Telangana High Court
Smt.Y.Naga Sulochana vs K.Chaya Prathap Reddy on 11 January, 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.62 OF 2022
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. D.Vijay Chandra Reddy, learned counsel
representing Sri V.Ramesh Kumar, learned counsel for the
appellant/wife and Sri O.Manohar Reddy, learned Senior Counsel
representing Sri S.V.Ramana, learned counsel for the
respondent/husband.
2. Feeling aggrieved and dissatisfied with the order and decree
dated 23.12.2021 passed in FCOP No.1559 of 2017 by the Principal
Judge, Family Court - cum - Additional Chief Judge, City Civil Court
at Hyderabad, the appellant preferred the present appeal.
3. The respondent/husband has filed a petition under Section 11
and 12(1) (c) of the Hindu Marriage Act, 1955 (for short, 'the Act')
seeking annulment of his marriage with the appellant/wife performed
in the intervening night of 11.08.2017/12.08.2017 at Silparamam,
Tirupati on the following grounds:-
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i. He placed his profile/bio-data in Bharat Matrimony and Reddy
Matrimony and the appellant/wife sent interest couple of times.
ii. She contacted father of the respondent and the respondent
accepted her interest.
iii. Thereafter, parents of the parties and elders have met and fixed
marriage.
iv. At the time of marriage, the appellant/wife informed that she
was working at Bangalore as Software Engineer and drawing
salary of Rs.6,00,000/- per annum. She further mentioned her
date and time of birth as 08.10.1986 between 5.30 a.m. and 6.30
a.m.
v. Father of the respondent/husband was very particular with
regard to date and time of birth, to see the compatibility
between the parties.
vi. The marriage was performed in the intervening night of
11/12.08.2017 at Tirupati.
vii. Before marriage, he wanted the marriage to be registered with
the Registrar of Marriages.
viii. The appellant/wife furnished information, copy of Adhar Card
and did not furnish SSC certificate in proof of her date of birth, 3
on which, the family of the respondent/husband got suspicion.
However, as the marriage was fixed, they have proceeded with
the marriage.
ix. They have spent three days at Fortune Kenses Hotel, Tirupati
after marriage. Then both of them went to the house of paternal
uncle of the appellant at Kalikiri.
x. He went to his native village Ammapalem, near Srikalahasthi,
Chittoor District.
xi. Later appellant/wife along with her brother, joined the
respondent/husband at Hyderabad. Both of them lead
matrimonial life at Hyderabad.
xii. During the said period, she was quarrelsome and he was
explaining her to behave and conduct herself.
xiii. For the marriage of the parties, his father contributed
Rs.3.10,000/- and her family contributed Rs. 4,90,000/-. He
also presented diamond ring to her.
xiv. While the matter stood thus, one P.Nagarjuna contacted his
uncle Sri.K.Sathyavelu Reddy, Zoology Professor (P.W.2) at
Tirupati and disclosed that he was married to appellant herein 4
and that she was immoral, unethical and her acts are
questionable.
xv. The said P.Nagarjuna also informed that his marriage with the
appellant was performed on 15.03.2013 at Dharmasthali,
Karnataka and he sent audio recordings, photographs, messages
between them to the respondent's uncle, who called his father to
Tirupati on 17.09.2017 and told him everything.
xvi. The said P.Nagarjuna further disclosed that she was indulging
in sexual activities with Babu and Prasad Reddy Endla and
others.
xvii. A meeting was fixed on 01.10. 2017.
xviii. The audio recordings, whatsapp messages, photographs were
explained to them. The father and paternal uncle of
appellant/wife accepted her acts.
xix. When one of the videos was being played, she herself stopped it
and confessed her immoral acts for the sake of money.
xx. Therefore they have entered into Ex.P.15-Vidakula Oppandha
Patram/divorce agreement dated 01.10.2017 wherein they have
agreed to obtain decree of divorce with mutual consent, but she
did not come forward for the same.
