Telangana High Court
Surabhi Madhava Reddy vs Surabi Chandrakala on 17 June, 2025
*THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
+ FCA.No.145 OF 2015
% 17--06--2025
# Surabhi Madhava Reddy
... Appellant
vs.
$ Surabi Chandrakala,
... Respondent
!Counsel for the Petitioners: Sri K.Hanmandlu
^Counsel for Respondent: Sri Ashok Kumar Agarwal
<Gist :
>Head Note :
? Cases referred:
1. MANU/SC/0719/2001
2. MANU/TL/1026/2024
3. MANU/SC/0058/1956 : (1956) 1SCR838
4. MANU/SC/0484/1971 : (1972) 2SCR657
2/13 MB,J & BRMR,J
FCA_145_2015
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
FCA.No.145 OF 2015
Between:
Surabhi Madhava Reddy
... Petitioner
And
Surabi Chandrakala,
... Respondent
JUDGMENT PRONOUNCED ON: 17.06.2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
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
___________________________
B.R.MADHUSUDHAN RAO,J
3/13 MB,J & BRMR,J
FCA_145_2015
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
F.C.A.NO.145 OF 2015
JUDGMENT:
(per Justice B.R.Madhusudhan Rao)
1. The Appeal arises out of an order dated 28.07.2014 passed
by the learned Additional Family Court at Hyderabad in
O.P.No.518 of 2011. The appellant's petition for divorce under
Section 13(1)(ib) of the Hindu Marriage Act, 1955 (for desertion)
was dismissed by the Trial Court.
2.1. The appellant is the husband and respondent is the wife.
It is stated in the O.P. that the marriage of the appellant with the
respondent was performed on 14.05.1983 as per Hindu rites and
customs and out of lawful wedlock, they were blessed with a son.
The appellant and respondent lived happily for a period of one year
thereafter, the respondent has filed dowry harassment case against
him and his family members, thereby, the appellant was forced to
live separately at Hyderabad. The respondent filed MC.No.7 of
1992 against the appellant and an ex parte order was passed.
Since 14.10.1992, the appellant is paying maintenance of
Rs.1,000/-, a part from that he is also paying Rs.2,000/- towards
maintenance in a Civil Suit. The appellant and the respondent
4/13 MB,J & BRMR,J
FCA_145_2015
were living separately since 1991 without any reasonable ground.
The respondent has refused to live with the petitioner. The son of
the parties is aged about 26 years and he is hale and healthy,
prayed to dissolve his marriage on the ground of desertion.
2.2. The respondent/wife has filed her counter and contended
that since the date of marriage, the appellant is habituated to
drinking and he spent his entire salary for that purpose. The
appellant has demanded the respondent to bring additional dowry,
she was unable to withstand the torture, thereby, she filed dowry
harassment case against the appellant and his family members.
The appellant has forcibly necked out the respondent along with
her child from the house. The respondent unable to maintain
herself has filed MC.No.7 of 1992, as the appellant failed to appear
before the Court, an ex parte order was passed. The respondent is
ready and willing to join the company of the appellant to discharge
her marital obligations provided the appellant gives up drinking
habit and maintains the family. The appellant has filed the
present O.P. as a counter blast to the suit filed by her son for
partition. The respondent has faced all odds in life with great
difficulty to bring her child and prayed to dismiss the same.
5/13 MB,J & BRMR,J
FCA_145_2015
3. The appellant is examined as PW.1 and also examined his
mother as PW.2, got marked Exs.A1 to A11. The respondent is
examined as RW.1 and no documents are marked on her side.
4. The learned Trial Court vide order dated 28.07.2014
dismissed the appellant's petition for divorce on the ground that
the appellant has not taken any steps to get the respondent back
to his company, on the other hand, the evidence of PW.2 clearly
shows that during the pendency of the case, the son of the
respondent has invited the appellant to their house and he stayed
there at for 15 days. Learned Trial Court has further observed
that the appellant has not filed restitution of conjugal rights case
nor has issued any notice. Further the respondent is willing to join
the petitioner and the question of animus residenti does not arise.
