Telangana High Court
Mr. M.B.Thiagu vs Smt. S.Neethi on 27 March, 2025
*THE HON'BLE JUSTICE MOUSHUMI BATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
+ FAMILY COURT APPEAL No.126 OF 2022
% 27--03--2025
# M.B.Thiagu
... Petitioner
vs.
$ S.Neethi
... Respondent
!Counsel for the Petitioner: Mr.G.Sudha
^Counsel for Respondents: Mr.S.Raghuram, learned counsel representing
Ms.K.Sri Devi
<Gist :
>Head Note :
? Cases referred:
(2012) 7 SCC 288
(2013) 5 SCC 226
(2020) 3 SCC 67
(2007) 4 SCC 511
2/15
MB, J & BRMR, J
FCA.No.126 of 2022
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
FAMILY COURT APPEAL No.126 OF 2022
Between:
M.B.Thiagu
... Petitioner
vs.
S.Neethi
... Respondent
JUDGMENT PRONOUNCED ON: 27.03.2025
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
3/15
MB, J & BRMR, J
FCA.No.126 of 2022
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
FAMILY COURT APPEAL No.126 of 2022
JUDGMENT:
(per Hon'ble Justice B.R.Madhusudhan Rao)
1. The instant appeal arises out of an order dated 08.07.2022
passed by the I Additional Family Court at Hyderabad in O.P.No.1149
of 2015 filed by the appellant/husband under Section 13(1)(ia) and
Section 26 of the Hindu Marriage Act, 1955 (1955 Act), for dissolution
of his marriage with the respondent/wife by a decree of divorce and for
grant of permanent custody of master Atiksh Thiagu born on
28.03.2010.
2. The Family Court dismissed the petition for divorce and
permanent custody of the child master Atiksh Thiagu on the ground
that appellant failed to prove cruelty by the respondent and did not
choose to produce any documents or adduce oral evidence to support
and substantiate his contention, but the Family Court has granted the
petitioner visitation rights to visit his minor son on every second
Saturday and second Sunday between 10.00 a.m., to 05.00 p.m., at
the place where both parties agree till the minor attain majority.
3. The contentions of the appellant/petitioner-husband and the
respondent/wife are as follows:
MB, J & BRMR, J
4.1. The appellant states in the petition that his marriage with the
respondent is performed on 05.04.2008 at Selma Kalyana Mandapam,
Kotagiri as per the Hindu Rites and Customs, he took the respondent
to Dubai and her behaviour was adamant, abnormal during her stay in
Dubai from May 2009 to August 2009 and she never attended
Household works, did not prepare food. The respondent has damaged
almost 10 mobile phones and on one occasion, she threw away the
articles. In the month of August, 2009, respondent conceived and
returned to Hyderabad. On 28.03.2010, respondent gave birth to a
baby boy named as Atiksh Thiagu. On 29.10.2009, he got issued legal
notice to the respondent. Respondent did not join the matrimonial
home till February, 2011, he got transferred and started residing at
Chennai to lead happy marital life with the respondent and the child.
4.2. The petitioner made several efforts to change the attitude of the
respondent but in vain. Due to the abnormal behaviour of the
respondent owner of the flat asked them to vacate the same, she
abruptly used to leave the house without locking the house and has
not taken care of the son. On 01.03.2012 they went to their village, on
20.03.2012, the respondent starting hitting the mother of the
petitioner wildly and neighbours prevented her. The petitioner lodged a
complaint at Kotagiri Police Station, they returned back to Chennai.
The respondent along with the child went to her mother's house at
Hyderabad without intimating the petitioner and thereafter she never
joined him. The respondent is suffering with psychiatric problem. On
MB, J & BRMR, J
20.05.2012 the respondent along with her mother and brother tried to
enter into the flat of the petitioner forcibly. The petitioner has called
the police, on seeing them respondent and her mother left the place.
The respondent is having cruel behaviour, which is unbearable and
prayed to grant divorce on the ground of cruelty and grant permanent
custody of master Atiksh Thiagu.
5.1. The respondent states in the counter that she joined her
husband at Dubai, they lived happily and the petitioner used to take
her to different places and he was affectionate towards her and
purchased Ruby necklace on the eve of Varalakshmi Vratham. In the
month of June 2009 she conceived then the petitioner has purchased a
new car to have more comfortable life and he used to take care of her
showered full love and affection. In the month of October 2009 when
she was fourth month pregnant the petitioner asked her to go to India
to her mother's place, accordingly she returned back to India. On one
day parents of the petitioner came to Hyderabad and started abusing
the respondent, threatened her to go for abortion immediately and
give divorce so that the petitioner may marry another woman.
