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2014 DIGILAW 102 (AP)

K. Naga Sundari v. K. Muddu Krishna

2014-01-24

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

body2014
Judgment The appellant is the wife of the respondent. Both are medical doctors by profession. Their marriage took place on 26.01.1991 and they were also blessed with two children. The respondent filed O.P.No.251 of 2002 in the Family Court, Secunderabad, against the appellant, for divorce, pleading the grounds of cruelty, under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short ‘the Act’). He alleged that the appellant possesses unique characteristics and behaves like “kojja”. According to him, though the appellant, who was employed by the time of their marriage, promised to resign, but she did not do so, and on account of the same, there was serious disturbance in the family. He further alleged that the appellant used to insult him, and revealed her past relations with her male friends at different places of work. He stated that the appellant is in the habit of beating the children and refuse to prepare food or tea for his parents or other family members. He has also stated that he joined Pondicherry Medical Services in the year 1995, and ever since then, he is living separately. According to him, there was an agreement between them at one point of time, for obtaining divorce by mutual consent, but the same did not fructify, on the alleged insistence by the appellant to continue her as nominee in the service records of the respondent. Ultimately, he stated that the marriage between him and the appellant has broken irretrievably, and that a decree of divorce deserves to be granted. The appellant resisted the O.P., by filing a counter. She denied all the allegations made against her. It was stated that the nature of allegations made by the respondent in fact constitute cruelty to her. She stated that though she offered to resign the job, the respondent stated that the family would face problems since he was not employed. She has denied the allegations about her alleged ill-treatment of the respondent. She stated that even when the respondent was employed elsewhere, his parents used to stay in their house at Hyderabad and she extended service and respect to them. Through its order, dated 17.04.2003, the trial Court allowed the O.P. and granted a decree of divorce. While admitting the C.M.A. on 20.05.2003, this Court suspended the decree. Heard Sri K.S. Murthy, learned counsel for the appellant. The appeal was listed for hearing yesterday. Through its order, dated 17.04.2003, the trial Court allowed the O.P. and granted a decree of divorce. While admitting the C.M.A. on 20.05.2003, this Court suspended the decree. Heard Sri K.S. Murthy, learned counsel for the appellant. The appeal was listed for hearing yesterday. Since there was no representation for the respondent, it was adjourned to today. There is no representation today also, either in the forenoon or in the afternoon. The respondent sought divorce from the appellant by pleading only one ground, namely, cruelty. The trial Court framed point for consideration thereon, namely, whether the respondent established that the appellant harassed and treated him with cruelty and refused to lead conjugal life. In a way, it can be said that the pleadings did not accord with the provision of law invoked by the respondent. The grievance of the respondent was mostly about the alleged non-cooperation on the part of the appellant to lead conjugal life. Therefore, he was expected to file a petition, under Section 9 of the Act. If, on the other hand, the appellant left the company of the respondent without any justification, the latter could have invoked Section 13(ib) of the Act. Now, the point, that arises for consideration before us, is as to whether the decree passed by the trial Court can be sustained. The Family Court, Secunderabad, was headed by a typical officer, about a decade ago. The orders passed by him would invariably reflect the reproduction of a handful of certain precedents irrespective of their relevance to the facts of the case, and grant of divorce used to be a matter of course. Good number of couples suffered, on account of the imperfect, lopsided and perverse adjudication, which took place in that Court at that period. The appellant herein is one such victim. After giving the particulars, as to the date of marriage and the dates of birth of the two children, the respondent proceeded to enlist the allegations that constituted the basis for him to file the OP. The allegations are in two parts. The first is that the appellant and her elders are said to have suppressed certain facts, before the marriage was arranged. The second is about the alleged cruel conduct of the appellant. The allegations are in two parts. The first is that the appellant and her elders are said to have suppressed certain facts, before the marriage was arranged. The second is about the alleged cruel conduct of the appellant. It is felt necessary to reproduce the contents of paragraph 6 in the OP, in its entirety, so that the gravity thereof, is not diluted in the course of discussion: “It is further submitted that at the time of arrangement of the marriage, the respondent and her elders, suppressed the following facts: i. That the respondent is of unique in character, bears mustaches and beard, behaves like a ‘Kojja’ and requires to shave the beard and mustaches. ii. That the respondent never interested to live with male members always likes to live alone. iii. That at the time of marriage, the petitioner was working as doctor at Central Health Services, North-East Region, at Udaipur, Agarthala and the respondent was working as doctor in Hubli, Karnataka. It was agreed by both the parties that after the marriage, the respondent would resign from her service and join the petitioner wherever he is working. But till today, the respondent did not do so, inspite of it, the respondent forced the petitioner to resign for his job and establish a house at Secunderabad. Consequently, the petitioner resigned his job in May, 1991 and lived with the respondent at Secunderabad. CRUEL NATURE OF THE RESPONDENT: a) The respondent never cooperates the petitioner on bed as well as on family matters. b) The respondent always humiliates the petitioner on bed by saying her past relation with her male friends at different places of her work. c) The respondent is a short tempered, always pick up quarrels with the petitioner and abuses the petitioner calling an ‘insane person’. d) The respondent