Telangana High Court
Kadarla Madhu Babu vs Kadarla Madhuri on 7 June, 2024
Bench: K.Lakshman, P.Sree Sudha
THE HON'BLE SRI JUSTICE K. LAKSHMAN
AND
THE HON'BLE SMT. JUSTICE P.SREE SUDHA
FAMILY COURT APPEAL No.110 of 2012
AND
CRIMINAL REVISION CASE No.1596 of 2009
COMMON JUDGMENT :
(Per Hon'ble Sri Justice K. Lakshman)
Heard Sri S.Surender Reddy, learned counsel appearing for
the appellant in F.C.A.No.110 of 2012, learned counsel for the
petitioner in Crl.R.C.No.1596 of 2009 and Sri N.Ashok Kumar,
learned counsel appearing for respondents in both the appeal
and criminal revision case. Perused the record.
2. Feeling aggrieved and dissatisfied with the common order
and decree dated 30.07.2009 in F.C.O.P.No.76 of 2008 and
F.C.M.C.No.82 of 2008 passed by learned Judge, Family Court-
cum-Additional District and Sessions Judge at Karimnagar,
appellant-husband preferred F.C.A.No.110 of 2012 and
Crl.R.C.No.1596 of 2009.
3. This Court vide order dated 24.09.2009 in
Crl.R.C.M.P.No.2208 of 2009 in Crl.R.C.No.1596 of 2009 granted
interim stay of the order dated 30.07.2009 passed in
F.C.M.C.No.82 of 2008 on the file of the Judge, Family Court-
cum-Additional District and Sessions Judge, Karimnagar, on the
condition of appellant-husband depositing 50% of the
maintenance awarded therein and arrears, if any, shall be paid
within four weeks. Monthly maintenance as indicated above
shall be deposited by 10th of every succeeding month.
4. The appellant-husband had filed a petition under Section
13(1)(ia) of Hindu Marriage Act,1955 vide F.C.O.P.No.76 of 2008
against the respondent-wife seeking dissolution of marriage on
the ground of cruelty.
i. The marriage with the respondent was
performed on 19.08.2004 at Gopi Krishna Function
Palace, Karimnagar, as per Hindu customs and rites.
ii. It is an arranged marriage.
iii. At the time of marriage, he was working in
Visual Soft Company at Hyderabad. After the
marriage, they lived happily for some time.
iv. They were blessed with a male child on
15.10.2005.
v. Thereafter, respondent started harassing the
appellant on one pretext or the other she started
demonstrating dislike for the marriage relationship
and started insulting the appellant in the presence of
neighbours.
vi. She used to call the appellant over phone
during working hours stating that she is leaving
home due to which he suffered a lot of tension.
vii. She used to make disparaging comments
against him and his parents.
viii. She used to leave the matrimonial home
without intimating the appellant and his parents.
She used to stay with her parents for days together
due to which appellant suffered untold misery and
humiliation. He has informed the said fact to the
parents of respondent who also supported her,
instead of convincing her.
ix. Several panchayats were held. Elders advised
her to behave properly and lead happy marital life.
x. Even then, there is no change in the attitude of
the respondent.
xi. She has attempted to commit suicide by cutting
her hand, she tried to hang herself with saree around
her neck and one midnight, the respondent sat on
the neck of the appellant and tried to kill him.
xii. Thus, the attitude of the respondent is
incorrigible. Therefore, he took her to Dr.B.Preethi
Swaroop, Neuro Psychiatrist at Hyderabad, who
advised her to take treatment. But respondent and
her parents refused to take treatment.
xiii. During pregnancy, doctor advised her to take
complete bed rest. During the said period she did not
allow the appellant and his parents to see her.
xiv. Even after giving birth to the child, they have
not allowed the appellant and his parents to see the
child.
xv. She openly declared that she dislike the
relationship with the appellant and not interested to
join the society.
xvi. She married him against her will. Mother,
sister and maternal uncle of the respondent
supported her.
xvii. She made a complaint with Superintendent of
Police, Karimnagar, who in turn referred the matter
to Women Police Station, Karimnagar, who advised
the appellant to issue legal notice to the respondent.
xviii. Accordingly, legal notice was issued and
respondent also sent reply.
xix. Finally on 29.09.2007, she left the company of
the appellant without informing him.
xx. The appellant went to the house of the
respondent and requested her to join his company.
xxi. But respondent informed the appellant that she
will not come and join his company at any point of
time and he can do whatever he wants. And her
father also rudely behaved with the appellant.
xxii. Thereafter, appellant along with his parents
and elders went to the house of respondent and
requested her parents to send her back. They bluntly
refused.
