V Vasanta Lakshmi, Hyderabad vs V Venkateswara Rao, Hyderabad
2023 Latest Caselaw 4030 Tel

                THE HONOURABLE SRI JUSTICE K. LAKSHMAN
                                           AND
                 THE HONOURABLE SMT. JUSTICE K. SUJANA

              FAMILY COURT APPEAL Nos.248 of 2009 & 311 of 2017

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

         The lis involved in both the appeals and the parties are one and the same, both

the appeals were heard together and decided by way of this common judgment.


2.       Heard Sri Arun Kumar Lathker, learned counsel appearing on behalf of the

appellant in F.C.A.No.248 of 2009 and respondent in F.C.A.No.311 of 2017. Despite

granting opportunity, there was no representation on behalf of the appellant in

F.C.A.No.311 of 2017 and respondent in F.C.A.No.248 of 2009. Perused the record.


3.       For the sake of convenience, the parties herein are referred to as they arrayed in

F.C.A.No.248 of 2009.


Facts

:

4. The marriage of appellant-husband with the respondent-wife was performed on

19.08.2000, as per Hindu rights and customs and it is an arranged marriage. After

marriage, they lived together up to 2002 at Vidya Nagar, Hyderabad. Thereafter, the

disputes arose between them.

5. Appellant-husband filed F.C.O.P.No.957 of 2006 against the respondent-wife

seeking dissolution of marriage on the ground of cruelty and desertion contending as

follows:

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

6. After marriage, the appellant and the respondent did business up to 2002.

Thereafter, appellant continued the same and respondent was doing job at

Secunderabad. She was not in the habit of disclosing her employment and salary and

she used to say that she was earning only meager amount. She used to come to home

late in the night and develop adamant nature. Whenever appellant questioned the

same, the respondent-wife used to say that he has to bear with her and it is not

necessary to disclose her employment and earnings. Thus, she has developed

animosity towards the appellant and his family members and she used to quarrel with

family members without any cause, which subjected the appellant to mental agony.

From 2003 onwards, respondent-wife used to reside in a separate rented house bearing

No.1-9-314/A in Vidya Nagar, Hyderabad. Thus, since April 2003, she deserted the

appellant. The said fact was informed to brother-in-law of the respondent about her

behavior and separation from the appellant. Despite advice of her mother and brother,

respondent did not change her attitude. Thus, according to the appellant, respondent

subjected him to cruelty and deserted him.

7. Respondent-wife filed counter denying the said allegations. It is contended that

the appellant married her by suppressing his earlier marriage. His first wife filed

O.P.No.420 of 1998 seeking divorce and the same was allowed. To conceal the said

facts, the appellant and his relatives arranged the marriage of the appellant with the

respondent at Tirumala. Respondent was always obedient to the appellant and lead

their matrimonial life. The appellant has created scene and driven the respondent from

the house by taking two rooms separately on the ground that it is not auspicious to him

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

to stay in the old house which was opposed by the respondent. In spite of strong

opposition by the respondent, she was forcibly taken to the rented house along with

her belongings. Appellant subjected the respondent to mental agony and used to

torture her. She was unable to withstand the stress and informed his brother and

mother who are salient about the affair. Even in the month of February 2007, the

appellant attended the respondent's house and forced her to sign on blank papers on

the ground that he wanted a divorce from her and the respondent refused for the same.

Appellant abused her, get her and went away without providing even the provisions of

eating. He illegally kept her in a rented house of two rooms and failed to pay rent.

8. It is further contended by the respondent that she had filed a suit for recovery

of amount given to the appellant and also sought for injunction. She is not having any

means of income. Despite reconciliation, appellant failed to change his mind.

Therefore, he is not entitled to the relief sought by him for decree of divorce on the

ground of cruelty and desertion.