5.1. It is to be noted here that during pending appeal the
appellant has filed IA.No.1 of 2023 to amend the Section of Law by
adding Section 13(1)(ia) to the existing Section of Law 13(1)(ib) of
the Hindu Marriage Act in OP.No.518 of 2011 and also filed IA.No.2
of 2023 to receive additional documents i.e., judgment in Criminal
Appeal No.52 of 1997, dated 08.09.1998; judgment in CC.No.648
of 2013, dated 09.09.2016; copy of charge sheet in CC.No.373 of
2018 pending on the file of I Additional Chief Metropolitan
Magistrate, Hyderabad and copy of OS.No.600 of 2019 pending on
6/13 MB,J & BRMR,J
FCA_145_2015
the file of XX Junior Civil Judge, Hyderabad. The above said two
applications were allowed by a Co-ordinate Bench on 19.06.2024.
5.2. In view of the orders in IA.No.1 of 2023 dated 19.06.2024,
petition in OP.No.518 of 2011 is amended by incorporating Section
13(1)(ia). Now the O.P. for divorce is under Section 13(1)(ia)(ib) of
the Hindu Marriage Act, 1955.
6.1. Learned counsel for the appellant submits that the learned
Trial Court has not considered the grounds of desertion and also
failed to consider the contentions put forth and the evidence
adduced by the parties, failed to see that the respondent/wife
herself withdraw the company of the appellant on her own without
fault on the part of the husband and has committed manifest
illegality.
6.2. The learned Trial Court failed to see that the filing of
criminal complaints under Section 498-A of IPC by the respondent
on two occasions, which amounts to cruelty. Learned Trial Court
has erred in not looking into the complaint lodged by the
respondent under Section 498-A and 506 of IPC on 21.06.2013
which is registered as Crime No.124 of 2013 and numbered as
CC.No.648 of 2013 on the file of XIV Metropolitan Magistrate,
Saidabad at L.B.Nagar, Ranga Reddy District. The order of the
Trial Court is vitiated by prejudical notions and the learned Judge
7/13 MB,J & BRMR,J
FCA_145_2015
has rejected the evidence of the appellant and has committed a
blatant error without considering the evidence on record.
6.3. Learned counsel further submits that the appellant is
entitled for grant of divorce on the ground of cruelty also as he
succeeded in Criminal Appeal No.52 of 1997 vide judgment, dated
08.09.1998 preferred against the judgment of conviction in
SC.No.271 of 1996, was also acquitted for the second time for the
offences under Section 498-A of IPC in CC.No.648 of 2013 on the
file of XIV Metropolitan Magistrate, L.B.Nagar at Hyderabad vide
judgment dated 09.09.2016. Counsel in support of his contentions
has relied on the decisions in the case of (1) Adhyatma Bhattar
Alwar Vs. Adhyatma Bhattar Sri Devi 1 , (2) D.Narsimha & others
Vs. Smt. D.Anita Vaishnavi 2.
7.1. Learned counsel for the respondent submits that the
appellant has forcibly necked out the respondent and her child
from the house, the respondent unable to maintain herself has
filed MC.No.7 of 1992. The respondent all through her life has
suffered due to indifferent attitude of the appellant and that she is
ready to lead conjugal life with her husband. The evidence of PW.2
goes to show that she is not willing to accept the respondent if she
joins her husband. The appellant has not taken any steps to get
MANU/SC/0719/2001
MANU/TL/1026/2024
8/13 MB,J & BRMR,J
FCA_145_2015
back the respondent to his company and the son of the parties has
filed a suit for partition and separate possession which is pending
adjudication. The appellant has lodged a false criminal case
against the respondent in CC.No.373 of 2018 for the offences
under Sections 324, 448, 509 r/w 34 of IPC in Crime No.586 of
2017 and the respondent was acquitted of the charges. The
appellant is not entitled for divorce.
7.2. Counsel for the respondent does not dispute the fact of the
respondent filing criminal cases against the appellant.
8. The grounds for divorce in the O.P. are cruelty and desertion
i.e., Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955 which
are set out below:
Section 13 - Divorce :
(1) Any marriage solemnised, whether before or after the commencement of this
Act, may, on a petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other party -
(ia) has, after the solemnisation of the marriage, treated the petitioner with
cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition.