Thus according to the appellant, respondent
subjected him to cruelty and deserted him.
5. Respondent had filed counter contending that the
allegations made by the appellant are false and baseless.
i. At the time of marriage, appellant used to work as
Programmer in Temple Techno Company at Hyderabad.
ii. They put up family at Karimnagar and he used to
come to his parents house once in a week.
iii. Before appellant coming to Karimnagar from
Hyderabad his mother used to take away the respondent to
her house located at Bhagathnagar, Karimnagar. She used
to tutor him and used to make false allegations against the
respondent. Appellant used to scold and beat the
respondent indiscriminately.
iv. On the eve of first Deepavali festival, father of the
respondent invited the appellant to observe the tradition
and in a way observing the traditional custom.
v. He has also presented a bracelet to the appellant.
Instead of accepting the gift, he has thrown the same
away. Thus, appellant insulted respondent and her
parents.
vi. Thereafter, appellant joined as Software Consultant
in Visual Soft Company, Kukatpally, Hyderabad.
vii. He has taken a house at S.R.Nagar, Hyderabad, and
she joined the company of appellant at the said house.
There also, the appellant was adamant, egoistic,
quarrelsome and suspective in nature.
viii. He has warned the respondent not to permit her
parents to his house.
ix. He used to suspect her for every small thing.
x. In the May, 2005, while she was carrying four
months pregnancy the husband gave a specific warning
not enter into his society. As such there was no alternative
for the respondent but to join her parents.
xi. She gave birth to a male child on 15.10.2005.
xii. Inspite of knowing the said fact, and that the child
was serious, he was in an incubator, appellant and his
parents did not care to see him.
xiii. Naming ceremony was arranged and fortunately
appellant and his parents attended the said function.
xiv. But they left the said place, without intimating the
respondent and her parents.
xv. When the boy was five months old, appellant, his
parents, sisters and brother-in-law and some other elders
came to her house under the guise of conducting
panchayat. Sri Venu, brother-in-law of the appellant
informed the respondent that they have decided to give
divorce to the respondent and asked the respondent to get
ready for receiving the divorce notice from the Court of law.
xvi. Appellant's parents threatened the father of the
respondent. They have house arrested him.
xvii. Appellant also threatened the respondent many times
saying that he will give divorce by moving a divorce
petition.
xviii. He got issued a legal notice dated 12.02.2007 for
restitution of conjugal rights with an intention to show the
general public that he was interested to lead conjugal life
with the respondent.
xix. She was about to issue reply notice to the said legal
notice.
xx. Surprisingly, he came to the house of the respondent
and asked her parents to revive the marital relationship by
forgetting all the past incidents with an assurance to lead
a fresh marital life with the respondent.
xxi. A mutual agreement dated 26.02.2007 was entered
between the appellant and respondent in the presence of
elders and they have agreed to live fresh marital life.
xxii. On 26.02.2007, respondent joined the society of the
appellant at Hyderabad, pursuant to the said agreement.
xxiii. On the very day of her joining, appellant surprisingly
and shockingly stated that he is not willing to lead any
marital life with the respondent and only with an intention
to make a ground for divorce, he has brought her to his
house. Thus, he has cleverly formulated a new scheme to
get rid of the respondent.
xxiv. He started coming to the house late in the night by
leaving the respondent alone along with the children. He
started behaving in an inhumane manner.
xxv. Once he held her hand, put a line mark with blade
on her wrist, by which, she started bleeding from the slit.
xxvi. While bleeding, he has informed his parents that the
respondent attempted to commit suicide by cutting her
hand and she is of unsound mind. The parents of
respondent along with Mr.Narender, her maternal uncle
came to Hyderabad.
xxvii. On 26.09.2007, appellant, his parents and sisters
tried their level best to treat the respondent as an insane
woman on the issue of cutting down at her wrist.
xxviii. At that particular point of time, appellant as well as
his parents, sisters have formulated a plan, for revival of
her marital relationship with a proposal to bring an
additional dowry of Rs.6,00,000/-. She did not agree for
the same.