9. To prove the said grounds of cruelty and desertion, appellant examined himself

as P.W.1, his brother as P.W.2 and his family friend as P.W.3. He has filed Exs.P1 to

P3 documents. To disprove the said allegations of cruelty and desertion, respondent-

wife had examined herself as R.W.1, her paternal uncle as R.W.2 and a known person

as R.W.3. On consideration of entire evidence, both oral and documentary, the learned

Judge, Family Court, Hyderabad, dismissed the subject F.C.O.P.No.957 of 2006 vide

order dated 24.03.2009.

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

10. Feeling aggrieved and dissatisfied with the said order, the appellant-husband

preferred appeal vide F.C.A.No.248 of 2009 before this Court.

11. Respondent-wife had filed O.P.No.852 of 2012 against the appellant-husband

seeking a direction to the appellant-husband to pay an amount of Rs.10,50,000/-,

which was paid towards dowry and jewellery with the charge on the plaint schedule

property or alternatively to grant decree against the appellant for partition by directing

him to divide half of the share of the plaint schedule property by metes and bounds.

In the said O.P. she has stated that at the time of marriage her parents gave

Rs.50,000/- towards marriage expenses and spent Rs.50,000/- for marriage and gave

50 tulas of gold and 30 tulas of silver to him. The said gold was kept in the Co-

operative bank by the appellant and used to bring it at the time of festivals.

12. During the year 2001, the appellant-husband demanded the parents of the

respondent-wife to give Rs.2,00,000/- for the purpose of business. Accordingly, the

said amount was given. He conducted stationery and Xerox business. During the year

2005, respondent-wife's mother sold some land and gave money to husband.

Appellant-husband harassed her to bring money. To avoid the same, her mother paid

an amount of Rs.2,50,000/- to the husband. He harassed her both mentally and

physically, abused her, beat her many times and made her to live separately in a

secluded house. She was not used to go to functions or festivals and she was isolated.

Thus, she has no other means of income. The appellant-husband is having two flats in

Malkajgiri apart from flat in Vidyanagar. The appellant had filed O.P.No.957 of 2006

seeking dissolution of marriage and in the said O.P., she had filed I.A.No.186 of 2008

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

seeking interim maintenance. Family Court awarded an amount of Rs.3,000/- per

month towards maintenance from the date of petition and also directed the husband to

pay an amount of Rs.2,000/- every month regularly.

13. Feeling aggrieved by the said order, the husband filed C.R.P.No.4892 of 2008

and this Court dismissed the same on 07.10.2009. Therefore, she is entitled for the

aforesaid amount of Rs.10,50,000/- or alternatively partition of plaint schedule

properties.

14. To prove the same, she has examined herself as P.W.1 and her known persons

as P.Ws.2 and 3. To disprove the same, husband examined as R.W.1 and his mother as

R.W.2. Wife filed Ex.P.1 to P8 and husband filed Ex.R1 to R3 documents.

15. On consideration of the entire evidence, both oral and documentary, the learned

Judge, Additional Family Court, Hyderabad, dismissed the said O.P.No.852 of 2012,

vide order dated 08.06.2017.

16. Feeling aggrieved by the said order, wife preferred an appeal vide

F.C.A.No.311 of 2017.

17. Sri Arun Kumar Lathker, learned counsel for the appellant-husband would

contend that appellant-husband never suppressed his first marriage. The said fact was

admitted by wife during cross examination. The respondent-wife deserted the

appellant-husband on her own and staying in separate house since June 2003. Despite

producing the evidence, the Family Court dismissed the F.C.O.P without appreciating

the evidence properly. Both the appellant-husband and respondent-wife have been

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

staying separately since June 2003. Therefore, the marriage is irretrievably broken.

There are no emotions, love and affection between the parties, hence, the marriage

was not consummated. Therefore, the said aspects were not considered by the Family

Court while dismissing the F.C.O.P.No.957 of 2006.

