Telangana High Court

P. Venkatarama Sharma , P. Venkatram vs Smt. P. Jyothi on 29 February, 2024

Author: K.Lakshman

Bench: K.Lakshman

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

      FAMILY COURT APPEAL NOs.257 AND 258 OF 2010


COMMON JUDGMENT:

(per Hon'ble Smt Justice K.Sujana)

F.C.A.No.257 of 2010 is filed against the common order

dated 20.08.2010 passed by the Judge, Family Court, Hyderabad

in F.C.O.P.No.417 of 2008, wherein the appellant herein filed

petition for dissolution of marriage but the same was dismissed.

F.C.A.No.258 of 2010 is filed against the common order dated

20.08.2010 in F.C.O.P.No.416 of 2010, wherein the trial Court

allowed the petition filed by the wife who is the respondent herein

for restitution of conjugal rights. Both these appeals are filed by

the husband against the order of dissolution of marriage and order

of restitution of conjugal rights.

2. F.C.A.No.257 of 2010 is filed by the appellant contending

that the learned Judge ignored the crucial aspect regarding

petition filed by the appellant and that the respondent/wife filed

petition for restitution of conjugal rights only as a counter blast.

The learned Judge failed to consider that marriage was not

consummated and there is long duration of separation of eight

years and has also not taken into consideration the cruelty,

mental harassment and humiliation meted out by the appellant KL,J &SKS,J FCA.Nos.257 & 258 of 2010

from the beginning of their marriage. The trial Court failed to

appreciate the evidence of Rws.2 and 3 in favour of Rw.1 who are

only blood relatives and without appreciating the evidence on

record erroneously dismissed the petition for dissolution of

marriage. As such, he prayed the Court to allow the appeal by

setting aside the decree in F.C.O.P.No.417 of 2008.

3. The appellant filed F.C.A.No.258 of 2010 contending that the

trial Court erred in allowing the petition filed by the

respondent/wife for restitution of conjugal rights, without

observing that they are living separately for more than eight years

and marriage was not consummated, but the respondent wrongly

projected the evidence. The trial Court failed to appreciate the

aspect of desertion for a lengthy period of more than eight years

and the efforts made by the appellant to bring back the

respondent to lead happy marital life through mediators and

Raksha Social Organization. The trial Court relied on the evidence

of respondent without giving weight to his evidence. Therefore,

prayed the Court to allow the appeal by dismissing the order in

F.C.O.P.No.416 of 2008.

KL,J &SKS,J FCA.Nos.257 & 258 of 2010

4. As the parties in both the appeals are same, they are

disposed of by this common judgment and for the sake of

convenience, the parties hereinafter referred to as

appellant/husband and respondent/wife.

5. The trial Court delivered common judgment in

F.C.O.P.Nos.416 and 417 of 2008 as the parties are same.

F.C.O.P.No.417 of 2008 is filed by the wife who is the respondent

in these appeals under Section 9 of the Hindu Marriage Act for

restitution of conjugal rights stating that their marriage was

performed on 10.08.2001 according to the customs of Hindu law

and it is an arranged marriage. At the time of marriage her

parents gave a sum of Rs.2,00,000/- apart from a gold ring and

silver articles to the appellant and her parents also incurred

Rs.3,00,000/- towards marriage expenses. The mother of the

appellant/husband began to harass the respondent/wife on the

ground of orthodox principles and acharams. The respondent/wife

studied M.Com., M.Phil and working as Assistant Professor in

Vasavi Engineering College and earning Rs.50,000/- per month

and they lived together till 19.04.2008. Though both of them lived

happily, during the year 2004 at the instance and dictates of

mother of the appellant/husband that she is not willing and

accepting the respondent/wife to stay along with them, she was KL,J &SKS,J FCA.Nos.257 & 258 of 2010

dropped at her parents' house by the husband stating that he will

come and take her back. But thereafter she received a letter from

Raksha Social Organization, conciliation took place and on the

advice of the said Organization, they agreed to restore their family

life. The Raksha Social Organization directed the

appellant/husband to tell his mother not to interfere with the day

to day family life of the spouses. Since then they are living

together. As the respondent/wife could not conceive, the mother of

appellant started harassing her on the ground that she is not a

woman and not fit for family life. The respondent also went for

fertility check up. Though both of them lived together till

19.04.2008, the appellant neglected her without any reason.

