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2011 DIGILAW 119 (AP)

K. Swamy v. B. Manjula

2011-02-11

B.CHANDRA KUMAR, N.V.RAMANA

body2011
JUDGMENT N.V. Ramana, J. 1. This civil miscellaneous appeal is filed against the order dated 16.12.2002 passed in OP No. 984 of 2000 by the Judge, Family Court, Hyderabad, dismissing the petition filed by the appellant-husband seeking decree of divorce and granting alternative relief of decree of judicial separation between the parties w.e.f. 16.12.2002 and awarding maintenance of Rs. 1,000/- per month to the respondent-wife from the date of order. 2. Learned Counsel for the appellant-husband submits that the three children of the parties, aged about 26, 24 and 21 respectively, are living with the appellant-husband and after passing of the order under appeal, the respondent-wife never showed any interest to join the appellant-husband or even to see the children. He, thus prayed to allow the appeal and grant decree of divorce. 3. Smt. P. Niveditha Reddy, learned Counsel appearing on behalf of learned Counsel for the respondent-wife submits that, in spite of her best efforts, she is unable to get instructions from the respondent. 4. Heard the learned Counsel for the appellant and the learned Counsel for the respondent and perused the order under appeal. 5. As can be seen from the order under appeal, the marriage of the appellant with the respondent took place on 3.5.1984. They were blessed with three children. It appears, due to strained relations, the respondent left the company of the appellant in the month of January, 1997 and started living separately. When the appellant filed OP No. 289 of 1999 before the Family Court, Secunderabad, seeking restitution of conjugal rights, the respondent filed criminal case against the appellant for the offence punishable under Section 498-A IPC, which was registered as CC No. 252 of 1999. She also filed OS No. 15 of 2000 for maintenance. The respondent contested the said O.P. filed for restitution of conjugal rights. Ultimately, by order dated 14.6.2000, the said O.P. was allowed by the Family Court, Secunderabad, granting decree of restitution of conjugal rights. Even though the appellant obtained decree of restitution of conjugal rights, it is his case that despite his best efforts, the respondent did not join his company, while on the other hand, it is the case of the respondent that she went to join the appellant, but she was not allowed to join, by the appellant. Even though the appellant obtained decree of restitution of conjugal rights, it is his case that despite his best efforts, the respondent did not join his company, while on the other hand, it is the case of the respondent that she went to join the appellant, but she was not allowed to join, by the appellant. As the decree of restitution of conjugal rights did not work, the appellant filed the present O.P. for divorce. The respondent contested the O.P. The Court below considering the evidence on record came to the conclusion that there is cruelty on the part of both the parties and that parties are living separately since January 1997 and considering the fact that the parties are having three children and hoping that good sense would prevail over them, instead of granting decree of divorce, by the order under appeal dated 16.12.2002, granted judicial separation. 6. It is brought to the notice of the Court by the learned Counsel for the appellant that till date, the respondent has not evinced any interest to join the appellant much less see the children and that the parties are living separately, since January 1997. The learned Counsel appearing for the respondent did not rebut the same and reported no instructions, and this would amply make it clear that the respondent-wife is not interested in pursuing the matter. Though there appears to be no possibility of reunion, and the marriage of the appellant with the respondent is irretrievably broken, but irretrievable break down is not a ground for divorce. However, considering the fact that the respondent-wife left the company of the appellant-husband as far back as in the month of January 1997, and did not join the appellant in spite of decree of restitution of conjugal rights and after decree of judicial separation and during the pendency of the present appeal, we are of the considered opinion that there is desertion on the part of the respondent and this apart the Court below recorded a finding that there is cruelty on the part of both the parties. That being so, and the learned Counsel for the respondent having reported no instructions, we are of the considered opinion that the appellant is entitled to decree of divorce on the grounds of desertion and cruelty. 7. Accordingly, the appeal is allowed. That being so, and the learned Counsel for the respondent having reported no instructions, we are of the considered opinion that the appellant is entitled to decree of divorce on the grounds of desertion and cruelty. 7. Accordingly, the appeal is allowed. The order under appeal is set aside, and a decree of divorce is granted in favour of the appellant by dissolving his marriage with the respondent. 8. So far as the maintenance of Rs. 1,000/- granted by the Court below, is concerned, as the appellant-husband is said to be working as Traffic Assistant in Indian Airlines and getting Rs. 15,000/- per month, we deem it appropriate that the said amount of Rs. 1,000/- should be enhanced to Rs. 2,000/- per month. Accordingly, the amount of maintenance of Rs. 1,000/- per month awarded by the Court below is enhanced to Rs. 2,000/- per month, which is payable from the date of filing of the appeal. No order as to costs.