Telangana High Court

M.Ravi Kumr vs Smt.M.Kamala on 23 November, 2023

Author: K.Lakshman

Bench: K.Lakshman

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

        FAMILY COURT APPEAL No.299 OF 2011

JUDGMENT:

(Per the Honourable Sri Justice K.Lakshman)

Heard Sri P. Bhaskar, learned counsel for the appellant

and Ms.Sowmya learned counsel representing

Mr.Venkateshwarlu Senisetty, learned counsel for the

respondent.

02. Feeling aggrieved and dissatisfied with the Order

dated 02.02.2010 in F.C.O.P.No.1086 of 2007 passed by the

learned Judge, Family Court, Hyderabad, appellant-husband

preferred the present appeal.

03. The brief facts of the case are as under:

The appellant-husband filed the aforesaid

F.C.O.P.No.1086 of 2007 under Section 13 of the Hindu

Marriage Act, seeking dissolution of his marriage dated

02.08.1998 with the respondent-wife on the ground of cruelty

and desertion with the following contentions:

i. The marriage of the appellant with the respondent was

solemnized on 02.08.1998 as per Hindu custom and

rites.

ii. It is an arranged marriage.

iii. She went to the matrimonial house after marriage.

iv. After three months, the respondent started to force the

appellant to live separately from his parents.

v. She also harassed him stating that he is getting less

salary. She started picking up quarrels over small

things.

vi. She used to leave to her parents house without

intimation to him.

vii. He used to go to restaurant everyday for food as she did

not know cooking.

viii. She ill-treated his parents. She did not care his relatives

when they visit his home and she is not hospitable with

them.

ix. Due to her force, he gave up his employment at

Hyderabad and secured job in Bangalore in November,

2000 and she joined with him at Bangalore in

November, 2001.

x. In October, 2001, she left home with her parents at

Bangalore without intimation.

xi. When he contacted her on phone, she refused to come

back.

xii. Then he again came back to Hyderabad in April, 2002

and secured employment for her sake.

xiii. In September, 2002, on confirmation of her pregnancy,

she went to her parents house and gave birth to a baby

girl by name 'Vaishnav' on 30.04.2003 and in spite of

his repeated requests, she did not come back.

xiv. They did not allow even to see his daughter.

xv. He tried to settle disputes before the Legal Services

Authority seeking decree of divorce, but she did not give

consent.

xvi. He is earning only Rs.5,000/- per month and she is

earning Rs.10,000/- per month.

04. The respondent-wife filed counter admitting

marriage and birth of the baby girl, however, denying the

allegations levelled against her, contended as follows:

i. An amount of Rs.55,000/- cash, gold, silver and other

offerings worth Rs.50,000/- were given in advance on

02.08.1998 to the parents of the appellant towards

dowry etc.

ii. After marriage, the appellant started coming late to

home in the nights. He used to abuse her in filthy

language and beat her commenting on the food

prepared by her.

iii. Since the appellant is getting meager salary, her parents

took them to their house and allotted a separate room

for them and borne all expenses.

iv. Unable to bear the mental and physical harassment in

the hands of the appellant, she went to their parents

house.

v. She never ill-treated the family members of the

appellant.

vi. Once he tried to hit her with wooden plank, but she

escaped from danger. With ulterior motive, he hit hard

on his head and behaved madly for which she admitted

him in hospital and her parents paid the hospital bill.

vii. Unable to bear the harassment in the hands of

appellant, she went to Madanapally where appellants'

parents are residing and she worked as a teacher for

some period there.

viii. Later appellants' parents necked her out.

ix. Then in the conciliation, on agreeing by the appellant to

change his behavior before elders, she again joined with

him at Ramanthapur, Hyderabad. There also, the

appellant harassed her.

x. While staying at Ramanthapur, Hyderabad, she became

a pregnant. With the consent of the appellant itself, she

came to her parents house for delivery.

xi. The appellant and his parents did not attend cradle

ceremony of the baby girl.

xii. In spite of her efforts to join the appellant, he did not

mend his behavior.

xiii. The appellant neglected the respondent and did not

maintain her and her child.

05. To prove the said contentions and cruelty,

appellant-husband has examined himself as PW1 and his

friend as PW2 and marked Exs.P1 and P2 wedding card and

marriage photo. Whereas, respondent-wife has examined

herself as RW1 and also examined RWs2 to 7 (evidence of

RWs6 and 7 eschewed) and marked Exs.R1 to R20.

06. On consideration of evidence both oral and

documentary, vide impugned Order dated 02.02.2010,

learned Judge, Family Court, Hyderabad, dismissed FCOP

holding that the appellant failed to establish grounds of either

cruelty or desertion. In order to establish the desertion, the

appellant has to establish the animus deserendi on the part of

his wife, simply staying separately by one of the spouses does

not amount desertion. When the respondent-wife is very

much interested to join the appellant, and when they blessed

with a kid, the appellant is not entitled for divorce.