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xxi. He has lodged a complaint with the Police, S.R.Nagar Police
Station, Hyderabad who in turn registered a case in Cr.No. 778
of 2017 for the offences punishable under Sections 417 and 494
of IPC on 02.11.2017 against his wife and others. She also
lodged a complaint with the Police, Vayalpad on 07.11.2017
against the respondent herein/husband who in turn registered
the same as a case in Cr. No.77 of 2017 for the offences
punishable under Sections 498-A of IPC and Sections 3 and 4
of the Dowry Prohibition Act.
xxii. During investigation in Cr.No.778 of 2017, the appellant/wife,
her lawyers and elders came to S.R Nagar Police Station and
agreed to put an end to the relationship of husband and wife,
agreed to close the cases and for annulment of marriage. Thus,
they have entered into Ex.P.16 agreement of separation between
the husband and wife dated 22.11.2017 on the specific terms
mentioned therein.
xxiii. He was ready to honour terms and conditions of the agreement
dated. 22.11.2017. The appellant herein was not ready to
honour the same. Therefore, he has filed the aforesaid OP
seeking annulment of the marriage.
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4. The appellant herein filed counter denying the said
allegations with the following grounds:-
i. Her father contributed an amount of Rs.15 Lakhs for the
marriage as per the custom and presented a diamond ring and
gold ornaments to him.
ii. He started suspecting her.
iii. Her in-laws not treated her properly.
iv. They always used to question her about phone calls,
photographs previously taken by her. They have called her
parents beyond her blame without any proof. They have created
allegation against her.
v. Father of the respondent/husband is practicing Advocate at
Hyderabad. They influenced the police and lodged false
criminal cases against her and her parents. They were kept in
S.R.Nagar Police Station for three days. Counseling took place
at mediation centre.
vi. He has filed fake phogotraphs, audio tapes about the incident
and forcibly taken her to Nursing Home to medical test in
respect of AIDS and tested negative.
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vii. If she suffered fever and cold, he used to suspect her that it may
be the result of sexual deceases. His actions were not tolerable.
viii. However, he has filed rejoinder denying the same.
5. To prove the said contentions, the respondent/husband has
examined himself as P.W.1 and his uncle as P.W.2. He has filed
Exs.P.1 to P.19. To disprove the said allegations, appellant herein
examined herself as R.W.1 and her father as R.W.2. However, she has
not filed any documents.
6. On consideration of the entire evidence both oral and
documentary, vide impugned order and decree dated 23.12.2021,
learned Family Court allowed the said FCOP with costs declaring the
marriage of the parties solemnized on intervening night of
11/12.08.2017 as null and void under Section 12(1) (c) of the Act and
accordingly decree of nullity of marriage was passed. Feeling
aggrieved by the said order, the appellant/wife preferred the present
appeal.
7. Learned counsel for the appellant contended that appellant
never suppressed the date of birth and it is her first marriage with the
respondent/husband. The respondent created audio tapes etc. for the
purpose of filing the aforesaid OP and to get rid of the appellant 8
herein. However, there is no suppression of fact by the appellant
herein. He has also made alternative submission that
misrepresentation of date of birth and earlier marriage is not act of
fraud to seek divorce under Section 12(1) (c) of the Act. He has also
placed reliance on the principle laid down by the Apex Court in Lohia
Properties (P) Ltd., Tinsukia, Dibrugarh, Assam v. Atmaram
Kumar 1, in Ramdayal Jat v. Laxmi Prasad2, in Bharat Amratlal
Kothari v. Dosukhan Samadkhan Sindhi 3 High Court of Judicature
at Hyderabad for the State of Telangana and the State of Andhra
Pradesh in Vijaya Nagini v. Ram Naren Mothe4, the High Court of
Chhattisgarh at Bilaspur in Yogesh Puri Goswamy v. Pallavi
Goswami 5, the High Court of Punjab and Haryana in Brijinder Bir
Singh v. Vinod6.
