V. Srinivas vs Smt. Aparna Aluru
2023 Latest Caselaw 3433 Tel

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

                         F.C.A.No.317 OF 2009
ORDER: (Per Hon'ble Sri Justice K. Lakshman)

      Heard Sri Raj Kumar Rudra, learned counsel representing Sri

C.V.L.Narasimha Rao, learned counsel for the appellant and none

appears for the respondent.

2. Feeling aggrieved and dissatisfied with the order and decree

dated 24.09.2009 in F.C.O.P.No.45 of 2008 passed by the learned the

Judge, Family Court, Secunderabad, appellant-husband preferred the

present appeal.

3. The marriage of appellant-.husband with the respondent-wife

was performed on 04.02.2001 at Bowenpally, Secunderabad as per

Hindu rites and customs. It is an arranged marriage. After the

marriage, they left to USA and they blessed with a male child on

04.09.2007. Thereafter disputes arose between them. According to

the appellant, he had filed an application at USA seeking divorce

under Ex.A5. He has also filed another application on 27.02.2007

under Ex.A6 seeking divorce at USA. According to him, respondent

subjected him to cruelty and therefore, he has filed FCOP.No.45 of

2008 contending as follows:-

(i) Since date of marriage, the respondent and her mother

started unusual and silly attitude towards small and trivial

things.

(ii) The mother of the respondent tried to overhear private

conversation between appellant and respondent prior to

marriage.

(iii) They left to USA. There also, respondent used to pass

insulting comments on the appellant. She was using abusive

language with the appellant.

(iv) The respondent came to India for four times during

the period of seven years of her marital life and she hardly

stayed for few days in her in-laws house and she used to

send her luggage to her parent's house directly from the

airport. Thus, respondent is cruel and sadistic which caused

the appellant mental agony and humiliation. Therefore, he

has filed two applications in USA seeking divorce.

4. The respondent filed counter denying the said allegations.

However, she has admitted that during seven years of marital life there

were trivial issues with normal wear and tear, but never turned into

argument. She never used any abusive language against the appellant.

The mother of the appellant used to plead her to change the attitude of

the appellant so that he would interact with them but the appellant

used to say that his mother is a 'gayyali' and his father was egoistic.

The parents of the appellant stated that astrologers suggested

separation for them and second marriage for the appellant after seven

years of marital life. After seven years of marriage, the marriage was

never consummated, as the appellant could not consummate the

marriage, he started avoiding the respondent to compensate and he

used to take her for shopping malls, movies and restaurants. The

respondent realized the deficiency.

5. In a medical checkup, it was found that appellant had a good

sperm count, but suffered with 'erectile dysfunction'. The doctors

advised a change in his lifestyle. The respondent cooperated with the

lifestyle of the appellant and she never raised issue of physical

relationship with him. They were happy together and he was a loving

and caring husband. However, they blessed with a male child on

04.09.2007. Appellant came to India and she was not in a position to

stay alone, she also came to Hyderabad. On receipt of notice in the

present O.P from learned Family Court, she approached the appellant

and pleaded to join her company. There is no change in the attitude of

the appellant. Though, they had no physical relationship, they never

felt any problem. The appellant also reciprocated and he spent most

of his time with her and treated her like a kid. They were happy

together inspite of being no sexual life. The appellant was very

affectionate to the child and also used to say that she was spark in his

life and it is difficult for him to stay without her. The respondent

continues to have same love and affection towards the appellant. She

is ready and willing to forget the past and thereby, she filed counter

claim seeking restitution of conjugal rights.

6. To prove the ground of cruelty, appellant herein had examined

himself as PW.1 and filed Ex.A1 to Ex.A7. The respondent examined

herself as RW.1 and filed Ex.B1 to Ex.B44.

7. On consideration of the entire evidence, both oral and

documentary, vide impugned order dated 24.09.2009, learned Family

Court dismissed the said F.C.O.P.No.45 of 2008 and allowed the

counter claim filed by respondent and directed the appellant to join

with the respondent.