xxix. On 29.09.2007, appellant indiscriminately beat the
respondent, driven her out of his house by calling her
parents.
xxx. Since 29.09.2007, she started leading her life
miserably by depending on the income of her retired
father. During one year, he never cared to see either the
respondent or his son or paid single rupee for their
maintenance.
xxxi. On 01.02.2008, the appellant along with his parents
came to the house of the respondent and demanded her to
make necessary arrangements for bringing additional
dowry of Rs.6,00,000/-, failing which, he will file a petition
seeking dissolution of marriage. Thus, the appellant
insulted her and harassed her both mentally and
physically.
xxxii. He along with his parents necked her out of the
matrimonial home.
xxxiii. Therefore, she was compelled to lodge a complaint
with Women Police Station, Karimnagar on 08.03.2008
who in turn registered a case in crime No.26 of 2008
against the appellant and his parents for the offence under
Section 498-A of I.P.C. and Section 4 of Dowry Prohibition
Act.
xxxiv. During reconciliation proceedings before the Lok
Adalat, appellant refused to take the respondent and her
child to his company.
xxxv. She has also filed F.C.M.C.No.82 of 2008 seeking
maintenance. With the said submissions she sought to
dismiss the aforesaid O.P. filed by appellant and she has
filed counter claim seeking restitution of conjugal rights.
6. To prove the said cruelty, appellant-husband
examined himself as Pw-1, his father as Pw-2, his maternal
uncle as Pw-3, his Junior Maternal Grand Mother as Pw-4 and
landlord as Pw-5. He has filed Exhibits P-1 to P-5 documents.
7. To prove her claim in F.C.O.P.No.76 of 2008 and
F.C.M.C.No.82 of 2008, respondent examined herself as RW-1,
her mother as RW-2, her maternal uncle as RW-3, her maternal
aunt's husband as Rw-4 and Association elder as Rw-5. She did
not file any document.
8. On consideration of the entire evidence both oral and
documentary vide impugned order, learned Family Court
dismissed the aforesaid O.P. filed by appellant-husband and
allowed the counter claim filed by respondent seeking restitution
of conjugal rights.
9. Vide the said common order, learned Family Court
granted an amount of Rs.4,000/- per month to the respondent
and Rs.2,000/- to her son towards monthly maintenance.
Challenging the said common order, appellant-husband
preferred the aforesaid appeal and has filed the aforesaid
criminal revision case.
10. The aforesaid facts would reveal that the marriage of
appellant with the respondent was performed on 19.08.2004 and
it is an arranged marriage. They lead their happy marital life for
sometime and blessed with a male child on 15.10.2005. He is
19 years now and he became major. Thereafter, matrimonial
disputes arose between them.
11. According to the appellant, respondent subjected him
to cruelty. She has attempted to commit suicide by cutting her
hand, she tried to hang with her saree around her neck and one
midnight she sat on his neck and tried to kill him. According to
appellant, respondent's behavior was abnormal and therefore he
has taken her to Dr.B.Preethi Swaroop, Neuro Psychiatrist at
Hyderabad, who advised her to take treatment. But the
respondent and her parents refused to take treatment and
supported the respondent.
12. To prove the said attempt to commit suicide by the
respondent by cutting her hand, he had examined himself as
Pw-1 and his father as Pw-2. But their evidence is not useful to
prove the same. Appellant failed to prove that the respondent
tried to hang herself with her saree around her neck by
producing any evidence. Of course, there is no evidence with
regard to the allegations made by him that the respondent sat
on his neck and tried to kill him on a midnight. The said
allegation made on respondent is improbable. She is a woman
and she cannot sit on the neck of appellant and she try to kill
him. Even with regard to consulting Dr.B.Preethi Swaroop,
Neuro Psychiatrist at Hyderabad, except filing Ex.P-4
prescription, there is no other evidence. By filing Ex.P-4 medical
prescription, he cannot prove that respondent was suffering with
Psychiatric problem.
13. It is not in dispute that there is exchange of notices
and reply. Though the appellant herein had issued Ex.P2 legal
notice requesting the respondent to join his Company, he has
not filed any petition under Section 9 of Hindu Marriage Act
against the respondent seeking restitution of conjugal rights. It
is the specific case of the respondent that while she was
planning to issue reply to Ex.P-2 legal notice dated 12.02.2007,
appellant along with his parents came to her and took her to his
company. They have also entered into Ex.P-3 agreement dated
26.02.2007. Pursuant to the said agreement, she joined his
company.