9. For the offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there., namely, (1) the
factum of separation, and (2) the intention to bring cohabitation
permanently to an end (animus deserendi ). Similarly two elements
are essential so far as the deserted spouse is concerned: (1) the
9/13 MB,J & BRMR,J
FCA_145_2015
absence of consent, and (2) absence of conduct giving reasonable
cause to the spouse leaving the matrimonial home to form the
necessary intention aforesaid; Bipin Chander Jaisinghbhai Shah
Vs.. Prabhawati 3.
10. It is stated that desertion is not to be tested by merely
ascertaining which party left the matrimonial home first. If one
spouse is forced by the conduct of the other to leave home it may
be that the spouse responsible for the driving out is guilty of
desertion; Smt. Rohini Kumari Vs. Narendra Singh 4.
The same principles are enunciated in Adhyatma Bhattar Alwar's
case1.
11. We are not marking the additional documents filed along
with IA.No.2 of 2023 but we are taking judicial notice of the same.
12.1. It is an admitted fact that the respondent has lodged a
complaint against the appellant and his family members under
Sections 448, 498-A and 307 of IPC r/w Section 34 of IPC, basing
on which a Crime is registered and it is numbered as SC.No.271 of
1996 on the file of the II Additional District and Sessions Judge,
Ranga Reddy District. A1 therein in SC.No.271 of 1996 is the
appellant herein, who has been convicted for the offence under
MANU/SC/0058/1956 : (1956) 1SCR838
MANU/SC/0484/1971 : (1972) 2SCR657
10/13 MB,J & BRMR,J
FCA_145_2015
Section 498-A of IPC and sentenced to undergo imprisonment for a
period of 6 months. The mother of the appellant was shown as A2
and his sister is shown as A3, they were acquitted of the charges.
The appellant was also acquitted of the charges under Sections
448 and 307 of IPC.
12.2. The appellant has filed Appeal against the judgment in
SC.No.271 of 1996 dated 25.06.1997 vide Criminal Appeal No.52 of
1997. It is note worthy to mention here that according to the case
of the respondent in the Sessions case disputes arose between the
respondent and the appellant on 22.10.1990 and the same were
placed before the elders and the accused No.1 therein (appellant
herein) under took that he will not make any demand for dowry
and promised to live happily. The brother of the respondent was
examined as PW.2 in SC.No.271 of 1996 wherein he did not say
any word about the conduct of A1 (appellant herein) in demanding
dowry and subjecting his wife to cruel treatment.
12.3. It is observed in the judgment in Criminal Appeal No.52 of
1997, dated 08.09.1998 that the charges does not show that the
accused in a drunken condition was subjecting PW.1 to cruelty.
Learned I Additional Sessions Judge, Ranga Reddy District at
Saroornagar has allowed the Criminal Appeal No.52 of 1997 filed
by the appellant vide judgment, dated 08.09.1998 holding that the
11/13 MB,J & BRMR,J
FCA_145_2015
evidence of the brother of the respondent, who does not say
anything about the dowry, therefore, the accused was entitled for
benefit of doubt and allowed the Appeal by setting aside the
conviction and sentence imposed by the II Additional District and
Sessions judge in SC.No.271 of 1996 dated 25.06.1997.
13. Respondent has admitted in her cross-examination that the
complaint lodged by her against the petitioner and his family
members in Hayathnagar Police Station in the year 1996 in which
the appellant was acquitted of the charges.
14. The respondent has lodged another complaint against the
appellant before S.H.O. Women's Police Station, Saroornagar,
basing on which case in Crime No.124 of 2013 is registered, after
filing charge sheet it is numbered as CC.No.648 of 2013, the
offences are under Sections 498-A, 506 of IPC. The said case was
tried by the XIV Metropolitan Magistrate, Hyderabad at L.B.Nagar.
The respondent is examined as PW.1 and also examined her son as
PW.2 and Investigation Officer as PW.3. The appellant was found
not guilty for the offence under Section 498-A, 506 of IPC and he
was acquitted under Section 248(1) of Cr.P.C. vide judgment dated
09.09.2016 in CC.No.648 of 2013. It is to be noted here that the
above said judgment came to be passed by XIV Metropolitan
12/13 MB,J & BRMR,J
FCA_145_2015
Magistrate at L.B.Nagar after disposal of O.P.No.518 of 2011 on
28.07.2014.
