Telangana High Court
N.Manikya Rao vs Smt.Lillian Swaroopa on 7 March, 2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
F.C.A.NO.143 OF 2014
J U D G M E N T:
(per Justice B.R.Madhusudhan Rao)
1. The instant Appeal arises out of an order dated 09.05.2014
passed by the Judge, Family Court, Hyderabad in FCOP.No.1661 of
2010 filed by the appellant-husband under Section 10(1)(ix) and (x) of
Indian Divorce Act, 1869 for dissolution of his marriage with the
respondent-wife by a decree of divorce.
2. The Family Court dismissed the petition for divorce on the
ground that appellant failed to prove cruelty and desertion.
3. The contentions of the appellant and the respondent argued
before the Family Court are as follows:
3.1. The appellant sought dissolution of marriage on the ground that
they lived happily till 2000 and thereafter, the respondent got
influenced by the life style of her elder sister Smt.Sarala, she used to
compare the life style with that of the appellant and used to express
that he should live the life like that of her brother-in-law
Mr.Udayabhanu who retired as an Officer from the Forest Department.
The respondent used to pick up quarrels with the appellant without any
reason and used to go to her sister's house at Mettuguda,
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Secunderabad and stay there for months together, leaving behind the
children and the appellant used to take care of them. The respondent
used to insult the appellant in front of his children and outsiders, the
appellant has tolerated the behaviour of the respondent for the sake of
his children. On 05.12.2020, the respondent picked up quarrel with
the appellant and left the matrimonial home without intimation and
stayed with her sister, she denied the conjugal life since 2000. In the
year 1994, the appellant purchased a Plot at Saidabad, Hyderabad by
obtaining loan, constructed a groud floor in the year 1995 by raising
loans to a tune of Rs.8,50,000/-. In the year 2007, first floor was
constructed by raising loans. The appellant's daughter's marriage was
performed on 19.02.2007. In the month of April, 2007, the
respondent picked up quarrel with the appellant without any reason
and left the house with her belongings, did not turn up.
3.2. On 15.02.2008, the respondent has lodged a complaint before
Women Police Station, CCS, Hyderabad against the appellant. The
police has called both the parties and counseled them, thereafter, the
respondent has joined the company of the appellant but she continued
her cruel behaviour. The respondent has abused the appellant and left
the house along with her son in the month of November, 2008 and did
not return to the matrimonial house. The appellant's daughter gave
birth to a child on 30.11.2009. The respondent used to encourage her
son to speak against the appellant. The respondent has filed DVC
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No.120 of 2010 (old DVC No.17 of 2010) pending on the file of
I Metropolitan Magistrate, Hyderabad with false allegations.
The appellant is not in a position to lead matrimonial life with the
respondent.
4. On the other hand, the respondent stated that the appellant did
not even care to visit her daughter when she gave birth to a child on
30.11.2009. After construction of the house at Saidabad, both
appellant and respondent lived together under same roof and enjoyed
their conjugal life till March, 2009. The appellant has brought one lady
by name Mrs. Kumari as his mistress, differences arose thereafter.
The appellant never bothered to have conjugal life with the
respondent. The appellant and the respondent have jointly purchased
the Plot and the respondent has built house bearing No.17-1-387/10
situated at Vani Colony, Saidabad, Hyderabad, and were having good
relations, the said fact is admitted by the appellant in DVC.No.120 of
2010. The respondent is against the divorce at this advance stage to
maintain dignity, respect and reputation in the society and family
circle. The respondent was unable to bear the tolerance and nasty
behaviour of the appellant, thereby constrained to lodge a complaint
before P.S. CCS and they counseled the parties and warned the
appellant. The respondent filed DVC No.120 of 2020 at Hyderabad as
a relationship between the parties was broken down seriously.
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5. Appellant has examined himself as PW.1, got marked Exs.P1 to
P3. Respondent is examined as RW.1 and she was partly
cross-examined by the appellant's counsel and thereafter, further
cross-examination of the witness is taken up before the Court. As the
respondent failed to appear before the Court to face further
cross-examination, her evidence was eschewed as per the docket order
dated 29.10.2013. The learned Trial Court after analysing the evidence
observed that the appellant failed to prove cruelty and desertion and
thereby dismissed the O.P.
