Research › Search › Judgment

Andhra High Court · body

2019 DIGILAW 108 (AP)

Grandham Sridhar v. Grandham Jaya Vani

2019-07-03

G.SHYAM PRASAD, M.SEETHARAMA MURTI

body2019
JUDGMENT : G. Shyam Prasad, J. 1. This civil miscellaneous appeal is arising out of the order dated 3.12.2004, passed in OP No. 38 of 2000 on the file of the Principal Senior Civil Judge, Eluru, filed under Section 13(1)(ia) of Hindu Marriage Act 1955 seeking for dissolution of marriage of the petitioner/appellant with the respondent. 2. Brief facts of the case are: The marriage of the appellant-Grandham Sridhar was performed with the respondent-Grandham Jaya Vani on 10.4.1996, at Eluru as per Hindu Rites and Caste custom prevailed in their community. The appellant/husband has filed OP No. 38 of 2000 on the file of Principal Senior Civil Judge, Eluru, against the respondent/wife seeking dissolution of marriage. The learned Principal Senior Civil Judge, Eluru, on consideration of the evidence of PWs. 1 to 4 on behalf of the appellant, and RWs. 1 to 3 on behalf of respondent, and the documents Ex. A1 and Ex. A2, has dismissed the petition filed for dissolution of marriage by the appellant/husband. The counter claim made by the respondent/wife for restitution of conjugal rights has been allowed. Aggrieved by the impugned order, the present appeal has been filed by the appellant on the following grounds. (i) The respondent has filed a false criminal case in CC No. 635 of 2000 on the file of II Additional Judicial Magistrate of First Class, Eluru under Sections 498-A, 506 IPC and under Sections 3 and 4 of Dowry and Prohibition Act. (ii) The filing of a false criminal case by the respondent against the appellant amounts to cruelty and on that ground the appellant is entitled for grant of divorce; (iii) The respondent has never issued any notice to the appellant seeking for restitution of conjugal rights. (iv) The counter-claim of the respondent on conjugal rights was filed three years after filing of OP No. 38 of 2000 seeking for dissolution of marriage and therefore the petition under Section 9 of Hindu Marriage Act is filed as a counterblast for divorce OP No. 38 of 2000 filed by the respondent. (v) The respondent has voluntarily deserted the appellant without any reason and therefore on the ground of desertion also the appellant is entitled for dissolution of marriage. (vi) The appellant and his relatives have tried their best for re-union of the couple but the same has failed because of indifferent attitude of the respondent. (v) The respondent has voluntarily deserted the appellant without any reason and therefore on the ground of desertion also the appellant is entitled for dissolution of marriage. (vi) The appellant and his relatives have tried their best for re-union of the couple but the same has failed because of indifferent attitude of the respondent. There is no possibility of re-union in this case in view of the longer separation between the couple and therefore the judgment and decree of the Trial Court may be set aside. 3. Heard the arguments of Ms. G. Amulya Spencer, learned Counsel representing Sri G. Ronald Raju, learned Counsel for the appellant and the arguments of the Mr. Raja Reddy Koneti, learned Counsel for the respondent. 4. The points arise for consideration in this case are: (1) Whether the appellant is able to establish his case by proving the ingredients under Section 13(1)(ia) of Hindu Marriage Act 1955? (2) Whether the respondent in her counter-claim is able to prove her case in the light of the provision under Section 9 of Hindu Marriage Act? 5. At the outset, this is an appeal filed by the husband aggrieved by the impugned order passed by the Family Court dismissing the petition for grant of dissolution of marriage between himself and the respondent under Section 13(1)(ia) of Hindu Marriage Act, 1955 (for short 'the Act'). 6. The main contention of the learned Counsel for the appellant is that though the appellant is able to prove the cruelty on the part of the respondent, the Trial Court has not granted dissolution of marriage and dismissed the petition, therefore, sought for setting aside the order of the Trial Court and sought for decree of divorce. 7. Section 13(1)(ia) of the Act reads as under: 13. Divorce:-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party,- (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty. 8. The burden is on the appellant to prove the cruel acts on the part of the respondent. The cruel acts may constitute physical cruelty and also mental cruelty. 8. The burden is on the appellant to prove the cruel acts on the part of the respondent. The cruel acts may constitute physical cruelty and also mental cruelty. It was held in Vidhya Viswanathan v. Kartik Balakrishnan, MANU/SC/0853/2014 : 2014 (6) ALD 187 (SC) : AIR 2015 SC 285 , that refusal to have sexual intercourse for considerable period by wife amounts to mental cruelty. 9. It is held in K. Srinivas Rao v. DA. Deepa, MANU/SC/0180/2013 : 2013 (3) ALD 11 (SC) : AIR 2013 SC 2176 , that making undoubted, indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospects or the job of the spouse and filing repeated false complaints would, in the facts of a case amount to causing mental cruelty to the other spouse. 10. Keeping the ratio laid down in the two decisions when the facts of the case on hand are analysed, the contention of the learned Counsel for the appellant is that the respondent-wife has not joined him for co-habitation after few days of the marriage and she had also filed false case against him which ended in acquittal amounts to mental cruelty. 