Telangana High Court
Smt.N.Madhuri vs B.Jaganmohan Chary on 13 February, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P.SREE SUDHA
FAMILY COURT APPEAL No.418 OF 2012
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Mr.Vijay B. Paropakari, learned counsel for the
appellant. Despite service of notice, there is no representation on
behalf of the respondent.
2. Feeling aggrieved and dissatisfied with the order and decree
dated 31.12.2010 passed in O.P.No.987 of 2009 by the Judge, Family
Court, Hyderabad, the appellant/wife filed the present appeal.
3. The appellant/wife had filed a petition under Section 13 (1)
(ia) of the Hindu Marriage Act, 1955 (for short, 'the Act') vide FCOP
No.987 of 2009 seeking dissolution of her marriage dated 21.08.2008
with the respondent/husband on the ground of cruelty on the following
grounds:-
i. Her marriage with the respondent was solemnized on
21.08.2008 as per Hindu custom and rites.
ii. At the time of marriage, a sum of Rs.2 lakhs in cash, 15 tulas of
gold ornaments, furniture worth of Rs.50,000/-, three gold
rings, Rs.23,000/- towards clothes, silver worth of Rs.38,000/-,
apart from that a sum of Rs.5.5lakhs was given to him.
iii. They have no issues.
iv. She did MBA.
v. The parents of the respondent told her that he studied M.Com,
MBA.
vi. On nuptial day i.e. on 22.08.2008 during the reception,
respondent's family members picked up quarrel with the parents
of the appellant with regard to vodibiyyam programme.
vii. Thereafter disputes arose between them.
viii. On the next day i.e. on 23.08.2008 the appellant and respondent
together went to Tirupati, where the respondent told that
because of the appellant, he lost Rs.10,000/- and taken
Rs.4000/- from the appellant.
ix. On 06.11.2008, he picked up quarrel with her, beat and abused
her in filthy language, snatched her mobile phone and threw it
on the ground. On 07.11.2008, he locked the gate of their house
and did not allow her to go her office.
x. On 04.12.2008, he celebrated house warming ceremony in their
up-stair portion without informing her, though she was in the
house.
xi. When he is undergoing training at cochin, he asked the
appellant to bring Rs.20,000/-, then the appellant and brother of
the respondent by name Brahma Chary went to Cochin with
cash of Rs.20,000/-.
xii. On 22.02.2009, when the parents of the appellant visited the
house of respondent's parents, the respondent demanded her
Rs.5 Lakhs to purchase a house at Karimnagar. When her
parents refused, the respondent kicked her on her back.
xiii. On 23.02.2009 his mother warned her that she should not stay
in her in-laws house if she fails to arrange Rs.5 Lakhs.
xiv. He sent some unknown persons to her parents house who
threatened her and her parents with dire consequences.
xv. She lodged a complaint with Women Police Station, CCS,
against the respondent and his family members.
xvi. On 13.04.2009, the appellant got issued notice but he did not
give reply.
xvii. Their relationship was totally strained and there is no possibility
for their reunion and thus she sought decree of divorce.
4. On the other hand, the respondent, denying the allegations
made by the appellant against him filed counter on the following
grounds:-
i. The parents of the appellant are not in a position to bear the
marriage expenses.
ii. She did not attend any household work.
iii. She, being the employee used to leave the house at 5.00 a.m.
and used to return home by 5 or 8 P.M. He used to drop her at
her workplace.
iv. She harassed him and his family by filing false criminal cases
and a case in Cr.No.327 of 2009 was registered against them
and the same is pending on the file of XIII Metropolitan
Magistrate, Hyderabad.
v. In spite of his best efforts, the appellant and her parents did not
respond.
vi. He never demanded any dowry from her parents and he met all
the marriage expenses.
5. To prove the said ground of cruelty, the appellant/wife
examined herself as P.W.1 and filed Exs.P.1-wedding card, Ex.P.2-
marriage photographs, Ex.P.3-office copy of notice, dated 13.04.2009,
Ex.P.4-postal receipts, Ex.P.5-reply notice, dated 11.05.2009 and
Ex.P.6 copy of report, dated 26.05.2009. respondent/husband did not
examine himself or any other witness on his behalf to prove his case,
but marked First Information Report in Cr.No.327 of 2009 as Ex.R.1.
6. On consideration of entire evidence both oral and
documentary, vide impugned order and decree dated 31.12.2010,
learned Judge, Family Court dismissed the said FCOP holding that
there are no serious allegations against the respondent or his family
members. Certain allegations appears to be material allegations. The
appellant failed to prove the same. Admittedly, the appellant got very
much love and affection towards respondent. The appellant failed to
examine any witness to prove the said allegations including the
incidents narrated by her.