5.2. The respondent has undergone mental agony and there was no
response from the petitioner, he did not lift the calls. On 28.03.2010
she gave birth to a baby boy and she gave information to the
petitioner but there was no response from him and his family
members. When the boy was three months old, the mother of the
MB, J & BRMR, J
respondent took her along with the child to the village of the
petitioner's parents. The petitioner was present there at and they have
performed naming ceremony of three months old son and he informed
that he got transferred to India. They started living peaceful life in
India, all of a sudden trauma started and petitioner became violent
and uncontrollable.
5.3. The petitioner used to travel frequently to Kerala and Andhra
Pradesh on his employment, in his absence, the mother of the
petitioner used to create problems. Father of the petitioner has
slapped the respondent and pulled her Mangalsutra, driven her out
from the matrimonial home and also threatened to kill her. As the
petitioner did not take the respondent to the matrimonial home she
along with her mother and brother went to the house of the petitioner
but he did not allow them to enter into the house and abused them in
filthy language and prayed to dismiss the O.P.
6. The trial Court analysed the evidence given by the parties and
came to a finding that the petitioner did not choose to produce any
document nor choose to adduce any evidence either orally or
documentary to substantiate his contention that the respondent is
suffering with psychiatric problems and that his son is not in safe
hands, the contents of Exs.A1 to A6 did not disclose the alleged cruelty
by the respondent, there is no iota of evidence on record to show that
the petitioner has made efforts for reconciliation and he got issued
MB, J & BRMR, J
legal notice when the respondent went to her parents house for
delivery, the petitioner only to get divorce has taken a false plea.
Minor son is in the custody of the respondent since the date of birth
and the respondent is taking care of her son, thereby dismissed the
O.P. and granted visitation rights to the petitioner.
7. We have carefully gone through the appellant's petition under
Section 13(1)(ia) and Section 26 of the Hindu Marriage Act, 1955.
8. We have also carefully considered the affidavit filed by the
appellant and the evidence given by him as PW1 and the evidence of
the respondent (RW1) and Nagamani Suguma Rani (RW2).
9.1. Appellant's counsel has filed synopsis and submits that
respondent was in habit of living a lavish life, she was adamant in
nature in her short stay at Dubai. Respondent was not inclined to join
the appellant which resulted in issuing Ex.A4/legal notice but no reply
is given by her. Respondent is suffering with psychological problem
and she has withdrew from the Society of the appellant without any
reasonable cause. Appellant came down to India in the year 2010 from
Dubai and started residing at Chennai in a flat along with their son
ignoring all the acts of the respondent for the sake of Family, there
was no change in the attitude of the respondent.
9.2. Counsel further submits that the happenings in the house are in
the exclusive knowledge of both the parties. During pendency of the
O.P., settlement took place between the parties under Ex.R1 and the
MB, J & BRMR, J
respondent is in the habit of committing breach of terms unilaterally.
Second settlement took place in the year 2022 but the respondent
refused to accept and sign MOU/ settlement agreement in the year
2022. Parties are residing separately since 13 years. Counsel to
substantiate her contention has relied on the decisions in the case of
(1) Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal 1 (2) K.Srinivas
Rao Vs. D.A.Deepa2
10.1. Respondent counsel has also filed synopsis and submits that the
petitioner and the respondent stayed together with the minor child at
Chennai in between June 2010 to March 2012. In the month of March
2012, respondent along with her child and mother went to the village
of appellant for festival but the respondent's mother-in-law did not
permit her, her son and her mother into their house and forced them
to stay in neighbours house. In May 2012 respondent and her mother
and brother went to appellant's flat at Chennai but he did not let them
inside, thereafter, appellant has filed the O.P. in the year 2012 at
Chennai and as per the orders of the Supreme Court, O.P., was
transferred to Hyderabad and renumbered as O.P.No.1149 of 2015.
