Telangana High Court
Raghavender vs V. Jyothi , Madhavi on 7 June, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
THE HON'BLE SRI JUSTICE K. LAKSHMAN
AND
THE HON'BLE SMT. JUSTICE P. SREE SUDHA
I.A.No.1 OF 2023
IN/AND
FAMILY COURT APPEAL No.116 OF 2013
COMMON JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Sri Venkata Raghu Ramulu, learned counsel for the
appellant and Sri S. Raghu Ram, learned counsel representing
Ms. K. Sridevi, learned counsel for the respondent.
2. Feeling aggrieved and dissatisfied by the order and decree,
dated 13.05.2011, passed in O.P.No.18 of 2010 by the learned
Judge, Family Court-cum-Additional District Judge, Mahabubnagar,
the appellant-husband preferred the present appeal.
3. The appellant-husband filed the aforesaid O.P. under Section
13(1)(ia) of the Hindu Marriage Act, 1955 (for short, 'the Act')
against the respondent-wife seeking dissolution of marriage
contending as follows:
i. His marriage with the respondent was performed on
25.11.2007 at Nandigama Village, Kothur Mandal,
Mahabubnagar District, as per Hindu rites and customs.
ii. It is an arranged marriage.
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iii. There was no custom of dowry in their community.
Therefore, he has not taken any dowry.
iv. After marriage, the respondent joined his company at
Mahabubnagar and they lead conjugal life.
v. He looked after the respondent with great care, love and
affection and provided all possible amenities of life.
vi. His entire family showered love and affection on the
respondent.
vii. Both of them lead normal marital life for about four
months.
viii. There are no emotional relations between them.
ix. The respondent did not mingle freely with anyone and used
to get herself aloof and secluded from the affairs of the
family. She used to pick up quarrel with him on trivial
matters thereby disturbing his mental peace. He tried to
know the reason, but he could not. Due to the said
abnormal attitude and behaviour of the respondent, he was
deprived of conjugal life. He tried his level best to resolve
the issues, but due to the adamant and non-cooperative
attitude of the respondent, he could not resolve the same.
x. In the month of March, 2008, he took the respondent on
pilgrimage to Mahanandi, Ahobilam and Brahmamgari
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Matam on the fond hope that she may change her mood
and develop liking on him.
xi. They stayed in a Choultry at Eguva Ahobilam after having
dharshanam. The respondent went to bathroom leaving
her health kit on the table. The appellant curiously opened
the kit and shocked to see insulin bottles and needles. On
enquiry, the respondent gave an evasive reply.
xii. On 25.03.2008, he took the respondent to Dr. Bari,
Consultant Diabetologist. On examination, the Doctor has
diagnosed the same as Type-I diabetes and advised the
respondent to take insulin on daily basis for life. He was
aghast to hear the same.
xiii. The appellant further contended that the respondent and
her parents are aware that the respondent was suffering
from Type-I diabetes.
xiv. It is an incurable disease. They have suppressed the said
fact at the time of marriage.
xv. The respondent was taking insulin injection daily.
xvi. Moreover, persons with Type-I diabetes are prone to sexual
dysfunction and affects overall quality of conjugal life.
xvii. He further contended that the respondent and her parents
started blackmailing him over phone saying that they will
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implicate him in criminal cases, send him to jail and that he
will lose his job.
xviii. They also lodged a complaint against him and also filed a
complaint under Section 200 Cr.P.C. and the same was
referred to Kothur Police Station, which was registered as
Crime No.229 of 2008 for the offences under Sections 498A
and 406 I.P.C. and Sections 3, 4 and 6 of the Dowry
Prohibition Act.
xix. On completion of investigation, the Investigating Officer
has filed charge sheet. The same was taken on file vide
C.C.No.371 of 2009 (Ex.A3).
xx. The respondent also filed a petition claiming an amount of
Rs.15,000/- from the appellant towards monthly
maintenance.
xxi. The respondent also contemplated to file a petition under
the provisions of the Protection of Women from Domestic
Violence Act.
xxii. The father of respondent is a highly influential person and
has backing of antisocial elements, politicians and police
personnel.
xxiii. The respondent left his company demanding huge amount.
Her father is supporting her.
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xxiv. On 25.03.2010, the respondent threatened him over phone
demanding an amount of Rs.10,00,000/- within a week.
He is a school teacher and he cannot afford the aforesaid
amount.
xxv. The respondent developed dislike towards him and she has
threatened and neglected him. She has subjected him to
cruelty, both physically and mentally.