14. It is relevant to note that the said agreement is
named as 'fresh marital agreement' and it is dated 26.02.2007.
In the said agreement there is specific mention about the
communication gap and understanding between the parties due
to the parents of both the parties out of their love and affection.
Thereafter, they have realized that the said gap was due to their
parents' intervention. As per the opinion of appellant,
respondent was taken to her parents' house in October, 2006.
Due to the past incidents they were not in a position to lead
happy marital life by staying together. In the meanwhile,
appellant had issued a legal notice dated 12.02.2007.
Respondent expressed her willingness to join the company of
appellant. Therefore, instead of blaming each other, they have
decided to lead their happy marital life on the following
conditions.
i) Friends and relatives shall not involve in their
marital life unnecessarily.
ii) Both the appellant and respondent shall
cooperate with each other cent percent.
iii) They shall not resort to any act both physical
and mental.
iv) Both the appellant and respondent shall respect
their in-laws. They will see that there won't be
any problem in future and decide to lead happy
marital life.
15. Despite the said agreement, according to the
respondent, there was no change in the attitude of the appellant
herein. However, he has filed the aforesaid O.P. on 04.02.2008.
16. Thereafter, she has filed the aforesaid M.C.No.82 of
2008 seeking maintenance.
17. As discussed supra, on the complaint lodged by
respondent, the police have registered the aforesaid Crime No.26
of 2008 and on completion of investigation, the Investigating
Officer laid charge sheet against the appellant and his parents.
The same was taken on file vide C.C.No.83 of 2009.
18. According to the respondent, to get acquittal in the
said case, appellant and his parents cleverly hatched a plan to
take the respondent to the company of appellant. She believed
the appellant keeping her welfare and welfare of her son, she
joined the company of appellant. The said fact was deposed by
her in the said C.C.No.83 of 2009. Her parents also deposed in
the said lines. Basing on the said evidence, observing that the
respondent and her parents, PWs 1 to 3 turned hostile and that
the appellant and respondent are leading happy marital life, vide
judgment dated 29.04.2010, learned Magistrate acquitted the
appellant. Thus according to respondent, they have hatched a
plan to see that the said C.C.No.83 of 2009 will end in acquittal.
According to respondent, appellant preferred the present appeal
in the year, 2009.
19. As discussed supra, believing the appellant, she
joined the company of the appellant. During the said period,
they were blessed with a second child on 22.07.2012 and they
continued their cohabitation till October-2013. Thereafter, the
appellant again necked her and her children out of the marital
house. The aforesaid facts are not in dispute.
20. PW-1 during cross examination admitted the said
facts. He has further admitted that out of five years of their
marital life, respondent stayed with him for a period of only five
months. When respondent became pregnant, doctor advised her
to take complete bed rest. Parents of respondent took her to
their house while she was carrying second month pregnancy.
When she was carrying fourth month pregnancy, he brought the
respondent to his house and she stayed with him for one month.
He did not attend the Sreemantham ceremony conducted by the
parents of respondent. However, according to him, just one day
before the ceremony, he was informed about the same and as he
had urgent work in his office, he could not attend the said
Sreemantham Ceremony, however, his parents attended the said
ceremony. He admitted that his son was kept in incubator after
delivery. However, he has denied a suggestion that neither his
parents nor appellant did not care to see the child.
21. He has further admitted that he along with his
parents attended the naming ceremony of the child and after
having meals only, he left the house of the respondent. At the
time of naming ceremony, parents of the respondent informed
that as she underwent cesarean operation, they would send the
respondent in sixth month of baby and they have accepted for
the same. When the child was three months old, his mother
went to the house of respondent's parents and brought the
respondent and child to their house at Bhagathnagar,
Karimnagar, on the same day, he took the respondent and child
to Hyderabad as the condition of the child was not good and
took the child to Care hospital.
