Telangana High Court
Nishkal Singampalli, vs Kannepamula Vijaya Kumar on 10 February, 2025
*THE HON'BLE JUSTICE MOUSHUMI BATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
+ FAMILY COURT APPEAL No.5 OF 2023
% 10--02--2025
# Nishkal Singampalli
... Appellant
vs.
$ Kannepamula Vijaya Kumar
... Respondent
!Counsel for the Appellant: Sri Sanjeev Reddy Gillela
^Counsel for Respondent: Sri Ms.A.Harini
<Gist :
>Head Note :
? Cases referred:
2021 SCC OnLine SC 3285
2011 (1) DMC 364 = 2010:KER:34522
2022 SCC OnLine Delhi 726 = 2022:DHC:894-DB
(1975) 2 SCC 326
(1988) 1 SCC 105
(1994) 1 SCC 337
(2007) 4 SCC 511
2
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
FAMILY COURT APPEAL No.5 OF 2023
Between:
Nishkal Singampalli
... Appellant
And
Kannepamula Vijaya Kumar
... Respondent
JUDGMENT PRONOUNCED ON: 10.02.2025
THE HON'BLE JUSTICE MOUSHUMI BATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : No
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_______________________
MOUSHUMI BATTACHARYA,J
_____________________
B.R.MADHUSUDHAN RAO,J
3
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
F.C.A.NO.5 OF 2023
J U D G M E N T:
(per Justice B.R.MADHUSUDHAN RAO)
The Appellant-wife has preferred the instant Appeal aggrieved
by the order, dated 03.11.2022 in O.P.No.778 of 2017 passed by I
Additional Family Court at Hyderabad, whereby the Divorce petition
filed by the respondent-husband under Section 10 (iv) (x) of Indian
Divorce Act, 1869 (for short 'the Act') was allowed.
2. The factual background of the case is as follows:
2.1. The respondent-husband has initially filed O.P. under Section 10
(iv) of the Act that his marriage was performed with the appellant-wife
on 29.12.2010 as per Christian Rules and Customs. He alleged that on
the first night of the marriage, he noticed white patches on the lips and
body of the appellant-wife, when the respondent-husband ascertained
with the appellant-wife about the white patches on her lips and body,
she informed that they were sun burns. It is further alleged in the
petition that in the month of January, 2012, the respondent-husband
requested the appellant-wife to visit a Doctor and get treatment.
Whenever there was a quarrel, the appellant-wife used to do Caste
differentiation by saying that the respondent-husband belongs to
labour class. After shifting to Hyderabad, the respondent-husband
insisted the appellant-wife for sex, then he noticed that the white
patches increased in his wife's body and he was scared to see that the
patches were spreading on her body parts. The respondent-husband
has informed his in-laws about the white patches but they ignored. In
the month of July, 2011, respondent-husband came to know that the
appellant-wife was suffering with Vitiligo. Vitiligo is a disease in which
the pigment of the cells of the skin are destroyed in certain areas and
there is no cure for Vitiligo. They lived together till September, 2011,
thereafter the appellant-wife went for training and she was promoted
and transferred to Guntur and resided there at till September, 2013.
The respondent-husband was at Hyderabad till June, 2014 and
thereafter he got transferred to Bangalore in June, 2014 and resided
there at and prayed to grant divorce.
2.2. Appellant-wife filed counter to the main O.P. admitting the
marriage and contended that there were no white patches on her body
in 2012, initially it was diagnosed with Vitiligo in June, 2013, she had
very small white patches on her wrist and the area between her right
hand thumb and fore finger. Vitiligo is not a contageous disease and
there is no definite factor for the cause of it. The appellant-wife never
refused to have sex with her husband, but it is her husband who did
not show interest to have the same. Appellant-wife contacted the
sister of the respondent-husband who resides in Hyderabad in May,
2015 and they went to Bangalore to settle the issue, then the husband
started saying that he would start living with her only if she stops all
her communication with her parents and siblings, he also warned her
that if she don't get pregnant by January, 2016 he will divorce her, he
always used to say that he was the one having difficulties in getting
pregnant. In January, 2016 appellant-wife visited her husband at
Bangalore by which time her Vitiligo became prominent. Respondent-
husband came to Hyderabad in January, 2017, to take back his
belongings from her. In August, 2017, she came to know about the
divorce notice. The question of suppression of disease by the appellant
and her parents will not arise at all as she did not have the same till
June, 2013.