7. Aggrieved with the order and decree dated 31.12.2010, the
appellant/wife preferred the present appeal on the following grounds:
i. The trial Court failed to appreciate her evidence as P.W.1 and
consider documents Exs.P.1 to P.6 filed by her.
ii. The trial Court failed to see that though the respondent filed
counter, he did not enter into witness box to substantiate his
pleas.
iii. The trial Court erred in concluding that the appellant failed to
prove harassment and cruelty by the respondent, though she
specifically pleaded and deposed the specific instances of
harassment. Nothing was elicited in her cross-examination by
the respondent with regard to said instances.
iv. The trial Court ignored Ex.P.6 First Information Report, which
establishes the harassment.
v. The trial Court ignored the evidence of P.W.1 with regard to the
incident occurred on 23.02.2009, beating of P.W.1 and her
father by the respondent and his family members, calling of 108
for ambulance, but the trial Court only picked up stray
admission in her evidence that the 108 ambulance was called by
her father to create alibi to the criminal case.
With the said submissions, she sought to set aside the order impugned
herein.
8. Mr.Vijay B. Paropakari, learned counsel for the appellant
reiterated the aforesaid grounds and also placed reliance on the
principle laid down by the Apex Court in Smt. Roopa Soni vs.
Kamalnarayan Soni 1, the Full Bench Judgment of High Court of
Judicature for the State of Telangana and Andhra Pradesh at
Hyderabad in Panati Madhusudhana Reddy vs. Maddali Renuka 2.
@ Suhasini 3, a Division Bench of this Court in V.Padmaja vs.
Veerla Mohan Rai 4, a Divison Bench of Madras High Court in
V.Satyapriya vs. P.Venkatesh Prabu 5, a Division Bench of the Apex
Court in Vidhyadhar vs. Manikrao 6.
9. According to the learned counsel for the appellant, the
respondent subjected the appellant to cruelty and it is irretrievable
breakdown of marriage. There is no possibility of re-union. As
discussed supra, despite service of notice, there is no representation on
behalf of the respondent.
10. There is no dispute that the marriage of the appellant with
the respondent was solemnized on 21.08.2008 as per Hindu rites and
customs. It is an arranged marriage. They have no issues. She did her
MBA. Respondent is also double Post Graduate i.e. M.Com, MBA.
2023INSC814
2016(4) ALD 584 (DB)
2016(4) ALD 584 (DB)
2022 (5) ALD (TS) (DB)
Madras High Court17-12-1999
AIR1999SC1441
11. According to the appellant, the following are the cruel acts
committed by the respondent/husband:-
i. On nuptial day i.e. on 22.08.2008 during reception,
respondent's family members picked up quarrel with the parents
of the appellant with regard to vodibiyyam programme.
ii. Thereafter disputes arose between them.
iii. On the next day i.e. on 23.08.2008 the appellant and respondent
together went to Tirupati where the respondent told that
because of the appellant, he lost Rs.10,000/- and taken
Rs.4000/- from the appellant.
iv. On 06.11.2008, respondent picked up quarrel with the appellant,
beat and abused her in filthy language, snatched her mobile
phone and threw it on the ground. On 07.11.2008, he locked the
gate of their house and did not allow her to go her office.
v. On 04.12.2008, he celebrated house warming ceremony in their
up-stair portion without informing her, though she was in the
house.
vi. When he is undergoing training at Cochin, he asked the
appellant to bring Rs.20,000/-, then the appellant and brother of
the respondent by name Brahma Chary went to Cochin with
cash of Rs.20,000/-.
vii. On 22.02.2009, when the parents of the appellant visited the
house of respondent's parents, the respondent demanded her
Rs.5 Lakhs to purchase a house at Karimnagar. When her
parents refused, the respondent kicked her on her back.
viii. On 23.02.2009 his mother warned her that she should not stay
in her in-laws house if she fails to arrange Rs.5 Lakhs.
ix. He sent some unknown persons to her parents house who
threatened her and her parents with dire consequences.
x. She lodged a complaint with Women Police Station, CCS,
against the respondent and his family members.
xi. On 13.04.2009, the appellant got issued notice to respondent but
he did not give reply.
xii. Their relationship was totally strained and there is no possibility
for their reunion.
12. Full Bench of High Court of Judicature for the State of
Telangana and Andhra Pradesh at Hyderabad in Panati
Madhusudhana Reddy (supra), with majority held that in
determining the relief to be granted, the circumstance of irretrievable
breakdown of marriage should be borne in mind. The Full Bench also
considered that irretrievable breakdown of marriage is not a ground
for divorce under the Hindu Marriage Act. In cases where, on account
of the bitterness between the parties, the marriage is beyond repair, it
must be taken to be an irretrievable breakdown of marriage and a
weighty circumstance, among others, necessitating severance of the
marital tie. While scrutinizing the evidence on record to determine
whether the grounds alleged are made out, and in determining the
relief to be granted, the circumstance of irretrievable breakdown can
certainly be borne in mind. (K. Srinivasa Rao vs. D.A.Deepa-2013 (3) ALD
11 SC; V. Bhagat vs. D.Bhagat-((1994) 1 SCC 337); Navin Kohli vs. Neelu
Kohli (2006) 4 SCC 558).