07. Feeling aggrieved and dissatisfied with the said

Order, appellant-husband preferred the present appeal on the

following grounds:

i. The Family Court ought to have seen that admittedly,

the respondent left his house without intimating him

which amounts to desertion.

ii. The evidence of R.Ws.3 to 5 is not reliable that they

have clearly admitted that they were not present in the

Court when their chief affidavit was filed.

iii. The evidence of P.W.2 clearly indicates the attitude of

the respondent towards the appellant which amounts to

cruelty.

iv. The Family Court failed to see that the harassment by

the respondent amounts to cruelty.

v. The Family Court failed to see that the respondent filed

false cases against him with regard to dowry etc.

vi. The Family Court without considering the evidence both

oral and documentary on proper perspective that the

marriage between the parties is irretrievable break

down, dismissed the petition filed by the Appellant

seeking dissolution of marriage.

08. Whereas the learned counsel for the respondent

would contend that the learned Family Court on

consideration of entire evidence both oral and documentary,

dismissed the said FCOP by giving specific reasons. Learned

Family Court held that the appellant-husband failed to prove

both the grounds of cruelty and desertion. It is a reasoned

order. There is no error in it.

09. Aforesaid facts would reveal that the marriage of

the petitioner and respondent was performed on 02.08.1998

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

They blessed with female child by name Vaishnavi on

30.04.2003. Matrimonial disputes arose between the

appellant and respondent. According to appellant,

respondent subjected him to cruelty and deserted him. He

has narrated the said cruel acts as stated supra. Therefore,

he filed F.C.O.P.No.1086 of 2007 under Section 13 of the

Hindu Marriage Act, seeking dissolution of his marriage dated

02.08.1998 with the respondent-wife on the ground of cruelty

and desertion and vide impugned Order dated 02.02.2010,

learned Judge, Family Court, Hyderabad, dismissed the said

FCOP.

10. It is relevant to note that before filing of said

F.C.O.P.No.1086 of 2007, he has approached the City Civil

Court Legal Services Authority, Hyderabad by way of filing

Pre-Litigation Case vide P.L.C.No.37 of 2007. The Secretary,

City Civil Court Legal Services Authority, Hyderabad

conducted conciliation proceedings and efforts were made to

settle the disputes amicably between the parties. However,

the appellant requested for grant of divorce and respondent

refused for the same. She was not interested for obtaining

divorce. She wants to lead marital life with the appellant.

Since the parties have not agreed for mutual consent, the

Secretary, City Civil Court Legal Services Authority,

Hyderabad closed P.L.C.No.37 of 2007 vide Order dated

18.06.2007 advising the appellant to approach the Court of

Law for reddressal of his grievance, if any. Thereafter, he has

filed the aforesaid F.C.O.P.No.1086 of 2007.

11. As discussed supra, to prove the said cruelty and

desertion, the appellant was examined himself as PW1 and he

has examined his Intermediate classmate K.Madhusudhan as

PW2 and got marked Ex.P1 Wedding Card and Ex.P2

Marriage photo. Whereas respondent had examined herself

as RW1, her father as RW2 and her friends as RW3 to RW5.

The evidence of RW6 and RW7 was eschewed.

12. It is apt to note that during the cross-examination

the appellant (PW1) categorically admitted as follows:

"It is true that respondent brought the unruly behavior of the petitioner to the notice of his parents. It is true that as per the proposal of my brother, Respondent's father allowed us to stay in his house. I never suspected the Respondent's character. I never had any doubt when the Respondent was talking to Respondent's sister's husband Subramanyam. It is true to suggest that the behavior of Respondent used to change at the instance of her parents and Mr. Subramanyam. It is true that I have been counselled by one Mr. Taraknath who was the Gern. Secretary of All India Bank Employees Association. It is true that he had stated to mend my ways and ask us to live happily together. We stayed at Respondent's parents house for about 14 months, thereafter we shifted to S.R.Nagar. I took a rented house for Rs.1,000/- after 8 months of my stay at Bangalore and the Respondent joined me there. The Respondent was not doing any job before I left for Bangalore. It is true that my parents never complained against Respondent for ill-treating either to them or to kith and kin of the Petitioner. My parents and other elders always used to tell me to behave properly with the Respondent and live happily, since the Respondent had complained

against me to my parents they used to advise me to adjust with the Respondent and live together. It is true that I was admitted in Ramaiah Hospital. It is true that my brother Sri Balaji said to Respondent that why I was admitted in such an expensive hospital. I know Respondent stayed at my parents' house, she stayed there about 40 days. It is true that during her stay at my parents' house the Respondent worked as Teacher in Aarogya Maatha High School. It is true that one R.Sriramulu who is the father-in-law of Petitioner's elder sister conducted counselling. It is also true that there are about 8 members present at the count counseling including my parents. They counseled both of us to lead a happy and peaceful life. Respondent assured to come to Bangalore, after collecting clothes which were at Hyderabad. Thereafter, we stayed at Ramanthapur for 2 months again we have shifted in same area to some other house and stayed there for 3 months. It is true that during this period the Respondent had conceived. With my consent the Respondent stayed with her parents place till the third month of her post delivery. Srimantham celebrations were performed by the Respondent by misleading that the said function was to take place in the evening and instead they performed it in the afternoon. It is not true to suggest that I came in a