2.3. Respondent-husband has amended the O.P. and incorporated
Sub-clause (x) of Divorce Act vide IA.No.789 of 2019 dated
25.11.2019. Respondent-husband is examined as PW.1 and got
marked Ex.A1-Marriage photographs (3 in number), Ex.A2-Marriage
Certificate. Appellant-wife is examined as RW.1.
3. The trial Court after considering the evidence of the parties as
well as written arguments, allowed the O.P. filed by the respondent-
husband by dissolving the marriage held on 29.12.2010. Aggrieved by
which the appellant-wife has filed the present appeal.
4. Learned counsel appearing for the appellant submits that the
trial Court ought to have dismissed the petition in toto when it came to
a conclusion that Section 10 (iv) of Indian Divorce Act is not available
for the respondent-husband but instead granted divorce on the ground
of cruelty without appreciating the evidence on record. The trial Court
failed to appreciate the fact that the respondent-husband who
humiliated the appellant-wife in all aspects but failed to decide the
case judicially and simply stated that the marital bond is irretrievably
broken down and that the appellant-wife has not filed a petition for
restitution of conjugal rights. Learned counsel further submitted that
non-filing of restitution of conjugal rights is not a conclusive proof that
the appellant-wife is not interested in matrimonial life and that she did
not want to give divorce and interested in the family life.
5. Learned counsel appearing for the respondent-husband submits
that the appeal is time barred and the trial Court has recorded its
observation that the acts of the appellant-wife have caused mental
cruelty. The respondent-husband wanted to have children but it is the
appellant-wife who is not willing for the same which amounts to mental
cruelty and the trial Court has recorded the findings that the
respondent-husband and his family members made efforts to resolve
the dispute. Learned counsel placed reliance on the decisions in
'Arunoday Singh vs. Lee Anne Elton 1, Sandeep Mohan Verghese vs.
Anjana Jose 2 and Ritesh Babbar vs. Kiran Babbar 3.
2021 SCC OnLine SC 3285
2011 (1) DMC 364 = 2010:KER:34522
2022 SCC OnLine Delhi 726 = 2022:DHC:894-DB
6. The law relevant to the issue at hand are set out below:
Section 10. Grounds for dissolution of marriage.--(1)
Any marriage solemnized, whether before or after the
commencement* of the Indian Divorce (Amendment) Act,
2001, may, on a petition presented to the District Court
either by the husband or the wife, be dissolved on the
ground that since the solemnization of the marriage, the
respondent-
xxx
(x). has treated the petitioner with such cruelty as to cause
a reasonable apprehension in the mind of the petitioner that
it would be harmful or injurious for the petitioner to live with
the respondent.
7. We have considered the contentions raised by the learned
counsel for the parties and have carefully gone through the material on
record.
8. The core issue which arises for our consideration is whether the
appellant-wife treated the respondent-husband with cruelty or not?
9. Learned counsel appearing for the respondent submits that the
appeal is barred by law. The impugned order is passed on
03.11.2022, the appellant-wife has made copy application on
10.11.2022, copy was delivered on 08.12.2022, appeal is filed on
27.12.2022 which is within limitation and that the decision cited by
respondent counsel in Arunoday Singh's case (supra) is not applicable.
10. In matrimonial life, cruelty can be defined in many ways. It has
many perspectives which depend upon the socio-economic status and
circumstances of parties to the marriage. It varies from person to
person. It also varies with time, place, economic status and other
circumstances. Cruelty can be physical and mental. Physical cruelty
provides more of a direct evidence, that it can be perceptible when
compared to mental cruelty. Mental cruelty can be drawn from the
facts and circumstances of the case, whereas physical cruelty can be
drawn from the conduct of one spouse towards other spouse which
endangers the other spouse's physical health. It is true that, mere
trivial irritations, quarrels, normal wear and tear of the married life
which happens in day-to-day life would not be adequate for grant of
divorce on the ground of mental cruelty. The married life should be
reviewed as a whole, and a few isolated instances over a period of
years will not amount to cruelty.
