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Ponnala Suresh Babu vs Ponnala Swarna on 9 January, 2024

THE HON’BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON’BLE SMT JUSTICE K. SUJANA

FAMILY COURT APPEAL Nos.429 OF 2018 321 OF 2009

COMMON JUDGMENT: (per Hon’ble Smt Justice K.Sujana)

These appeals are preferred by the appellant/husband,

aggrieved by the order dated 23.11.2009 in O.P.No.48 of 2007

on the file of the Family Court Cum III Additional District Judge,

at Warangal, whereunder, the Family Court dismissed the

petition filed by the husband, praying to grant decree of divorce

dissolving marriage with his wife. The wife filed counter claim

for restitution of conjugal rights. Against the order of dismissal

of dissolution of marriage, the appellant/husband filed

F.C.A.No.429 of 2018 and against the decree of restitution of

conjugal rights, he filed F.C.A.No.321 of 2009.

2. Since both the appeals arise out of the same order and

the parties are also same, they are being disposed of by this

common judgment.

3. F.C.A.No.321 of 2009 is filed stating that the Family

Court erred in holding that appellant/husband is guilty of
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009

2

dowry harassment though the appellant/husband and his

parents were acquitted for offences under Sections 498-A of the

Indian Penal Code (for short ‘IPC’) and 3 and 4 of the Dowry

Prohibition Act vide judgment dated 02.01.2009 in C.C.No.1058

of 2007 (marked as Ex.A3). The Family Court ought to have seen

that though the respondent/wife has pleaded in the counter

claim that the appellant/husband is leading adultery life with

some other women and harassing her physically and mentally,

the said allegation is not substantiated and the same amounts

to cruelty. The Family Court neither discussed the issue, nor

recorded any finding in this regard and it is settled principle of

law that making unfounded allegations by one against other

amounts to cruelty which entails dissolution of marriage.

4. Further, contended that the Family Court ought to have

seen that the respondent/wife categorically pleaded in her

counter claim, as well as, counter in O.P.No.48 of 2007 that

disputes arose between the parties and they could not be sorted

out in spite of intervention of the elders. The Family Court erred

in entertaining counter claim filed by respondent/wife seeking

restitution of conjugal rights without paying requisite Court fee.

The Family Court ought to have seen that respondent/wife
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FCA.Nos.429 of 2018 321 of 2009

3

made unfounded allegations against the appellant/husband

and his parents though the competent Court acquitted him in

C.C.No.1058 of 2007.

5. The petitioner/husband filed F.C.A.No.429 of 2018 on the

same grounds as that of F.C.A.No.321 of 2009 and prayed this

Court to set aside the impugned order dated 23.11.2009 in

O.P.No.48 of 2007.

6. Heard Smt Shivani, learned counsel for

appellant/husband, and Sri Jithender Rao Veeramala, learned

counsel for respondent/wife.

7. Learned counsel for appellant would submit that the

marriage between appellant and respondent was performed in

the November, 2004 and after ten days of the marriage, the

respondent/wife began to state that she does not want to lead

marital life with appellant/husband and she does not want to

continue the marital tie. Thereafter, in February 2005 the

respondent/wife left the house of appellant/husband and

started living with her parents in Labour Colony. She filed

several criminal cases against the appellant/husband. There is

a desertion between the appellant/husband and
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FCA.Nos.429 of 2018 321 of 2009

4

respondent/wife for so long and there is no ray of hope of

reunion of the parties. He would contend that the Family Court

erred in not appreciating the evidence on record and instead of

dissolving the marriage, it has allowed the petition of

respondent/wife under Section 9 of the Hindu Marriage Act,

claimed by the respondent/wife in counter claim. Therefore,

even after that as they are not living together, there is no

purpose served in dismissing the divorce petition. As such,

prayed this Court to allow the appeals by setting aside the

impugned order dated 23.11.2009.

8. On the other hand, learned counsel appearing for

respondent/wife opposed the submissions of learned counsel for

appellant/husband, stating that there are no grounds to allow

the appeal and it is because of the adamant attitude of

appellant/husband, the respondent/wife decided not to stay

with him. As such, prayed this Court to dismiss the appeal.

9. Now the points for determination are:

1. Whether the appellant/husband is entitled for the relief of dissolution

of marriage?