15. The acquittal assumes significance in the light of the
allegations made by the respondent against the appellant. The
acquittal casts a shadow on the truth of the allegations made by
the respondent in D.Narsimha's case2.
16.1. The appellant has stated in his cross-examination that at
the time of separation, his son was aged about 4 or 5 years and he
filed the O.P. against his wife as she filed dowry harassment case
and that he is not willing to take back his wife and his son by
saying good-bye to the habitual drinks as she filed so many cases
against him and his family members and that they are residing
separately since 1991 or 1992. The appellant further stated in his
cross-examination that as the respondent filed harassment case
against him as such, he was forced to live separately.
16.2. PW.2 is the mother of the appellant, she stated in her cross-
examination that her son has filed the O.P. as the respondent has
filed dowry harassment case and if the respondent joins the
appellant, she is not willing to accept, her son is in a habit of
drinking rarely and she cannot say the date, month and year when
the respondent has left the company of the appellant and that she
is convicted for a period of two months in dowry harassment case,
13/13 MB,J & BRMR,J
FCA_145_2015
she went to the house of the respondent on two occasions to call
upon her to join the company of the appellant and that her
grand-son has taken the appellant to his house for 15 days about
two months back.
17. It is the case of the respondent that she is ready to join the
company of the appellant to discharge her marital obligations and
the appellant has filed O.P. as a counter blast to the partition suit
filed by her son. The respondent in her cross-examination stated
that she is not willing to give divorce to the petitioner and she filed
dowry case against her husband about 20 years back at
Hayathnagar Police Station when she was residing at Kuntloor
Village. She has filed three cases against the appellant from the
date of marriage till the date of her cross-examination i.e.,
30.12.2013, her son is married and they have invited the appellant
to the marriage, who attended the same. The respondent further
stated in her cross-examination that she approached the office of
the appellant along with her son with a request to take her back.
The appellant used to stay with them for 2 or 3 months and leave
the house.
18. At the time of filing the O.P. the age of the appellant was
55 years and the respondent was 43 years, as on today they are
blessed with grand-children. The present age of the appellant is 70
14/13 MB,J & BRMR,J
FCA_145_2015
years and the respondent age is 62 years. The respondent counsel
contended that the appellant has lodged a false case in CC.No.373
of 2019 for the alleged offences under Sections 324, 448, 509 r/w
Section 34 of IPC in Crime No.586 of 2017 and the respondent was
found not guilty, which criminal case is filed after disposal of the
O.P.
19. The mother of the appellant in her cross-examination stated
that she made efforts to bring back the respondent to the society of
his son but it is the respondent, who used vulgar language and
beat PW.2.
20. The respondent except stating in her pleadings that she is
ready to join the company of her husband, has not placed any
evidence to show that she is willing to discharge her marital
obligations with her husband. Except the self serving testimony of
the respondent no other evidence is placed by her to show that the
appellant was at fault. The evidence of PW.2 is sufficient to come
to a conclusion that she made efforts to bring back her
daughter-in-law to the society of the appellant but could not be
materialised. Even otherwise, the appellant was acquitted in two
criminal cases filed by the respondent which proves that it is the
respondent who is at fault and she is trying to take advantage of
her own wrong.
15/13 MB,J & BRMR,J
FCA_145_2015
21. The Trial Court finding that the petitioner has not filed O.P.
for restitution of conjugal rights nor issued any notice is liable to
be set aside, moreover, the Trial Court has not analysed the
evidence in proper perspective, and we hold that the order passed
by the learned Trial Court dated 28.07.2014 in O.P.No.518 of 2011
is liable to be set aside.
22. FCA No.145 of 2015 is allowed and the impugned order
dated 28.07.2014 in O.P.No.518 of 2011 is set aside.
All connected applications are disposed of. There shall be no
order as to costs.
___________________________________
MOUSHUMI BHATTACHARYA, J
_______________________________
B.R.MADHUSUDHAN RAO, J
17th June, 2025.
PLV
NOTE: LR copy to be marked.
16/13 MB,J & BRMR,J
FCA_145_2015
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
F.C.A.NO.145 OF 2015
17.06.2025
PLV
