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Mudireddydontireddy … vs Mudireddy Yadagiri Reddy on 13 July, 2021

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HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR

Civil Miscellaneous Appeal No.34 of 2021

JUDGMENT: (Per Hon’ble Sri Justice M.S. Ramachandra Rao)

This Civil Miscellaneous Appeal is preferred under Section 28

of the Hindu Marriage Act, 1955 challenging the judgment and decree

dt.04.11.2020 passed in H.M.O.P.No.82 of 2018 of the Senior Civil

Judge, Nalgonda.

Brief facts of the case:

2. The appellant herein is wife of respondent, and they got married

on 13.06.2002.

3. The respondent had filed the said O.P. seeking divorce under

Section 13 (1)(i)(a) of the Hindu Marriage Act, 1955 contending that

the parties had lived together happily only for one year, and thereafter,

the appellant used to pick up quarrels with respondent on petty

occasions and used to visit her parental house very frequently; that

appellant gave birth to two female children who are in the care and

custody of the appellant; the brother and mother of appellant

continuously instigated the appellant to set up separate family by

dividing the respondent from his parents, and on this pretext, the

appellant used to pick up quarrels with respondent and his family

members; that in March, 2004 the appellant picked up a quarrel with

respondent and left the house and went to her parental house without
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any reasonable cause and started living there, and though he

approached appellant’s family members and requested to send the

appellant and the children to his matrimonial house, the brother of the

appellant beat the respondent and her mother, abused the respondent

and refused to send the appellant to live with respondent. He also

stated that he was working as car mechanic at Hyderabad.

4. He contended that there was a panchayati held with village

elders, and in March, 2004 the appellant joined his company and lived

with him for some period, but on 02.04.2004, she again left his

company and even lodged a false complaint before the Police at

Vemulapalli against the respondent. Thereafter, upon the advice of

elders, the appellant rejoined his company.

5. But again on 10.06.2004, the appellant left his company and on

08.07.2006, filed another complaint with the police alleging that the

respondent and his family members committed offences punishable

under Sections 498-A and Section 4 of the Dowry Prohibition Act

which ended in an acquittal in C.C.No.563 of 2006 on 20.05.2008 by

the Additional Judicial I Class Magistrate, Miryalguda. He alleged

that he was employed as a car mechanic at Hyderabad, but the

appellant wanted a luxurious life and since he could not provide the

same, the appellant harassed him and made it impossible for him to

live with her. According to him, the appellant intentionally deserted

him from 12.06.2004.

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Counter filed by the appellant

6. The appellant filed a counter admitting the relationship between

the parties but stated that Rs.2 lakh and four tolas of Gold and other

house-hold articles were given as dowry on the demand of respondent

and his family members. She denied that she picked up any quarrel

with the respondent as alleged.

7. She contended that the respondent worked as Mechanic at

Hyderabad but kept the appellant with his mother at Tungathurthi, and

he used to visit Tungathurthi now and then, and when he came to

Tungathurthi, he and his parents, sister and brother-in-law harassed

the appellant for additional dowry and subjected her to ill-treatment.

8. She denied that her mother and brother interfered with her

family life or that she wanted the respondent to set up separate family

at Hyderabad or that she left the respondent in March, 2004 and left

the matrimonial home.

9. According to her, the respondent necked her out of the house

and asked her not to come back to the house without additional dowry

of Rs.50,000/- and that he would get married again.

10. She admitted that there was a Panchayat on 05.04.2004 at

Vemulapalli Police Station with the intervention of certain elders, and

so she joined the company of respondent but again she was ill-treated

and necked out by the respondent on 10.06.2004. She admitted to
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have given another criminal complaint against the respondent under

Section 498-A.

11. In the Family Court, the respondent examined himself as P.W.1

and one of the elders who mediated in the dispute between himself

and the appellant’s family as P.W.2. He also marked Exs.P.1 to P.3.

The appellant examined R.W.s 1 to 4 and did not mark any document.

