Venigandla Rajayalakshmi, R.R. ... vs Venigandla Venkata ...
2023 Latest Caselaw 4079 Tel

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


              FAMILY COURT APPEAL NO.189 OF 2011


JUDGMENT: (per Hon'ble Smt Justice K.Sujana)


      This appeal is preferred by the appellant against order dated

22.03.2011 made in O.P.No.53 of 2009 on the file of the Family Court,

at Secunderabad, whereunder, the learned Judge dissolved the

marriage of appellant and respondent. The appellant is wife and the

respondent is husband. The husband filed O.P.No.53 of 2009 for

dissolution of marriage under Section 13(1) (ia) and (ib) of Hindu

Marriage Act, 1955 (for short 'Act, 1955') on the grounds of cruelty and

desertion. Challenging the impugned order, the wife who is respondent

in O.P., filed the present appeal.

2. The brief facts of the case as per the said O.P., are that the

appellant and respondent got married on 27.04.1990 at Ponnur as per

the Hindu rites and customs. On 03.09.1993 they were blessed with a

male child. In the year 1996 appellant left to her parents' house during

her fifth month pregnancy and later they were blessed with the second

male child. The appellant and her parents taking advantage of the

prior relationship with the respondent started abusing the respondent

and caused mental agony to him. Even then, the respondent, with all KL,J & SKS,J FCA.No.189 of 2011

patience bore things but the appellant left the house in the year 2000.

After the intervention of elders, the appellant joined the respondent in

the year 2004. In the year 2004 the parents of respondent died. Later,

the appellant left respondent in March 2006 and filed criminal case

against him in C.C.No.123 of 2006 under Sections 323, 509 and 506 of

Indian Penal Code (for short 'IPC'). On 25.04.2006 the respondent gave

notice to appellant.

3. On behalf of appellant/respondent therein, counter was filed

denying the material allegations. She contended that they lived

together happily for ten years and after that her husband got addicted

to bad vices and was irresponsible towards the family. In spite of

counseling by the elders, the respondent did not change his behavior.

She alleged that respondent developed illicit intimacy with one

Nagamani, neglecting the family. He also tried to take away her life

with children by putting gas stove on leakage and threatening to pour

kerosene and lit the fire. She was rescued with the help of relatives.

Even then the respondent continued to harass appellant and necked

her out along with children on 21.01.2007. Thereafter, she filed Pre

Litigation Case No.15 of 2007 and DVC No.3 of 2007 with a hope of

conciliation but the respondent did not turn up and the same was

closed.

KL,J & SKS,J FCA.No.189 of 2011

4. To prove the case, the husband himself got examined as PW.1

and PW.2 was examined and Exs.A1 to A5 were marked. On behalf of

wife, she herself got examined as RW.1 and RW.2 was examined and

Exs.B1 to B3 were marked.

5. Basing on the evidence on record and considering the

documents, the Family Court dissolved the marriage of appellant and

respondent.

6. Heard Sri B.Madhusudan Rao, learned counsel representing Sri

N.Ravi Prasad, learned counsel for appellant/wife. Despite of service of

notice, there is no representation on behalf of respondent/husband.

7. Learned counsel appearing for appellant submitted that the

Family Court has not considered the evidence on record in proper

perspective and has failed to appreciate that there were some

differences between the parties after the year 2000 and that the

appellant was driven out of the house for some time and at the

intervention of the elders she again joined respondent.

8. Learned counsel for appellant further submitted that the Family

Court has failed to appreciate that the respondent admitted in his

cross examination that appellant used to insist him to work for the

welfare of the family as a dutiful husband, and the same does not KL,J & SKS,J FCA.No.189 of 2011

amount to cruelty. No grounds for cruelty were proved by respondent.

He contended that the desertion was not at the instance of appellant

as she was driven out of the house by respondent and thereby, she

was forced to reside with her parents and there is ample evidence that

the children were studying in Ponnur till 2007 and only after 2007 the

appellant, along with her children, left the house of respondent and

went to the house of her parents as she had no other option left.

Therefore, prayed this Court to set aside the impugned order dated

22.03.2011.