Though the respondent was dropped at her parents' house, her

husband used to meet her frequently either in the house of their

known people or at hotels. The appellant used to pick her up

especially on Saturdays and used to stay for couple of days. Later

on, the appellant stopped meeting her inspite of her best efforts to

contact him through phones. Therefore, she filed F.C.O.P.No.416

of 2008 for restitution of conjugal rights and her husband filed

counter admitting the marriage and denied the other allegations

contending that though the marriage was an arranged marriage,

and celebrated on 10.08.2001, it was not consummated sofar, due

to the reluctantness and arrogance of his wife. She used to refrain KL,J &SKS,J FCA.Nos.257 & 258 of 2010

him on the ground that they have to separate from his parents, to

effect partition of his ancestral properties and his share should be

transferred in her name. It is also stated that his wife deserted him

on 02.03.2002 and ever since she did not turn up and inspite of

his implorations, entreaties and attempts to touch his wife, she

did not allow him. According to him, marriage was not

consummated. The efforts made by him through elders and

mediators became futile and their marriage was irretrievably

broken down and he has no interest in marital life, as such prayed

the Court to dismiss F.C.O.P.No.416 of 2008 and prayed the Court

to allow his F.C.O.P.No.417 of 2008.

6. F.C.O.P.No.417 of 2008 was filed by the appellant/husband

stating about their marriage and that their marriage was not

consummated. It is also alleged that the respondent was very

adamant and she was not cooperating with him in having sexual

life on the ground that he has to be separated from his parents, to

effect partition of their ancestral properties and his share should

be transferred in her name. She deserted him on 02.03.2002 and

since then she did not turn up and reiterated the same facts which

were stated in the counter in F.C.O.P.No.416 of 2008. The

respondent/wife filed counter stating the facts which were stated

in F.C.O.P.No.416 of 2008.

KL,J &SKS,J FCA.Nos.257 & 258 of 2010

7. To prove their case, on behalf of the husband he himself was

examined as Pw.1 and Exs.P.1 to P.6 are marked. On behalf of the

respondent/wife, she herself was examined as Rw.1, Rw.2- brother

and Rw.3-sister of the respondent were examined but no

documents were marked on her behalf.

8. Basing on the evidence on record, the trial Court came to

the conclusion that the husband is not entitled for dissolution of

marriage and allowed the petition filed by the wife for restitution of

conjugal rights. Against the same, these appeals are filed.

9. Heard Sri P. Venugopal, learned counsel representing Sri

V.Narasimha Murthy, learned counsel appearing for the appellant

and Sri S.V.Ramana, learned counsel appearing for the

respondent.

10. Learned counsel for the appellant would submit that the

marriage of the appellant and respondent was not consummated

though it was performed in the year 2001 and there is long

desertion between the couple and there is no possibility of

reunion. He further contended that the trial Court without

properly appreciating the evidence on record dismissed the

petition of appellant for dissolution of marriage without observing KL,J &SKS,J FCA.Nos.257 & 258 of 2010

the cruelty meted out by him and the long term desertion. Hence,

prayed the Court to allow the appeals.

11. Learned counsel for the respondent would submit that there

are no infirmities in the judgment of trial Court. The respondent

is ready to join the company of appellant and there are no merits

in the appeal. Hence, prayed the Court to dismiss the appeals.

12. The contention of appellant is that their marriage was not

consummated and the respondent/wife was not cooperating with

him in sexual life. It is also contended that the respondent used

to utter vulgar language, she did not care anybody and also

neglected his parents. His further contention is that the

respondent demanded him to desert his parents, effect partition of

the ancestral properties and transfer his share in her name. She

used to threaten him and his family members that she will commit

suicide and foist false cases against them.

13. According to the respondent/wife, they lived happily till

19.04.2008. Thereafter they used to meet at weekends and they

also consulted fertility doctor. The appellant left her in her

parents house in the month of August, 2006 on the ground that

they are going to demolish their house and construct a new house KL,J &SKS,J FCA.Nos.257 & 258 of 2010

in that place. Both the couple are interested to live together, but

the parents of the appellant are reluctant to accept her. The

appellant studied C.A. & ICWA and working in Gulf Oil and the

respondent/wife studied M.Com., M.Phil, and working as

Assistant Professor in Vasavi Engineering College. Both are highly

educated, but the appellant is disputing consummation of

marriage whereas, wife is not supporting the same. The Raksha

Social Organization also held mediation and conciliation, where

the respondent expressed her view to the elders of the said

Organization that appellant be advised to consult a Doctor or

fertility centre and she is also ready to go for medical checkup but

the mother of the appellant did not agree for the said proposal.