18. Respondent-wife failed to prove the aforesaid claim of Rs.10,50,000/- as

claimed by her in F.C.O.P.No.852 of 2012. She failed to prove that the appellant-

husband is owner of flats situated at Malkajgiri and on consideration of entire

evidence, the Family Court dismissed the F.C.O.P and it is a reasoned order.

19. As discussed supra, despite giving opportunity, there was no representation on

behalf of the respondent-wife. F.C.A.No.248 of 2009 was filed in March 2009.

F.C.A.No.311 of 2017 was filed on 18.06.2017. They are statutory appeals. This

Court has to decide the said appeals basing on the material available on record.

20. There is no dispute that marriage of the appellant-husband with the respondent-

wife was performed on 19.08.2000 at Tirumala. It is an arranged marriage performed

as per the Hindu Rights and Customs.

21. Respondent-wife specifically contended that appellant-husband suppressed his

earlier marriage and O.P.No.420 of 1998 filed by his first wife seeking dissolution of

marriage and the same was allowed. Thus, there is suppression of fact by appellant-

husband. But in her cross examination, she has categorically admitted that it was her

first marriage and it is second marriage to the appellant. She was aware of the facts of

the first marriage of the appellant at the time of their marriage. Therefore, there is no

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

suppression of first marriage by the appellant. Thus, the contention of the respondent-

wife that appellant-husband suppressed the first marriage is unsustainable.

22. To prove that, the respondent-wife subjected the appellant to cruelty and she

has deserted, the respondent-wife has examined herself as R.W.1, her paternal uncle

as R.W.2 and known person as R.W.3.

23. The respondent-wife in her counter and also in the petition filed by her in

O.P.No.852 of 2012, specifically contended that the appellant-husband subjected her

to cruelty, harassed her, abused her in filthy and un-parliamentary language and beat

her many times mercilessly.

24. During her cross examination, she admitted that their marriage went on well for

six (6) months and after that at the instance of his brother's wife, the appellant-

husband used to beat her and there were petty quarrels regularly between the

respondent-wife and her co-sister. Thereafter, she used to live in her house only. She

has informed the fact that appellant beat her and her relatives including his brother and

mother many times. But there was no response from them. She has further admitted

that for the first time in the year 2001 appellant beat her and demanded for additional

dowry. Many times he beat her on face and head resulting in grievous injuries and

bleedings. He also threatened her to get admitted in Erragadda Mental Hospital, two to

three times. Due to beating of appellant there was bleeding to her ear. The appellant-

husband used to beat her in front of shop workers. He used to beat her at their

residence as well as at their business place. She further admitted that nearly 30 to 40

times appellant-husband beat her mercilessly. Whenever she talk about police

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

complaint, the appellant used to assure her that he will look after her carefully.

Therefore, she has not filed any complaint before police.

25. During cross examination, she has further admitted that, in the year 2001, when

the trouble started, the appellant convinced her to take the gold and silver belonging to

her. She used to work in marriage bureau. She is a B.Com graduate. She worked two

months in Share Broking Company at Begumpet. She used to work at Sivam Seva

Dal. Thus, according to her the appellant-husband subjected her to both physical and

mental cruelty.

26. R.W.2 is the paternal uncle of respondent-wife. In his chief examination, he

categorically stated that in December 2002, respondent-wife called him and informed

him that appellant-husband beat her. Then R.W.2 his wife, brother and his wife went

to the house of respondent-wife and they saw the wounds and they have advised the

appellant not to do it again. The same was happened three to four times. They were

threatened that a case would be filed against them by the appellant, therefore, they

kept quite. He has further deposed about appellant-husband leaving the respondent-

wife without information and without paying money etc. Thus, in his evidence he

specifically spoke about ill-treatment of respondent-wife by the appellant-husband and

demanding additional dowry.

27. R.W.3 is known person and he also spoke about the said behavior of the

husband.

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

28. The aforementioned facts would reveal that the respondent-wife started living

separately in a rented house. Thus, she deserted the appellant-husband in June 2003.