9. Having regard to the submissions made, it is noted that there is

no dispute with regard to the marriage between parties and admittedly,

both the parties are relatives. In O.P.No.53 of 2009 the husband

himself got examined as PW.1 and PW.2 who is his relative was

examined and Exs.A1 to A5 were marked. On behalf of wife, she herself

got examined as RW.1 and her father was examined as RW.2 and

Exs.B1 to B3 were marked. As the husband filed petition on the

ground of cruelty and desertion, he has to prove the cruelty and

desertion.

10. It is an admitted fact that the wife filed criminal case against

husband in C.C.No.123 of 2006 under Sections 323, 509 and 506 of

IPC and the same ended in acquittal. She also filed dowry harassment

case vide C.C.No.28 of 2007 which also ended in acquittal. She also KL,J & SKS,J FCA.No.189 of 2011

filed DVC No.3 of 2007 whereunder, maintenance was granted to her.

She also filed O.S.No.213 of 2006 seeking partition and possession of

the family properties of the husband and mesne profits relying upon

an unregistered will. The said suit was partly decreed awarding

maintenance of Rs.12,000/- per annum to the wife and Rs.30,000/-

per annum to the children till their majority and creating charge over

item No.1 and 4 of 'A' schedule property while dismissing the rest of

the claim.

11. The appellant filed this appeal contending that the Family Court

has not considered the evidence on record and has hastily decided that

there is cruelty by wife and that she herself deserted the husband, but

she intended to continue the marital life with her husband, whereas,

the evidence on record shows that she filed criminal case against her

husband in the year 2006, filed DVC in the year 2007 and also filed a

civil suit in the year 2006.

12. The contention of respondent is that from the year 2006 his wife

is not residing with him and she resided with her parents.

13. At this stage, it is important to note that appellant filed several

cases against respondent and this itself shows that she was not

residing with her husband from the year 2006 as filing of such cases

is not possible while residing with her husband. Though the appellant KL,J & SKS,J FCA.No.189 of 2011

claimed to be interested to continue her marital life with respondent,

no petition was filed by her under Section 9 of the Hindu Marriage Act,

1955, for restitution of conjugal rights. Instead, she filed cases against

her husband seeking maintenance and alleging harassment. Further,

she also filed a suit for partition basing upon a will deed executed by

her father in law.

14. Though appellant alleged that the respondent has developed

illicit intimacy with one Nagamani, the said allegation is unfounded as

no evidence is adduced or material is placed on record to prove the

same. Furthermore, though appellant filed case against respondent

under Sections 323, 509 and 506 of IPC, the same ended in acquittal

of respondent.

15. According to appellant, her husband got addicted to bad vices

after the death of his parents and thereafter, she left him and resided

separately. Later, she stated that due to the intervention of elders, she

joined her husband in the year 2000, whereas, the parents of

respondent died in the year 2004. Therefore, it is clearly seen that her

allegation is contradictory to her own statement. Further, the appellant

also alleged that her husband used to collect the lease amount of land

owned by her parents, but during the cross examination of RW.1 and

RW.2, both admitted that the said land was in their possession since

the year 2007 and they are taking the lease amounts.

KL,J & SKS,J FCA.No.189 of 2011

16. Admittedly, both the appellant and respondent are living

separately from the year 2006. Further, the appellant filed criminal

case against respondent in the year 2006, filed DVC in the year 2007

and also filed a civil suit in the year 2006, which clearly shows that

she never tried to reconcile the relationship.

17. In view of the above discussion, this Court is of the opinion that

the Family Court has rightly dissolved the marriage between the

appellant and respondent, and there are no grounds made out by the

appellant to set aside the order of the Family Court in O.P.No.53 of

2009 and there is no need to interfere with the impugned order dated

22.03.2011. Therefore, this Court is of the opinion that there are no

merits in the appeal and the same is liable to be dismissed.

Accordingly, the appeal is dismissed. There shall be no order as to the

costs.

As a sequel, the miscellaneous petitions, if any, pending in this

appeal shall stand closed.

____________________ K. LAKSHMAN, J

__________________ K.SUJANA, J

Date : 17.11.2023 PT KL,J & SKS,J FCA.No.189 of 2011

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

P.D. JUDGMENT IN FAMILY COURT APPEAL No.189 OF 2011

(Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana)

Date: 17.11.2023

PT