8. However, Sri O.Manohar Reddy, learned Senior Counsel
appearing for respondent/husband would submit that the Family Court
on consideration of the entire evidence both oral and documentary
allowed the said petition annulling the marriage of the parties. It is a
reasoned order. There is no error in it.
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(1993) 4 SCC 6 2 AIR 2009 SC 2463 3 AIR 2010 SC 475 4 2015 (1) ALD 7 5 2018 (2) CGLJ 449 6 AIR 1995 P&H 42 9
9. The aforesaid facts would reveal that according to the
respondent/husband, the appellant /wife has suppressed the following
facts while performing the marriage:-
i. Her date of birth is mentioned as 08.10.1986 but actual date of
birth is 02.06.1983.
ii. She was working at Bangalore as software Engineer and
drawing salary of Rs.6 Lakhs per month.
iii. She stated that it is her first marriage.
iv. She has suppressed her earlier marriage with one P.Nagarjuna.
ix. She used to indulge in sexual activities with Babu and Prasad
Reddy Endla and others as informed by P.Nagarjuna to P.W.2.
x. Therefore, according to the respondent/husband, the marriage
has to be annulled by way of decree of nullity.
10. It is relevant to note that though the appellant herein denied
the said allegations in the counter, during the course of examination,
she has admitted that her date of birth is 02.06.1983. The
respondent/husband has lodged a complaint with S.R.Nagar Police
who in turn registered a case in Cr.No.778 of 2017 (Ex.P.7) against
the appellant herein for the offences punishable under Sections 417
and 494 of IPC. On completion of investigation, the Investigating 10
Officer has filed charge sheet and the same was taken on file vide
C.C.No.2626 of 2018 against the appellant, her parents and others.
11. However, learned counsel for the appellant would contend
that the police cannot register a case for the offence under Section 494
of IPC against the appellant. This Court cannot consider the said
aspect in the present appeal. On 01.10.2017, the appellant and
respondent have entered into Vidakula Oppandha Patram/divorce
agreement dated 01.10.2017(Ex.P.15) wherein they have agreed to
obtain decree of divorce with mutual consent. It is mentioned that
clothes, other items and ornaments were to be handed over to her. She
has agreed that she has received the same. However, they have not
proceeded with pursuant to the Ex.P.15 agreement.
12. The respondent/husband has lodged a complaint with the
Police, S.R.Nagar, who in turn registered a case in Cr.No.778 of 2017
against the appellant and others for the offences punishable under
Section 417 and 494 of IPC.
13. It is also apt to note that the appellant has also lodged a
complaint with the Police, Vayalpad Police Station on 07.11.2017
who in turn which is registered as a case in Cr.No.77 of 2017 against
the respondent/husband and others for the offences punishable under 11
Sections 498-A of IPC and Sections 3 and 4 of the Dowry Prohibition
Act (Ex.P.17).
14. It is also apt to note that the appellant and respondent have
entered into an agreement of separation dated 22.11.2017 (Ex.P.16) on
the specific terms and conditions mentioned therein. The said
agreement was signed by the appellant, respondent and two witnesses.
In the said agreement, it is mentioned that the appellant, her parents
i.e. Y.Suryanarayana Reddy and Y.Neelavathi, relatives namely
Y.Chandra Shekar Reddy, Y.Vani, N.Raja Reddy and brother
Y.Sudheer Reddy, concealed the fact of her marriage with
P.Nagarjuna, the resident of Bangalore, immoral character, date of
birth, job, salary and fixation of marriage with one Vinay Kumar
Reddy and cancellation of the same just in 4 days before wedding,
induced the respondent to marry her with dishonest interest with
defrauding with his family. They have agreed to file either a case for
annulment of marriage or divorce and obtain decree from the Court.
15. Clause Nos. 3, 8, 9 and 10 of the said agreement are
relevant and the same are extracted below:-
3. If the husband files a case before the Court for annulment of marriage or divorce, the wife shall cooperate with the husband to obtain compromise decree from the Court, failing which it is deemed that she has waived her right to contest the case filed by the husband and she shall be liable to pay a 12
sum of Rs.25 Lakhs to her husband within one month from the date of her default as penalty.
