K. Surya Prakasa Rao vs A.V.Sandhya
2023 Latest Caselaw 3442 Tel

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


              FAMILY COURT APPEAL NO.49 OF 2011


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


      This appeal is preferred by the appellant against order dated

18.10.2010 made in F.C.O.P.No.239 of 2009 on the file of the Family

Court, at Hyderabad, whereunder, the learned Judge dissolved the

marriage of appellant and respondent. Appellant is husband and

respondent is wife. The wife filed F.C.O.P.No.239 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 judgment, the present

appeal is filed.

2. The appellant/husband filed this appeal stating that the

learned Judge erred in granting the decree of divorce and directing

him to pay the sum of Rs.3,00,000/- towards permanent alimony to

respondent/wife and also to deposit a sum of Rs.5,00,000/- towards

marriage expenses of their daughter Ms.Swati. Further, the learned

Judge ought to have seen that the respondent/wife has filed the case

on the ground of desertion and cruelty, whereas, no ground was

made for grant of decree of divorce. The learned Judge ought to have KL,J & SKS,J FCA.No.49 of 2011

seen that appellant/husband is affectionate towards respondent/wife

and their daughter and was meeting all their expenditure, necessities

and all the earnings of respondent/wife were invested in acquiring

properties for the welfare of their daughter apart from his

contribution. In the absence of any evidence on the cruelty, the order

impugned is illegal and there was no cruelty. He further stated that

except the evidence of interested persons i.e., the mother and brother

of the respondent, there is no evidence on record on behalf of

respondent/wife and granting permanent alimony of Rs.3,00,000/-

to the respondent/wife who is working as an Officer in Nationalized

Banks with a service of more than 15 years and also directing to pay

a sum of Rs.5,00,000/- to daughter for her marriage who is a major

and pursuing her studies abroad, is illegal.

3. For the sake of convenience, the parties are referred to as

arrayed in F.C.O.P.No.239 of 2009.

4. The petitioner in F.C.O.P.No.239 of 2009 filed divorce petition

under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, stating

that her marriage with respondent was celebrated on 25.08.1988 at

Mehdi Function Hall, Lakdi-ka-pul, Hyderabad, as per Hindu

customs. By the date of marriage, petitioner was working in Andhra

Bank, Mahaboobnagar Branch and respondent was working at the

State Bank of India, Bijineypalli Branch, near Mahaboobnagar. Few KL,J & SKS,J FCA.No.49 of 2011

days after the marriage, petitioner observed that respondent did not

show interest on petitioner and kept himself away from the

household affairs. When the petitioner questioned the respondent

about his attitude, he used to pick up quarrel and state that she has

no right to question his whereabouts. Later, through letters of

respondent, the petitioner came to know that respondent had an

affair with another woman at Vijayawada and he used to go to

Vijayawada frequently under the guise of visiting his parents in

Guntoor. When petitioner questioned about the said letters, he

snatched the said letters and forcibly burnt them stating that she

has no right to question him. During the period they lived together,

their marriage was consummated and they were blessed with a

daughter on 31.10.1989. Because of the behavior of respondent,

petitioner suffered mentally and physically. After the child was born,

the respondent visited the hospital and has seen the child.

Thereafter, he did not visit the petitioner and the child. The

respondent attended the first birthday celebrations of the child and

immediately left the home.

5. The petitioner contended that in the year 1991 after a gap of

six to seven months, the respondent along with his brother came to

the house of her parents and requested for reconciliation.

Accordingly, he joined the petitioner in a separate rented house KL,J & SKS,J FCA.No.49 of 2011

nearby the house of parents of the petitioner and stayed with

petitioner and their daughter only for a period of one or two months.

He again started absconding and staying away from them. On

31.10.1991 on second birthday of their daughter Swati, one

unknown lady came to the house of the petitioner. When petitioner

questioned the respondent about the said woman, he stated that she

has taken care of him during his stay at Bijineypalli,

Mahaboobnagar. Petitioner was forced to take care of the said

woman who is a stranger. Later, when the parents of the petitioner

questioned the respondent about the said woman, he sent her away

but did not give up his affairs with the said woman or discontinued

his affairs.

6. The petitioner further contended that the respondent has not

even provided minimum household expenses for maintenance of

their child and due to his inhuman and irresponsible behavior, along

with her daughter she left the house and started living with her

parents in the month of March, 1994 and living there ever since.