6.1. Appellant has filed his written arguments in support of his
contentions and submits that the respondent cross-examination was
done partly and she did not turn up for further cross-examination,
thereby her evidence is eschewed, in view of the same, the evidence of
the respondent cannot be considered and the same does not fall within
the meaning of the evidence. The appellant has established
cruelty and desertion on the part of the respondent by way of
pleadings and unrebutted evidence. The Trial Court failed to
appreciate that the appellant was denied the opportunity of cross-
examining RW.1, also failed to appreciate the fact that appellant and
the respondent were living separately in the same house which is
evident from Ex.P3.
6.2. Learned counsel submit that the trial Court failed to appreciate
the provision of Section 40 of Indian Divorce Act, 1869, which has no
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application to the proceedings initiated by the appellant, marriage
between the parties is irretrievably broken down, which is damaged
beyond repair and placed reliance on the Judgment in 1) Naveen Kohli
Vs. Neelu Kohli 1, 2) Samar Ghosh Vs. Jaya Ghosh 2 and 3) Rakesh
Raman Vs. Kavitha 3.
7. Per contra, learned counsel for the respondent submits that the
appellant has failed to prove cruelty and desertion and the learned
Trial Court has rightly dismissed the OP by assigning reasons.
8. The appellant has sought divorce on the ground of desertion and
cruelty. Section 10(1)(ix) and (x) of The Divorce Act, 1869 reads as
under :
ix) has deserted the petitioner for at least two years immediately
preceding the presentation of the petition: or
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.
9.1. In Naveen Kohli Vs. Neelu Kohli1, the Apex Court observed
that:
56. To constitute cruelty, the conduct complained of should be
"grave and weighty" so as to come to the conclusion that the
petitioner spouse cannot be reasonably expected to live with the
other spouse. It must be something more serious than "ordinary
MANU/SC/1387/2006
MANU/SC/ 1386/2007
MANU/SC/0456/2023
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wear and tear of married life". The conduct taking into
consideration the circumstances and background has to be
examined to reach the conclusion whether the conduct complained
of amounts to cruelty in the matrimonial law. Conduct has to be
considered, as noted above, in the background of several factors
such as social status of parties, their education, physical and
mental conditions, customs and traditions. It is difficult to lay
down a precise definition or to give exhaustive description of the
circumstances, which would constitute cruelty. It must be of the
type as to satisfy the conscience of the Court that the relationship
between the parties had deteriorated to such extent due to the
conduct of the other spouse that it would be impossible for them to
live together without mental agony, torture or distress, to entitle
the complaining spouse to secure divorce. Physical violence is not
absolutely essential to constitute cruelty and a consistent course of
conduct inflicting immeasurable mental agony and torture may
well constitute cruelty within the meaning of Section 10 of the Act.
Mental cruelty may consist of verbal abuses and insults by using
filthy and abusive language leading to constant disturbance of
mental peace of the other party.
57. The Court dealing with the petition for divorce on the
ground of cruelty has to bear in mind that the problems before it
are those of human beings and the psychological changes in a
spouse's conduct have to be borne in mind before disposing of the
petition for divorce. However, insignificant or trifling, such conduct
may cause pain in the mind of another. But before the conduct
can be called cruelty, it must touch a certain pitch of severity. It is
for the Court to weigh the gravity. It has to be seen whether the
conduct was such that no reasonable person would tolerate it. It
has to be considered whether the complainant should be called
upon to endure as a part of normal human life. Every matrimonial
conduct, which may cause annoyance to the other, may not
amount to cruelty. Mere trivial irritations, quarrels between
spouses, which happen in day-to-day married life, may also not
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amount to cruelty. Cruelty in matrimonial life may be of unfounded
variety, which can be subtle or brutal. It may be words, gestures
or by mere silence, violent or non-violent.
58. The foundation of a sound marriage is tolerance,
adjustment and respecting one another. Tolerance to each other's
fault to a certain bearable extent has to be inherent in every
marriage. Petty quibbles, trifling differences should not be
exaggerated and magnified to destroy what is said to have been
made in heaven. All quarrels must be weighed from that point of
view in determining what constitutes cruelty in each particular
case and as noted above, always keeping in view the physical and
mental conditions of the parties, their character and social status.
A too technical and hyper-sensitive approach would be counter-
productive to the institution of marriage. The Courts do not have
to deal with ideal husbands and ideal wives. It has to deal with
particular man and woman before it. The ideal couple or a mere
ideal one will probably have no occasion to go to Matrimonial
Court.
9.2. In Samar Ghosh Vs. Jaya Ghosh2, the Apex Court observed
that:
74. 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.
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(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner, 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.
(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.
