Alwala Swamy vs Alwala , Kothi Savithri
2023 Latest Caselaw 3874 Tel

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

            FAMILY COURT APPEAL No.44 OF 2010

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

      Heard Mr. M.Ram Mohan Reddy, learned counsel for the

appellant and Mr.C.Damodar Reddy, learned Senior Counsel

appearing for respondent.

      2. Feeling aggrieved and dissatisfied with the order dated

27.06.2009 passed in F.C.O.P.No.94 of 2008 by the Judge, Family

Court-cum-Additional District and Sessions Judge at Karimnagar, the

appellant preferred the present appeal.

Facts

of the case:-

3. The appellant herein filed a petition vide O.P.No.94 of 2008

under Section 10 (ix) (x) of the Indian Divorce Act, 1869 to dissolve

his marriage with the respondent/wife on the ground of cruelty

contending as follows:-

The marriage of the appellant with the respondent was

solemnized on 24.06.1999 at Karimnagar as per Christian religious

rites. After marriage, they lived together for about two months.

Thereafter, the respondent/wife started quarrelling with the appellant/

husband for nothing. She used to harass him mentally and subjected

him to extreme mental and physical cruelty. 05.09.1999, she left the

society of the appellant by filing a false complaint with the Police, I

Town Police Station, Karimnagar. She also filed a complaint with the

Police, II Town Police Station, Karimnagar on 20.02.2021 stating that

the appellant along with his parents, harassed her for additional

dowry, which is registered as a case in Cr.No.24 of 2001 for the

offence punishable under Section 498-A IPC. On completion of

investigation, the Investigating Officer has filed charge sheet against

the appellant and the same was taken on file vide C.C.No.237 of 2001

by the Addl.Judicial Magistrate of First Class, Karimnagar. The same

was ended in acquittal. She also filed a petition under Section 125 of

Cr.P.C. vide M.C.No.17 of 2001 against him seeking maintenance for

her minor daughter. During the hearing also, she used to abuse the

appellant in filthy language. He filed a private complaint and the same

was referred to the Police, II Town Police Station, who registered the

same as a case in Cr.No.254 of 2001, but the same was closed.

M.C.No.17 of 2001 was allowed granting maintenance of Rs.500/- per

month to the minor child. Thus, respondent/wife and appellant/

husband living separately from 05.09.1999. There is no possibility of

appellant and respondent living together. It has become necessary for

dissolving their marriage. Appellant repeatedly requested the

respondent/wife to take steps for dissolution of marriage, but she

refused to do so. Therefore, he has filed the petition vide O.P.No.639

of 1999 under section 27 of Special Marriage Act, 1954 seeking

divorce and it was dismissed for default on 20.12.2002. Thereafter, he

had filed a petition vide O.P.No.510 of 2004 under Section 10 (ix) (x)

of Indian Divorce Act, seeking dissolution of marriage and the same

was dismissed on 20.01.2005. Thereafter, he had filed third

application vide O.P.No.94 of 2008 under Section 10 (ix) (x) of Indian

Divorce Act, seeking dissolution of marriage on the ground of cruelty.

4. The respondent/wife filed counter admitting the marriage and

also birth of the child. However, she has denied the allegations made

by the appellant against her. In fact according to her, the appellant

subjected her to cruelty. He is filing one petition or the other. She has

lodged a complaint under compulsion. She has filed M.C.No.17 of

2001 seeking maintenance to her minor daughter since he is not taking

care of the welfare of the minor daughter. He has filed a private

complaint and the same was taken on file vide C.C.No.254 of 2001.

The marriage of the appellant and respondent is love marriage and

both of them were employees at the time of their marriage. Sometime

after the marriage, the appellant started harassing the respondent and

forced her to give divorce. He started canvassing that she is unchaste

and she got adulterous relationship with many people. She has

tolerated his cruel conduct with a fond hope that he would change his

mind in due course.

5. To prove the said allegations of cruelty, the appellant herein

had examined himself as P.W.1 and panchayat elder as P.W.2. He has

filed documents Exs.P.1 to P.13. Whereas, to disprove the allegations

leveled against her by the appellant/husband, the respondent/wife had

examined herself as R.W.1 and filed Exs.R.1 and R.2. On

consideration of entire evidence both oral and documentary on record,

learned Family Court dismissed the said OP filed by the husband.

