—
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
KL,J SKS,J
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
KL,J SKS,J
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?
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 20095
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.
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009
6
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.
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009
7
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
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009
8
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.
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009
9
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.
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009
10
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.
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009
11
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.
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009
12
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,
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009
13
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
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 200914
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
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 200915
“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.”
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009
16
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.
KL,J SKS,J
FCA.Nos.429 of 2018 321 of 2009
17
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