8. Attacking the said judgment, learned counsel for the appellant

would submit that learned Family Court failed to appreciate the

evidence both oral and documentary. Learned Family Court failed to

consider the admissions made by respondent during

cross-examination. Respondent has made the life of the appellant

miserable with which he chosen to file divorce petition in USA twice.

He has paid maintenance. Learned Family Court failed to appreciate

that respondent and her family members used to say that the appellant

is impotent and with the constant pressure by them and also the

respondent's promise that she will change her attitude, the appellant

accepted for having children through artificial insemination. Learned

Family Court failed to appreciate the admission made by respondent

during cross-examination that even without the physical relationship,

she felt the biological need in her marriage life. There is no love and

affection exists between the parties. The marriage of the appellant

with the respondent was irretrievably broken and there is no scope for

them to live together. On 01.11.2009, respondent and her family

members went to the house of the appellant's brother where the

appellant is temporarily staying and created big mess, assaulted the

appellant, his parents and wife of his brother. She has filed a

complaint for the offences punishable under Sections 498-A and 323

of IPC.

9. Vide impugned judgment dated 21.05.2015, learned Magistrate

acquitted the appellant and his parents vide C.C.No.911 of 2014.

Thus, he was subjected to mental cruelty by the respondent.

10. In compliance with the order dated 02.08.2023, learned counsel

for the appellant had filed proof of service vide USR No.80478 of

2023 dated 21.08.2023 along with postal cover returned un-served

with an endorsement "No such addressee" and email sent by

respondent dated 10.08.2023. Respondent has narrated the entire facts.

She is in USA and hold a job for herself and her sons's survival. Her

income is the only source for their food, clothing, shelter and her son's

schooling and other expenses for his upbringing. She has no other

source of income to fulfill her needs especially her growing son's

needs. She need to plan 1-2 years ahead for trip to India to afford to

buy tickets, 6-8 months prior to take permission from her office. Her

son is a 10th grader and school is reopening next week for the new

academic year. She will not get permission to excuse her son from the

school during his ongoing school tenure, or else he loses his

admission. Her husband Srinivas Vadde knows all these constraints

as her husband lived there in US before moving to India and they

worked in the same company so should be aware of the rules.

11. She further stated that her husband is in touch with her son and

they talk very often as per their convenience. He knows how their

son's schooling and schedule is and how hard their son is putting

efforts to get good score. She requested learned counsel for the

appellant, if possible, please ask her husband to give her a clarity on

this. She don't want to give divorce to her husband. She need him.

He needs her and their son needs both of them, his parents together.

12. It is opt to note that learned counsel for the appellant had filed

23 pages of written arguments. The aforesaid facts would reveal that

there are disputes between appellant and respondent with regard to

consummation of their marriage. However, they blessed with a male

child on 04.09.2007. At present, respondent and her son is in USA.

Boy is 16 years old and prosecuting his 10th grade.

13. As discussed supra, to prove cruelty, appellant himself

examined as P.W1 and he has not examined any other witness. He is

mainly relying on Ex.A3-Medical Certificate relating to him,

Ex.A4-Report issued by Mercy Rogers Clinic for women, Ex.A5-

Divorce petition and Ex.A6-Divorce petition. Whereas, respondent

filed Ex.B1 to Ex.B44 documents. On consideration of the said

evidence both oral and documentary, learned Family Court mentioned

important events during seven years of marital life between appellant

and respondent and the same are as follows:-

            (a)    The appellant married the respondent on

      04.02.2001 as per Hindu rites and customs.

            (b)    They both left for USA on 10.02.2001.




      (c)    In the month of May, 2002 the respondent came

to India to attend Sastipurthi function of father of the

appellant.

(d) The appellant came to India in the month of

June 2005 the respondent came to India to see her father

who has undergone bypass surgery.

(e) In November 2005 the respondent came to

India to attend the marriage of her sister and brother of the

appellant.

      (f)    On 15.3.2006 the appellant filed divorce

petition at USA which is marked as Ex.A5.

      (g)    On 27.02.2007 the appellant filed another

divorce petition at USA under Ex.A6.

      (h)    In the month of May, 2007 the respondent came

to India for Sreemantam at her in-laws house.

