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2013 DIGILAW 1073 (AP)

K. Venkatesh v. K. Prameela

2013-11-26

L.NARASIMHA REDDY, M.S.K.JAISWAL

body2013
JUDGMENT L. Narasimha Reddy, J. 1. The marriage between the petitioner and the respondent took place on 21-06-2001 at Mahabubnagar. They are also blessed with two children. Alleging that the respondent left the matrimonial house in March 2010, the appellant filed O.P. No. 17 of 2010 in the Family Court, Mahabubnagar, under Section 9 of the Hindu Marriage Act 1955 (for short, "the Act"). He pleaded that the respondent is very much inclined to live with him, but on account of the pressure exerted by her brothers, she left his home and staying in the house of her brothers only with an objective of serving her mentally retarded sister. He pleaded that on 21-03-2010, when himself and the respondent were in their house along with their children, the brothers of the respondent along with their younger sister came to their house, picked up a quarrel and took her away. His efforts to convince them are said to have not materialized. He further stated that on 25-04-2010, he took some elders of the family and ex-sarpanch of their native place to the house of the brothers of the respondent and pleaded them not to disturb his family by separating them and that the brothers of the respondent were not at all inclined to listen to them. They are also said to have threatened him. Ultimately, he pleaded for a decree of restitution of conjugal rights. 2. The respondent opposed the O.P. by filing a counter. She did not dispute the factum of her marriage with the appellant and the fact that they had two children. She, however, stated that the appellant was harassing her on various occasions. According to her, on 23-10-2010, appellant beat her and has driven her away from the home. She is said to have been treated in a Government Hospital in Mahabubnagar for the injuries. As an additional plea, she stated that the appellant is working in a Zilla Parishath High School in a village and when she insisted that the children must be admitted in a reputed private School at Mahabubnagar, appellant did not accede to that request. She pleaded that the appellant had no intention to live with her and that the O.P. was filed only as a prelude to obtain decree of divorce. 3. The trial Court dismissed the O.P. through its order dated 02-06-2011. Hence this appeal. 4. She pleaded that the appellant had no intention to live with her and that the O.P. was filed only as a prelude to obtain decree of divorce. 3. The trial Court dismissed the O.P. through its order dated 02-06-2011. Hence this appeal. 4. Sri Shafath Ahmed Khan, learned counsel for the appellant, submits that the respondent left the appellant without any justification and in spite of his best efforts to get her back, she did not join him. He contends that the trial Court proceeded on improper lines and believing certain documents concocted by one of the brothers of the respondent, the relief was denied. He contends that as long as the marriage subsists, a spouse has every right to insist that the other spouse must join him or her. 5. Sri D.Y. Karunakar Dayanidhi, learned counsel for the respondent, on the other hand, submits that the respondent had to leave the appellant on account of harassment caused to her and there were no bona fides in the filing of O.P. He contends that in relation to the incident that took place on 22-03-2010, a complaint under Section 498A IPC was filed leading to C.C. No. 362 of 2011 on the file of Special Judicial Magistrate of First Class, Prohibition and Excise Court, Mahabubnagar, and that the same resulted in conviction of the appellant through judgment dated 09-08-2012. 6. The trial Court framed only one point for its consideration viz., whether the respondent is living separately from the appellant without any reasonable cause and whether the appellant is entitled for the relief of restitution of conjugal rights? 7. On behalf of the appellant, PWs. 1 to 3 were examined and Exs. A-1 to A-4 were filed. On behalf of the respondent, RWs. 1 to 3 were examined and Exs. R-1 and R-2 were filed. The trial Court has also taken on record Exs. X-1 and X-2. 8. The point that arises for consideration before us is as to whether the appellant is entitled for the relief of restitution of conjugal rights? POINT: 9. The marriage between the parties is not denied. Their marriage took place in the year 2001 and they lived together up to March, 2010. They were blessed with two female children and they are now going to school. POINT: 9. The marriage between the parties is not denied. Their marriage took place in the year 2001 and they lived together up to March, 2010. They were blessed with two female children and they are now going to school. It is not necessary to refer to the manner in which the appellant and the respondent lived up to March, 2010 because no proceedings ensued earlier thereto. 10. The appellant specifically pleaded that on 21-03-2010, the brothers of the respondent and her younger sister came to their house, picked up a quarrel and insisted that the appellant, his wife-the respondent and their children must reside at Mahabubnagar so that the mentally retarded sister of the respondent is taken care of by her. The respondent is said to have left the home on that day itself. Subsequently the appellant did make efforts by taking elders and mediators to the house of the brothers of the respondent, where she was living. Two such elders are examined as PWs. 2 and 3. They categorically stated that on the request made by the appellant, themselves and several others went to the house of the brothers of the respondent and pleaded for sending her back. The nature of development that has taken place was stated in detail. Their acquaintance with the appellant is not disputed. 11. The respondent presented a different version of the event that took place on 22-03-2010. According to her, she was beaten on that day, by the appellant. She did not mention that any other person was present at that time. Curiously enough, a complaint was filed against eight persons; after the O.P. was filed. That gave rise to C.C. No. 362 of 2011. Though the judgment in C.C. No. 362 of 2011 is not part of the record, a copy of the same is made available to us. Not only the parents, brothers and other members being accused Nos. 2 to 7, but also a friend of the appellant being accused No. 8 were shown as accused. Here allegation was that accused Nos. 2 to 8 have supported the demand of accused No. 1 i.e., the appellant herein, for additional dowry. None of the witnesses have spoken about the alleged beating. 12. If one takes into account, the evidence of RW. 1 i.e., the respondent herein, in C.C. No. 362 of 2011, and her deposition as RW. Here allegation was that accused Nos. 2 to 8 have supported the demand of accused No. 1 i.e., the appellant herein, for additional dowry. None of the witnesses have spoken about the alleged beating. 12. If one takes into account, the evidence of RW. 1 i.e., the respondent herein, in C.C. No. 362 of 2011, and her deposition as RW. 1 in the present O.P., it becomes clear that the Courts were taken for a ride. The brothers of the appellants (sic. respondent), who are resourceful enough, have demonstrated that the Courts can be misled, and given the intention and resources, even a patently wrong decision or judgments, can be procured. 13. We too have interacted with the parties and found that the respondent is an innocent woman. Unfortunately, she became a victim of her brothers and other family members and the appellant is being harassed only to succeed in their attempt to extract the services of the respondent as a maid servant to her mentally retarded sister. The brothers of the respondent are living at different places on account of their employment and they found the respondent herein to be the best servant, without any wages. Little did they realize that they are destroying the family of their sister with two female children. The overreaching nature of one of the brothers of the respondent, who is a doctor, is evident from the fact that he concocted some medical certificates and prescriptions, which not even worth the papers on which they are written. We hold that there is no justification for the respondent to live separately from the appellant. 14. Therefore, the appeal is allowed. The order passed by the trial Court is set aside. There shall be decree as prayed for. There shall be no order as to costs. The Miscellaneous Applications filed in this appeal shall stand disposed of.