2. Whether the judgment of the Family Court needs any interference?

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FCA.Nos.429 of 2018 321 of 2009

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POINT Nos.1 2:

10. The brief facts of the case are that appellant is a resident

of Kazipet and working as Junior Clerk in the Railways. In

November 2004 the parents of the respondent approached the

parents of appellant for marriage alliance with appellant. After

negotiations between the two parties the marriage ceremony

was decided at the house of the parents of respondent on

28.11.2004 at 10:45 a.m., and accordingly, the marriage

ceremony was performed as per Hindu customs and rites.

Thereafter, nuptial ceremony was also celebrated at the house of

the appellant. On the date of nuptial ceremony, the respondent

did not co-operate for cohabitation. When the appellant

enquired with respondent as to why she has married him, she

replied that the marriage was performed against her will and

pleasure and it was a forcible thrust on her by her parents. The

appellant thought that in few days she may reconcile and

change her attitude but it did not happen as he wished. After

ten days of the marriage the respondent began stating that she

does not want to lead marital life with appellant and she does

not want to continue the marital tie.

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FCA.Nos.429 of 2018 321 of 2009

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11. Thereafter, the respondent became violent not only

against appellant but also against his parents. She also

attacked appellant and his parents and caused injury to them

and behaved most inhumanly and left the Society of appellant

by leaving the house and went to the house of her parents in

Labour Colony in the month of February 2005. The appellant

could not approach neither the Police, nor the elders because of

the events happened in short span of time i.e., within 10 days of

marriage.

12. Later, the appellant, along with his parents, went to the

house of the parents of respondent and met with adverse

situation. The parents of respondent became angry over them

under the impression created by the respondent and began

abusing them in filthy language. Therefore, having no option,

the appellant and his parents left the house of respondent

disappointedly and approached the caste elders and reported

the matter to them. The elders convened a meeting at a temple

in Kazipet and called the respondent and her family. The

respondent appeared before the elders but she could not face

the facts revealed by the appellant.

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FCA.Nos.429 of 2018 321 of 2009

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13. Before the caste elders, the first allegation against the

respondent was that she took away her mangalasuthram from

her body exhibiting before them that she would sell it in the

market and repay the loan amount of motor cycle which was

presented at the time of marriage through finance. The second

allegation was that the motor cycle was taken away by the

financier when the amount was not paid and part of the amount

was reimbursed by the respondent by selling the

mangalasuthram.

14. The respondent could not answer to any of the allegations

made against her and left the meeting abruptly. Thus, the

meeting ended without transacting further. The appellant

submitted that the respondent and her parents approached the

elders again and requested them to affect panchayat. The elders

again convened meeting at Public Garden, Hanumkonda.

Though the parents of respondent requested the elders to

convene a meeting, they did not arrive at the venue. Later, their

gundas attacked the house of appellant and started abusing in

filthy language and went away by threatening that the appellant

has to face consequences that may come in future. The

appellant submits that the episode continued between the

parties for more than two years. The marriage ties between the
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appellant and respondent were irretrievably broken and there is

no scope for any future reconciliation between the parties. As

such, the appellant filed divorce petition before the Family

Court.

15. The respondent filed counter along with counter claim

seeking restitution of conjugal rights stating that her marriage

with appellant was performed on 28.11.2004. At the time of

marriage her parents gave Rs.80,000/- towards dowry and

fulfilled other formalities to their status. At the time of marriage,

the appellant was working as a private videographer. She

further states that the marriage was consummated and they led

matrimonial life at the residence of appellant in Kazipet. Later,

she was subjected to cruelty after the appellant secured job in

South Central Railways for want of more dowry and for

motorbike, etc.

16. The respondent further stated that the appellant and his

parents never approached the elders for taking her to the

society of appellant and when her parents approached them,

they ill treated her parents and a panchayat was convened at

Kazipet. The appellant and his parents demanded for

presentation of hero honda motorcycle in the name of appellant.

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FCA.Nos.429 of 2018 321 of 2009

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The parents of respondent purchased the hero honda

motorcycle in the name of appellant by taking private finance

and by getting the vehicle under hypothecation. Since the

installments were not paid properly, the vehicle was seized by

the financer. In that connection, a panchayat was convened.

The respondent informed the elders that the only remedy is to

sell away the gold chain in her neck containing

mangalasuthram or otherwise, to pledge the same somewhere to

secure money to get the motorcycle released from the financer.

17. Thereafter, she pledged the gold chain, took Rs.5000/-

and paid the said amount to the financer but the vehicle was

not released on the ground that entire arrears need to be paid.

The Mangalasuthram was tied to a cotton thread worn by her.

She could not release the gold chain from the gold shop.

18. The respondent submitted that appellant and his parents

ill-treated her and she was driven out from the society of the

appellant. She was subjected to physical and mental cruelty.