The order dt.04.11.2020 in HMOP.No.82 of 2015

12. By judgment and decree dt.04.11.2020, the Court below

allowed the O.P. with costs and dissolved the marriage between the

parties.

13. The Court below recorded that the evidence of P.W.1 is

corroborated by P.W.2 (a third-party); that the appellant left the

society of respondent without any reasonable cause and she was living

separately from the respondent for the past (13) years and all efforts

made by the respondent for their living together went in vain.

14. It also referred to the evidence of R.Ws.2 to 4 about the alleged

harassment caused to the appellant by the respondent.

15. It then took note of the fact that respondent was acquitted in the

criminal case filed alleging offences under Section 498-A of I.P.C. at

the instance of appellant in C.C.No.563 of 2006 and the said judgment

was also confirmed in Criminal Appeal No.53 of 2011 by the

Appellate Court. It then referred to the contention of respondent that

the appellant had subject him to cruelty and deserted him in 2004, that
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she filed a false criminal case alleging dowry harassment which ended

in acquittal, and therefore the respondent is entitled to divorce. It

rejected the plea of appellant that mere acquittal of the respondent in a

criminal case filed by the appellant cannot be a ground for grant for

divorce.

16. It relied on the unreported decision of the Supreme Court in

Mr. Rani Narsimha Sastry vs. Rani Suneela Rani1 that a person

who undergoes trial in which he is acquitted of the allegation of

committing offence under Section 498-A of I.P.C. of the allegation

leveled against the wife by the husband cannot be said to be not

subjected to cruelty. It held that Exs.P.2 and P.3, the decision of the

criminal cases show that the respondent was falsely implicated in the

criminal cases filed under Section 498-A of I.P.C., and on that ground

he is entitled to seek divorce.

17. It also took note of the fact that parties were living separately

since 26.10.2004 and the plea of appellant that she was necked out of

the house for dowry was not accepted in the criminal cases

C.C.No.563 of 2006 and Criminal Appeal No.53 of 2011 and there is

no material to prove that the appellant had any sufficient reason to live

separately.

18. It also took note of the fact that the appellant admitted that since

2006 till 2020 she never got issued any notice or filed any case asking

for the respondent to take her back and she never made any effort to

1
(2019) SCC Online SC 1595
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join the respondent after the acquittal of respondent in the criminal

case. It also relied on the decision of the Supreme Court in Naveen

Kohli vs. Neelu Kohli2 that if both parties have separated, and

separation continued for a sufficient length of time, and one of them

had presented a petition for divorce, it can well be presumed that the

marriage has broken down. It also relied on other decisions of the

Supreme Court wherein the said principle was reiterated.

The present CMA

19. Challenging the same, the present Civil Miscellaneous Appeal

is filed.

20. Heard Sri G.L. Narasimha Rao, counsel for appellant.

Contentions of the counsel for appellant :

21. The counsel for appellant contended that the appellant was

subjected to harassment by the respondent and his family members

and she had been necked out of the matrimonial house by the

respondent, and merely because the respondent had been acquitted in

the criminal case filed against him by the appellant under Section

498-A of I.P.C., it cannot be said that the respondent had not

subjected the appellant to cruelty. According to him, the Court below

erred in granting divorce to respondent on the said ground.

2
2006 (4) SCC 558
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Consideration by this Court :

22. From the facts referred to above, it is clear that the parties had

got married to each other on 13.06.2002, that they have two female

children, and that from 10.06.2004 they have been living separately.

Also, the appellant had filed C.C.No.563 of 2006 alleging that the

respondent had committed an offence under Section 498-A of I.P.C.,

and the Additional Junior I Class Magistrate, Miryalaguda acquitted

the respondent which was also confirmed in Criminal Appeal No.53

of 2011.

23. While it is the case of respondent that the appellant was

insisting that he lived separately from his parents and was quarrelling

with him and his family members constantly, this is denied by the

appellant who stated that on account of dowry harassment, she was

necked out of the house by the respondent.