22. During the seventh month of his son, respondent and
the child were brought to his house. He along with his parents
and elders visited the house of the respondent's parents and
demanded them to send the respondent to their house. He
brought the respondent in an Auto. He has denied a suggestion
that he has abused respondent parents and maternal uncle in
filthy language saying that they never visit their house, he was
going to beat them with cheppal. However, he stated that he
only asked them not to visit their house as the differences arose
between the appellant and respondent on account of their
conduct only. On the next day, he took the respondent and
child to Hyderabad and set up residence in another house at
S.R.Nagar. The said house was in the first floor. Chilumula
Sudarshan is his paternal uncle, Sri Kadarla Laxminarayana is
his junior maternal uncle, Smt.Amruthamma is his junior
maternal grandmother and Dursheti Venkataswamy is the
husband of his senior maternal aunt.
23. On 12.02.2007 he got issued a legal notice calling the
respondent to join his company. However, he has denied a
suggestion that after issuance of the said notice, he and his
parents visited the house of the respondent and requested her to
join his company. However, he has admitted about entering into
Ex.P3 agreement on 26.02.2007. Subsequent to Ex.P3
agreement, appellant and respondent set up family at Balaji
Nagar, Kukatpally and it was an independent house.
24. On 08.03.2008 respondent has lodged a complaint
against the appellant and his parents in Women Police Station,
Karimnagar. However, he has denied a suggestion that on filing
the said complaint only, he has filed the aforesaid O.P. on
04.02.2008. Since 29.09.2007, he has not sent any
maintenance to the respondent and the child. On 10.02.2007 he
gave a representation to the Superintendent of Police,
Karimnagar against the respondent. His father retired from
service on 31.12.2007. After respondent leaving his company,
subsequently he returned all her sarees to the respondent on the
advice of the officials of Women Police Station, Karimnagar. Even
if the respondent is willing to join his company today itself, he is
not ready to take her back. Even two days back people from
Communist Party Office telephoned to his father and demanded
him to visit their office.
25. PW2 is the father of PW1. He has deposed most of
the things as stated by his son Pw-1. During cross examination,
he has admitted that within 10 to 15 days after the marriage
respondent and appellant set up family at Hyderabad. Whatever
he knows about the differences between the appellant and
respondent, he came to know about those differences through
appellant only. He visited the house of appellant and respondent
at Hyderabad two times. He noticed adamant behavior of the
respondent on two occasions. He has not stated the same in his
affidavit filed in lieu of chief examination. He does not know
whether the appellant and respondent visited his daughter's
house at Jagtial while she was pregnant. Though they have
attended 21st day ceremony of the child, they went away without
taking food. Their relatives and well wishers 25 in number have
also attended the said function but they have not served any
food. The respondent and her parents abused them. Therefore,
they left the said place without having food. When the child was
five months old, PW2, his wife, appellant, two daughters and
sons-in-law visited the house of respondent's parents and they
brought the respondent and child to their house. On
26.02.2007, appellant and respondent had set up a family at
Hyderabad. On 29.09.2007 respondent reverted to residing with
her parents.
26. PW-3 is a maternal uncle of Pw-1. During cross
examination he was admitted that he never visited the house of
appellant and respondent while they were together living at
Hyderabad. Therefore, his evidence is not useful to prove the
cruelty.
27. PW-4 is Junior Maternal grandmother of Pw-1.
During cross examination she has admitted that she never
visited the house of the appellant and respondent when they
lived together at Hyderabad. Whatever happened between them
at Hyderabad, she came to know about the same through PW-1
only. She has also attended 21st day ceremony of the child and
she had meals. Appellant, his parents and some of his relatives
did not partake in their meals. Therefore, her evidence is also
not useful to prove the cruelty.
28. PW5 is landlord. In the month of May or June, 2006
respondent's mother along with relatives came to the said house
and informed about the quarrels between the parties. Inspite of
his advice they took away the respondent to their house. Two
months later appellant again brought the respondent to his
house. Then respondent lived with appellant for 15 days.
During the said short period also there was quarrel between the
appellant and respondent. After staying 15 days, appellant took
the respondent to her parents house and dropped her.
Thereafter, she did not return to the said house. Appellant
stayed there till April, 2007. Thereafter, he has vacated the said
house. However, during cross examination, he has admitted
that he does not know the reasons for quarrel between the
appellant and respondent as it was their internal family affair.
He knows that appellant had filed a petition seeking dissolution
of marriage. Therefore, his evidence is also not useful to prove
cruelty.
29. The aforesaid facts would reveal that the marriage of
the appellant with the respondent performed on 19.08.2004.
They were blessed with two male children on 15.10.2005 and
22.07.2012.