14. After going through the version of the respondent, it seems

that she is ready to join the company of appellant and she denied

that she demanded for partition of ancestral property, to transfer

the share of appellant in her name and also to deposit huge

amounts in her name. When the respondent is also working as

Assistant Professor, the version of appellant is not reliable with

regard to partition of property and other allegations. At one stage

he deposed that his wife is not willing to join his company, and at

another stage, he deposed that his co-brother came to him and

asked him to take back his wife but he was not willing to take her KL,J &SKS,J FCA.Nos.257 & 258 of 2010

back. In cross-examination he stated that he has no interest to

lead family life with the respondent. Simply because he is not

interested to lead marital life, the marriage cannot be dissolved.

Admittedly, either of them did not go for second marriage, though

he claimed that desertion is also one of the ground for dissolution

of marriage, but the same was not proved as the respondent/wife

deposed that till the year 2006 they lived together and lead happy

marital life. Later also the appellant/husband used to pick up her

at the weekends and they spent happily, which shows that the

allegations made by the appellant are baseless.

15. In view of the said contradictory statements of husband and

on flimsy grounds petition is filed for dissolution of marriage.

There are no grounds to allow the petition. As such there are no

infirmities in the order of the Family Court in dismissing the

petition for dissolution of marriage. The respondent/wife filed

petition for restitution of conjugal rights and she is willing to join

the company of her husband. Both are highly educated and they

are in their respective jobs and hail from respected families.

However, the husband, except stating that the wife is cruel, that

she is not cooperating for consummation of marriage and also

demanding for separation from his parents, there is no other

evidence placed on record in support of his allegations. Even KL,J &SKS,J FCA.Nos.257 & 258 of 2010

assuming that the wife has demanded for separation and for

properties as well, it is noticed that she has not filed any criminal

or civil cases against her husband seeking monetary relief with an

intention to harass him. This clearly shows that there is no truth

in the testimony of husband.

16. Though the contention of husband is that as they are living

separately since long time, their marriage is broken down

irretrievably, therefore, on that ground marriage can be dissolved,

whereas, the said power can be exercised under Article 142 of the

Constitution of India, by the Hon'ble Supreme Court, but not by

this Court. Further, the Hon'ble Supreme Court in Dr. Nirmal

Singh Panesar Vs Paramjit Kaur Panesar @ Ajinder Kaur

Panesar 1, in Paragraph Nos.18 and 19 it is observed as under :

"18. However, in our opinion, one should not be oblivious to the fact that the institution of marriage occupies an important place and plays an important role in the society. Despite the increasing trend of filing the Divorce proceedings in the courts of law, the institution of marriage is still considered to be a pious, spiritual, and invaluable emotional life-net between the husband and the wife in the Indian society. It is governed not only by the letters of law but by the social norms as well. So many other relationships stem from and thrive on the matrimonial relationships in the society. Therefore, it would not be desirable to accept the formula of "irretrievable break down of marriage" as a strait-jacket formula for the grant of relief of divorce under Article 142 of the Constitution of India.

1 2023 SCC Online SC 1297 KL,J &SKS,J FCA.Nos.257 & 258 of 2010

19. So far as the facts of the present case are concerned, as stated earlier, the appellant-husband is aged about 89 years and respondent-wife is aged about 82 years. The respondent all throughout her life has maintained the sacred relationship since 1963 and has taken care of her three children all these years, despite the fact that the appellant-husband had exhibited total hostility towards them. The respondent is still ready and willing to take care of her husband and does not wish to leave him alone at this stage of life. She has also expressed her sentiments that she does not want to die with the stigma of being a "divorcee"

woman. In contemporary society, it may not constitute to be stigma but here we are concerned with the respondent's own sentiment. Under the circumstances, considering and respecting the sentiments of the respondent wife, the Court is of the opinion that exercising the discretion in favour of the appellant under Article 142 by dissolving the marriage between parties on the ground that the marriage has irretrievably broken down, would not be doing "complete justice" to the parties, would rather be doing injustice to the respondent. In that view of the matter, we are not inclined to accept the submission of the appellant to dissolve the marriage on the ground of irretrievable break down of marriage."

17. The only contention of the appellant/husband is that

marriage was not consummated and his wife demanded him to

separate from his parents, demanded to deposit money and

transfer his share in her favour. But the same is not tenable as

cruelty and desertion are not proved by the husband.

18. On the other hand, the wife is willing to join her husband

and her evidence shows that they lived happily and because of his

parents, the disputes arose. As such, on flimsy grounds divorce

petition is filed by the husband and the wife has established that

there is no fault on her part to live separately from the husband.

As such there are no infirmities in the order of the trial Court.

KL,J &SKS,J FCA.Nos.257 & 258 of 2010