8. That the Husband has agreed to return her gold jewels and silver articles:
mentioned above to her and the Wife has agreed to return gold items referred above presented by her Husband, to him, in the Court at the time of passing the Decree for Annulment of Marriage or Divorce.
9. That the marriage of Husband and Wife has irretrievably broken down due to the reasons stated above, therefore, they are separated and living separately since 24.09.2017, hence, it is deemed that they are separated since 24.09.2017 for all legal intents and purposes.
10. That K. Chaya Pratap Reddy has agreed to pay sum of rupees Ten Lakhs only (Rs. 10,00,000/-only) to Y. Nagasulochana and her family towards full and final settlement while passing the Decree for Annulment of Marriage or Divorce, and she shall not further have any right(s) against her Husband and his family members whatsoever.
16. Thus, respondent/husband has agreed to return her gold
jewels and silver articles mentioned therein. The appellant and
respondent have agreed to return gold items referred to above
presented by her husband to him in the court at the time of passing the
decree for annulment of marriage or divorce. Husband has agreed to
pay a sum of Rs.10 Lakhs to the appellant herein and her family
members and file a final settlement while passing the decree for
annulment of marriage or divorce and she will not have any right
against her husband and his family members in future.
17. There is no dispute with regard to entering of the said
agreement by the parties herein. The said fact was also admitted by 13
the appellant as well as respondent during cross-examination. The said
agreements i.e. Ex.P.15 dated 01.10.2017 and Ex.P.16, dated
22.11.2017 were marked. The Family Court did not consider the said
aspects. However, the Family Court allowed the said O.P. filed by the
respondent/husband holding that the respondent/husband did not
produce any specific evidence proving marriage of the appellant with
said P.Nagarjuna and as such, it cannot be held that during subsistence
of earlier marriage, the appellant married the respondent herein again.
However, criminal case is pending on that issue. The annulment of
marriage can be granted under Section 11 of the Act. But, the
respondent/husband is entitled for decree of nullity of marriage under
Section 12 (1) (c) of the Act.
18. In the light of the same, Section 11 and 12 (1) (c) of the Act
are relevant and the same are extracted below:-
11. Void marriages.--Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
12. Voidable marriages.--
(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:--
(a)--------------
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(b)------------------
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent;
19. As per the aforesaid provisions, the marriage may be
annulled by way of decree of nullity on the ground of fraud is as to the
nature of ceremony or as to any material fact or circumstance
concerning the respondent. Thus, the requirements to annul the
marriage by way of decree of nullity on the ground of fraud are 1)
nature of ceremony 2) any material fact and 3) circumstance
concerning the respondent. The appellant and respondent are qualified
persons. They have dropped their bio-data in matrimony. If the
respondent's father is very particular about date and time of birth of
the appellant, he should have requested the appellant or her father to
furnish a copy of SSC marks memo which is conclusive proof of date
of birth. However, he has obtained a copy of Adhar Card.
20. It is relevant to note that the date of birth of a person
mentioned in Adhar card is not a conclusive proof. However, during
the cross-examination, appellant has admitted that her date of birth is
02.06.1983. There is no dispute with regard to the said fact. With 15
regard to her marriage with P.Nagarjuna, though learned counsel for
the appellant has argued that Exs.P.3, P.4 etc., are not authenticated
documents, they have not obtained certificate under Section 65-B of
the Indian Evidence Act and expert opinion under Section 45-A of the
Act, but, the appellant has agreed the said aspects in Ex.P.16
agreement of separation. Therefore, the said contentions of the
appellant are not of much relevance. Even the contention of the
appellant that the said misrepresentation with regard to date of birth of
marriage of the appellant with said P.Nagarjuna are admitted to be
true, the same does not amount to fraud is also not much relevance in
view of the execution of Ex.P.15 and Ex.P.16 agreements.