4. The respondent has filed counter denying the said allegations.
The respondent contended that after marriage;
i. she was taken to her in-law's house at Narayanpet and also
at Mahabubnagar.
ii. A month after the marriage, the appellant and his family
members started harassing her both physically and
mentally.
iii. They used to humiliate and ill-treat her for giving
inadequate dowry and say that the appellant is a
government employee and he would get more dowry.
iv. The appellant neglected to perform marital obligations and
maintained callous attitude.
v. The appellant maintained illicit relationship with one
Praveena, daughter of Narasimha Chary. He had a love
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affair with the said Praveena. The said love affair is
continuing for the last several years.
vi. Neither the respondent nor any of her family members
objected for the said illicit relationship with the said lady.
vii. They wanted to perform second marriage of the appellant
with the said Praveena by taking higher dowry.
viii. The appellant used to send messages to said Praveena and
spoke to her over phone.
ix. The respondent further contended that she hails from a
Village background and she has no medical knowledge in
depth.
x. She is not aware of the medical terminology i.e., Type-I or
Type-II diabetes.
xi. At the time of marriage, she was suffering from mild
diabetes and the Doctor advised her to do yoga, exercise
etc., so that the diabetes would be under control or else
cured.
xii. The said fact of mild diabetes was disclosed to the appellant
and his family members before marriage itself.
xiii. Since the appellant is well educated and acquainted with
the terminology of diabetes, he perused and took away the
prescriptions, reports and other medically related papers.
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xiv. After disclosure of everything, the appellant has accepted to
marry her. The appellant expressed his intention to marry
her as she may get government teacher job in future. But
contrary to the same, the appellant and his family members
started harassing her both mentally and physically.
xv. She was compelled to lodge a complaint with the police and
also to file a complaint under Section 200 Cr.P.C.
Therefore, according to her, she never harassed the
appellant and his family members and she never subjected
them to cruelty, as alleged by the appellant.
5. To prove the said cruelty, the appellant-husband examined
himself as PW.1 and Sri M.A. Bari-Doctor as PW.2. and got marked
Exs.A1 to A8. To disprove the said allegations, the respondent-wife
examined herself as RW.1 and she did not file any document.
6. On consideration of entire evidence, both oral and
documentary, vide impugned order, dated 13.05.2011, the learned
Family Court dismissed the subject O.P. Aggrieved by the same, the
present appeal is filed.
7. The appellant-husband has filed I.A.No.1 of 2023 to receive
certified copy of the judgment, dated 27.10.2017, in C.C.No.168 of
2015 (old C.C.No.371 of 2009) rendered by the learned Principal
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Junior Civil Judge-cum-Judicial Magistrate of First Class, Shadnagar.
Having satisfied with the reasons stated, I.A.No.1 of 2023 is allowed
and the said judgment is received.
8. The learned counsel for the appellant has filed a Memo vide
U.S.R.No.119532, dated 06.12.2023, along with an I.A. to amend
the prayer. He cannot file a Memo seeking amendment of the
prayer. He has to file appropriate application. Therefore, the said
request is rejected.
9. During cross-examination, the appellant (PW.1) admitted that
after marriage, for about four months himself and the respondent
(his wife) lived together happily. They were not blessed with any
children. Four months after marriage, he came to know that the
respondent is suffering from Type-I diabetes. He took the
respondent to PW.2-Dr. Bari, Consultant Diabetologist, for check up.
The Doctor advised the respondent to take insulin injection on daily
basis throughout her life. The respondent has been taking insulin
injection twice everyday i.e., Morning and Evening. He had a
problem during sexual intercourse with the respondent. He tried to
enquire the cause for the said problem and he advised the
respondent to go to Doctor. Then, he came to know that the
respondent was suffering from Type-I diabetes. Dr. Bari (PW.2)
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stated that the appellant will face the said problem while leading
conjugal life since the respondent is suffering from Type-I diabetes.
PW.2 also advised that it is not proper for the respondent to have
pregnancy since the children may born with deformities or there may
be miscarriage.
10. On 26.03.2008, father of the respondent came to his house
and took the respondent to his house. Since then, she is staying
with her father. While he was in school and attending meeting of
Head Masters at Hanwada, police came to the school and spoke to
the students and the students developed negative feelings against
him. Thus, he lost his reputation before the children. After the
death of his father, he was brought up by his grandmother.
Therefore, he got lot of affection towards his grandmother.
11. He has further admitted that the respondent sent him SMS
messages many times that she was going to commit suicide and that
he is responsible for the said suicide. He lost his entire family
attachments. Due to Court cases and stress, he was not in a
position to discharge his duties properly. The respondent worked as
a Computer Instructor and in proof of the same, he has filed Ex.A7.
12. PW.2-Doctor deposed that he treated the respondent. The
respondent was suffering from Type-I diabetes Mellitus. The
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respondent told him that she was suffering from Type-I diabetes and
she was taking insulin daily. He advised her to take insulin daily.