drunken state had used all filthy language against the Respondent and her parents, and that as noise was so loud the house owner and his wife came upstairs and made me calm down by pouring water on me. And this behaviour was informed and brought to the notice of R.Sriramulu who earlier settled the dispute. I do not know whether said Sriamulu has replied to the letter addressed by Respondent's parents. I do not know whether he has advised them to Book Complaint under Sec 498-A or not. It is true that the Respondent was blessed with a female child on 30-04-2003 and named as Vaishnavi. I attended the cradle ceremony but my parents have not attended the function. It is true that the Respondent and her parents shifted to her sister's house at Safilguda and that I never looked after her. It is true that the School expenditure as well as the Hospital expenditure was borne by the Respondent. It is true that we had several times reconciled. During reconciliation they used to advise me to adjust with the Respondent and one Smt.Padmavathi also tried to reconcile us and it was concluded with no results. Subsequently, I have filed before Lok Adalat for divorce and they addressed us to file before the Family Court. I will not accept Respondent if she comes back, but Respondent wants to live with the Petitioner."

13. PW2 is the Intermediate classmate of the

appellant, in paragraph No.5 of his chief affidavit stated as

follows:

"I submit that when I came to Hyderabad in the month of April, 2004 1 telephoned the petitioner and petitioner came to me and took me out for lunch at a hotel and while having lunch he informed me that his wife deserted him and is refusing to join him. He also informed me that she is refusing to come and stay with him and instead is demanding him to come and stay with her at her parents' house."

14. During the course of cross-examination, he

admitted that the appellant is his classmate in Intermediate.

He has admitted about complaint lodged by respondent. He

further admitted that the appellant informed him that the

respondent is demanding him to stay at her parents' house.

Whatever stated in paragraph No.5 of his chief affidavit is

correct.

15. Aforesaid admissions and depositions of the

witnesses would reveal that on returning from Bangalore they

stayed in Ramanthapur and while their stay at Ramanthapur

the respondent gave birth to a baby girl on 30.04.2003 and

she stayed with the parents of the appellant. During her stay

at the house of parents' of appellant, she worked in

Arogyamatha English Medium School, Madanapally, which is

evident from Ex.R10-service certificate. She has also worked

as Temporary Teacher in Maths and Science at Bharathiya

Vidya Bhavan, Sanikpuri Kendra, Secunderabad, which is

also evident from Ex.R1-Appointment order. Ex.R6-Letter

addressed by Sree Ramulu dated 29.05.2003 to

Suryanarayana i.e., father of respondent. Ex.R7-Letter dated

20.05.2003 addressed by appellant to Sri Ramulu. Ex.R9-

Letter dated 19.12.2003 would reveal the efforts made by the

respondent to join with appellant. Even during the pendency

of the proceedings in FCOP before the Family Court, she

expressed her willingness and readiness to join the company

of the appellant.

16. Aforesaid admissions by appellant (PW1) with

regard to stay at Ramanthapur, Bangalore and blessing with

a baby girl child and appellant attending Srimantham

ceremony etc., would reveal that the respondent never

harassed the appellant and never subjected him to cruelty

and never deserted him, as alleged by him.

17. It is apt to refer one suggestion given by the

respondent to the appellant during the course of cross-

examination, which is extracted below:

"It is not true to suggest that I came in a drunken state had used all filthy language against the Respondent and her parents, and that as noise was so loud the house owner and his wife came upstairs and made me calm down by pouring water on me. And this behaviour was informed and brought to the notice of R.Sriramulu who earlier settled the dispute."

18. The above incident occurred during Srimantham

celebrations of respondent. Thus appellant failed to prove

both the grounds of cruelty and desertion by producing

cogent and relevant evidence before the learned Family Court.

On consideration of evidence both oral and documentary, vide

impugned Order dated 02.02.2010, learned Judge, Family

Court, Hyderabad, dismissed FCOP No.1086 of 2007. It is a

reasoned order and well founded.

19. It is also apt to note that the burden lies on the

appellant to prove both the grounds of cruelty and desertion

alleged by him against the respondent by producing relevant

evidence before the learned Family Court. The appellant

herein failed to prove the same.

20. The Honourable Supreme Court in A.Jayachandra

v. Aneel Kaur 1 observed as under:

"The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like

AIR 2005 SC 534

matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes."

21. The Honourable Supreme Court in Vinita Saxena

v. Pankaj Pandit 2 observed as under:

It is settled by catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is

AIR 2006 SC 1662

contemplated in the Section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.

The word 'cruelty' has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

22. As discussed supra, according to the appellant,

respondent resorted to the aforesaid cruel acts. In fact, the

said cruel acts stated by the appellant are contrary to the

record and appellant's admissions during the course of cross-

examination. Therefore, the appellant utterly failed to prove

both the grounds of cruelty as well as desertion by producing

cogent evidence. On considering the above aspects, the

learned Family Court, Hyderabad vide impugned Order dated

02.02.2010, dismissed FCOP No.1086 of 2007. It is a

reasoned order and well founded. It does not require

interference of this Court and this Family Court Appeal is

liable to be dismissed.