Telangana High Court
Mr.Sreeram Pydah vs Archana Pydah on 7 June, 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 NO.149 OF 2014 AND CIVIL
REVISION PETITION NOS.871, 1403 AND 1506 of 2021
COMMON JUDGMENT:
(as per Hon'ble Sri Justice K.Lakshman)
The parties and the lis involved in the aforesaid appeal
and revision petitions are one and the same, therefore, all the
matters were heard together and decided by way of this
common judgment.
2. Heard Mr. C.V. Mohan Reddy, learned senior counsel
representing Mr. Katta Laxmiprasad, learned counsel for the
appellant-husband, and Mrs. Vasudha Nagaraj, learned
counsel for respondent No.1-wife. Respondent No.2 is not
necessary party as per cause title. Perused the record.
3. The appellant in the aforesaid F.C.A.No.149 of 2014 is
the husband, while respondent No.1 is the wife. Therefore, for
the sake of convenience and to avoid confusion, the parties
will be hereinafter referred to as the 'husband' and 'wife'.
4. Wife had filed a petition under section 9 of Hindu
Marriage Act, 1955 (for short, 'the Act'), against the husband
vide O.P.No.916 of 2010 seeking Restitution of Conjugal
Rights contending as follows:
Her marriage with the husband was performed on
11.02.2008 as per Hindu Rites and Customs. It was an
arranged marriage. It was second marriage to both of them.
Husband obtained decree of divorce with his first wife and
thereafter, married the wife. He was blessed with two sons
with the first wife. Likewise, wife also obtained decree of
divorce with her first husband and thereafter, she married the
husband. But, she did not bless with any children with her
first husband.
Thus, the marriage of wife with the husband was
performed on 11.02.2008. After the marriage, they went on
Honeymoon to Bangkok. Husband is a permanent resident of
USA. He is a green card holder and a citizen of USA.
Therefore, wife joined the husband in USA.
According to the husband, the marriage was not
consummated and wife did not cooperate with him in
consummation of marriage. He tried his level best to lead
happy marital life with the wife, but there was no change in
the attitude of the wife.
According to the wife, she was subjected to cruelty by
the husband. She came back to India and filed the aforesaid
O.P.No.916 of 2010 against the husband seeking Restitution of
Conjugal Rights. It is the case of the wife that her husband is
maintaining illicit relation with respondent No.2, i.e., Smt.
Rekha. However, no relief was sought against her. It was
contended by wife that husband subjected her to cruelty and
necked her out from the matrimonial home. She went to USA
on the strength of visa provided by the husband and she
stayed there for about six months. Respondent No.2 used to
send mails to her husband. Perusal of the said mails would
reveal that he maintained extra-marital relationship with
respondent No.2. Wife also attempted to commit suicide there.
Husband called her relatives who live in Canada and sent wife
there. When she tried to return to USA, husband cancelled
her air ticket. Thus, husband subjected wife to cruelty and
left her company. The allegations made by wife against
respondent Nos.1 and 2 are serious in nature. On return from
USA, wife is staying with the parents of the husband at
Athapur, i.e., 43, Ambience Fort Township, Attapur,
Hyderabad. Even respondent No.2 came back to Bangalore
and now staying there.
5. Husband filed counter contending that the said petition
filed by the wife is not maintainable since the Superior Court
of California, County of Santa Clara, U.S.A., has granted
decree of dissolution of marriage on 20.04.2011. Wife is aware
of the said fact. He has been living in USA for approximately
25 years and he is citizen of USA since 2002. Therefore, the
question of Restitution of Conjugal Rights does not arise.
6. It is further contended by him that wife had already filed
suit vide O.S.No.10 of 2011 against him for permanent
injunction restraining the Superior Court of California, U.S.A.,
not to grant decree of divorce in his favour. Wife has also filed
I.A.No.923 of 2011 for grant of interim stay. The said IA was
dismissed by the learned Family Court after hearing the
parties. Therefore, in view of the order dated 20.04.2011
passed by the Superior Court of California, the said suit filed
by wife vide O.S.No.10 of 2011 as well as the IA became
infructuous.