Type-I diabetes is not curable, but can be controlled by taking
insulin daily. In this type of disease, the complications like
retinopathy, still birth delivery and so on are common. The
respondent will not have any sexual dysfunction.
13. During cross-examination, PW.2 has admitted that at present
in India 10% of the population is suffering from diabetes including
Type-I and Type-II. He has not obtained any certificate of
endocrinologist. He has not studied endocrinology but worked in
endocrinology department in Osmania General Hospital. By taking
insulin, the person will have the capacity to give birth to a child.
This type of diabetes is treatable like psoriasis and allergy.
14. Thus, according to PW.2, the respondent is suffering from
Type-I diabetes and it is incurable disease and can be controlled by
taking treatment.
15. During cross-examination, the respondent (RW.1) categorically
admitted that she was a patient of Type-I diabetes. She started
using medicine for diabetes from the time she was taken to the clinic
of Dr. Bari (PW.2) i.e., after marriage. She does not know prior to
her examination by Dr.Bari that she was suffering from diabetes.
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She did not use any medicine for diabetes prior to treatment by Dr.
Bari. She did not take any treatment for diabetes prior to marriage.
16. On 25.03.2008, she went to PW.2 for sugar test. On the very
next day, she was driven out of the house by the appellant stating
that he has no financial capacity to provide treatment to her and to
meet the medical expenses.
17. The appellant has demanded Rs.5,00,000/- towards additional
dowry. For the first time, she came to know that she was suffering
from Type-I diabetes when she approached PW.2. She was suffering
from sugar diabetes disease even prior to approaching PW.2.
Further, she denied the suggestion that even prior to marriage also
she was suffering from Type-I diabetes and she was on insulin on
daily basis. On the next day after treatment by PW.2, herself and
the appellant started living separately.
18. A panchayat was held before the elders. The family elders of
both the appellant and the respondent were present in the said
panchayat. She did not issue any legal notice expressing her
readiness to join the company of the appellant prior to sending
notice by the appellant. She has filed a case seeking maintenance,
but she did not file D.V.C. case. She has filed a private complaint
against the appellant and his family members.
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19. The respondent further admitted that after 26.03.2008, she
went to the house of Sri Vittal Rao, the elder for the marriage. They
spoke to Nagamani, who is the maternal aunt of the appellant,
resident of Malakpet, Hyderabad. The respondent (RW.1) further
admitted that after she was necked out from the house of the
appellant, she filed a criminal complaint in the month of November,
2008.
20. In her affidavit in lieu of chief examination, she has stated that
she is ready to join the company of the appellant and lead
matrimonial life with him. She did not file any petition seeking
restitution of conjugal rights except lodging the compliant.
21. The present O.P. is filed two years after 26.03.2008. She
went to the house of the appellant in the month of August, 2008,
20.09.2008 and on 21.09.2008, but she was not allowed to enter
into the house on the said three occasions.
22. The respondent further stated that she got proof to show that
the appellant's love affair with Praveena i.e., SMS messages
between them. But she has not filed the same. She never
demanded money from the appellant for giving divorce and for
withdrawal of criminal case. The respondent has further admitted
that her father got Ac.7-20 guntas of land at Nandigama Village of
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Kothur Mandal abutting to National Highway No.7, but she has no
share in it.
23. It is relevant to note that the marriage of the appellant with
the respondent was performed on 25.11.2007. It is an arranged
marriage. The appellant is a School Assistant. The respondent used
to work in a private company as Computer Instructor, as per Ex.A7.
According to the appellant, the respondent deserted him on
26.03.2008. The said fact was admitted even by the respondent,
but according to her, she was necked out from the matrimonial
house. The appellant has filed the present O.P. on 27.04.2010.
24. It is also not in dispute that the respondent has filed a criminal
case against the appellant and the Investigating Officer laid Ex.A3-
charge sheet in C.C.No.371 of 2009 against the appellant. The said
C.C. ended in acquittal. The respondent also filed a petition against
the appellant seeking maintenance. According to the respondent, an
amount of Rs.10,000/- was awarded towards her monthly
maintenance.
25. It is also not in dispute that the respondent is suffering from
Type-I diabetes and the same is supported by the deposition of PW.2
and also Exs.A4 and A5-medical prescriptions. Even the respondent
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(RW.1) admitted the said fact that she was suffering from diabetes
prior to marriage.
26. According to the respondent, herself and her parents informed
the said fact to the appellant prior to the marriage. They have also
shown the reports to the appellant. On coming to know of the said
fact only, the appellant married her with a hope that she may get
government job. But the same is contrary to the record. There is
no proof to show that the respondent and her parents informed the
appellant that the respondent is suffering from diabetes.
