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2013 DIGILAW 203 (AP)

D. Swarnalatha v. Dokala Appa Rao

2013-03-20

K.G.SHANKAR, L.NARASIMHA REDDY

body2013
JUDGMENT : These three appeals are between the same parties. Hence, they are disposed of through a common judgment. 2. For the sake of convenience, the parties herein are referred to as arrayed in O.P.No.515 of 1998. 3. The appellant is the wife of the respondent. Their marriage took place, on 24.05.1981, at Rajahmundry. They were also blessed with a female child, on 26.08.1987. They were residents of Rajahmundry. On account of her employment, the appellant came to Hyderabad in 1996. She filed O.P.No.450 of 1996 under the Guardians and Wards Act, with a prayer to appoint her as guardian of minor child. The respondent, on the other hand, filed O.P.No.133 of 1997 in the same Court for custody of the minor child. Both the O.Ps., were compromised on 03.07.1998, and the custody of the child was given to the respondent, subject to certain conditions. 4. The appellant filed O.P.No.515 of 1998 in the Family Court, Hyderabad, under Section 13(1)(i.a) of the Hindu Marriage Act (for short ‘the Act’), against the respondent, for divorce. The respondent, on the other hand, filed O.P.No.605 of 1997, under Section 9 of the Act, for restitution of conjugal rights. Both the O.Ps. were tried together. Through a common order, dated 22.12.2001, the trial Court dismissed both the O.Ps. However, it granted a decree for judicial separation for a period of one year with effect from the date of the order. Appellant filed C.M.A.No.161 of 2002 aggrieved by dismissal of O.P.No.515 of 1998. Respondent, on the other hand, filed C.M.A.No.799 of 2002 against the dismissal of O.P.No.605 of 1997. Apart from that, he filed F.C.A.(SR) No.29494 of 2010 challenging the decree for judicial separation. 5. Ms.S.Vani, learned counsel for the appellant, submits that the attitude and conduct of the respondent towards the appellant, ever since she has been employed, was improper and hostile, and though it was established that the respondent has resorted to acts of cruelty, the trial Court denied the relief of divorce. She contends that the relief of judicial separation has not even been prayed for. She contends that the tone and tenor of the letters addressed not only to the respondent, but also to her employer would substantiate the ground of cruelty. Reliance is placed upon certain judgments of the Supreme Court. 6. She contends that the relief of judicial separation has not even been prayed for. She contends that the tone and tenor of the letters addressed not only to the respondent, but also to her employer would substantiate the ground of cruelty. Reliance is placed upon certain judgments of the Supreme Court. 6. Sri V.S.R.Anjaneyulu, learned counsel for the respondent, on the other hand, submits that the trial Court was convinced that no case was made out for divorce and in stead of granting decree for restitution of conjugal rights, it has dismissed the O.P. filed under Section 9 of the Act. He contends that the granting of a decree for a judicial separation in a petition filed under Sections 9 or 13 of the Act, that too, when none of the parties prayed for it, is totally unknown to law. 7. The parties lived together for 15 years, in utmost harmony. They were also blessed with a child. It all started when the appellant had to move to a different place, on account of her employment. Initially, both of them filed suits against each other for the custody of the child. Both of them reported compromise to the Court, in which the proceedings were pending, almost giving an indication that the differences between them have sub-sided. By that time, O.P.No.605 of 1997 filed by the respondent for restitution of conjugal rights was pending. However, the appellant, on the one hand, entered into compromise with the respondent, in the context of custody of the child, and simultaneously, initiated steps for divorce and filed O.P.No.515 of 1998. The compromise was recorded on 03.07.1998, and one day earlier to that, the appellant filed the O.P. for divorce. Both the petitions were clubbed. No specific points were framed by the trial Court. 8. The appellant deposed as PW.1 and she filed Exs.P.1 to P.15. On behalf of respondent, RWs.1 to 5 were examined and Exs.R.1 to R.66 were filed. Through a common order, dated 22.12.2001, the trial Court dismissed both the petitions, but granted a decree for restitution of conjugal rights, to be in force for one year. 9. The appellant has narrated certain instances, which are said to have taken place when she was at Rajahmundry. She alleged that the respondent came to her house in a drunken condition and when she questioned about it, he abused and beat her. 9. The appellant has narrated certain instances, which are said to have taken place when she was at Rajahmundry. She alleged that the respondent came to her house in a drunken condition and when she questioned about it, he abused and beat her. It was also alleged that the respondent was not even allowed her to use the residential telephone. Other similar instances, which are said to have taken place, were also mentioned. 