beats the children black and blue whenever hot talk is developed between the petitioner and the respondent. e) The respondent refusing to prepare food or tea etc. to the parents and other family members of the petitioner whenever they visit, which acts of respondent resulted in a strained relation with the parents, brothers and sisters of the petitioner, and stopped visiting the petitioner or vice-versa. f) The petitioner joined the Pondicherry Medical Services in the year 1995 and since then living separately at Pondicherry without any conjugal relation or cohabitation and family relation with the respondent. f) The petitioner joined the Pondicherry Medical Services in the year 1995 and since then living separately at Pondicherry without any conjugal relation or cohabitation and family relation with the respondent. The respondent never bother to know the welfare of the petitioner nor joined the petitioner at any time at Pondicherry to live as wife and husband. g) Whenever the petitioner come to Hyderabad to see the children will be forced to stay in hotels. The respondent will never allow the petitioner to stay in her house. Even if stayed for the sake of children, the respondent will force the petitioner to leave the house etc. with provoked words.” The allegations made at the commencement of the paragraph are sufficient to understand the perverse thinking and sadistic approach of the respondent. He did not like the physique or other features of the appellant. Nobody forced him to marry her. Though the marriage was performed on 26.01.1991, it was 5 years thereafter i.e., on 29.08.1996 that it was got registered. In the meanwhile, two children were begotten. While filing the OP in the year 2002 i.e., 11 years after the marriage, the respondent has chosen to complain that the appellant is not good looking, and that his consent for the marriage was obtained, by suppressing certain facts. Further, it is not as if the respondent is an innocent person and is dependent upon others. He is a doctor and goes to various places in the country. It was unbecoming of the respondent to have made such irresponsible and reckless allegations against his wife, the appellant. So far as the grounds, which are said to be constituting cruelty, are concerned, the respondent was not clear in his mind. At one stage, he stated that the appellant never used to cooperate with him on bed as well as in the family matters. If that be so, he is unable to explain as to how the couple have begotten two children. The allegations regarding the manner in which the appellant used to treat the children or the parents of the appellant, are as vague as they could be. Added to that, except that he deposed as P.W.1, the respondent did not examine any other witnesses. His father or other members could have been examined as witnesses to support his version, if it is true. Added to that, except that he deposed as P.W.1, the respondent did not examine any other witnesses. His father or other members could have been examined as witnesses to support his version, if it is true. Further, even while stating that they last lived together in the year 1996, the respondent filed the OP 6 years thereafter, in the year 2002 for divorce. He did not even mention that he made any attempt to live together. It is he, who lived outside Hyderabad, on account of his employment. He did not even make an effort to take the appellant along with him. He was in a totally confused state of mind and it was filled up only one idea, viz., to get rid of the appellant. It has already been mentioned that the learned Judge, who presided the Court at the relevant point of time, had certain precedents, at his fingertips, and used to apply them, whether or not, the facts of the case permit the application thereof. This Court in number of matters found that the following paragraphs were close to his heart: “Marriage without sex is an anathema. Sex is the foundation of marriage, and without a vigorous and harmonious sexual activity, it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman’s mind and body. The result being that if she does not get proper sexual satisfaction, it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman’s brain, develops her character and troubles her vitality. It must be recognized that nothing is more fatal to marriage than disappointment in sexual intercourse. (AIR 1973 Delhi Page 200). Normal and health sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill-health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But, wilful denial of sexual relationship by a spouse when the other spouse is anxious for, it would amount to mental cruelty, especially, when the parties are yound and newly married. But, wilful denial of sexual relationship by a spouse when the other spouse is anxious for, it would amount to mental cruelty, especially, when the parties are yound and newly married. (AIR 1981 Delhi Page 53) Similarly, sex is an important part of the married life between a husband and a wife, which, in fact, keeps the parties together. Refusal to discharge matrimonial obligation of which, sex is a very vital and important link, leads to mental cruelty, more particularly, where the parties are young. In such case, without there being any physical cruelty, still, it would be a case of gross cruelty on the part of the spouse denying to submit to sex. (1998 (2) DMC 1 (DB) Himachal Pradesh)” He reproduced these and other similarly paragraphs in the present case also and granted the decree of divorce with the following observation: “As the respondent refused to have conjugal life and they are living separately, even at the time of visit of the petitioner to Hyderabad, the respondent never stated that there was a conjugal life, that clearly shows that there is no conjugal life between the petitioner and the respondent. As such, I am holding that the respondent refused to have sexual intercourse with the petitioner, as such, no useful purpose will be served by keeping the marriage intact, and the same amounts to cruelty.” The trial Court failed to understand that in case the grievance of the respondent was the denial of conjugal bliss by the appellant, the remedy was something else. We have absolutely no doubt that the order and decree passed by the trial Court are totally perverse and contrary to the provisions of the Act. The appeal is, accordingly, allowed, and the order and decree passed by the trial Court are set aside. There shall be no order as to costs. The Miscellaneous Petitions, if any, pending in the appeal shall stand disposed of.