Husband proved the said fact by examining himself as P.W.1, his brother as P.W.2

and his friend as P.W.3 and also filed Ex.P3 i.e., gas bill.

29. Family Court gave a finding that cross examination itself disclosed the

contention of the appellant as it was not elicited from R.Ws.1 to 3 that they lived up to

October 2005 and separated from October 2005. In fact, the said finding of the family

Court is contrary to the record and also evidence, both oral and documentary.

30. As stated supra, respondent-wife herself and R.Ws.2 and 3 categorically

admitted about the cruelty of the appellant-husband towards respondent-wife and

respondent-wife towards appellant-husband. There was no consummation of

marriage. There was no atmosphere of co-habitation between the parties. They have

not blessed with any children out of their wedlock. They are staying separately from

June 2003 onwards. Therefore, the Family Court failed to consider the said aspects

while dismissing the O.P.No.957 of 2006. Therefore, the order dated 24.03.2009 in

F.C.O.P.No.957 of 2006 passed by the Judge, Family Court, Hyderabad, is liable to be

set aside and accordingly, set aside. F.C.A.No.248 of 2009 is allowed. O.P.No.957 of

2006 is allowed. The marriage of the appellant with respondent performed on

19.08.2000 was dissolved.

31. As discussed supra the respondent-wife filed O.P.No.852 of 2012 claiming an

amount of Rs.10,50,000/- or alternatively partition of plaint schedule properties. To

prove the same, she examined herself as P.W.1. and third parties/known persons as

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

P.Ws.2 and 3. Whereas, the husband examined himself as R.W.1 and his mother as

R.W.2. On consideration of the entire evidence, the Additional Family Court,

Hyderabad, gave a specific finding that wife is not entitled for decree of payment of

Rs.10,50,000/-. Family Court also gave a finding that respondent-wife failed to prove

that the properties are in the name of husband.

32. In Sai Prasad Moorthygari vs. Ram Kumari 1 a Division Bench of this Court

observed that the matrimonial matters are matters of delicate human and emotional

relationship - it demands mutual trust, regard, respect, love and affection with

sufficient play for reasonable adjustments with spouse. On examination of facts

therein, it was observed that since the marriage between the parties is emotionally

dead, totally unworkable, beyond salvage and has broken irretrievable, it is

appropriate to dissolve marriage between the parties by granting decree of divorce.

33. In Ramya alias Rashmi vs. Raghunanda 2 a Division Bench of Karnataka High

Court on examination of the facts held that wife therein did not perform her

matrimonial duties and threatened him of committing suicide and the same amounts to

cruelty. Therefore, marriage between the parties has to be dissolved.

34. In Rakesh Raman vs. Kavitha 3 , the Hon'ble Apex Court held that long

separation, absence of cohabitation and complete breakdown of all meaningful bonds,

continuation of such a 'marriage' would only mean giving sanction to cruelty which is

2023(1) CCC 141 (Tel)

AIR 2023 KARNATAKA 172

2023 (3) ALD 86 SC

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

inflicting to each other. Such irretrievably broken down marriage can be dissolved on

ground of 'cruelty'.

35. In P. Simhachalam vs. Yasoda 4 , a Division Bench of Calcutta High Court

observed that mental cruelty means inflicting mental torture on the spouse by another

by his/her words and conduct. The torture must be such so as to cause such grave

mental hurt/injury to the complaining spouse as would make it impossible for him/her

to continue to have a matrimonial relationship with the other spouse. A feeling of

anquish, agony, disappointment and/or frustration caused in the mind of one spouse by

the conduct of the other is normally what prompts the former to allege mental cruelty.

To that extent, it is a state of mind and therefore subjective. If it appears to a

reasonable man of ordinary prudence that the conduct of one of the partners is such

that the other partner cannot be expected to live or continue matrimonial relationship

with him/her, mental cruelty can be said to have been established.