27. On the other hand, it is the specific case of the appellant that
only on checking the health kit of the respondent during a
pilgrimage, he came to know about the said fact that the respondent
is suffering from Type-I diabetes and that she is on insulin. The said
fact was also admitted by the appellant during his examination.
Nothing contrary was elicited during his cross-examination.
28. As discussed supra, the respondent has lodged a complaint
against the appellant and she has also filed a petition seeking
maintenance. During the course of hearing, it is brought to the
notice of this Court that the respondent has already filed a petition
under Section 9 of the Act vide O.P.No.55 of 2021 seeking
restitution of conjugal rights and the same is pending. Though,
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according to the respondent, she was necked out from the
matrimonial house on 26.03.2008, she has filed the aforesaid O.P.
only in the year 2021. In fact, the subject O.P. i.e., O.P.No.18 of
2010 was filed by the appellant-husband on 27.04.2010 itself. The
same was dismissed on 13.05.2011. After ten years of dismissal of
the subject O.P. and during pendency of the present appeal, the
respondent has filed the aforesaid O.P.No.55 of 2021 seeking
restitution of conjugal rights. Thus, there is abnormal delay.
29. The appellant is aged about 49 years at present and he is a
School Assistant. The respondent is aged about 42 years. It
appears, the marriage was not consummated and the appellant and
the respondent were not blessed with any children. Admittedly, they
are residing separately since last 16 ½ years. There is strained
relation between them. The respondent has not preferred any
appeal challenging the judgment, dated 27.10.2017, in C.C.No.168
of 2015 (old C.C.No.371 of 2009) rendered by the learned Principal
Junior Civil Judge-cum-Judicial Magistrate of First Class, Shadnagar.
Though the respondent made a serious allegation that the appellant
is having love affair/illicit relationship with one Praveena, she failed
to prove the same by producing any evidence.
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30. During cross-examination, the respondent admitted that her
father owns land admeasuring Ac.7-20 guntas at Nandigama Village
of Kothur Mandal abutting to National Highway No.7. But, according
to her, she has no share in it. Further, Ex.A7 shows that she worked
on contract basis for some time. Even in her affidavit filed in lieu of
chief examination, she has mentioned her occupation as Computer
Instructor.
31. The respondent also relied on the principle laid down by the
Honourable Apex Court in Naveen Kohli v. Neelu Kohli 1, Rani
Narasimha Sastry v. Rani Suneela Rani 2, K. Srinivas Rao v.
D.A. Deepa 3 and Rakesh Raman v. Kavita 4, and a Division Bench
judgment of the High Court of Delhi in Mat.App.(F.C.).No.241 of
2023, dated 01.03.2024, to contend that the allegations levelled by
the appellant does not amount to cruelty.
32. But, as discussed supra, both the appellant and the
respondent are staying separately from 26.03.2008 i.e., 16 ½ years.
There is no possibility of reunion between them. While deciding the
present appeal we have to consider the social status and other
aspects of the parties. The appellant is a School Assistant and the
(2006) 4 SCC 558
(2020) 18 SCC 247
2013 (3) ALD 11 (SC)
2023 (3) ALD 86 (SC)
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respondent is a Computer Instructor. It appears that their marriage
was not consummated. They were not blessed with any children out
of their wedlock.
33. Further, there is no dispute that on the ground of irretrievable
breakdown of marriage, neither the Family Court nor this Court can
grant decree of divorce. But, at the same time, while deciding the
present appeal, we have to consider the aforesaid aspects and also
examine as to whether there is any possibility of parties living
together. Apart from a mere social thread of marriage, nothing
persists in this marriage.
34. In the light of the aforesaid facts, we are of the considered
opinion that there is no possibility of reunion between the parties.
The learned Family Court failed to consider the said aspect while
passing the impugned order.
35. Therefore, the impugned order and decree, dated 13.05.2011,
passed in O.P.No.18 of 2010 by the learned Judge, Family Court-
cum-Additional District Judge, Mahabubnagar, is liable to be set
aside and are accordingly set aside. O.P.No.18 of 2010 filed by the
appellant-husband is allowed and the marriage of the appellant with
the respondent performed on 25.11.2007 is dissolved by way of
granting decree of divorce. However, the appellant shall pay an
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amount of Rs.5,00,000/- (Rupees five lakhs only) to the respondent
towards permanent alimony within a period of two (2) months from
the date of receipt of a copy of this order, failing which, liberty is
granted to the respondent to take steps against the appellant in
accordance with law.
36. With the above observations/directions, I.A.No.1 of 2023 and
the Family Court Appeal are allowed. There shall be no order as to
costs.
Miscellaneous Applications, if any, pending in this appeal, shall
stand closed.
______________
K. LAKSHMAN, J
______________
P. SREE SUDHA, J
Date:07.06.2024.
MD
