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2014 DIGILAW 79 (AP)

K. Swarnalatha v. P. Ravi Kanth Rao

2014-01-23

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

body2014
Judgment : L. Narasimha Reddy, J. The respondent in O.P.No.36 of 2002 on the file of Family Court, Secunderabad filed this appeal under Section 19 of the Family Courts Act feeling aggrieved by the order and decree, dated 22.04.2003, passed therein. Briefly stated the relevant facts are: the marriage between the appellant and the respondent took place on 28.05.1997. They lived together for some time. Within three months thereafter, differences are said to have arisen. The respondent filed O.P.No.238 of 1998 in the Family Court, Hyderabad against the appellant for divorce by pleading the grounds of cruelty and desertion under Section 13 (1) (ia) (ib) of the Hindu Marriage Act (for short ‘the Act’). The appellant, on the other hand, filed O.P.No.291 of 1998 against the respondent under Section 9 of the Act for restitution of conjugal rights in the same Court. Through a common order, dated 29.09.2000, the Family Court, Hyderabad dismissed O.P.No.238 of 1998 and granted the decree of conjugal rights. The decrees passed in the O.Ps. became final. The appellant got issued a notice to the respondent to join the matrimonial company. The respondent issued a notice expressing his disinclination. E.P.No.52 of 2001 was filed for enforcement of the decree, but it was in vain. The appellant has also filed an M.C. for maintenance. At that stage, the respondent filed O.P.No.36 of 2002 in the Family Court, Secunderabad claiming the same relief as he did in O.P.No.238 of 1998. He pleaded that the situation did not improve since the disposal of O.P.No.238 of 1998 and that the appellant has not only caused mental cruelty to him but also deserted the matrimonial home. The appellant filed a counter stating that the averments in the O.P. are not true and that it is the respondent, who has resorted to the acts of cruelty to the appellant and deserted her. She has also complained that the respondent did not care to maintain her, though he is drawing a fabulous salary. The trial Court allowed the O.P. through order, dated 22.04.2003. Hence this appeal. Sri C.V.Bhaskar Reddy, learned counsel for the appellant, submits that except repeating the contents of O.P.No.238 of 1998, the respondent did not plead any fresh additional facts in O.P.No.36 of 2002 and still, the Family Court, Secunderabad granted the decree, ignoring the fact that similar contentions were repelled by the Family Court, Hyderabad. Hence this appeal. Sri C.V.Bhaskar Reddy, learned counsel for the appellant, submits that except repeating the contents of O.P.No.238 of 1998, the respondent did not plead any fresh additional facts in O.P.No.36 of 2002 and still, the Family Court, Secunderabad granted the decree, ignoring the fact that similar contentions were repelled by the Family Court, Hyderabad. He submits that the change of circumstance, if at all, is in favour of the appellant, inasmuch as it is she, who got issued a notice, marked as Ex.A2, and filed an E.P; and in reply to both, the respondent expressed his disinclination. He contends that the trial Court was mostly impressed by the fact that the parties are living separately and on that basis, granted the decree of divorce by placing reliance upon certain precedents, which are of no relevance to the facts of this case. Notice in the appeal was sent to the respondent to the same address that was furnished by him in the O.P. However, it was endorsed on the envelope that the party left. The cover was partly opened and the contents thereof, appear to have been taken note of. Added to that, in C.M.P.No.11333 of 2003, this Court suspended the decree passed by the trial Court, way back on 06.05.2003. Though a copy of the order was sent to the respondent, he did not enter appearance. Therefore, this Court proceeds on the basis that the respondent is served, but has chosen to remain ex parte. O.P.No.36 of 2002 filed by the respondent was the second, in succession. His first attempt to obtain decree by pleading the same grounds by filing O.P.No.238 of 1998 in the Family Court, Hyderabad, did not fructify; and the O.P. was dismissed on 29.09.2000. The second attempt was made by filing O.P.No.36 of 2002. The trial Court framed only one point for its consideration, namely “whether the respondent has established that the appellant treated him with cruelty and deserted him for a period of not less than two years immediately preceding the filing of the petition?” The respondent deposed as P.W.1. He filed Exs.A1 to A9. The appellant deposed as R.W.1 and Exs.R1 to R4 were filed. The O.P. The respondent deposed as P.W.1. He filed Exs.A1 to A9. The appellant deposed as R.W.1 and Exs.R1 to R4 were filed. The