24. It is admitted by the appellant that on 20.05.2008, C.C.No.563

of 2006 was decided by the Additional Junior I Class Magistrate,

Miryalaguda acquitting the respondent and it was confirmed in

Criminal Appeal No.53 of 2011. She stated in her evidence that she

was living away from the respondent for seven years since 2006 and

she never issued any notice or filed any case demanding the

respondent to take her back for conjugal life. She stated that even after

the acquittal of the respondent in the Criminal Appeal she never

approached the respondent along with her elders to request the

respondent to take her back.

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25. Though the respondent had stated that ten times there was a

panchayat held and examined some persons as panchayatdars, the

said witnesses (Exs.R.W.2 to R.W.4) did not even give the dates of

the holding of the panchayat and all of them stated that no documents

were executed at the time of conducting such panchayat. Even the

appellant states that in the panchayats the elders advised her to join

the respondent for a matrimonial life. At least, after the acquittal of

the respondent in the criminal case, the appellant should have got

issued a notice to the respondent to take her back or initiated

proceedings to compel him to take her back.

26. In Naveen Kohli (1 supra), the Supreme Court observed that

once the parties have separated, and the separation has continued for a

sufficient length of time, and one of them has presented a petition for

divorce, it can well be presumed that the marriage has broken down.

It held that though the Court should seriously make an endeavour to

reconcile parties, yet if it is found that breakdown is irreparable, then

divorce should not be withheld, because consequences of preservation

in law of the unworkable marriage which has long ceased to be

effective, are bound to be a source of greater misery for the parties.

It held that where there was a long period of continuous

separation it may fairly be surmised that the matrimonial bond is

beyond repair; and by refusing to severe the tie, the law does not serve

the sanctity of marriage, but on the contrary, it shows scant regard for

the feelings and emotions of parties.

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It observed that there is no acceptable way in which a spouse

can be compelled to resume life with the consort and so nothing is

gained by trying to keep the parties tied forever to a marriage that in

fact has ceased to exist.

27. The said principle certainly applies to the instant case where the

parties have not been living together for 14 years and there is a history

of acrimony between them.

28. In Vishwanath Agrawal., S/o. Sitaram Agrawal vs. Sarla

Vishwanath Agrawal3, the Supreme Court held that if there is an

acquittal of the husband of the allegation of demand of dowry under

Section 498-A of I.P.C., the said allegation has to be taken as

incorrect and untruthful, and it can unhesitatingly be stated that such

an act creates a mental trauma in the mind of the husband as no one

would like to face criminal proceeding of this nature on baseless and

untruthful allegations.

29. Similar view has been expressed in Malathi Ravi vs. B.V.

Ravi and another4 and K. Srinivas Rao vs. D.A. Deepa5.

30. The Court below, in our opinion, has correctly taken into

account the relevant circumstances in holding that the appellant has

treated the respondent with cruelty and that the marriage between the

parties has to be dissolved by granting divorce.

3
(2012) 7 SCC 288
4
(2014) 7 S.C.C. 640
5
(2013) 5 S.C.C. 226
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31. However, in the Court below, it appears that no permanent

alimony or maintenance has been awarded to the appellant and the

two children born to the parties during the subsistence of their

marriage.

32. This is a matter which would require evidence considering the

fact that the respondent is said to be an agriculturalist, but working as

a mechanic at Hyderabad, while the appellant is said to be a house-

wife.

33. Therefore, we give liberty to the appellant to initiate appropriate

proceedings for maintenance / permanent alimony for herself and also

maintenance for the daughters by way of fresh proceedings in an

appropriate Forum.

34. Accordingly, the Civil Miscellaneous Appeal is dismissed as

above giving liberty to the appellant to initiate appropriate

proceedings for maintenance / permanent alimony for herself and also

maintenance for the daughters by way of fresh proceedings in an

appropriate Forum. No order as to costs.

35. As a sequel, miscellaneous petitions pending if any in this

Appeal, shall stand closed.

M.S.RAMACHANDRA RAO, J

__
T. VINOD KUMAR, J
Date: 13.07.2020
Ndr

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