36. In the light of the aforesaid principles and observations/findings, coming to the

facts of the case on hand, as discussed supra, it is the specific case of both appellant-

husband and the respondent-wife that the wife subjected the husband to mental cruelty

and deserted him. It is the case of the respondent-wife that appellant-husband has

harassed, abused in filthy and un-parliamentary language and beat her many times

mercilessly. They are staying separately since June 2003. The respondent-wife had

already filed F.C.O.P.No.852 of 2012 against the appellant-husband to pay an amount

of Rs.10,50,000/- or alternatively to pay the amount which was paid to him towards

AIR 2021 CALCUTTA 284

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

dowry, additional dowry i.e., gold, cash etc., or partition of the plaint schedule

properties.

37. The said facts would reveal that respondent-wife is not interested to continue

the marital relationship with the appellant-husband. It is the second marriage to the

appellant-husband and it is first marriage to the respondent-wife. Respondent-wife

alleged that the appellant-husband used to suspect her fidelity.

38. In the light of the aforesaid discussion, we are of the considered view that the

marriage between the appellant-husband and the respondent-wife is irretrievably

broken and they are entitled for decree of divorce. Therefore, F.C.A.No.248 of 2009

is allowed and the marriage of the appellant-husband with respondent-wife dated

19.08.2000 is dissolved. However, as rightly held by the Additional Family Court,

Hyderabad, respondent-wife failed to prove that she is entitled for the said amount of

Rs.10,50,000/- from the appellant-husband and also the appellant-husband is the

owner of the plaint schedule properties.

39. Learned Family Court, Hyderabad, gave specific findings in the order dated

08.06.2017 in F.C.O.P.No.852 of 2012 and it is a reasoned order and well founded.

Therefore, F.C.A.No.311 of 2017 does not require interference of this Court.

Therefore, F.C.A.No.311 of 2017 is liable to be dismissed and accordingly dismissed.

40. Respondent-wife was aged about 34 years at the time of her marriage. She lost

her conjugal life. She has no means of income to survive herself. Therefore, she has

filed I.A.No.186 of 2008 in O.P.No.957 of 2006 seeking interim maintenance and the

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

Family Court vide order dated 18.07.2008 directed the appellant-husband to pay an

amount of Rs.3,000/- per month towards maintenance from the date of petition till

realization and also to pay Rs.2,000/- every month towards rent. Feeling aggrieved by

the said order, the appellant-husband filed C.R.P.No.4892 of 2008 and this Court

dismissed the same vide order dated 07.10.2009.

41. In the light of the aforesaid discussion, according to us respondent-wife is

entitled for permanent alimony of Rs.2,00,000/- from the appellant-husband.

Therefore, the appellant-husband shall pay the said amount of Rs.2,00,000/- to the

respondent-wife within one (01) month from the date of receipt of a copy of this order

by way of depositing the same in the account of rerspondent-wife.

42. Accordingly, F.C.A.No.248 of 2009 is allowed dissolving the marriage of the

appellant with the respondent dated 19.08.2000 and granting an amount of

Rs.2,00,000/- to the respondent-wife towards permanent alimony.

43. However, F.C.A.No.311 of 2011 is dismissed. There shall be no order as to

costs.

As a sequel, the miscellaneous petitions, if any, pending in the Family Court

Appeal shall stand closed.

_________________ K. LAKSHMAN, J

_____________ K. SUJANA, J Date: 15.11.2023 SAI

KL,J & SKS,J F.C.A.Nos.248 of 2009 &311 of 2017

THE HONOURABLE SRI JUSTICE K. LAKSHMAN AND THE HONOURABLE SMT. JUSTICE K. SUJANA

FAMILY COURT APPEAL Nos.248 of 2009 & 311 of 2017 (as per Hon'ble Sri Justice K. Lakshman)

Date: 15.11.2023

SAI