Feeling aggrieved by the same, the appellant herein preferred the

present appeal.

6. Sri M.Ram Mohan Reddy, learned counsel for the appellant

would contend that after marriage, both the parties lived together for

about two months. Since 05.09.2009, they are living separately and

therefore, there is no chance of reunion. During the pendency of the

present appeal, the appellant re-married and he is staying with his

second wife. The Family Court did not consider the said aspects and

dismissed the O.P. erroneously.

7. Whereas, Mr.C.Damodar Reddy, learned counsel for the

respondent/wife would contend that the appellant in order to obtain

decree of divorce to get rid of the respondent/wife filed one petition

after the other. Respondent never subjected the appellant to cruelty. In

fact, the appellant himself did not take care of their minor daughter

and did not pay the maintenance. The appellant and his parents

subjected the respondent/wife to cruelty and therefore, she was

compelled to file a complaint. However, the same was ended in

acquittal. She was compelled to file M.C.No.17 of 2001 seeking

maintenance to her daughter. Despite the same, she is willing and

ready to join the company of the appellant. Both are employees.

Considering the entire evidence and material on record only, the

Family Court vide impugned order dismissed the petition filed by the

appellant. There is no error in it. Learned senior counsel also placed

reliance on the Division Bench judgment of Bombay High Court in

Mrs.Lavina Martin Vs. Sam Bosco Martin 1

8. Perusal of the record including the evidence of P.Ws.1 and 2

and R.W.1 would reveal that the marriage of the appellant and

respondent was solemnized on 23.06.1999 as per the Christian

religious rites. During the course of cross-examination, the appellant

herein (P.W.1) categorically admitted that in the year 1999, he

converted into Christianity. One month before their marriage, the

respondent/wife converted into Christianity. It is love marriage. They

blessed with a daughter on 16.02.2000. During the course of cross-

examination, the appellant admitted that their marriage was

consummated. It is the specific contention of the appellant that since

05.09.1999, the respondent/wife is living separately from his society.

There is no possibility of the appellant and respondent living together.

Therefore, it has become necessary for dissolving their marriage by

decree of divorce. Though the appellant repeatedly requested the

respondent/wife to take step for dissolution of the marriage, she

refused to do so. Therefore, he has filed a petition seeking dissolution

of marriage.

AIR 2017 Bombay 156

9. The aforesaid facts would reveal that the appellant never

initiated any steps to take respondent to his company. On the other

hand, he has filed a petition vide O.P.No.639 of 1999 under Section

27 of the Special Marriage Act, seeking dissolution of marriage.

Respondent/wife entered appearance in the said O.P. and contested.

Thereafter, the same was dismissed for default. Subsequently, he had

filed second petition vide O.P.No.510 of 2004 under Section 10 (ix)

(x) of Indian Divorce Act, seeking dissolution of marriage. The same

was also dismissed on 20.01.2005. This is the third petition filed by

him under Section 10 (ix) (x) of Indian Divorce Act, seeking

dissolution of marriage on the ground of cruelty. The said facts were

also admitted by P.W.1 during the course of cross-examination. The

aforesaid facts would reveal that the appellant herein has been filing

one petition or the other with an intention to obtain decree of divorce.

10. As discussed supra, the appellant herein had filed first

petition in 1999, second petition in 2004 and third petition in 2008.

Whereas, the respondent/wife filed a petition under Section 125 of

Cr.P.C. vide M.C.No.17 of 2001. The same was allowed and the child

was granted maintenance of Rs.500/- per month.

11. The respondent had filed a complaint against the appellant

which was registered as a case in Cr.No.24 of 2001 for the offence

punishable under Section 498-A of IPC and the same was taken on file

vide C.C.No.237 of 2001. However, the same was ended in acquittal

vide judgment dated 17.03.2005. The aforesaid facts would reveal that

it is the appellant, who had first filed the aforesaid O.P.No.639 of

1999 seeking dissolution of marriage. Then the respondent/wife filed

the aforesaid M.C.No.17 of 2001 and Cr.No.24 of 2001 in the year

2001. Therefore, the contention of the appellant that the

respondent/wife subjected him to cruelty cannot be believed.