10.2. Counsel further submits that O.P. filed by the
appellant/petitioner was dismissed for default on 03.10.2018 for non-
compliance of orders in I.A.No.448 of 2018 directing the appellant to
pay interim maintenance, it was recorded that the appellant was
1 (2012) 7 SCC 288
2 (2013) 5 SCC 226
MB, J & BRMR, J
continuously absent since 23.12.2017. On 26.05.2019 meeting was
held between the parties in presence of the elders where Ex.R1 dated
26.05.2019 agreement was entered between the parties. On
06.06.2019 appellant has violated the terms of Ex.R1 and filed interim
application to restore O.P.No.1149 of 2015 along with condone delay
petition. The said I.A. was allowed on condition of payment of arrears
of maintenance to the respondent. On 18.02.2020, O.P. was restored
to its original file. The Trial Court has rightly dismiss the appellant's
petition for divorce and permanent custody of the child as he failed to
prove the same.
11. Section 13(1)(ia) of 1955 Act contemplates that either a
husband or a wife presenting a petition for dissolution of the marriage
by a decree of divorce on the ground that the other party has treated
the petitioner with cruelty. Although cruelty has not been defined in
the 1955 Act, any conduct which causes mental or physical
harassment, disturbance, discomfort amounting to a general lack of
well being and stability in the marriage may amount to an act of
cruelty. The specific requirement of Section 13(1)(ia) of the 1955 Act
casts an obligation on the petitioner to prove cruelty by the respondent
for granting divorce. The petitioner must therefore bring the conduct of
the respondent within the accepted parameters of cruelty
corroborating the charge of cruelty with evidence. Marriage can only
be dissolved on specific grounds and not on unsubstantiated
allegations.
MB, J & BRMR, J
12.1. Ex.A4 is the legal notice got issued by the appellant/petitioner,
which states that respondent stayed with the petitioner in Dubai till
12.10.2009 and due to misunderstanding she left Dubai on 13.10.2009
and residing with her parents, the notice further states that the
respondent is suffering with some psychopathic problems and called
her to offer her consent for mutual consent divorce.
12.2. Respondent has conceived in the month of June 2009, by
October 2009 she was in her fourth month pregnancy. Petitioner has
got issued Ex.A4 legal notice hardly within six months of his marriage
and called upon the respondent to offer her consent for mutual
consent divorce. Ex.A5 is the birth certificate, which shows that
respondent gave birth to male child on 28.03.2010.
13. Ex.R1 is the letter dated 26.05.2019 in Tamil language along
with English translation. The English translation goes to show that the
meeting is held in presence of village elders that the petitioner and the
respondent should take care of their son and educate Atiksh in good
school and their son to be taken to their native place during holidays
and festivals, after one year petitioner and respondent should think
about their future life and try to live together. It is the case of the
appellant/petitioner that he took the respondent to Ooty to live there
along with the child.
14. Ex.R2 is the letter dated 19.06.2019 of the respondent, copy is
marked to (i) St. Jude's Public School and Junior College, Kotagiri, (ii)
MB, J & BRMR, J
Superintendent of Police, Nilgiri District, (iii) M.B.Thiagu (petitioner
herein). The letter states that the petitioner filed a petition for divorce
in O.P.No.1149 of 2015 which was dismissed by the Additional Family
Court, Hyderabad by order dated 03.10.2018 for non-prosecution and
she requested the family members for a out of Court settlement for
uniting her with the petitioner. After the settlement under Ex.R1
petitioner has visited Hyderabad and filed a petition for restoring the
divorce petition and the petitioner has breached the settlement dated
26.05.2019 (Ex.R1) and she removed her son from the School and
came down to Hyderabad.
15. Ex.A6 is the letter dated 20.06.2019 issued by St. Jude's Public
School and Junior College, Kotagiri. The letter states that master
Atiksh Thiagu S/o. Thiagu Bojan studying in Class V was taken by the
mother Mrs.Neethi Sugumaran (respondent) on 15.06.2019 and that
the child has not been reported to the School.
16. The evidence of the appellant/petitioner goes to show that in the
year 2011 he left Siemens Dubai and relocated to Chennai and started
working in Multivista Global as Sales Manager, he and the respondent
lived together for a period of one year four months, out of the said
period three months in Dubai and one year at Chennai. Appellant's
contention in the O.P is that when they were residing in a flat at
Chennai, the association of the flats passed a resolution asking the flat
owners to evict the petitioner due to the abnormal behaviour of the
MB, J & BRMR, J
respondent, which caused nuisance. Appellant failed to examine any of
the witnesses to substantiate his contention that the respondent was
causing nuisance to the other flat owners. There was a family festival
in petitioner's village and on 01.03.2012 petitioner has called the
respondent's mother to accompany the respondent to their village. The
case set up by the appellant is that on 20.03.2012 when he was
present in his village for the festival, the respondent started hitting the
petitioner's mother. Appellant/petitioner stated in his cross
examination that he has not lodged any complaint against the incident
on 20.03.2012, but it is informed to him by the village elders. If that is
that case appellant would have examined his mother to substantiate
his contention that she was hit by the respondent. No material is
placed by the appellant/petitioner to substantiate his contention.