7. Further, the petitioner submitted that in the year 1995 her

parents constructed a portion in which petitioner and their daughter

were living separately from September 1996. The respondent, on

coming to know that petitioner is residing separately in the house

constructed by her parents, again visited petitioner and her parents KL,J & SKS,J FCA.No.49 of 2011

in the year 1997 and pleaded to forgive him by stating that he will

stay with petitioner and their daughter and will take their

responsibility. The petitioner accepted the respondent for the second

time also only with a view to protect their marital relationship. The

respondent started living with the petitioner and their daughter and

got himself transferred to Hyderabad. Even after that he was

irregular to his duties and petitioner came to know that respondent

has received several warnings for negligence and arrogance.

8. In the year 1999 due to the pressure of respondent, the

petitioner shifted to a bigger house. The parents of the petitioner

provided the terrace over the existing house. Petitioner applied for

loan and constructed a house and shifted to that house in November

2001 along with respondent and their daughter. The respondent did

not take care of their daughter at all and did not extend his help

financially. The respondent was transferred to Karimnagar in July

2005 and started residing there and visiting petitioner during

weekends initially, later, fortnightly and thereafter stopped visiting

the petitioner and their daughter completely.

9. After a gap of two years, the respondent and his father came to

petitioner for reconciliation but even then she did not find any

change in the behavior of respondent towards her and their

daughter. The respondent, right from the date of marriage did not KL,J & SKS,J FCA.No.49 of 2011

provide anything as husband to petitioner or as father to their child

and he always had relationships with other woman. The petitioner

sent her daughter abroad for further studies by taking educational

loan as there was no financial support from her husband. The

marriage between the petitioner and respondent became only name

sake. Though the respondent is working as an Officer in State Bank

of India, Mogulapalli branch and drawing sufficient amount, he has

not taken any responsibilities of petitioner and their daughter.

Therefore, the petitioner stated that there is no scope for reunion

with respondent. Therefore, she prayed the Court below to grant

divorce on the ground of cruelty and desertion. She further prayed to

grant permanent alimony in order to discharge the responsibilities in

performing the marriage of her daughter.

10. The respondent filed counter admitting the marriage with

petitioner and their child out of their wedlock and as well as the

employment of spouses but denied all the other allegations made in

the petition. He contended that petitioner was working in the Office

of Ombudsman in the Reserve Bank of India on deputation from the

Andhra Bank and that due his periodical transfers to the placed

outside Hyderabad, he could not stay with petitioner. He denied all

the other allegations made against him attributing relationship with

other woman. He further contended that petitioner is highly arrogant KL,J & SKS,J FCA.No.49 of 2011

and adamant in behavior and without his knowledge, she managed

to get herself transferred to Hyderabad. He also contended that

petitioner was being supported by her parents in showing disrespect

and discourtesy towards him and on his persuasions, she agreed to

stay with him. The allegation that respondent introduced some

unknown lady to petitioner was invented for the purpose of the

petition. He stated that his wife is responsible for spoiling the marital

relationship by deserting him. From 1998 to 2004 the respondent

stayed with petitioner and their daughter, whileso, he used to pay

Rs.4500/- per month towards rent through bankers cheques.

11. It was further stated in the counter affidavit that the petitioner

never applied for loan for constructing house and it was her parents

who constructed the house with their own expenses. He contended

that petitioner was in the habit of dictating terms to him and treated

him like a slave and he was never involved in any affairs with any

other woman as alleged by petitioner. The respondent is always

ready and willing to join the matrimonial house and he is anxious to

take care of his daughter and look after the needs of petitioner for

the sake of his daughter. As such, he prayed the Court below to

dismiss the petition.

12. On behalf of petitioner PWs.1 to 3 were examined and Exs.P1

to P7 were marked. Per contra, the respondent himself got examined KL,J & SKS,J FCA.No.49 of 2011

as RW.1 and no documents were marked on his behalf. Basing on

the pleadings and the evidence on record and after hearing both

sides, the learned Family Court Judge dissolved the marriage of

petitioner and respondent vide order dated 18.10.2010.

13. Heard Sri Srikanth Reddy, learned counsel for appellant. No

representation on behalf of respondent.

14. Learned counsel for appellant/husband would submit that

appellant is ready to join the respondent and their daughter but it

was the respondent who is responsible for their separation. He

further submitted that due to his job transfer to several places, he

was compelled to stay away from wife and daughter. Therefore, there

is no cruelty and desertion as stated by respondent. He contended

that without there being any evidence on record the Court below

erred in dissolving the marriage. As such, prayed this Court to set

aside the impugned judgment by allowing this appeal.

