Telangana High Court
G.Sujatha vs G.Narsimhulu on 13 February, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SRI JUSTICE P. SREE SUDHA
FAMILY COURT APPEAL No.438 OF 2017
JUDGMENT:
(per Hon'ble Sri Justice K. Lakshman)
Heard Sri Mummaneni Srinivas Rao, learned
counsel, representing Sri Cheruku Ramesh, learned
counsel for the appellant/wife and Sri Muppu Ravinder
Reddy, learned counsel appearing for respondent Nos.2
and 3.
2. Feeling aggrieved and dissatisfied with the order
and decree dated 09.06.2017 passed by the learned
Judge, Family Court at L.B. Nagar, Ranga Reddy District,
in F.C.O.P.No.547 of 2012, appellant/wife preferred the
present appeal.
3. Respondent No.1/husband had filed a petition
under Section 13(1)(ia) of the Hindu Marriage Act, 1955,
vide F.C.O.P.No.547 of 2012, against the appellant/wife
seeking dissolution of marriage on the ground of cruelty.
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Vide impugned order and decree dated 09.06.2012,
learned Family Court allowed the said petition and
dissolved the marriage of the appellant/wife with
respondent/husband solemnized on 20.05.1998, by way
of decree of divorce. Feeling aggrieved by the same, the
appellant/wife preferred the present appeal with a delay
of two days in preferring the appeal. The said delay has
been condoned by this Court vide order dated
14.09.2023.
4. During the pendency of the present appeal,
respondent No.1/husband died on 08.05.2021.
Therefore, respondent Nos.2 and 3, the legal heirs/
children of appellant and respondent No.1, filed I.A.No.3
of 2022 to bring them on record as the LRs of deceased
respondent No.1, along with delay condonation petition
and set-aside abatement order petition vide I.A.Nos.1 and
2 of 2022 respectively. The said applicated were allowed
by this Court vide order dated 08.06.2023.
KL, J & PSS,J
5. Respondent Nos.2 and 3 - legal heirs/children of
appellant/wife and respondent No.1/husband, contended
that though the dispute is between appellant and
respondent No.1 with regard to decree of divorce, they are
entitled to come on record as legal heirs of appellant and
respondent No.1. They have also placed reliance on a
judgment of the High Court of Andhra Pradesh in
Vadalasatti Samrajyamma v. Vadalstti Nagamma 1.
Relevant portion of the same is extracted below:
"10. A decree dissolving a marriage involves termination
of status of the wife. If the husband dies subsequent to
the passing of the decree and the wife seeks to set aside
the decree, the question would be whether the wife would
be the widow of the deceased or a divorcee. If the wife
succeeds in having the decree set aside, she will be
entitled to inherit the properties of the husband as a
Class II heir. Such a right cannot be claimed and will be
lost unless legal representatives of the deceased husband
are impleaded. The judgment dissolving the marriage is a
judgment in rem and will not merely involve the personal
status of the wife, but would involve her property rights.
The principle of "Actio personalis cum moritur persona"
will not be applicable and the proceedings to set aside an
exparte decree will not abate. Section 21 of the Act
makes the provisions of the Civil Procedure Code
applicable to the proceedings under the Act. the
provisions of Order 22, Rule 4 can be applied to bring on
record the legal representatives of the deceased party to
the proceedings."
1 AIR 1994 AP 13
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Relying on the said principle, this Court vide order
dated 08.06.2023, allowed the LR application filed by
respondent Nos.2 and 3 and they were brought on
record.
6. In the light of the same, the questions that fall for
consideration before this Court are as to,
1. Whether the Family Court is right in
granting decree of divorce by dissolving the
marriage of the appellant with respondent No.1
performed on 20.05.1998, on the ground of
cruelty?
2. If not, to what relief?
7. Respondent No.1/husband filed the aforesaid
F.C.O.P.No.547 of 2012 against appellant/wife seeking
dissolution of marriage on the ground of cruelty
contending as follows:
a. Their marriage was performed on 20.05.1998 as per
Hindu Rights and Customs.
b. It is an arranged marriage.
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c. Their marriage was consummated and they blessed
herein.
d. The appellant/wife and respondent No.1/ husband
are government teachers.
e. From the date of their marriage, appellant/wife was
suspicious against respondent No.1/husband as if
he was having illegal contacts with other women.
She used to harass him both physically and
mentally.
f. Appellant/wife was (3½) years older than
respondent No.1/husband and her sub-caste is
different to his sub-caste. The said aspects were
suppressed by appellant/wife at the time of
marriage.
g. She was adamant, suspicious and impatient in
nature.
h. She does not have adjustable mind.
i. She has never shown interest to take care of the
welfare of old parents of respondent No.1/husband.
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j. She started harassing respondent No.1 suspecting
that he has illegal contacts with one of the tenants.
She got them vacated.
k. Respondent No.1 has purchased a mortgaged house
by paying an amount of Rs.8,00,000/- in the name
of appellant. She created litigation.
l. She gave a complaint against respondent No.1 with
Asmita Resource Centre at West Maredpally with all
false and baseless allegations.
m.Her sister is an advocate. With her help, she
subjected respondent No.1 to cruelty, both
physically and mentally.
n. She has filed a petition under Section 12 of the
Domestic Violence Act, 2005, vide D.V.C.No.1 of
2010.
o. She has lodged a complaint against respondent No.1
for the offence punishable under Section 498-A of
I.P.C. with the police, Rajendranagar Police Station,
who in turn registered a case in Crime No.1022 of
2011.