21. At the cost of repetition, as discussed supra, both the
appellant and respondents have entered into Ex.P.16 agreement of
separation. They have to obtain decree of divorce either by seeking
decree of annulment of marriage or divorce with mutual consent.
Husband agreed to return gold ornaments and jewellary etc. to her and
she also agreed to return certain gold ornaments and jewellary etc., to
the husband. Husband agreed to pay an amount of Rs.10 Lakhs to the 16
wife and her family members towards full and final settlement while
passing decree of annulment.
22. It is relevant to note that in Clause No.3, it is agreed by the
parties that if the husband files a case before the Court for annulment
of marriage or divorce, the wife shall cooperate with the husband to
obtain compromise decree from the Court, failing which it is deemed
that she has waived her right to contest the case filed by the husband
and she shall be liable to pay a sum of Rs.25 Lakhs to her husband
within one month from the date of her default as penalty. There is no
explanation from the learned counsel for the appellant as well as the
respondent as to why they have not proceeded further pursuant to
Ex.P.16 agreement. Having agreed to obtain decree of divorce, they
have not proceeded with the said agreements i.e. Exs.P.15 and P.16.
There is no consideration of the said aspects by the Family Court in
the impugned order. The respondent failed to explain the said aspect.
23. The learned Family Court in paragraph No.29 of the
impugned order annulled the marriage only on the ground of fraud.
However, learned Family Court failed to explain the acts of fraud said
to have been committed by the appellant wife. However, learned 17
Family Court in paragraph No.30 of the impugned order held that the
respondent/husband did not produce any specific evidence proving the
marriage of the appellant with said P.Nagarjuna and as such it cannot
be held that during subsistence of the earlier marriage, the appellant
married the respondent herein again. Therefore, the finding of the
Family Court in paragraph No.29 is contrary to the finding in
paragraph No.30. Therefore, the impugned order passed by the trial
Court is not on proper consideration of the material placed before it.
24. As discussed supra, the facts in the present case are
altogether different. They have agreed to obtain a decree of divorce or
annulment of the marriage by way of filing appropriate application. In
Ex.P.16. they have agreed to return the jewellary to each other.
Husband agreed to pay an amount of Rs.10 Lakhs to the wife. Instead
of proceeding further in compliance of the said agreed terms, the
respondent/ husband filed the aforesaid O.P. seeking annulment of the
marriage. The said aspects were not considered by the Family Court.
25. It is relevant to note that the marriage of appellant with the
respondent held in the intervening night of 11/12.08.2017. It appears,
the said marriage was not consumed. But, respondent received 18
information from the said P.Nagarjuna, he called father of respondent
to Tirupati on 17.09.2017 itself. A meeting between the families was
fixed on 01.10.2017. Ex.P.15-agreement was entered on 01.10.2017.
Cr.No.778 of 2017 was registered by the Police, S.R.Nagar Police
Station, on the complainant lodged by the husband on 02.11.2017. On
17.11.2017, the Police, Vayalpad Police Station, registered Cr.No.77
of 2017 on the complaint lodged by wife. Ex.P.16 agreement was
entered between them on 22.11.2017. Thus, all the above said
incidents took place within three months.
26. In view of the above discussion, this appeal is disposed of.
The impugned order dated 23.12.2021 passed in FCOP No.1559 of
2017 by the Principal Judge, Family Court - cum - Additional Chief
Judge, City Civil Court at Hyderabad, to the extent of declaring the
marriage between the parties herein as annulled is confirmed.
However, the respondent/husband shall pay an amount of Rs.10 Lakhs
to the appellant/wife as agreed by him in Ex.P.16 agreement and both
the appellant and respondent shall return gold jewellary etc., as agreed
by them in Clause No.8 of Ex.P.16 agreement. They shall also
complete obligation cast on them in clause Nos.11 and 12 of Ex.P.16 19
agreement. They shall comply with the aforesaid directions within one
month from the date of receipt of a copy of this order.
Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
________________________ JUSTICE K. LAKSHMAN
________________________ JUSTICE P.SREE SUDHA Date:11.01.2024 VVR