7. It is further contended by the husband that the
marriage of husband with the wife was not consummated and
the attempts for consummation of marriage made by him
several times from the night of their nuptials until the wife
returned from USA could not fructify. There are exchange of
mails between them which would reveal the said fact. Wife
herself had a detailed discussion with the husband's sister
about the attempts they made to consummate the marriage.
His brother-in-law, Dr. Ashok, being a physician called the
husband to find out the reasons. Husband and wife also
changed address in USA hoping that the difference in the
environment would change their relationship. Even then,
there is no change. Wife has also shared with the husband
about similar problems of physical relationship that her sister
in Canada had. Since he was in meditation, he could not take
it anymore and left the house. On return from USA, wife used
to stay in Bangalore and started her practice. Wife has
informed the husband that she was a very successful criminal
layer in Bangalore High Court and that she had won many
cases. She has also joined as a member of legal team at Tata
Cellular Tele Services. Husband has presented a diamond
necklace worth Rs.2.5 lakhs to the wife as a wedding gift.
Thus, husband has filed a detailed counter narrating the
incidents right from the marriage. But he did not enter into
the witness box to depose the said facts. Though husband
engaged a lawyer by name Sri K. Ranganathan and filed the
aforesaid detailed counter, he did not choose to cross-examine
PW-1 (wife). He did not file any documents also.
8. Perusal of record would reveal that respondent No.2 was
set ex parte and she has filed I.A.No.2293 of 2011 to set aside
the ex parte order against her. The same was dismissed.
Respondent No.2 has filed a revision vide C.R.P.No.1251 of
2012. This Court vide order dated 19.03.2012 permitted
respondent No.2 to appear before the learned Family Court at
the time of cross-examination and directed the learned Family
Court to take the counter filed by respondent No.2. Thus,
both respondent Nos.1 and 2 have filed counters. But they did
not choose to cross-examine PW-1 (wife) and failed to enter
into witness box to depose the aforesaid facts. They have not
filed any documents. Whereas, to prove her claim of
Restitution of Conjugal Rights, wife examined herself as PW-1
and filed Exs.P1 to P3. Ex.P1 is the Marriage Card, Ex.P2 is
an invitation card got printed from husband side and Ex.P3
are the marriage photographs and other photographs of
husband and wife.
9. On consideration of entire evidence both oral and
documentary, vide impugned order dated 10.06.2014, learned
Family Court allowed O.P.No.916 of 2010 by granting decree of
Restitution of Conjugal Rights in favour of the wife directing
the husband to join her company within two months from the
date of the order. Learned Family Court also awarded a sum
of Rs.10,000/- towards costs directing husband to pay the
same to the wife. Feeling aggrieved by the said order dated
10.06.2014, husband preferred the present appeal i.e.,
F.C.A.No.149 of 2014.
10. It is also relevant to note that wife has also filed
F.C.O.P.No.1930 of 2017 against the husband under
Section-18 of the Hindu Adoption and Maintenance Act, for
grant of monthly maintenance @ Rs.10,00,000/-. On receipt
of notice, husband has filed an application vide I.A.No.113 of
2020 under Order-VII, Rule-11 (a) and (d) read with 151 of
CPC to reject the said F.C.O.P.No.1930 of 2017 contending
that a decree of divorce was granted by the Superior Court of
California, U.S.A., therefore, there is no relationship of wife
and husband between them. Thus, the wife is not entitled to
claim any maintenance, therefore, the said FCOP is not
maintainable and is liable to be rejected. Learned IV Additional
District Judge - cum - I Additional Family Court, Ranga
Reddy District at L.B. Nagar, vide order dated 23.03.2021,
dismissed the said I.A.No.113 of 2020. Challenging the same,
the husband filed a revision vide C.R.P. No.871 of 2021.