10. Strong reasons are needed to set at naught a marriage, which subsisted for about 1½ decades, and that gave rise to the birth of a child. The marriage is an important phase in the life of an individual and it cannot be just wished away, on whimsical reasons. In many cases, apart from bringing about separation of the parties, a decree for divorce would leave stigma and trauma, at least in one of the spouses. Therefore, the Courts are required to be careful and cautious, while dissolving a marriage at the instance of one of the parties. However, if adequate grounds, as mentioned in the relevant provisions of law, are proved, one spouse cannot be compelled to live with the other and the Court should not hasty to dissolve the marriage. 11. In the instant case, the respondent pleaded that by the time of their marriage, the appellant was only matriculate and he encouraged her to undertake higher studies and on the basis of the qualifications and study, she got employment. The cooperation of the respondent in this regard is evident from the fact that the appellant acquired one after the other, qualifications leading to an employment. 12. On being selected as Deputy Tahasildar, the appellant moved to a different place. Disharmony started ever since then. Being an advocate practicing at Rajahmundry, the respondent could not move to the place of employment of the appellant. Though the appellant and respondent have competed with each other for the custody of the child, compromise emerged. However, that was only for the limited purpose of the custody of the child and the strain in the relations continued. The appellant, on the one hand, filed O.P., for divorce and on the other hand, entered into compromise as regards the custody of the child, on the next day. 13. Except the self-serving version of the appellant, there was no other witness to support her. The appellant, on the one hand, filed O.P., for divorce and on the other hand, entered into compromise as regards the custody of the child, on the next day. 13. Except the self-serving version of the appellant, there was no other witness to support her. If, in fact, the respondent was guilty of cruelty, someone, who has an occasion to know or witness the same, could have been examined. Such persons could have been either from the family of the appellant or somebody residing in the neighbourhood. On the other hand, the respondent examined quite good number of witnesses, who consistently spoke about the non-cooperative attitude exhibited by the appellant. The trial Court was also convinced that the appellant did not make out a case for grant of divorce. The appellant is not able to point out as to how the conclusion arrived at by the trial Court is incorrect or perverse. 14. One serious defect, which, however, crept into the decrees in the respective O.Ps., is that the relief of judicial separation was granted therein. The Hindu marriage contains a specific provision of law, namely Section 10, for grant of the decree for judicial separation. No application was filed under that provision by either of the parties. The Hon’ble Supreme Court held that even in an application for divorce, the Court can pass a decree for judicial separation. In that view of the matter, the decree of judicial separation could have been incorporated in the decree, in the O.P. filed for divorce, if there was prayer by both or one of the parties. At any rate, the question of directing judicial separation in the O.P. filed under Section 9 of the Act, does not arise. 15. Hence, C.M.A.No.161 of 2002 is dismissed, and accordingly, O.P.No.515 of 1998 shall stand dismissed. F.C.A.(SR) No.29494 of 2010 is allowed. 16. Though O.P.No.605 of 1997 is filed for the relief of restitution of conjugal rights, it is difficult for this Court to grant that relief at this length of time. If the respondent, i.e. the husband is so advised or is interested, he can file a fresh application under that provision. 17. Hence, C.M.A.No.799 of 2002 is partly allowed, setting aside the decree for judicial separation granted therein, but denying the relief of restitution of conjugal rights. If the respondent, i.e. the husband is so advised or is interested, he can file a fresh application under that provision. 17. Hence, C.M.A.No.799 of 2002 is partly allowed, setting aside the decree for judicial separation granted therein, but denying the relief of restitution of conjugal rights. If the respondent is still interested, it shall be open to him to file an application under Section 9 of the Act. There shall be no order as to costs. 18. The miscellaneous petitions filed in these appeals shall also stand disposed of.