11. The appellant has clearly stated in Para 9 of his evidence as PW 1 that the respondent-wife was not interested to lead marital life with him. The respondent in all lived with him for six days only i.e., 3 days during nuptial ceremony at Eluru from 24.4.1998 to 26.4.1998 and later for 3 days at Khammam from 27.4.1998 to 29.4.1998 and thereafter, she never joined him. It is also the case of the appellant that the respondent openly stated to him that even from the nuptial ceremony that she was aspiring for highly educated affluent husband to her and that he was a mis-match for her and she was forced to marry him at the instance of her parents against her will. It is also stated by the appellant that the respondent never treated him with love and affection and never extended any respect to him at. any point of time and that she had superiority complex. Her parents, brothers also looked him down and never respected him. Inspite of best efforts made by him, she never joined him to lead marital life. 12. any point of time and that she had superiority complex. Her parents, brothers also looked him down and never respected him. Inspite of best efforts made by him, she never joined him to lead marital life. 12. PW 1 stated in his evidence that the respondent had given a complaint to police and a case in CC No. 635 of 2000 on the file of the II Additional Judicial Magistrate of I Class, Eluru was registered and the said case ended in acquittal, which was filed against him, his mother and brother-in-law on 29.4.2003. 13. Learned Counsel for the appellant submits that in view of filing of criminal case against the appellant, the appellant and his family members have put to humiliation and suffered mental agony and insult, which amounts to mental cruelty. 14. The learned Trial Judge has not considered these facts and relying on the part of the testimony of the other witnesses, PWs. 2 to 4, who are brother-in-law, neighbour and relative of PW 1 had dismissed the claim of the appellant. 15. It is the case of the respondent that the appellant had harassed the respondent for additional dowry and ill-treated her and she gave complaint against him and a case in CC No. 635 of 2000 on the file of the II Additional Judicial Magistrate of I Class, Eluru was registered. On consideration of evidence, it is obvious that the case has ended in acquittal and basically it appears that the there are differences between the appellant and the respondent with regard to their educational qualifications and also expectations by each of them. The respondent appears to have lived with him for short period after the marriage and thereafter a criminal complaint was given and the criminal case ended in acquittal. As of now, they have been residing separately for almost more than 20 years. 16. Learned Counsel for the appellant placing reliance on the decision of Division Bench of this Court submitted that when there is longer separation and there is no possibility of re-union, the marriage may be dissolved as no purpose would be served if the marriage is not dissolved. 17. This Court in Konda Srinivasa Rao v. Konda Sridevi, CMA Nos. 16. Learned Counsel for the appellant placing reliance on the decision of Division Bench of this Court submitted that when there is longer separation and there is no possibility of re-union, the marriage may be dissolved as no purpose would be served if the marriage is not dissolved. 17. This Court in Konda Srinivasa Rao v. Konda Sridevi, CMA Nos. 4441 of 2004 and 621 of 2006, held in Para 9 as follows: "The aforementioned dicta of the Supreme Court applied in all fours to the present case because even as per the respondent, she has been living separately from the end of 2001. 15 years passed by since then, and there are no chances of re-union of the parties. Therefore, we are of the opinion that this is a fit case where the marriage between the appellant and the respondent needs to be dissolved." 18. Learned Counsel for the respondent fairly submitted that the parties are living separately for more than 22 years and there is no possibility of re-union and the respondent is also not seriously contesting the matter and therefore, sought for dissolution of marriage between the parties to lead their lives separately. 19. The appellant got examined himself as PW 1 and got examined his brother-in-law and a neighbour and his relatives as PWs. 2 to 4 respectively. The evidence of PW 1 reveals that there was a mediation took place between the appellant and the respondent with regard to the matrimonial disputes. The Trial Court disbelieved the evidence of mediators PWs. 3 and 4 as they have stated in their cross-examination that they have not mediated the matter and that they have no personal knowledge about the family affairs of the appellant and the respondent. The Trial Court has disbelieved the evidence of PWs. 2 to 4 with regard to the proof of cruelty on the part of the respondent/wife. 20. The evidence of PW 1 clearly reveals that the respondent was not willing for the marriage from the beginning with the appellant and that she had informed the said fact to him while she was in his conjugal society for a few days. 21. The appellant is the husband and the respondent is legally wedded wife of the appellant. The appellant has filed a petition for dissolution of his marriage and the respondent as a counterblast filed counter claim for restitution of conjugal rights. 21. The appellant is the husband and the respondent is legally wedded wife of the appellant. The appellant has filed a petition for dissolution of his marriage and the respondent as a counterblast filed counter claim for restitution of conjugal rights. 