13. It was also held that it is difficult to prove the mental cruelty
by direct evidence and therefore, it is necessarily a matter of inference
to be drawn from the facts and circumstances of the case. 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. Cruelty must be evaluated on the peculiar facts and
circumstances of the case before the Court. No uniform test or
standard can be prescribed. Mental cruelty is a state of mind. Mental
cruelty is difficult to establish by direct evidence. A feeling of
anguish, disappointment and frustration in one spouse, caused by the
conduct of the other, can only be appreciated on assessing the
attending facts and circumstances in which the couple have been
living. Inferences must be drawn from attending facts and
circumstances taken cumulatively. It would not be proper to take an
instance of misbehaviour in isolation and then pose the question
whether such behaviour is sufficient, by itself, to cause mental cruelty.
The approach should be to take the cumulative effect of the facts and
circumstances emerging from the evidence on record, and then draw a
fair inference whether the petitioner has been subjected to mental
cruelty due to the conduct of the other. A degree and proof in
matrimonial disputes and preponderance of probabilities also to be
considered. The Court while adjudicating the matrimonial disputes
have to adopt human approach.
14. In Smt. Roopa Soni (supra), the Apex Court held that the
marriage of irretrievably broken down is to be factually determined
and firmly established. For this, several factors are to be considered
such as the period of time the parties had cohabited after marriage;
when the parties had last cohabited; the nature of allegations made by
the parties against each other and their family members; the orders
passed in the legal proceedings from time to time, cumulative impact
on the personal relationship; whether, and how many attempts were
made to settle the disputes by intervention of the court or through
mediation, and when the last attempt was made, etc. The period of
separation should be sufficiently long, and anything above six years or
more will be a relevant factor. But these facts have to be evaluated
keeping in view the economic and social status of the parties,
including their educational qualifications, whether the parties have
any children, their age, educational qualification, and whether the
other spouse and children are dependent, in which event how and in
what manner the party seeking divorce intends to take care and
provide for the spouse or the children.
15. In V.Padmaja (supra) a Division Bench of this Court on
consideration of the several judgments of the Apex court including
Naveel Kohli (supra), on examination of the facts therein that the
marriage between the parties was totally unworkable, emotionally
dead, beyond salvage and has broken down irretrievably, granted
divorce. In Satyhpriya (supra), the Division Bench of Madras High
Court took the same view.
16. In Vidhyadhar (supra), the Apex Court held that where a
party to the suit does not appear into the witness box and states his
own case on oath and does not offer himself to be cross examined by
the other side, a presumption would arise that the case set up by him is
not correct as has been held in a series of decisions passed by various
High Courts and the Privy Council beginning from the decision
in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. (AIR 1927
Privy Council 230).
17. As discussed supra, in the present case also, the respondent
failed to enter into witness box to disprove the allegations made by the
appellant particularly to disprove the ground of cruelty. Similar view
was also taken by the Apex Court in Seethakathi Trust Madras vs
Krishnaveni 7.
18. In the light of the aforesaid principles laid down, coming to
the case on hand, as discussed supra, the parties have stayed together
for only about seven months. Right from the nuptial day, disputes
arose between them. They do not have any issues out of their wedlock.
They are residing separately prior to issuance of Ex.P.3 notice dated
13.04.2009. The said aspects were not considered by the Family Court
AIR 2022 SC 58
in the impugned order. In fact, finding of the Family Court that
"Admittedly, the petitioner/appellant got very much love and affection
towards the respondent." is contrary to the record and without any
basis.
19. In the light of the discussion, we are of the considered
opinion that the impugned order is not on consideration of actual facts
and law including the evidence both oral and documentary. Therefore,
the impugned order is liable to set aside.
20. In the result, this appeal is allowed. The impugned order
dated 31.12.2010 passed in O.P.No.987 of 2009 by the Judge, Family
Court, Hyderabad, is hereby set aside. The O.P.No.987 of 2009 is
allowed. The marriage dated 21.08.2008 between the appellant and the
respondent is dissolved by way of decree of divorce.
Consequently, pending miscellaneous petitions if any, shall
stand closed.
________________________
JUSTICE K. LAKSHMAN
________________________
JUSTICE P.SREE SUDHA
Date:13.02.2024
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