30. It is also not in dispute that after filing of the
aforesaid F.C.O.P.No.76 of 2008 by the appellant-husband
seeking dissolution of marriage, respondent filed F.C.M.C.No.82
of 2008 and during the pendency of C.C.No.83 of 2009, the
appellant took the respondent to his company. She joined with
the appellant. Thereafter they lead their marital life happily for
some time. During the said period, they were blessed with
second child namely Medhamsh on 22.07.2012. According to
the parties they stayed together till October, 2013.
31. It is also relevant to note that during the pendency of
the present appeal, the respondent had filed a petition under
Section 12 of the Protection of Women from Domestic Violence
Act, 2005 vide D.V.C.No.131 of 2017 on the file of the Additional
Judicial Magistrate of First Class at Karimnagar, against the
appellant seeking certain reliefs and the same is pending. It is
also not in dispute that the respondent had filed a petition vide
G.W.O.P.No.93 of 2018 on the file of the Family Court-cum-IV
Additional District and Sessions Judge at Karimnagar, seeking
permanent custody of the above said two children and the said
O.P. was dismissed on 06.01.2023. However, visitation rights
were granted to her. But she did not prefer any appeal
challenging the said order.
32. The aforesaid facts would reveal that the parties lived
together for some time and they were blessed with two male
children. Now, first child became major and second child is aged
about 12 years. According to the respondent, appellant took
both the children to his company forcibly. Therefore, she has
filed the aforesaid G.W.O.P.No.93 of 2018 and the same was
dismissed on 06.01.2023.
33. According to the appellant, respondent attempted to
commit suicide twice by cutting her hand with blade and by
hanging. She also sat on his neck and tried to kill him during
midnight.
34. As discussed supra, appellant failed to prove the
aforesaid three aspects. Respondent sitting on his neck during
midnight and tried to kill him is improbable. Appellant made
several allegations against the respondent herein. According to
him, respondent is suffering with mental disorder. Therefore, he
has consulted Dr.B.Preethi Swaroop, Neuro Psychiatrist at
Hyderabad, who advised the respondent to take treatment.
Respondent refused to take treatment. But the said fact was not
proved by the respondent by producing any evidence except
filing the aforesaid Ex.P4 medical prescription.
35. As per the said prescription Dr.B.Preethi Swaroop, is
a Neuro Pshychiatrist. On perusal of Ex.P4 we cannot come to a
conclusion that respondent is suffering with mental disorder.
Their marriage was performed on 19.08.2004 and they were
blessed with two children i.e., 15.05.2005 and 22.07.2012.
Having lead marital life for long period and after giving birth to
two male children, appellant cannot contend that the
respondent is suffering with mental disorder. Mere allegation is
not sufficient. He has to prove the said allegation by producing
legally acceptable evidence. In the present case, the appellant
herein failed to prove the same.
36. Cruelty is not defined in any statute. Family Court
and this Court have to come to a conclusion with regard to the
cruelty basing on the evidence and more particularly the specific
incidents mentioned by the spouse. Burden of establishing the
said cruelty lies on the appellant.
37. As discussed supra, in the present case, appellant
herein failed to prove the aforesaid cruel acts by producing
legally acceptable evidence. They have entered into Ex.P3
agreement dated 26.02.2007 wherein they have admitted that
parents of both the parties involved in their life, which lead to
disputes. Therefore, they have agreed to live normal marital life.
The said agreement is dated 26.02.2007. Therefore by entering
into the said agreement, leading normal life and giving birth to
second son on 22.07.2012, appellant has waived all the alleged
cruel acts alleged to have committed by the respondent.
38. In V.Bhagat v. D.Bhagath 1 the Hon'ble Apex Court
delineated the concept of mental cruelty as conduct that
imposes such significant mental anguish and suffering upon one
party that cohabitation with the other becomes untenable. This
distress must reach a threshold where the parties cannot
reasonably be expected to reside together harmoniously.
39. In Dastane Vs Dastane 2 and Samar Ghosh v. Jaya
Ghosh 3 the Apex Court elucidated that when assessing the issue
of cruelty, consideration must be given to the social stature,
educational background and the societal milieu in which the
parties operate. The feasibility of the parties reconciling and
resuming conjugal life is also a pertinent factor. Importantly,
what may constitute cruelty in one instance may not necessarily
meet the criteria in another. The determination of cruelty hinges
upon the specific facts and circumstances unique to each case.
