Telangana High Court
Smt.Neerla Jyoshna Rani vs Sri Neerla Srinivas on 14 February, 2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE MADHUSUDHAN RAO BOBBILI RAMAIAH
FCA.No.53 of 2014
Counsel for the appellant: Ms.Priyanka, learned counsel representing
Mr.B.Venkateswarlu.
Counsel for the respondent: Sri V.Ravi Kiran Rao.
JUDGMENT:
The instant Family Court Appeal arises out of an order dated
06.01.2014 passed by the Family Court in FCOP.No.99 of 2011
filed by the respondent/husband for dissolution of the appellant's
marriage with the respondent on the ground of cruelty and
desertion. The Trial Court allowed the petition on the grounds
raised by the respondent/husband.
2. The appellant/wife was the respondent in the Family Court
Original Petition ('FCOP') filed by the respondent/husband under
section 13(1)(ia) and (ib) of The Hindu Marriage Act, 1955 i.e., on
the ground of cruelty and desertion, respectively.
3. The contentions raised in the petition filed by the respondent
are that the marriage of the respondent and the appellant was
solemnized at Karimnagar and that they initially lived separately
from the respondent's parents in a rented house. When the
appellant became pregnant, the appellant's parents took her away
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for delivery of the child and the appellant gave birth to a female
child in 2002. The respondent requested the appellant to return to
the respondent's house but the appellant and her parents forced
the respondent to stay with them which the respondent refused.
The appellant thereafter refused to live at the respondent's house.
The respondent thereafter filed an Original Petition before the
Senior Civil Judge, Karimnagar for restitution of conjugal rights.
After which the appellant filed a criminal case against the
respondent which ultimately resulted in the respondent's acquittal
on 21.03.2005. The appellant's brother filed another criminal case
against the respondent which again ended in acquittal on
17.10.2008.
4. The respondent further states that the appellant forced the
respondent to transfer the property given to the respondent by his
parents in the appellant's name which the respondent refused to
do. The respondent also states that the respondent made several
attempts to bring the appellant to his house but the appellant
refused and continued to stay with her parents.
5. The respondent complained that the appellant did not allow
the respondent to see their daughter who was 9 years old at the
time of filing of the divorce petition which led to the respondent
suffering mental agony and depression. The respondent states that
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the appellant's parents came to the respondent's house on
10.12.2011 and abused the respondent and threatened to file
criminal cases against him.
6. Learned counsel appearing for the appellant/wife submits
that the Trial Court erred in allowing the respondent's petition for
divorce and urges that the appellant joined the society of the
respondent in May, 2002 and stayed with him till August, 2002.
After which the appellant went to her parents' house for delivery of
their child. Counsel submits that the appellant did not return to
the respondent's house since the respondent did not make any
requests for such. Counsel submits that the respondent could not
produce any evidence of cruelty before the Trial Court for
dissolution of marriage on that ground.
7. We have heard learned counsel for the parties and we have
also carefully considered the impugned order dissolving the
marriage between the parties by a decree of divorce. We also note
that the Trial Court gave a direction on the respondent/husband to
pay Rs.3,00,000/- (Rupees Three Lakhs only) to the appellant
towards permanent alimony. There is no pleading on record to
show whether the respondent has made this payment to the
appellant in compliance of the Trial Court's order.
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8. From the material brought before us, it appears that the
witnesses who gave evidence in support of the respondent's
contentions namely, the brother-in-law of the respondent (PW.2),
maternal uncle of the respondent (PW.3) reiterated the fact of the
appellant and the respondent being married on 17.12.2001 and
that there was no demand for dowry on the part of the respondent
from the appellant's family at the time of marriage.
9. The witnesses deposed that the appellant used to quarrel
with the respondent and forced the respondent to live with the
appellant's parents and that several panchayats were held to
mediate the disputes between the parties. Both the witnesses
deposed that the appellant left the society of the respondent in
2002 and has been staying at her parent's house since then. The
appellant on the other hand deposed that the appellant did not
recall filing of criminal cases against the respondent in 2002 or
whether the same ended in the respondent's acquittal. The
appellant's second witness is a resident of the locality and deposed
that the appellant gave dowry of Rs.20,000/- (Rupees Twenty
Thousand only) cash and a Hero Honda motorcycle to the
respondent. The witness deposed that the respondent started
harassing the appellant and forcing her out of the house when the
appellant became pregnant.