11. In Narayan Ganesh Dastane vs. Sucheta Narayan Dastane 4, the
Apex Court observed that, the enquiry therefore has to be whether the
conduct charged as cruelty is of such a character as to cause in the
mind of the petitioner a reasonable apprehension that it will be harmful
or injurious for him to live with the respondent.
12. In Sobha Rani vs. Madhukar Reddi 5, the Apex Court examined
the concept of cruelty and held that the word 'cruelty' has not been
defined in the Hindu Marriage Act. It has been used in Section
13(1)(i)(a) of the Act in the context of human conduct or behaviour in
(1975) 2 SCC 326
(1988) 1 SCC 105
relation to or in respect of matrimonial duties or obligations. It is a
course of conduct of one which is adversely affecting the other. The
cruelty may be mental or physical, intentional or unintentional. If it is
physical, it is a question of fact and degree. If it is mental, the enquiry
must begin as to the nature of the cruel treatment and then as to the
impact of such treatment on the mind of the spouse. Whether it
caused reasonable apprehension that it would be harmful or injurious
to live with the other, ultimately, is a matter of inference to be drawn
by taking into account the nature of the conduct and its effect on the
complaining spouse.
13. In V.Bhagat vs. D.Bhagat (Mrs) 6, it is observed that "Mental
cruelty in Section 13(1)(ia) can broadly be defined as that conduct
which inflicts upon the other party such mental pain and suffering as
would make it not possible for that party to live with the other. In
other words, mental cruelty must be of such a nature that the parties
cannot reasonably be expected to live together. The situation must be
such that the wronged party cannot reasonably be asked to put up
with such conduct and continue to live with the other party. It is not
necessary to prove that, the mental cruelty is such, as to cause injury
to the health of the petitioner. While arriving at such conclusion,
regard must be had to the social status, educational level of the
parties, the society they move in, the possibility or otherwise of the
(1994) 1 SCC 337
parties ever living together in case they are already living apart and all
other relevant facts and circumstances which it is neither possible nor
desirable to set out exhaustively. What is cruelty in one case may not
amount to cruelty in another case. It is a matter to be determined in
each case having regard to the facts and circumstances of that case.
If it is a case of accusations and allegations, regard must also be had
to the context in which they were made".
14. The Apex Court in Samar Ghosh vs. Jaya Ghosh 7, elaborately
discussed the nature and scope of mental cruelty as a ground of
divorce. It was held therein, in paragraph 101, as follows:
"101. No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate some
instances of human behaviour which may be relevant in
dealing with the cases of 'mental cruelty'. The instances
indicated in the succeeding paragraphs are only illustrative
and not exhaustive.
(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as would not
make possible for the parties to live with each other could
come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial
life of the parties, it becomes abundantly clear that situation
is such that the wronged party cannot reasonably be asked
to put up with such conduct and continue to live with other
party.
(iii) Mere coldness or lack of affection cannot amount to
cruelty, frequent rudeness of language, petulance of manner,
(2007) 4 SCC 511
indifference and neglect may reach such a degree that it
makes the married life for the other spouse absolutely
intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by
the conduct of other for a long time may lead to mental
cruelty.
(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of
the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one
spouse actually affecting physical and mental health of the
other spouse. The treatment complained of and the resultant
danger or apprehension must be very grave, substantial and
weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear
of the married life which happens in day to day life would not
be adequate for grant of divorce on the ground of mental
cruelty.
(x) The married life should be reviewed as a whole and a
few isolated instances over a period of years will not amount
to cruelty. The ill conduct must be persistent for a fairly
lengthy period, where the relationship has deteriorated to an
extent that because of the acts and behaviour of a spouse,
the wronged party finds it extremely difficult to live with the
other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
sterilization without medical reasons and without the consent
or knowledge of his wife and similarly if the wife undergoes
vasectomy or abortion without medical reason or without the
consent or knowledge of her husband, such an act of the
spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical
incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may amount to
cruelty.