12. The other contention of the appellant is that the respondent

subjected him to cruelty by harassing him picking up quarrels on

small things and by leaving his society without intimation. The

appellant failed to prove the said aspects by producing relevant

evidence. He had examined P.W.2-a panchayat elder. The appellant

during cross-examination of R.W.1 created a story that the respondent

caught hold of his caller on 02.03.2009 and 03.03.2009 at his work

place but he failed to examine any witness to prove the same. On

consideration of the said aspects, the Family court gave a finding that

the appellant failed to prove cruelty as well as the said alleged

incidents dated 02.03.2009 and 03.03.2009. The Family Court also

gave a finding with regard to acquittal of the appellant in C.C.No.237

of 2001. Thus, the appellant/husband failed to prove cruelty subjected

by the respondent/wife as alleged by him, by producing sure, safe and

relevant evidence. Therefore, the said allegation of the appellant

cannot be believed. The impugned order is a reasoned order and well

founded. The appellant failed to make out any case to interfere with

the order impugned herein.

13. In support of his case, Mr. M.Ram Mohan Reddy, learned

counsel for the appellant also placed reliance on the judgment of the

Division Bench of the Apex Court in K.Srinivasa Rao Vs.

D.A.Deepa 2 wherein the Apex Court held that making unfounded

indecent/defamatory allegations against spouse or his/her relatives in

pleadings, filing repeated false complaints or cases in Court, issuing

notices or new items which may have adverse impact on business

prospects or job of spouse etc., are all illustrative cases of mental

cruelty which would warrant grant of divorce.

14. In the present case, the appellant/husband though sought

divorce on the ground of cruelty, did not mention such kind of

(2013) 5 SCC 226

unfounded, indecent/defamatory allegations against him and made

repeated complaints against him without any reason which caused him

mental cruelty for grant of divorce to him. Moreover, the facts of the

said case and the case on hand are quite different.

15. During the course of hearing, Sri M.Ram Mohan Reddy,

learned counsel for the appellant, on instructions, submitted that the

marriage of the appellant with the respondent is irretrievably broken

and there is no possibility of reunion. Appellant had re-married and

staying with his second wife is also employee in Medical and Health

Department. He offered an amount of Rs.10 lakhs towards permanent

alimony to the respondent and her daughter. The said offer given by

the appellant is not acceptable to the respondent and she is ready and

wiling to join the company of the appellant. In the light of the same,

we have interacted with the appellant and respondent and their

daughter who is studying MBBS III year. During interaction the

appellant informed us that during pendency of the appeal, he re-

married and he is staying with the second wife. He also informed us

that she did not begot any child with the second wife and according to

him, only for support, he got married second time and there is no need

of children to him. The said facts would clearly reveal the attitude of

the appellant/husband.

16. As discussed supra, appellant had filed the aforesaid

O.P.No.94 of 2008 seeking dissolution of marriage on the ground of

cruelty. On consideration of entire evidence both oral and

documentary, learned Family Court dismissed the same holding that

the appellant failed to prove cruelty. Irretrievable break down of

marriage is not a ground for grant of decree of divorce under Section

10 of the Indian Divorce Act. Therefore, on the said ground, we

cannot grant decree of divorce. The said principle was laid down by

the Apex Court in Anil Kumar Jain vs. Maya Jain 3. However, the

Apex Court is having such power to grant decree of divorce on

coming to a conclusion that the marriage is irretrievably broken down,

in exercise of its powers under Article 142 of the Constitution of

India.

17. Thus, as discussed supra, the appellant utterly failed to

prove the cruel acts of the respondent as alleged by him. At the cost of

repetition, as discussed supra, he filed one petition after the other to

obtain divorce from the respondent/wife. In the said course of action,

(2009) 10 SCC 415.

he has filed aforesaid petition vide O.P.No.636 of 1999. Thereafter,

only respondent had filed M.C.No.17 of 2001 and the complaint in the

year 2001. Therefore, the appellant cannot blame the respondent.Thus,

this appeal is liable to be dismissed.

18. In view of the above discussion, this appeal is dismissed.

Consequently, miscellaneous petitions, if any, pending in this

appeal shall stand closed.

________________________ JUSTICE K. LAKSHMAN

____________________ JUSTICE K. SUJANA Date:14.11.2023.