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10. The Trial Court primarily considered the fact of the appellant
having left the society of the respondent and the matrimonial home
from the time when the appellant was expecting i.e., in 2002. The
other ground which the Trial Court took into consideration was
that the respondent had been acquitted in both the criminal cases
filed by the appellant and her brother in 2002 and 2007,
respectively. The respondent was acquitted of both the criminal
cases on 21.03.2005 and 17.10.2008, respectively. The Trial Court
also gave weightage to the fact that the respondent had also filed a
petition for restitution of conjugal rights which showed that the
respondent was eager to have the appellant back at the
matrimonial home.
11. The impugned order is brief but not unreasoned. We do not
find any substance either in the contentions of the appellant or in
the evidence adduced by the parties to come to a different
conclusion. Whether the respondent was able to adduce evidence
on the ground of cruelty becomes less relevant in the admitted fact
of the appellant having lived separately from the respondent from
2002 onwards. The respondent filed a divorce petition on
15.12.2011 stating that the daughter born out of wedlock was 9
years old as on the date of filing of the petition. Therefore, it can
be presumed that the appellant was staying outside the
matrimonial home for nine years before the filing of the petition for
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divorce. The appellant has not disputed this fact anywhere in the
pleadings or in the evidence, save and except that the respondent
failed to bring her back to the matrimonial home.
12. The aforesaid contentions raise doubts since the respondent
admittedly filed O.P.No.145 of 2002 before the Senior Civil Judge,
Karimnagar for restitution of conjugal rights. Therefore, it is
difficult to accept the appellant's contention that the respondent
did not make any effort to restore the matrimonial ties between the
parties.
13. It is also undisputed that the respondent was acquitted in
both the criminal cases filed in 2005 and 2008. The very fact that
the respondent was acquitted would raise a presumption of the
respondent being harassed by filing of such cases. The appellant
has not stated anywhere that the acquittals were granted on the
basis of any settlement or compromise between the parties. It
must also be said that the appellant's evidence of not being able to
recall filing of criminal cases against the respondent by the
appellant and her brother itself is suspicious. The appellant in fact
has no substantive defence against the respondent's acquittal or
more important, the fact that the appellant had indeed been living
separately from the respondent for nine years immediately
preceding the filing of the divorce petition.
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14. Section 13(1) of the 1955 Act contemplates filing of a petition
by either of the parties for dissolution of marriage by a decree of
divorce. One of the grounds on which a petition for divorce can be
filed is under section 13(1)(ib) which is that the other party has
deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition.
15. The grounds under section 13(1) of the 1955 Act indicate that
the grounds are disjunctive and presence of any one of the grounds
is sufficient for dissolution of marriage. In the present case, even if
the assumption that the respondent was unable to adduce evidence
for cruelty is assumed to be true, the Trial Court correctly allowed
the petition on the ground that the appellant deserted the
respondent from 2002 till filing of the divorce petition on
15.02.2011. We therefore find no reason to interfere with the
impugned order.
16. Naveen Kohli Vs. Neelu Kohli 1 relied on by the respondent was
a case of irretrievable breakdown of marriage where the Supreme
Court held that once parties have separated and the separation is
continuous for a sufficient length of time, it can be presumed that
the marriage has broken down. The Supreme Court further held
that divorce should not be withheld if the breakdown is
1(2006) 4 SCC 558
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irretrievable even though the Supreme Court has such power to
make such an order. The facts of the present case leave no doubt
that the respondent was able to make out a case for desertion and
that the appellant could not bring substantive defence to the said
case. The appellant has also been unsuccessful in doing so before
this Court.
17. We hence find no merit in the present Appeal. FCA.No.53 of
2014 is accordingly dismissed. All connected applications stand
disposed of. The respondent shall comply with the direction given
by the Trial Court in respect of payment of Rs.3,00,000/- (Rupees
Three Lakhs only) by the respondent to the appellant within seven
days from the date of this judgment, if not done already.
Interim orders, if any, shall stand vacated. There shall be no
order as to costs.
_________________________________
MOUSHUMI BHATTACHARYA, J
____________________________
B.R.MADHUSUDHAN RAO,J
February 14, 2025
BMS
