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2001 DIGILAW 456 (AP)

K. Srinivasa Rao v. K. Padma Rani

2001-04-23

B.SUBHASHAN REDDY, G.BIKSHAPATHY

body2001
G. BIKSHAPATHY, J. ( 1 ) ALL these three civil miscellaneous appeals can be disposed of by a common order. ( 2 ) FOR proper appreciation of the case and in order to avoid confusion, the parties are referred to as the husband and the wife. ( 3 ) THE husband filed O. P. No. 77 of 1998 under Section 13 (l) (ia) of the Hindu marriage Act for dissolution of marriage while the wife filed O. P. No. 163 of 1998 for restitution of conjugal rights. Both the O. Ps. were clubbed together for joint trial. Evidence was recorded in O. P. No. 77 of 1998 and the same was treated as evidence in O. P. No. 163 of 1998. By a common order dated 21st February 2000, the learned family Court Judge, Secunderabad allowed o. P. 77 of 1998 filed by the husband for dissolution of marriage and dismissed o. P. 163 of 1998 filed by the wife for restitution of conjugal rights. However, instead of dissolving the marriage the learned Judge granted judicial separation under Section 13-A of the Hindu Marriage act with a fond hope that there was a likelihood of reunion of the husband and the wife. Aggrieved by the said orders, c. M. A. Nos. 737 and 738 of 2000 are filed by the wife, one, to set aside the judgment and decree passed in O. P. No. 77 of 1998 and the other to set aside the judgment passed in o. P. No. 163 of 1998 and to allow the appeal by granting a decree for restitution of conjugal rights, respectively. While so, c. M. A. No. 713 of 2001 was filed by the husband to set aside the judgment and decree passed in O. P. No. 77 of 1998 and allow the appeal by granting a decree for dissolution of the marriage. ( 4 ) SMT. C. Jayashree Sarathy, learned senior Counsel appearing for the wife, submits that the order of the Court below is erroneous and contrary to law and the learned Judge failed to consider that there was no evidence warranting grant of judicial separation and the same is liable to be set aside. ( 4 ) SMT. C. Jayashree Sarathy, learned senior Counsel appearing for the wife, submits that the order of the Court below is erroneous and contrary to law and the learned Judge failed to consider that there was no evidence warranting grant of judicial separation and the same is liable to be set aside. ( 5 ) ON the other hand, Sri K. Mahipathy rao, learned Counsel appearing for the husband, submits that the order of the lower Court passed in O. P. No. 77 of 1998 is erroneous for the reason that even after coming to the conclusion that the ingredients of Section 13 (l) (ia) of the hindu Marriage Act have been established, the Court below has granted a decree for judicial separation instead of granting a decree for dissolution of marriage. He further submits that after considering the entire evidence available on record the lower Court rightly came to the conclusion that there was no reason to grant a decree for restitution of conjugal rights and accordingly dismissed O. P. No. 163 of 1998 and there is no ground to interfere with the said order passed by the lower Court. ( 6 ) WE have heard the learned Counsel for the parties. ( 7 ) BEFORE the lower Court, P. Ws. l and 2 were examined and Exs. A-1 to A-4 were marked on behalf of the husband and r. Ws. l to 5 were examined and Exs. B-1 to b-9 were marked on behalf of the wife. ( 8 ) P. W. I is the husband himself and p. W. 2 is his brother. It was stated by P. W. I in his evidence that after his marriage with the appellant-wife both of them lived together happily for some time and they begot one male and one female child. Thereafter his wife started harassing him mentally with her adamant behaviour and ill-treating his mother. She never conducted herself in a way a wife should conduct with the husband. She never used to listen to him and used to go to the house at late nights without any intimation to him and because of her behaviour he had suffered heart attack thrice. The wife also admitted in her evidence that her husband had suffered heart attack thrice. She never used to listen to him and used to go to the house at late nights without any intimation to him and because of her behaviour he had suffered heart attack thrice. The wife also admitted in her evidence that her husband had suffered heart attack thrice. However, she stated that it was not because of her behaviour but it was due to the bad habits of the husband. The husband produced medical records into Court to show that he is getting heart attacks only due to stress and that he is not addicted to any bad vices like smoking and drinking as alleged by his wife. Ex. A-2 is the