      (i)    On 04.09.2007 they blessed with a male child.

      (j)    After delivery of the respondent the parents of

both parties went to USA to assist the respondent.

(k) The parents of the appellant went back to India

within one month.

(l) The appellant came to India on 05.01.2008 on

receiving phone call that his parents are unwell.

(m) The respondent called him three or four times

informing ill heath of the child in the month of January,

2008 after he came to India.

(n) The appellant filed the present petition on

21.04.2008.

      (o)     On 30.01.2008 he went back to USA.

      (p)     On 30.04.2008 he returned to India but not

informed about filing of present petition.

      (q)     The appellant purchased a house and executed

a gift deed in favour of his brother during pendency of this

proceedings on 22.11.208 under Ex.B44 relevant

encumbrance certificate to show the same.

(r) The appellant made a complaint to U.S.

Consulate about US Citizenship application filed by the

respondent stating that he has not applied US Citizenship

for his wife during pendency of this proceedings.

(s) On 25.06.2008 the respondent applied for US

Citizenship and obtained in the month of October, 2008.

14. The learned Family Court gave a finding that problems between

appellant and respondent started with artificial insemination and for

that reason, in the month of February 2007, appellant filed divorce

petition at USA. Then the respondent conceived through an artificial

insemination. The petitions filed by the appellant are in the month of

March 2006 and another in the month of February 2007. Though,

there are some trivial issues between the parties, they can lead their

life happily. There are no serious issues. Inspite of respondent not

having any physical disability, she expressed her readiness and

willingness to join the company of appellant for his love. With the

said findings, Family Court dismissed the said FCOP.No.45 of 2008

and allowed the counter claim filed by respondent and directed the

appellant-husband to join the company of respondent-wife.

15. In the written arguments filed by appellant, he has reiterated

that the said marriage is not consummated and the same is also

accepted by respondent. She also stated that she wanted to live with

appellant even without physical relationship and also accepts that she

feels the biological need. With the same, it is understood that the

respondent just needs the appellant herein as a name sake husband for

the society and for her monitory needs. The respondent insulted,

humiliated and pestered the appellant herein with her frigidity and her

parents mentally disturbed him calling impotent etc. But appellant

failed to prove the same by producing relevant evidence. Except

himself, he has not examined any other witness to prove the same.

16. In the written arguments, he further stated that Consummation

happens only on the basis of love. The appellant developed hate

towards the respondent because of her cruel and psychopathic

behavior. He has also referred pregnancy complications.

17. As discussed supra, the said aspects were considered by the

learned Family Court in the impugned order. In the email dated

10.08.2023 addressed by respondent to the counsel for appellant, she

has specifically pleaded that she is interested to stay with the appellant

and she did not want divorce even her son needs the love and affection

of both the parents i.e., appellant and respondent.

18. Learned counsel for the appellant relied upon the principle laid

down by the Hon'ble Apex Court in Sivasankaran vs. Santhimeenal 1.

In the said case the Hon'ble Apex Court considered the fact that

repeated filing of cases/complaints against husband would amount to

'cruelty' for the purpose of granting divorce under Act. In the present

case, respondent filed only one complaint against the appellant and his

parents and the Learned Magistrate acquitted the appellant and his

2021 (5) ALD 286 (SC)

parents for the offences under Section 498-A and 323 of IPC and thus

it does not amounts to cruelty as contended by the appellant.

Therefore the facts of Sivasankaran's case are different to the facts of

the present case.

19. As discussed supra, the appellant failed to prove cruelty by

producing evidence. Considering the same, learned Family Court

dismissed the O.P filed by the appellant. The impugned order is a

reasoned order and well founded. It does not require interference by

this Court in the present appeal. Appellant failed to make out any case

to interfere with the said reasoned and well founded order passed by

the learned Family Court. This appeal is liable to be dismissed and

accordingly it is dismissed. There shall be no order as to costs.

As a sequel, the miscellaneous petitions, if any, pending shall

stand closed.

_________________ K. LAKSHMAN, J

_______________ K. SUJANA, J 31.10.2023 ssy