11. It is also apt to note that in the aforesaid
F.C.O.P.No.1930 of 2017, wife has filed an interlocutory
application vide I.A.No.602 of 2018 seeking interim monthly
maintenance of Rs.5,00,000/-. Vide order dated 11.08.2021,
learned Family Court allowed the said petition in part
awarding monthly interim maintenance of Rs.30,000/- from
the date of petition i.e., 04.09.2017 and accordingly, directed
the husband to pay the same on or before 10th of every English
Calendar month. The arrears of interim maintenance shall be
payable in three equal monthly installments commencing from
September, 2021. Challenging the same, the husband filed
C.R.P.No.1403 of 2021. Challenging the very same order
dated 11.08.2021, the wife also filed a revision vide
C.R.P.No.1506 of 2021 seeking enhancement of interim
monthly maintenance granted by the learned Family Court.
12. There is no stay in F.C.A.No.149 of 2014. It is relevant
to note that wife did not file any Execution Petition to execute
the order passed by the learned Family Court.
13. In C.R.P.Nos.1403 and 871 of 2021, this Court vide
order dated 07.01.2022, granted stay of all further proceedings
in F.C.O.P.No.1930 of 2017 till 21.01.2022. Thereafter, vide
order dated 11.01.2022, this Court extended the said interim
order until further orders subject to the condition of husband
depositing before the Court below the entire arrears of
maintenance granted by the learned Family Court within two
(2) weeks from the date of order and shall continue to deposit
the said amount as ordered by the learned Family Court. This
Court also made it clear that in case of any default in
depositing the said amount, the interim order granted by this
Court stands vacated. On such deposit, wife was permitted to
withdraw 1/4th of the amount deposited by the husband
without furnishing any security. This Court also directed the
Registry to list CRPs along with FCA, after obtaining necessary
orders from the Hon'ble the Chief Justice. This Court also
made it clear that if for any reason, the matters are not listed
on 03.03.2022, on which date, the FCA was said to be coming
up for hearing, it is open for the learned counsel for the parties
to make mention for listing of cases.
14. The aforesaid facts would reveal that though the
respondents in aforesaid O.P.No.916 of 2010 filed detailed
counters, they did not choose to cross-examine PW-1 (wife),
did not enter into witness box and they have not filed any
documents. Though husband has contended that the
aforesaid OP filed by wife is not maintainable in view of
the decree of divorce granted by the Superior Court of
California, U.S.A., dissolving the marriage of husband with the
wife, he has not filed any document to prove the said facts.
Husband has also contended that wife is aware of the said
proceedings and she has participated in the said proceedings.
She has also preferred an appeal before the learned Family
Court challenging the said order passed by the Superior Court
of California. According to wife, it is not an appeal and it is
only a representation. However, neither she has stated the
said fact before the learned Family Court nor the husband
filed copies of the said documents.
15. Admittedly, the petition filed by wife, vide
F.C.O.P.No.1930 of 2017 seeking maintenance is pending. As
discussed supra, learned Family Court decided the aforesaid
O.P.No.916 of 2010 filed by wife only relying on the evidence
produced by wife. Learned Family Court also observed that
after service of notice, husband did not appear before the
Court, but one advocate by name Sri K. Ranganathan filed
Vakalat on behalf of him along with permission petition under
Section 13 of Family Court Act. The said fact was recorded in
the docket and the matter was posted for counter and no
reconciliation was taken place. Learned Family Court has
mentioned about filing of counters by husband and
respondent No.2 and also mentioned about the order dated
20.04.2011 passed by the Superior Court of California, U.S.A.
Learned Family Court also referred the counter filed by
respondent No.2 that she has nothing to do with the
matrimonial life of wife and husband and she has made as
party only to settle the dispute of the wife. Thus, the
impugned order is only on consideration of the pleadings
and evidence of PW-1 (wife) and there is no consideration of
the contentions of the husband, more particularly, with
regard to the maintainability of the aforesaid OP filed by wife
seeking restitution of Conjugal Rights in view of the order
dated 20.04.2011 passed by the Superior Court of California,
U.S.A. The appellant-husband has explained the said reasons
in the present appeal.
16. In the light of the aforesaid discussion, we are of the
considered view that the matter has to be remanded back to
the learned Family Court to decide O.P.No.916 of 2010 along
with F.C.O.P.No.1930 of 2017.