Finally, a complaint was given in the Mills Colony Police Station

and FIR No.90/2007 dated 23.03.2007 under Section 498-A of

IPC and Sections 3 and 4 of the Dowry Protection Act, was

issued.

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FCA.Nos.429 of 2018 321 of 2009

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19. Though the parents of respondent made several efforts

through elders for restitution of conjugal rights, the appellant

and his parents did not co-operate. The appellant secured

employment in the South Central Railways, Kazipet, after three

months of the marriage i.e., during February 2005. After

securing the job, the appellant and his parents developed evil

thought to get divorce with respondent and to marry another

girl to secure more dowry. For this reason, the appellant and his

parents ill-treated the respondent during her stay. The

respondent also alleged that appellant developed illegal contacts

with another woman and leading adulterous life and she also

mentioned the same in the criminal complaint given in the Mills

Colony Police Station.

20. The respondent also stated that in spite of cruelty meted

by her in the hands of appellant and his parents, she is left with

no other alternative except to get conciliations through the

process of the Court as her parents are unable to support her

for long time. As such, prayed this Court to grant decree of

restitution of conjugal rights.

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FCA.Nos.429 of 2018 321 of 2009

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21. To prove his case, the appellant/husband himself got

examined as PW.1 and got examined PW.2 and got marked

Exs.A1 to A5. The respondent/wife herself got examined as

RW.1 and also got examined RWs.2 and 3 and got marked

Ex.B.1.

22. Having regard to the evidence on record and the

submissions made, the Family Court passed order, as stated

supra.

23. As seen from the record, according to appellant/husband,

the marriage was not consummated as the respondent/wife has

not cooperated and proclaimed that she is not interested in

appellant. Admittedly, the appellant and respondent are living

separately from the year 2005. Both of them have admitted that

they had disputes and several times the panchayat convened

meetings to settle the dispute but nothing was fruitful. The

respondent also filed criminal case against the appellant and his

parents under Sections 498-A and 306 of IPC vide C.C.No.1058

of 2017. It was alleged that appellant is leading adulterous life

with another woman.

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FCA.Nos.429 of 2018 321 of 2009

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24. The appellant filed Ex.A3 – certified copy of judgment in

C.C.No.1058 of 2007 acquitting him for the offence punishable

under Section 498-A of IPC. Further, though the respondent

alleged that that the appellant is living in adulterous life with

another women, there is no evidence on record to prove the

same. The respondent also alleged that on 18.03.2006 the

appellant beat her which resulted in fracture to her left elbow

and she was examined by Dr.Vijayachander Reddy. She also

filed Ex.B1 to prove the same, but the same was not stated in

her petition and there is no pleading about the said fact.

25. At the time of considering the O.P., in the year 2009 the

Family Court observed that as both the parties are having lot of

future before them, it is just and proper to order for restitution

of conjugal rights in favor of respondent as was claimed by her

in the counter claim. Further, the Family Court erroneously

discussed the evidence on record with regard to filing of criminal

case under Section 498-A of IPC and under Sections 3 and 4 of

the Dowry Prohibition Act stating that unless and until there is

some prima facie case, the Police ought not to have registered

crime and filed charge sheet against appellant and basing on

the said aspect, the Family Court has disbelieved the evidence

of appellant and believed the evidence of respondent, whereas,
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FCA.Nos.429 of 2018 321 of 2009

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the acquittal of appellant in criminal case was not considered by

the Family Court, which was pronounced by the trial Court on

02.01.2009 whereas, the impugned judgment is dated

23.11.2009 i.e., ten months after the acquittal of this appellant

in criminal case.

26. Learned counsel for appellant/husband relied on the

judgment of the Hon’ble Supreme Court in Samar Ghosh Vs.

Jaya Ghosh 1. The relevant paragraph Nos.102 and 103 read as

under:

“102. When we take into consideration aforementioned

factors along with an important circumstance that the

parties are admittedly living separately for more than

sixteen-and-a-half years (since 27-8-1990) the irresistible

conclusion would be that matrimonial bond has been

ruptured beyond repair because of the mental cruelty

caused by the respondent.