10. Now, we have to see whether the appellant falls within the
instances of human behaviour as observed by the Apex Court in the
above two decisions.
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11. The appellant and respondent are blessed with two children, i.e.,
daughter born in the year 1988 and son born in the year 1989 and
that the marriage of the daughter of the parties was performed on
19.02.2007. It is the case of the appellant that in the year 1994 he
has purchased a Plot at Saidabad, Hyderabad, in the year 1995 he has
constructed ground floor and in the year 2007 constructed the first
floor. The respondent has left the matrimonial home on 05.12.2020,
after three (3) months she again joined him and in the month of April,
2007, the respondent left his company with all her belongings and
thereafter she lodged a complaint on 15.02.2008 before Women Police
Station, CCS, Hyderabad against the appellant, after counseling the
complaint came to be closed and thereafter, the respondent has joined
the company of the appellant. Respondent has once again left the
company of the appellant in the month of November, 2008 along with
her son and thereafter filed DVC No.120 of 2010 (Old DVC No.17 of
2009).
12. The appellant has stated in his cross-examination that the
respondent has been living in the same house in which he is living in a
separate portion since 2010, witness added that living from 2010 in
the portion of the house is in accordance with the Court orders. He
further went on to say that himself, his wife and children were living in
the same house since the construction of the house.
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13. Ex.P3 is the order in DVC No.120 of 2010 dated 30.03.2012. It
is contended by the respondent in the DVC that on 24.02.2009 her
husband has abused her in filthy language, assaulted her physically in
the presence of her daughter and son-in-law. Ex.P3 order goes to show
that the respondent herein/petitioner therein is the absolute and
rightful owner to reside in the shared house-hold in the capacity of a
contributor and more particularly in the capacity of a legally wedded
wife. There is no doubt that the house in which the appellant and the
respondent are residing is a shared house.
14. It is the case of the appellant that the respondent used to
compare him to her sister's husband and she left the matrimonial
home in the month of November, 2008, made false allegations that he
is living with one Kumari which caused mental agony. Except the
testimony of appellant, no other evidence is placed by him to prove his
contention that it is the respondent who used to leave his company
and join him intermittently. The appellant has not placed any evidence
to show that the respondent has deserted him for at least two years
immediately preceding the presentation of petition. So also there is no
evidence to show that the respondent has treated the appellant with
such cruelty as to cause a reasonable apprehension in his mind that it
would be harmful or injurious to live with the respondent.
15. Though the evidence of the respondent is eschewed but it is the
appellant who has to prove his case that the respondent has deserted
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him for at least two years immediately preceding the presentation of
the petition and also as to place evidence that he was treated cruelly
and that such cruelty causes a reasonable apprehension in his mind
that it is harmful or injurious to live with the respondent. Except the
evidence of the appellant, no other evidence is placed by him to prove
his contention. The appellant failed to examine independent witnesses
to substantiate his contention that the respondent is at fault and that
she has deserted him, treated him with cruelty. As per Ex.P3, the
house in which the parties are residing was purchased by both of them
and it is observed in the order that the respondent is the absolute and
rightful person to reside in the shared house-hold in the capacity of
contributor.
16. The requirement of Section 10(1)(ix) and (x) of the Act casts an
obligation on the appellant to prove the desertion and cruelty by the
respondent for granting divorce. The marriage between the parties can
only be dissolved where the conduct complained should be grave and
weighly so as to come to a conclusion that the appellant cannot be
reasonably expected to live with the respondent.
17. The Apex Court in Rakesh Raman Vs. Kavitha3 has dissolved the
marriage of the parties as the marital relationship is broken down
irretrievably, where there is a long separation (25 years) and absence
of cohabitation. The above said decision is not helpful to the case of
the appellant in view of the fact that there is no long separation.
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18. The facts in this case do not fall within the instances of human
behaviour as held in Naveen Kohli (supra) and Samar Ghosh (supra).
The appellant has not made out a case for divorce.
19. The Trial Court recorded a finding that the appellant has failed
to prove desertion and cruelty. We find no reason to take a different
view from the view taken by the Trial Court. The Trial Court has
correctly dismissed the appellant's petition for dissolution of marriage
on correct appreciation of the facts and evidence and we are not
inclined to interfere with the same.
20. FCA No.143 of 2014 is accordingly, dismissed.
All connected applications are disposed of. There shall be no
order as to costs.
____________________________
MOUSHUMI BHATTACHARYA, J
_________________________
B.R.MADHUSUDHAN RAO, J
7th March, 2025.
PLV