medical report of the Appolo Hospital, hyderabad, which shows that the petitioner is a non-smoker and he is getting problem on account of stress. P. W. 2 supported the evidence adduced by P. W. I. ( 9 ) ON the other hand, the wife stated in her evidence that her husband neglected her and driven her out from the matrimonial home along with the child and thereafter he refused to take back her. Certain documents were filed to sustain her contention. ( 10 ) THE learned Family Court Judge, after considering both the oral and the documentary evidence, came to a categorical conclusion that the cruelty on the part of the wife was established beyond reasonable doubt. However, even though it was a case for dissolution of marriage, the learned Judge was of the view that there was likelihood of reunion between the parties. Therefore, he granted a decree for judicial separation. ( 11 ) UNDER Section 13 (l) (ia) of the Hindu marriage Act, either spouse can seek dissolution of marriage by a decree of divorce on the ground that after solemnisation of marriage the spouse treated the petitioner with cruelty. It has to be seen whether the cruelty on the part of the wife has been established by the husband in this case. ( 12 ) THERE is cogent evidence before the lower Court, both oral and documentary, that the wife has treated the husband with cruelty and therefore we are unable to find fault the finding given by the lower Court that the ingredients of Section 13 (1) (ia) have been established. ( 12 ) THERE is cogent evidence before the lower Court, both oral and documentary, that the wife has treated the husband with cruelty and therefore we are unable to find fault the finding given by the lower Court that the ingredients of Section 13 (1) (ia) have been established. Under these circumstances, we have to sustain the finding of the lower Court that the cruelty on the part of the wife was established. However, when such cruelty has been established, it would not be appropriate for the lower Court to grant a decree for judicial separation instead of granting decree for dissolution of marriage. ( 13 ) BOTH the wife and the husband are highly educated. In view of the social status of the parties and in order to carve out an acceptable solution for their reunion, we held in camera proceedings and tried to reconcile the matter by eliminating the differences. Any amount of reconciliation failed to yield positive result. While son is staying with the another, the daughter was under the care and custody of the father. We have also examined the girl, who has reached the age of understanding, and she expressed her resentment to live with her mother (appellant-wife ). She has expressed her resentment even with regard to visitation of her mother. ( 14 ) IN the circumstances, we are of the considered view that no useful purpose would be served by confirming the decree for judicial separation. Therefore, we set aside the order of the lower Court passed in o. P. No. 77 of 1998 and allow C. M. A. No. 713 of 2001 granting decree for dissolution of marriage. No costs. ( 15 ) NOW, coming to the question of grant of maintenance, it is not in dispute that the wife is having her own property and also a share in the ancestral property. She owns a flat and is having independent source of income. As such, we do not find any reason to grant maintenance to her. No costs. ( 15 ) NOW, coming to the question of grant of maintenance, it is not in dispute that the wife is having her own property and also a share in the ancestral property. She owns a flat and is having independent source of income. As such, we do not find any reason to grant maintenance to her. ( 16 ) SO far as the custody of the girl is concerned, she is already staying with her father and as we have already observed that she is not inclined to have the company of her mother and she did not even express her intention to visit the mother, we hold that the girl shall be with her father (appellant-husband) only and we do not find any ground to grant either the custody of the girl or visitation rights to the wife. ( 17 ) COMING to the question of boy, who has crossed the age of 6 and is running 7 and is now in the custody of me mother and having regard to the facts and circumstances and the surrounding atmosphere, we feel that the interests of the boy will be better served if the boy is given to the father. Accordingly, we direct that the wife shall hand over the custody of the boy to the husband on or before 10th June 2001, as we are told that the schools will reopen on 12th June 2001. ( 18 ) IN the result C. M. A. No. 713 of 2001 is allowed. CM. As. Nos. 737 of 2000 and 738 of 2000 are dismissed. No costs.