(1994) 1SCC 337: AIR 1994 SC 710
AIR 1975 SC 1534
(2007) 4 SCC 511
40. As discussed supra, the appellant herein failed to
prove the cruelty by producing legally acceptable evidence. The
evidence of PWs 2 to 4 is not helpful to him, since all of them
never visited the house of appellant and respondent. They have
deposed as informed by the appellant (PW-1).
41. On consideration of the said aspects only, learned
Family Court dismissed the F.C.O.P. filed by the appellant-
husband and allowed the counter claim filed by the respondent-
wife seeking restitution of conjugal rights. There is no error in
it.
42. Sri S.Surender Reddy, learned counsel for the
appellant-husband on instructions would submit that though
the said counter claim filed by the wife seeking restitution of
conjugal rights was allowed, but she has not taken any steps.
She did not even file any execution petition. She did not avail
the aforesaid visitation rights. She refused to cohabitate with
the appellant. But as discussed supra, appellant failed to prove
the said aspects.
43. With regard to claim made by respondent and her
son in F.C.M.C.No.82 of 2008, on consideration of evidence that
the appellant was working in a software company and getting
handsome salary, learned Family Court awarded an amount of
Rs.4,000/- per month to the wife and Rs.2,000/- per month to
the son towards maintenance.
44. It is the case of the appellant-husband that
respondent-wife is also highly qualified, she used to work earlier
and therefore, she has not entitled for maintenance. She did not
cooperate with the appellant in leading normal life. Despite the
Doctor advising her to take treatment for her mental disorder,
but she refused to take the treatment. There was financial crisis
in the software field and employment of the appellant was not
certain. Without considering the said aspects, learned Family
Court granted an amount of Rs.4,000/- per month to the
respondent and Rs.2,000/- per month to his son towards
maintenance.
45. In the light of the aforesaid discussion, it is relevant
to note that respondent and her son have filed a petition under
Section 125 of Cr.P.C. vide F.C.M.C.No.82 of 2008 against the
appellant herein seeking maintenance. As on the said date
appellant-PW1 was working in Mega Soft Company. There was a
recession in the software field.
46. To prove the same, appellant has filed Ex.P5 news
item published in a newspaper. During cross examination, he
has admitted that his last pay was Rs.20,000/- per month. In
February, 2007, Pw-1 was getting salary of Rs.40,000/- per
month.
47. On consideration of the said aspects, learned Family
Court awarded an amount of Rs.4,000/- per month to the
respondent-wife and Rs.2,000/- per month to his son.
48. During the pendency of the present appeal,
respondent had filed the aforesaid G.W.O.P.No.93 of 2018
contending that appellant has taken both her children to his
company forcibly.
49. As discussed supra, now, first child became major
and he is with the appellant. Therefore, he is not entitled for
said maintenance. However, appellant failed to prove that
respondent is working and she has income source. Therefore,
the respondent is entitled for the said amount of Rs.4,000/- per
month towards maintenance as awarded by the learned Family
Court vide order dated 30.07.2009 in F.C.M.C.No.82 of 2008.
There is no error in the said order.
50. As discussed supra, on consideration of the entire
evidence both oral and documentary, learned Family Court
dismissed the O.P. filed for dissolution of marriage and allowed
the counter claim filed by respondent seeking restitution of
conjugal rights. It is a reasoned order and well found and there
is no error in it. Appellant has failed to make out any case to
interfere with the said Order and Family Court Appeal is liable to
be dismissed and accordingly, F.C.A.No.110 of 2012 is
dismissed.
51. In the light of the aforesaid discussion, more
particularly considering the fact that the first son of the parties
is staying with the appellant and therefore, Crl.R.C.No.1596 of
2009 is allowed holding that respondent is entitled for an
amount of Rs.4,000/- per month towards maintenance as
awarded by the learned Family Court and however, their first
son namely Kadarla Abhiram is not entitled for maintenance as
awarded by the learned Family Court since he is staying with the
appellant. Therefore, Crl.R.C.No.1596 of 2009 is allowed in part
to the aforesaid extent.
As a sequel, the miscellaneous petitions, if any, pending in
the appeal shall stand closed.
_________________________
JUSTICE K.LAKSHMAN
__________________________
JUSTICE P.SREE SUDHA
Dated: 07.06.2024
smk/ns