17. The other ground taken by the appellant/petitioner in his O.P. is
that the respondent is suffering with psychiatric problem, there is no
evidence on record either oral or documentary to prove that the
respondent is suffering with psychiatric problem. It is to be noted here
that the respondent has joined in a School in a village in the Nilgiri
District as per Ex.R2, if really the respondent is suffering with
psychiatric problem, she would not have joined in the School.
Respondent tried to join the company of the petitioner at Chennai in
the month of May 2012 but it could not be materialized which he
supported with the evidence of RW2. The mother of the respondent
has supported the case of her daughter in all aspects but her evidence
MB, J & BRMR, J
in chief is not rebutted, the petitioner failed to cross examine the
witness and the evidence of RW2 supports the case of the respondent
in all aspects.
18. Insofar as the child custody is concerned the learned trial Court
has observed that the minor son is in the custody of the respondent
since the date of his birth and she is taking care, placed reliance on
the decision in the case of Yeshita Sahu v. State of Rajasthan 3 and
concluded that if visitation rights is given to the petitioner which will
meet the ends of justice and accordingly permitted the petitioner to
visit his son on every second Saturday and second Sunday between
10.00 a.m., to 05.00 p.m., at a place where both parties agree till the
child attains majority.
19.1. The Supreme Court in Vishwanath Agrawal Vs. Sarla Vishwanath
Agrawal held that events subsequent to filing of divorce petition can be
taken into consideration.
19.2. In the above said decision wife made a publication stating that
her husband is womanizer and had extra marital relationship, which
she failed to prove the same, the same is taken into consideration
while dealing with the issue pertaining to cruelty. The above said
decision is not applicable to the case on hand in view of the fact that it
is the petitioner who has resiled from Ex.R1, thereby which forced the
respondent to give a letter to the Superintendent of Police under Ex.R2
3 (2020) 3 SCC 67
MB, J & BRMR, J
on 19.06.2019 which copies are also marked to St. Jude's Public
School and Junior College, Kotagiri and to the petitioner.
20. The decision in K.Srinivas Rao Vs. D.A.Deepa is also not
applicable to the case of the petitioner, in view of the fact that in the
above said case wife made complaint against the husband and his
family members under Section 498(A) and made complaints/letters to
the employer of K.Srinivas. That is not the case on hand and the facts
differ.
21. The married life should be reviewed as a whole and the 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 cruelty (Samar
Ghosh Vs. Jaya Ghosh 4).
22. We do not find any evidence corroborating the acts of cruelty,
which are attributed to the respondent by way of her conduct towards
the appellant. On reading of the contentions of the parties and their
evidence it is clear that the appellant has failed to prove any ground
which would qualify under Section 13(1)(ia) of 1955 Act and also failed
to prove the ground under Section 26 of the Hindu Marriage Act.
4 2007 4 SCC 511
MB, J & BRMR, J
23. Our view is strengthened by the findings of the Family Court and
we are unable to corroborate the charge of cruelty to the petitioner by
the respondent. The trial Court has specifically recorded the findings
that the petitioner has failed to prove the case and failed to establish
the ground of cruelty and for grant of permanent custody of the child.
24. Appellant has measurably failed to prove that he underwent
cruelty in the hands of the respondent and the instances stated by the
appellant/petitioner in the O.P are isolated instances, which will not
amount to cruelty. We therefore find no reason to take a different view
from the one taken by the trial Court. The trial Court correctly
dismissed the appellant's petition for the dissolution of marriage and
for permanent custody of the child on a correct appreciation of the
facts and evidence.
25. FCA.No.126 of 2022 is dismissed.
All connected applications are disposed of. There shall be no
order as to costs.
_________________________
MOUSHUMI BHATTACHARYA, J
______________________
B.R.MADHUSUDHAN RAO, J
27.03.2025
Dua
