with regard to cruelty and desertion. Thus,

respondent/husband utterly failed to prove both cruelty and desertion

seeking dissolution of marriage. The finding of the trial Court that

R.W.1 herself who had precipitated the issue by initially failing to co-

operate with P.w.1 in pursuing his career in USA and subsequently by

filing a number of cases against P.w.1 and his family members is

contrary to record and evidence. The said finding is only on

assumptions and presumptions but not basing on the record.

28. The finding of the Family Court in paragraph No.25 of the

impugned order that the marriage between the P.W.1 and R.W.1 has

become unworkable. There being not even a remote possibility of re-

approachment, the proper and logical step forward is to formalize such

deep schism of hearts by dissolution of their marriage to enable each

of them to start afresh in life.

29 While giving such finding, the Family Court ignored the

importance of family, conjugal rights of the parties and also the

welfare of the child. The Family Court failed to consider the

contention of the wife that she is always ready to join the company of

the husband. She is a software engineer. She was working at

Hyderabad before marriage. She was forced to resign her job after

joining the husband at USA. She never lodged any complaint against

her husband and his family members. She has lodged a complaint only

on receipt of notice in O.P.No.98 of 2009. She has filed application

under Section 125 of Cr.P.C. vide MC No.195 of 2011 seeking

maintenance. Respondent/husband and his father retained her original

certificates. O.P.No.98 of 2009 was filed in the court in which his

father was Presiding. His father endorsed on the said OP to register. It

is a judicial order. Therefore, she was compelled to lodge a complaint

with Hon'ble the chief Justice. Then only her original certificates were

returned in the Family Court. Therefore, the said findings of the

Family Court is perverse and contrary to record. This Court vide

order dated 21.04.2016 granted interim suspension of the impugned

order dated 15.02.2016 in O.P.No.3 of 2012. This Court also

conducted mediation and the same was unsuccessful. Considering the

age of the parties and other aspects, this Court also interacted with the

appellant and respondent and their son Master Gowtham.

30. Sri Kowturu Pavan Kumar, learned counsel for the

appellant/wife placed reliance on the principle laid down by a

Division bench of this Court in Kantilal G.Jain Vs. C.Sailaja 1,

wherein it was held that the appellant therein i.e. Kantilal G.Jain failed

to prove that unfounded allegations are made against him. Mere filing

of complaint under Section 498-A of IPC cannot be treated as making

unfounded allegations. Acrimony between the parties is clear and the

evidence on record discloses that many averments of the appellant are

not true. If every complaint filed under Section 498-A of IPC is to be

treated as an act of cruelty, the easiest way for a husband to get

divorce from his wife would be to cause harassment leading to filing a

complaint under Section 498-A of IPC and then to file an OP under

Section 13(1)(ia) and (ib) of the Act, citing the filing of complaint as

an act of cruelty.

MANU/AP/1615/2013

31. We respectfully agree that the view taken by the Division

Bench. Moreover, in the present case, the appellant/wife lodged a

complaint against the respondent/husband on receipt of notice in the

OP filed by him seeking dissolution of marriage on the grounds of

cruelty and desertion.

32. He has also placed reliance on the principle laid down by

the Division bench in Ganti Srinivas Vs. G.Vasantha 2, wherein it

was held that the ground of cruelty, in the instant case, stands on a

different footing. The developments that have taken place, particularly

after the appellant left for Canada, in search of better employment,

disclose that the appellant therein and his family members, were

subjected to harassment and cruelty on account of institution of

various proceedings.. All the criminal cases instituted by the

respondent ended in acquittal. Considering the said facts, the Division

bench held that institution of criminal cases, by a wife, against the

husband and his family members, would , by itself, constitute cruelty,

particularly when it ends up in acquittal. On the examination of the

said facts, the Division Bench held that to constitute ground of cruelty

MANU/AP/1456/2013

on the part of one of the spouse towards another, it is not necessary

that there must be physical altercations, or assaults.

33. As discussed supra, in the present case, the respondent

failed to prove cruelty as well as desertion by producing sure, safe and

relevant evidence. At the cost o repetition, it is relevant to note that

the appellant/wife has lodged a complaint after respondent/husband

filing applications seeking dissolution of marriage on the ground of

cruelty and desertion.

34. The Hon'ble Apex Court in Gurbux Singh Vs. Harminder

Kaur 3 held that the parties who alleges cruelty and desertion shall

prove the same by producing relevant evidence. But in the present

case, the respondent failed to prove the same.

35. Whereas, Sri Vedula Srinivas, learned Senior counsel

placing reliance on the principle laid down by the Division Bench of

the High Court of Judicature at Hyderabad in S.Brahmanandam Vs.

S.Rama Devi 4 and on the judgment of the Division Bench of the

Apex Court in Rakesh Raman Vs. Kavita 5, would submit that the

(2010) 14 SCC 301

2016(6) ALT 790 (DB)

AIR Online 2023 SC 325

long separation and absence of cohabitation and the complete

breakdown of all meaningful bonds and the existing bitterness

between the two, has to be read as cruelty under Section 13(1) (ia) of

the Act. In the present case also, there was no cohabitation between

the parties since long time. Therefore, the marriage is irretrievably

broken.

36. As stated supra, the judgment in Rakesh Raman (supra) is

under Article 142 of the Constitution of India. Whereas, in

S.Brahmanandam (supra), the facts are altogether different. In the

present case, as discussed supra, the respondent/husband himself filed

petition seeking dissolution of marriage on the ground of cruelty and

desertion without taking any steps to get his wife to join his company

either by resorting to legal proceedings or mediation or conciliation

etc. She has lodged a complaint after receipt of notice in the said O.P.

and on retaining the original certificates. Thus, respondent/ husband

cannot blame his wife. Therefore, the facts in the said case are

different to the facts of the case on hand. Even the interaction by this

Court with the parties and mediation proceedings initiated by this

Court were unsuccessful.

37. Viewed from any angle, these two appeals are liable to be

allowed.

38. In view of the above discussion, these two appeals are

allowed. The common order dated 15.02.2016 passed in O.P.No.3 of

2012 and O.P.No.793 of 2011 by the Judge, Family Court, City Civil

Court at Hyderabad, is set aside. O.P.No.3 of 2012 is dismissed.

O.P.No.793 of 2011 is allowed and respondent/husband is directed to

join the company of the appellant within one month from the date of

receipt of copy this order.

Consequently, miscellaneous petitions, if any, pending in these appeals shall stand closed.

________________________ JUSTICE K. LAKSHMAN

____________________ JUSTICE K. SUJANA

Date:03.11.2023.