O.P. was allowed. He filed Exs.A1 to A9. The appellant deposed as R.W.1 and Exs.R1 to R4 were filed. The O.P. The respondent deposed as P.W.1. He filed Exs.A1 to A9. The appellant deposed as R.W.1 and Exs.R1 to R4 were filed. The O.P. was allowed. The point that arises for consideration before us is as to whether the view taken by the trial Court can be sustained in law? Whenever a party to a marriage approaches the Court by filing a petition under Section 13 of the Act, the Court has to verify the record and find out whether the grounds pleaded therein are made out. In the instant case, the burden of the trial Court was reduced to a substantial extent on account of the fact that an adjudication of the same facts has taken place just two years prior to the filing of O.P.No.36 of 2002. As observed earlier, the respondent filed O.P.No.238 of 1998 by pleading the grounds of cruelty and desertion against the respondent, but was not successful therein. On the other hand, O.P.No.291 of 1998 filed by the appellant under Section 9 of the Act was allowed. Many a time, the fact that a party to a marriage has deserted the other may even give rise to a presumption that the party so deserting has also caused cruelty to the other. Therefore, if it is established that the appellant has deserted the respondent without any justification, she can not only be said to have provided a ground for divorce on that ground, but also supplemented the ground of cruelty. This situation would have arisen if after the decree in O.P.No.291 of 1998, the respondent made an earnest effort to join the appellant or that the appellant did not make any sincere effort to join the respondent. The record, however, shows exactly the opposite. The common order in O.P.Nos.238 and 291 of 1998 is filed as Ex.A2. Soon after the expiry of the limitation for filing of appeal, the appellant took initiative and got issued a legal notice, dated 07.01.2001 (Ex.A3) calling upon the respondent to join her. The respondent got issued a reply on 25.01.2001 (Ex.A4). He pleaded lame excuses. The concluding portion of his reply reads as under: “I therefore call upon you not to litigate the matter which serves no meaningful purpose. The respondent got issued a reply on 25.01.2001 (Ex.A4). He pleaded lame excuses. The concluding portion of his reply reads as under: “I therefore call upon you not to litigate the matter which serves no meaningful purpose. If you will still proceed to initiate action against my client, I am ready to settle the issue through the Court of Law.” He has also refused to pay the maintenance that was ordered by the Court. Left with no alternative, the appellant filed E.P.No.52 of 2001. Even that did not have any impact upon the respondent. Barring these developments, the respondent did not plead any acts on his part or omissions on the part of the respondent. Strangely enough, the trial Court started with a negative note by referring to the factum of the parties living separately. Relevant portion reads as under: “The parties in the present case are living separately even prior to filing of divorce petition O.P.No.238 of 1998 and also 291 of 1998 the claim of the husband rejected by the Court and claim of the wife accepted granting restitution of conjugal rights four years back even till today both wife and husband never lived together from the date of their separation. It is very clear from the evidence that the marriage is completely broken down and they cannot live as wife and husband and there is no possibility of reunion between them.” Several judgments pertaining to the matrimonial matters were naturally, cited before him in various cases. The learned Presiding Officer picked some of them and quoted the same bereft the context. The lopsided approach of the learned Presiding Officer is evident from the text of the order itself. In the present case, it was the appellant, who was clamouring for the matrimonial life and the respondent was jumping out from it. However, the following extract from the judgment of the Delhi High Court in Rita Nijhawan Vs. Balakrishnan Nijhawan (AIR 1973 Delhi 200)was relied upon and reproduced by the trial Court. “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. “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 trebles her vitality. It must be recognized that nothing is more fatal to marriage than disappointment of sexual intercourse.” Similarly, several precedents, which did not have any bearing on the subject matter, were cited. The trial Court has totally lost the track of the case and granted the decree of divorce. We do not at all find any basis for it. The appeal is accordingly allowed and the decree passed by the trial Court is set aside. There shall be no order as to costs. The miscellaneous petitions filed in this appeal shall also stand disposed of.