22. Admittedly the marriage was performed on 10.4.1996. After four years of the marriage, the appellant has filed OP No. 38 of 2000 for dissolution of his marriage. Thereafter the respondent has filed criminal case in CC No. 635 of 2000 under Sections 498-A, 506 IPC and Sections 3 and 4 of Dowry Prohibition Act and also counter claim for restitution of conjugal rights. 23. The Trial Court on disbelieving the evidence of PWs. 2 to 4 and believing the evidence of RWs. 1 to 3, has dismissed the petition filed for dissolution of marriage holding that the cruelty has not been proved. Consequently, allowed the counter-claim directing the restitution of conjugal rights in the year 2004. 24. The main contention of the appellant is that the respondent has filed a false criminal case against him and his family members which is in CC No. 635 of 2000 on the file of II Additional Judicial Magistrate of I Class, Eluru under Sections 498-A, 506 IPC and Sections 3 and 4 of Dowry Prohibition Act which ended in acquittal. As the respondent has filed a false criminal case against the appellant it amounts to cruelty, therefore the appellant is entitled for grant of divorce on that ground. The Trial Court has not considered the said fact and dismissed the petition of the appellant. 25. The other contention of the appellant is that the respondent though filed a petition for restitution of conjugal rights and did not take any steps for joining the association of the appellant by issuing any notice to him. The respondent has not taken any steps for execution of the decree of restitution of conjugal rights to join the association of the appellant which clearly reveals that the respondent had no intention to join the appellant. 26. It is mainly argued that the respondent has been residing separately from her husband/appellant from nearly 22 years and therefore there is no question of reunion between the parties and the appellant is entitled for a decree of divorce on the ground of cruelty. 27. 26. It is mainly argued that the respondent has been residing separately from her husband/appellant from nearly 22 years and therefore there is no question of reunion between the parties and the appellant is entitled for a decree of divorce on the ground of cruelty. 27. On consideration of the submissions of learned Counsel for the respondent and the material on record, we are of the considered view that the appellant and the respondent have been residing separately for almost more than 20 years. The appellant was also not informed about the birth of the child given by the respondent, there were no instances of any mediation taking place for reconciliation or for joining the appellant by the respondent. It is obvious that the counter claim made by the respondent seeking for restitution of conjugal rights is only as a counterblast to resist the divorce application filed by the appellant. The subsequent conduct of the respondent clearly reveals that she had no intention to join the association of the appellant to lead a conjugal life even after obtaining a decree for restitution of conjugal rights. 28. It is also pertinent to note that the acts of the respondent in filing a criminal complaint against the appellant and his family members is only with an intention to harass him is proved as the criminal complaint had ended in acquittal. No doubt a revision has been filed by the respondent which is pending on the file of this Court but however there are no reasons coming forward for the respondent for not joining the association of her husband inspite of the orders of the Court granting restitution of conjugal rights to her. This speaks volumes about the conduct of the respondent in staying away from the appellant. The findings of the Trial Court clearly reveal that the evidence was not properly appreciated in the light of the events that have taken place since the date of marriage. The Trial Court has also not given any satisfactory reasons for disbelieving the plea of the appellant of cruelty. 29. The findings of the Trial Court clearly reveal that the evidence was not properly appreciated in the light of the events that have taken place since the date of marriage. The Trial Court has also not given any satisfactory reasons for disbelieving the plea of the appellant of cruelty. 29. Having considered the submissions of the learned Counsel for the appellant and the respondent and in view of the foregoing reasons, we are of the considered view that the appellant and the respondent are living separately for more than 22 years and there appears to be no possibility of re-union and the criminal case filed by the respondent is also ended in acquittal and the marriage is irretrievably broken down and in such circumstances, placing reliance on the judgment of the Apex Court in Kohli v. Neelu Kohli, and the judgment of this Court in CMA Nos. 4441 of 2004 and 621 of 2006, this is a fit case where dissolution of marriage has to be granted on the grounds urged. 30. On consideration of material on record, we are of the considered view that the appellant is entitled for grant of a decree of dissolution of marriage under Section 13(1)(ia) of the Act and at the same time, the counter claim by the respondent under Section 9 of the Act is liable to be dismissed. 31. In the result, the appeal is allowed setting aside the order, dated 3.12.2004 in OP No. 38 of 2000 passed by the Principal Senior Civil Judge, Eluru and the said O.P. is allowed granting a decree dissolving the marriage between the parties. However, the counter claim made by the respondent for restitution of conjugal rights is dismissed. No order as to costs. Miscellaneous petitions, if any pending in this appeal shall stand closed.