103. The High Court in the impugned judgment seriously

erred in reversing the judgment of the learned Additional

Sessions Judge. The High Court in the impugned

judgment ought to have considered the most important

and vital circumstance of the case in proper perspective

that the parties have been living separately since 27-8-

1990 and thereafter, the parties did not have any

interaction with each other. When the appellant was

1
2007 4 SCC 511
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FCA.Nos.429 of 2018 321 of 2009

14

seriously ill and the surgical intervention of bypass

surgery had to be resorted to, even on that occasion,

neither the respondent nor her father or any member of

her family bothered to enquire about the health of the

appellant even on telephone. This instance is clearly

illustrative of the fact that now the parties have no

emotions, sentiments or feelings for each other, at least

since 27-8-1990. This is a clear case of irretrievable

breakdown of marriage. In our considered view, it is

impossible to preserve or save the marriage. Any further

effort to keep it alive would prove to be totally

counterproductive.”

27. In the present case also, the appellant and respondent are

living separately without any interaction with each other,

whereas, this Court has no jurisdiction to grant divorce on the

ground of irretrievable break down of marriage as it is not a

ground under Section 13 of the Hindu Marriage Act. The said

principle was laid down by the Hon’ble Apex Court in Anil

Kumar Jain Vs. Maya Jain 2. The Apex Court only have the

power under Section 142 of the Constitution of India. Learned

counsel for appellant/husband also relied on the judgment of

the Hon’ble Supreme Court in Naveen Kohli Vs. Neelu Kohli 3.

The relevant paragraph Nos.86, 87 and 88 read as under:

2

2009 10 SCC 415
3
2006 4 SCC 558
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FCA.Nos.429 of 2018 321 of 2009

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“86. In view of the fact that the parties have been living

separately for more than 10 years and a very large

number of aforementioned criminal and civil proceedings

have been initiated by the respondent against the

appellant and some proceedings have been initiated by

the appellant against the respondent, the matrimonial

bond between the parties is beyond repair. A marriage

between the parties is only in name. The marriage has

been wrecked beyond the hope of salvage, public interest

and interest of all concerned lies in the recognition of the

fact and to declare defunct de jure what is already

defunct de facto. To keep the sham is obviously

conducive to immorality and potentially more prejudicial

to the public interest than a dissolution of the marriage

bond.

87. The High Court ought to have visualised that

preservation of such a marriage is totally unworkable

which has ceased to be effective and would be greater

source of misery for the parties.

88. The High Court ought to have considered that a

human problem can be properly resolved by adopting a

human approach. In the instant case, not to grant a

decree of divorce would be disastrous for the parties.

Otherwise, there may be a ray of hope for the parties that

after a passage of time (after obtaining a decree of

divorce) the parties may psychologically and emotionally

settle down and start a new chapter in life.”

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FCA.Nos.429 of 2018 321 of 2009

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28. As seen from the record, in the present case also, the

appellant and respondent are living separately from the year

2005 and the respondent filed criminal cases against appellant

due to which the appellant and his parents were remanded to

judicial custody. The appellant also faced departmental enquiry

and was imposed a minor penalty of withholding of one

increment. As such, it can be said that the matrimonial bond

between the parties is beyond repair and the marriage between

the parties is only for name sake and the marriage has been

wrecked beyond the hope of salvage. The trial Court erroneously

concluded that the appellant subjected the respondent to

cruelty without there being any evidence and wrongly concluded

that without any prima facie case, the Police ought not to have

registered a criminal case under Section 498-A of IPC even

though the said case ended in acquittal during the pendency of

O.P. Viewed from any angle, the trial Court has not discussed

the evidence in proper perspective. Therefore, no purpose would

be served if the order and decree dated 23.11.2009 in O.P.No.48

of 2007 is not set aside. Accordingly, point Nos.1 and 2 are

answered.

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FCA.Nos.429 of 2018 321 of 2009

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29. In view of the above discussion, this Court is of the

considered view that it is proper to dissolve the marriage

between appellant/husband and respondent/wife. Hence

F.C.A.No.429 of 2018 and F.C.A.No.321 of 2009 are allowed

setting aside the order dated 23.11.2009 in O.P.No.48 of 2007

passed by the Family Court Cum III Additional District Judge,

at Warangal, as such, the marriage between the

appellant/husband and respondent is dissolved.

As a sequel, the miscellaneous petitions, if any, pending

in these appeals shall stand closed.

__
K. LAKSHMAN, J

K.SUJANA, J

Date :09.01.2024
PT
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009

18

HON’BLE SRI JUSTICE K. LAKSHMAN
AND
HON’BLE SMT JUSTICE K. SUJANA

P.D. COMMON JUDGMENT
IN
FAMILY COURT APPEAL Nos.429 OF 2018 321 OF 2009

(Pre-delivery judgment of the Division Bench prepared by the
Hon’ble Smt Justice K. Sujana)

Date: 09.01.2024

PT

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