17. Accordingly, the order dated 10.06.2014 is set aside and
the matter is remanded back to the learned Family Court to
decide O.P.No.916 of 2010 along with F.C.O.P.No.1930 of 2017
filed by wife seeking restitution of Conjugal Rights and
maintenance, strictly, in accordance with law, by affording an
opportunity to the wife and husband and also respondent No.2
in O.P.No.916 of 2010.
18. As discussed supra, husband has filed a petition under
Order VII Rule 11(a) and (d) of CPC vide I.A.No.113 of 2010 in
F.C.O.P.No.1930 of 2017 to reject the F.C.O.P.No.1930 of 2017
on the ground that there is no relationship between husband
and wife in view of the order dated 20.04.2011 passed by the
Superior Court of California, U.S.A. The said IA was dismissed
by the learned Family Court on 23.03.2021. Challenging the
said order, husband filed C.R.P.No.871 of 2021. The said
contention raised by husband including the jurisdiction is a
mixed question of law and fact. The husband has to face trial
in FCOP and he has to take the said plea during trial.
Therefore, the said aspect cannot be considered to reject the
petition in FCOP. In the light of the aforesaid discussion,
C.R.P.No.871 of 2021 is liable to be dismissed and is
accordingly dismissed.
19. As discussed supra, vide order dated 11.08.2021 in
I.A.No.602 of 2018, the learned Family Court granted interim
maintenance of Rs.30,000/- per month to the wife and
challenging the said order, husband filed C.R.P.No.1403 of
2021. Seeking enhancement of the said monthly maintenance,
wife filed C.R.P.No.1506 of 2021. As discussed supra, this
Court granted interim stay subject to the condition of husband
depositing before the Court below the entire arrears of
maintenance granted by the learned Family Court within two
(2) weeks from the date of order and shall continue to deposit
the said amount as ordered by the learned Family Court.
According to husband, he has been paying the said amount in
compliance with the said order granted by this Court. It is not
in dispute that wife is staying along with the parents of the
husband at Athapur, Hyderabad. Smt. Vasuda Nagaraju,
learned counsel for wife also admitted the said fact during the
course of hearing. Therefore, the said fact is not in dispute. It
is also not in dispute that husband has been paying the said
amount in compliance with the order dated 07.01.2022.
20. In the light of the aforesaid discussion, C.R.P.Nos.1403
and 1506 of 2021 are dismissed confirming the order dated
11.08.2021 in I.A.No.602 of 2018 in F.C.O.P. No.1930 of 2017
passed by the learned Family Court.
21. As discussed supra, the said O.P.No.916 of 2010 is of
the year 2010 and F.C.O.P.No.1930 of 2017 is of the year
2017. Therefore, the learned Family Court shall make an
endeavour to dispose of both the OPs, strictly, in accordance
with law, as expeditiously as possible, preferably, within a
period of six (6) months from the date of receipt of a copy of
this order. Till disposal of the said OPs, husband shall
continue to pay the aforesaid amount of Rs.30,000/- per
month to the wife towards her maintenance. Liberty is
granted to both wife and husband to take all the defences and
pleas which they have taken in the present appeal as well as
in the aforesaid revisions.
22. In the result, F.C.A.No.149 of 2014 is allowed by setting
aside the order dated 10.06.2014 and the matter is remanded
back to the learned Family Court to decide O.P.No.916 of 2010
along with F.C.O.P.No.1930 of 2017 filed by wife seeking
restitution of Conjugal Rights and maintenance, strictly, in
accordance with law, by affording an opportunity to the wife
and husband and also respondent No.2 in O.P.No.916 of 2010.
C.R.P.Nos.1403, 1506 and 871 of 2021 are dismissed. There
shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in
the Family Court Appeal and revision petitions shall stand
closed.
___________________
K. LAKSHMAN, J
________________
K. SUJANA , J
Date: 7th June, 2024
PVT/VSU
THE HON'BLE SRI JUSTICE K. LAKSHMAN
AND
THE HON'BLE SMT. JUSTICE K. SUJANA
FAMILY COURT APPEAL NO.149 OF 2014 AND CIVIL
REVISION PETITION NOS.871, 1403 AND 1506 of 2021
(as per Hon'ble Sri Justice K. Lakshman)
Date: 7th June, 2024
PVT/VSU