Thus, according to respondent No.1/husband,
appellant/wife subjected him to cruelty.
KL, J & PSS,J
8. Appellant/wife denied the said allegations.
According to her, respondent No.1 is aware of her sub-
caste and also the fact that she is (3½) years older than
him. He only harassed her. She never harassed him on
any ground as alleged by him. She has filed a petition
vide O.P.No.1145 of 2011 seeking maintenance. Since,
respondent No.1 has harassed her, she has filed the
aforesaid complaint with the police and also D.V.C.No.1
of 2010. Respondent No.1/husband filed the said O.P.
seeking dissolution of marriage only to get rid of her from
matrimonial home.
9. To prove the said ground of cruelty, respondent
No.1-husband examined himself as PW.1 and filed Ex.P.1
to P.6 documents. To disprove the same, appellant/wife
examined herself as RW.1. She did not file any
documents.
10. On consideration of the entire evidence, both oral
and documentary, vide impugned order and decree dated
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09.06.2017, learned Family Court granted decree of
divorce on the grounds that appellant/wife harassed
respondent No.1/husband by suspecting that he has
illegal intimacy with several women and sending him for
medical examination or subjecting him for medical
examination, amounts to cruelty. Both the parties were
living separately since 25.04.2011 i.e., for more than (6)
years, without any co-habitation. Appellant/wife did not
express her willingness to join the marital life with
respondent No.1. Further, she has filed D.V.C.No.1 of
2010 and lodged a complaint against respondent No.1 for
the offence punishable under Section 498-A of I.P.C.,
subsequent to living separately. Therefore, the marriage
of appellant/wife with respondent No.1/ husband has
been broken. Though elders tried for amicable
settlement, the same could not be arrived and there is no
possibility of both the parties living together in view of the
unresolved disputes between them.
KL, J & PSS,J
11. Sri Mummaneni Srinivas Rao, learned counsel,
representing Sri Cheruku Ramesh, learned counsel
appearing for appellant/wife, would submit that during
the pendency of the present appeal, respondent
No.1/husband died on 08.05.2021. Appellant herein is a
teacher. She does not want to be a divorced widow of
deceased respondent No.1. Learned counsel would
further submit that a suit vide O.S.No.12 of 2012 was
filed seeking declaration of title over the house and the
same is pending.
12. As discussed supra, though respondent
No.1/husband levelled several allegations against the
appellant/wife, he did not examine any witness to prove
the same. At the same time, he has not filed any
documents in proof of the same.
13. However, during cross-examination, respondent
No.1 has categorically admitted that one Ms.Neelima,
who was his tenant residing in the same house, has
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vacated the house and that he does not know where she
is residing thereafter. He has also admitted about
purchase of house at Bhavani Nagar and that he did not
mention the name of the person who conducted
panchayat for mediation between him and
appellant/wife. He did not mention the dates of the said
panchayat and the place where the panchayat was
conducted. He did not mention the names of friends and
also their neighbors to whom the appellant/wife has
spread rumors about his illicit relation. He left home on
25.04.2011 and he met his daughter in a hostel at
Hayathnagar during April, 2013. He has filed a petition
seeking visitation rights of his children. He attempted to
commit suicide and the same was informed to Sarwajana
Sankshema Mandali, who advised him not to commit
suicide. Respondent No.1 further admitted that he does
not know whether the said Mandali spoke to Ms.Neelima,
his tenant who got vacated from their locality.
KL, J & PSS,J
14. As discussed supra, the appellant herein had filed
O.P.No.1145 of 2011 seeking maintenance to her
children on their behalf. The same was allowed.
15. As discussed supra, respondent No.1 failed to prove
the ground of cruelty by producing cogent evidence.
Without considering the said aspects, learned Family
Court granted decree of divorce vide the impugned order.
16. In fact, learned Family Court granted decree of
divorce by observing that appellant herein had filed
D.V.C.No.1 of 2010 and implicated respondent No.1 in a
criminal case for the offence punishable under
Section 498-A of I.P.C. They were living separately since
25.04.2011 i.e., more than (6) years and the marriage of
appellant with respondent No.1 has been broken.
17. It is relevant to note that when the wife is subjected
to harassment by the husband, she has every right to
lodge a complaint against the husband for the offence
punishable under Section 498-A of I.P.C. She is also
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entitled to file an application under Section 12 of the
D.V.C. Act against the husband, seeking certain reliefs.
Mere filing of D.V.C. and lodging a complaint against the
husband, does not amount to.
18. It is relevant to note that on the ground of
irretrievable breakdown of marriage, neither the Family
Court nor this Court can grant decree of divorce. It is not
a ground to seek decree of divorce. In fact, Law
Commission made a recommendation to include the said
ground of irretrievable breakdown of marriage as a
ground to obtain decree of divorce. The said fact was
also mentioned by the Hon'ble Apex Court in Naveen
Kohli v. Neelu Kohli 2.
19. Thus, the impugned order and decree is not on
consideration of evidence, both oral and documentary. It
is not a reasoned order. Therefore, it is liable to be set
aside.
2 (2006) 4 SCC 558
KL, J & PSS,J
20. Accordingly, the Family Court Appeal is allowed
setting aside the impugned order and decree dated
09.06.2017 passed by the learned Judge, Family Court at
L.B. Nagar, Ranga Reddy District, in F.C.O.P.No.547 of
2012. There shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending
in the Family Court Appeal shall stand closed.
___________________
K. LAKSHMAN, J
___________________
P. SREE SUDHA, J
13th February, 2024
GSP/PN
