Telangana High Court

K.Anuradha vs K.Satish Kumar Reddy on 3 April, 2024

Author: P.Sam Koshy

Bench: P.Sam Koshy

           THE HON'BLE SRI JUSTICE P.SAM KOSHY
                                 AND
     THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU

                        F.C.A No.70 of 2013

J U D G M E N T:

(per Hon'ble Sri Justice P.SAM KOSHY)

Heard Mr.P.Ravi Kiran, learned counsel for appellant

and Mr.T.Pradyumna Kumar Reddy, learned counsel for the

respondent and perused the record.

2. The present is an appeal filed under Section 19 of the

Family Courts Act, 1984, challenging the Order and Decree in

Original Petition No.1209 of 2009, decided on 29.08.2011 by the

Judge, Family Court, Hyderabad.

3. Vide the said impugned Order, the Court below has

allowed the petition filed by the husband under Section 13(1) (ia)

(ib) of the Hindu Marriage Act, 1955 seeking decree of divorce

from the wife. The present is an appeal preferred by the wife

challenging the said decree of divorce granted on 29.08.2011.

4. The instant appeal was filed way back in the year

2013. When the matter is taken up for hearing today, learned

counsel for the appellant on a fact put forth which the learned

counsel for the respondent accepted that of the appellant/wife

having left the matrimonial home, as early as, on 02.11.2003:

Since then the two spouses have been living separately. Even

after the decree of divorce having been passed in the year 2011,

they have been staying separately for the past more than 13

years. The petition before the Court below was filed by the

husband on the ground of cruelty which stood established in the

course of the adjudication of the matter before the Court below

while passing of the decree of divorce.

5. Today when the matter is taken up for hearing from

what has been deliberated upon by the counsel appearing for

either of the parties what is evident is that the relationship

between the two have reached where it is irretrievable and

neither of the parties are now willing to stay together.

6. From the factual matrix as it reflected from the

Judgment and Decree of the Court below, as has been discussed

earlier also, it is more than 21 years the two spouses have been

living separately and staying separately without having any

association whatsoever. The son born from the wedlock is with

the appellant/wife. It would be beneficial at this juncture to take

note of the decision of the Delhi High Court under the same

facts and circumstances in the case of Prahlad Kumar v.

Deepa 1 whereunder the Division Bench of the Delhi High Court

in paragraph Nos.35 to 40 has held as under:

"35. The marriage between the parties survived for barely six months and conciliatory efforts initiated by the appellant by sending a Legal Notice and requesting the respondent to return to the matrimonial home and also the proceedings before the Aichik Bureau did not help in their re-union. From the comprehensive reading of the entire evidence, it is established that the respondent was not able to adjust in the matrimonial home and there were adjustment issues between her and the appellant. The respondent, has not produced any evidence to show that any conciliatory efforts were made by her or she was willing to return to her matrimonial home. Her stand in the reply to the Legal Notice was that she can return only if the appellant and his family members stopped harassing her from the dowry demands. Though the charge-sheet had been filed under Section 498A of the Indian Penal Code, 1908 but there is no cogent evidence produced in this case to substantiate her allegations of dowry harassment or any attempt to kill her.

36. The parties are separated for about 11 years and the adjustment issues started mushrooming within the very first month of their marriage which were of such nature that the marriage could not even survive for more than 6 months.

2024 SCC OnLine Del 159

There is no chance of reconciliation between the parties and such long separation peppered which false allegations and complaints have become a source of mental cruelty and any insistence to continue this relationship would only be inflicting further cruelty upon both the parties. The marital discord between the parties has pinnacled as there is a complete loss of faith, trust, understanding and love between the parties. Such long separation brings with it deprivation of conjugal relationship and co- habitation which is the basic foundation of any matrimonial relationship. The separation for more than eleven years for no fault of the appellant, in itself is an act of cruelty.

37. In one of the momentous decisions, the Apex Court in the case of Naveen Kohli v. Neelu Kohli 2 has held that once the parties have separated and the separation has continued for a sufficient length of time, the consequences of preservation of the unworkable marriage which has long ceased to be effective, is bound to be a source of greater misery for the parties.

38. The Apex Court in the case of Samar Ghosh v. Jaya Ghosh 3 observed that in a marriage where there has been a long period of continuous separation with no possibility of reconciliation, it can be termed as mental cruelty to continue such a dead marriage.

39. While referring to the case of Samar Ghosh (supra), the Apex Court in the case of Gurbux Singh

(2006) 4 SCC 558

(2007) 4 SCC 511

vs Harminder Kaur 4, observed by that while trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not entitle a party to a decree of divorce on the ground of cruelty; continuing and subsisting unjustifiable and reprehensible conduct which affects the physical and mental health of the other spouse, may lead to mental cruelty.

40. Recently, the Apex court in the case of Rakesh Raman v. Kavita 5 , after relying upon the above referred observations of the Three Judge Bench in Samar Ghosh (supra), looking at the facts of the said case where parties were residing separately for almost 25 years; had no cohabitation during this period; no child was born from the said wedlock; and repeated efforts for reconciliation for settlement resulted in failure, concluded that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act."

7. If we take note of the facts of the present case also, it

would reflect that the marriage between the appellant and

respondent took place on 06.05.2001 and the son was born to

the two on 31.03.2002. Admittedly, the appellant and the

(2010) 14 SCC 301

2023 SCC OnLine SC 497

respondent got separated on 02.11.2003 when the

appellant/wife is said to have left the matrimonial home and

started staying at her parental home and since then there is no

reconciliation between the parties.

8. Today, learned counsel for the respondent/husband

submits that the marriage of the couple is now irretrievable as