15. Having regard to the rival contentions made and the material

placed on record, the point for determination is whether the

impugned judgment needs any interference?

KL,J & SKS,J FCA.No.49 of 2011

16. To prove her case, the wife got herself examined as PW.1, her

mother as PW.2 and her brother as PW.3. To prove the cruelty, the

petitioner and her brother categorically deposed that right from the

date of marriage the respondent got himself transferred to various

places and started living away from petitioner intentionally. They

also deposed that respondent was in relationship with another

woman and when he was questioned about the same by the

petitioner, he used to pick up quarrel and shout at her stating that

petitioner has no right to question him. It was contended that

respondent never took care of his wife and child and never assisted

petitioner in financial terms for the education of their child.

17. Per contra, the respondent alleged that it was petitioner who

spoiled the marital relationship due to her arrogant and adamant

attitude. He contended that petitioner was in the habit of dictating

terms to him and treated him like a slave and he was never involved

in any affairs with any other woman, as alleged by petitioner. He

further contended that he is ready and willing to join the

matrimonial house and he is anxious to take care of his daughter

and look after the needs of petitioner for the sake of his daughter. He

alleged that from 1998 to 2004 he stayed with petitioner and their

daughter, whileso, he used to pay Rs.4500/- per month towards rent

through bankers cheques.

KL,J & SKS,J FCA.No.49 of 2011

18. The marriage of the petitioner and respondent took place in the

year 1988 and both of them admitted that they lived together up to

2005 and after that they started living separately. Further, the

respondent admitted that out of 21 years of their marital life, they

could live together only for a period of eight years. Though

respondent alleged that he wanted to take care of his daughter and

wife, he did not make any effort for the same at any point of time.

19. It is noticed that though respondent deposed that along with

his father, he made efforts for reconciliation but no petition was filed

under Section 9 of the Hindu Marriage Act for restitution of conjugal

rights. It is further noticed that the respondent is completely

unaware of his daughter's birthday celebration, when she was

admitted in school, how much amount was paid towards her school

fee, when she was admitted in college and how much fee was paid

towards her educational expenses during her college days. Though

he deposed that he purchased about four plots in the name of his

daughter, no document is filed to prove the same. Though he alleged

that he used to pay Rs.4500/- towards rent through bankers

cheques, there is no documentary evidence to prove the same.

20. It is further noticed that though respondent has deposed that

he is ready to take care of his wife and daughter, he has not taken KL,J & SKS,J FCA.No.49 of 2011

any efforts to do the same and right from November 2005 petitioner

and respondent are living separately without any wife and husband

relationship between them. F.C.O.P.No.239 of 2009 was filed in the

year 2009. According to respondent, along with his father, he went to

the house of petitioner and convinced the petitioner to live together

and that in 21 years of marital life, they lived together only for a

period of eight years.

21. The evidence on record and the admissions of respondent

clearly show that the respondent is at fault and the petitioner has a

genuine reason to live separately from him. It is clear that the

respondent neglected the petitioner and their daughter and never

spent any amount towards their necessities, needs and educational

expenses of their daughter. Moreover, he never tried to meet his

daughter and has not even filed any petition before the Family Court

for visitation rights. Thus, it is proved that there was desertion and

failure to discharge marital obligations on part of

respondent/husband and he was not providing any maintenance to

the petitioner/wife and their daughter and was living with another

woman which amounts to cruelty and the same forced the

petitioner/wife to live separately and independently.

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

that the Family Court has rightly dissolved the marriage between the KL,J & SKS,J FCA.No.49 of 2011

appellant/husband and respondent/wife herein and there is no

illegality in awarding the respondent/wife with permanent alimony of

Rs.3,00,000/- and a sum of Rs.5,00,000/- towards marriage

expenses of their daughter Ms.Swati. There are no grounds made out

by the appellant/husband to set aside the order of the Family Court

in F.C.O.P.No.239 of 2009 and there is no need to interfere with the

impugned order dated 18.10.2010. 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 : 31.10.2023 PT KL,J & SKS,J FCA.No.49 of 2011

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

P.D. JUDGMENT IN FAMILY COURT APPEAL No.49 OF 2011

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

Date: 31.10.2023

PT