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction
though supported by a legal tie. By refusing to sever that tie,
the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties.
In such like situations, it may lead to mental cruelty.
15. It is relevant to state that the trial Court held that the petitioner
failed to establish that Vitiligo is virulent and incurable form of leprosy,
admittedly, Vitiligo is not leprosy. Vitiligo effects people of all skin
types, it is not life threatening or contagious and it is not virulent and
communicable and held that the respondent-husband is not entitled for
the relief under Section 10 (iv) of the Act.
16. The undisputed facts of the case are that the marriage of the
parties took place on 29.12.2020 at St.Peter's Lutheran Church, Tenali
and is consummated. In the month of September, 2013, appellant-wife
is transferred to Hyderabad and that the respondent-husband is
transferred to Bangalore in the month of June, 2014, and residing at
Bangalore till the filing of O.P.
17. The respondent-husband leveled allegations against the
appellant-wife that she opposed for sex and in the month of July, 2011
when he insisted for sex then he noticed white patches increased in
her body and he was scared to see the patches as it was spreading on
her body parts. Respondent-husband stated in his cross-examination
that they separated in the year 2014 and during their stay together
they used to move along with the appellant's friends, families to
Nirmal, Srisailam and other parts and that the appellant-wife visited
Bangalore in the year, 2015 along with his sister on the eve of his
birthday, in the presence of the appellant, respondent's sister asked
him about the reunion, in turn the respondent-husband said that he
will think over it, he has not issued legal notice nor put any E-Mail to
the appellant-wife seeking for divorce.
18. The appellant-wife has stated in her cross-examination that she
and her husband stayed together till September, 2012 and that she
visited her husband in the month of January, 2016, by then the Vitiligo
has become prominent. Witness stated that she and her husband met
weekly once after 2017. She denied the suggestion that parties
cannot take the risk of putting the children born out of wedlock and
they do not have right to do so as she was suffering from Vitiligo.
19. In Samar Ghosh's case (supra), the Apex Court observed that
"the concept of mental cruelty cannot remain static; it is bound to
change with the passage of time, impact of modern culture through
print and electronic media and value system etc. What may be mental
cruelty now may not remain a mental cruelty after a passage of time
or vice versa. There can never be any strait jacket formula or fixed
parameters for determining mental cruelty in matrimonial matters. The
prudent and appropriate way to adjudicate the case would be to
evaluate it on its peculiar facts and circumstances while taking
aforementioned factors in consideration". There cannot be any
comprehensive definition of the concept of 'mental cruelty' within
which all kinds of cases of mental cruelty can be covered. The cruelty,
whether it be mental or physical, is a question of fact depending on the
evidence in each case. No uniform standard can be laid down to
determine whether an act would amount to cruelty or not. An act
which is tolerable to one may be intolerable to another.
20. There is no evidence on record to show that the respondent-
husband has underwent cruelty in the hands of the appellant, the
burden is on the respondent-husband to prove that he underwent
cruelty in the hands of his wife. The finding of the trial Court that the
respondent-husband is interested in children and that the appellant-
wife is not is perverse. The respondent-husband has not placed any
evidence on record to show that he made efforts to bring back the
appellant-wife to his society. The trial Court has wrongly placed
burden on the appellant-wife that she has not made any efforts for
reunion either by issuing legal notice or by filing a petition for
restitution of conjugal rights and that she has abandoned the
matrimonial home and declined to cohabit with her husband is
perverse and not in accordance with law, which is liable to be set
aside.
21. The other two decisions cited by respondent counsel in Sandeep
Mohan Verghese and Ritesh Babbar (supra) are not applicable to the
case on hand as the facts differ.
22. In view of the above discussions, Appeal is allowed. The
impugned order dated 03.11.2022 in O.P.No.778 of 2017 passed by I
Additional Family Court at Hyderabad is set aside. There shall be no
order as to costs.
As a sequel, Miscellaneous application/s, pending if any, shall
stand closed.
____________________________
MOUSHUMI BHATTACHARYA, J
_________________________
B.R.MADHUSUDHAN RAO, J
10th February, 2025.
PLV
