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2022 DIGILAW 292 (TS)

V. Padmaja v. Veerla Mohan Rao

2022-04-12

JUVVADI SRIDEVI, SHAMEEM AKTHER

body2022
JUDGMENT : Shameem Akther, J. This appeal, under Section 19 of the Family Courts Act, 1984, is filed by the appellant/wife, challenging the order, dated 04.12.2013, passed in O.P.No.86 of 2011 by the Judge, Additional Family Court, Hyderabad, whereby, the petition filed by the appellant/wife under Section 13(1)(ia) of the Hindu Marriage Act, 1955, read with Section 7 of Family Courts Act, 1984, for dissolution of marriage performed between the appellant/wife and the respondent/husband on 07.05.1999 and for grant of permanent alimony of Rs.10 lakhs to the appellant/wife, was dismissed. 2. Heard the learned counsel for the appellant/wife, learned counsel for the respondent/husband and perused the record. 3. Learned counsel for the appellant/wife would submit that the marriage between the appellant/wife and the respondent/husband was performed on 07.05.1999 at Gudivada, Krishna District. During their wedlock, they were blessed with a female child. Soon after the marriage, the respondent/husband started harassing the appellant/wife mentally and physically, demanding additional dowry. The respondent/husband did not use to provide bare necessities to the appellant/wife. Therefore, the appellant/wife started a beauty parlour and started earning. Further, the respondent/husband assaulted the appellant/wife many times by suspecting her character by abusing her with sarcastic comments. At a point of time, the respondent/ husband dragged the appellant/wife into the kitchen and tried to leak the gas with an intention to kill her. Further, whenever the appellant/wife used to come a little late to the house due to beauty parlour work, the respondent/husband used to refuse to open the door and made her to stand on the road for the whole night. Unable to bear the harassment and cruelty of the respondent/husband, the appellant/wife lodged a complaint with Gudivada I Town Police Station, which was registered as Crime No.47 of 2010 for the offences under Sections 498A, 323, 506 read with 34 of IPC and Section 3 of the Dowry Prohibition Act. Thereafter, the respondent/husband pressurized the appellant/wife to withdraw the case and accordingly, the said crime was referred as ‘mistake of fact’. As the harassment of the respondent/husband did not stop, the appellant/wife lodged another complaint which was registered as Crime No.164 of 2010 for the offences under Sections 498A, 447, 506 read with 34 of IPC. The appellant/wife and the respondent/husband are living separately since the last 10 years and there are no efforts from either side to continue the marital life. The appellant/wife and the respondent/husband are living separately since the last 10 years and there are no efforts from either side to continue the marital life. The marriage between them has broken down beyond repair. All emotions are dead and the subject marriage has become unworkable. There is not even remote possibility of reunion of the parties. Hence, it is a fit case to dissolve the marriage between the appellant/wife and the respondent/husband. The Court below, without considering these aspects, erroneously declined to grant a decree of divorce between the parties. Further, though the respondent/husband has sufficient means to pay permanent alimony to the appellant/wife, the Court below refused to grant the same and ultimately prayed to allow the appeal as prayed for. 4. On the other hand, learned counsel for the respondent/husband would contend that all the allegations made against the respondent/husband are absolutely false. The respondent/husband obtained loan with the consent of the appellant/wife and cleared the loan amount and handed over the documents to the appellant/wife long back. The respondent/ husband never pressurized the appellant/wife to withdraw the case in Crime No.47 of 2010 as alleged. The appellant/wife, on the intervention of elders, herself withdrew the case in order to lead marital life. The appellant/wife again filed Crime No.164 of 2010 against the respondent/husband, his parents, brother and cousin, due to which, they were in jail for three days. Further, the parties are not living together from the last 10 years. Though the subject O.P. for dissolution of marriage was filed on the ground of cruelty, the appellant/wife could not substantiate the same. The appellant/wife is running a beauty parlour and living with her daughter by name Sai Rachana, who is now aged about 19 years. The appellant/wife is getting sufficient income from her beauty parlour and hence, no case of grant of permanent alimony has been made out by her. Further, the appellant/wife failed to establish cruelty alleged to have been meted out by her in the hands of the respondent/husband. Hence, the appellant/wife is not entitled for dissolution of marriage, so also permanent alimony and ultimately prayed to dismiss the appeal by confirming the order under challenge. 5. In view of the above rival submissions, the points that arise for determination in this appeal are as follows : 1. Hence, the appellant/wife is not entitled for dissolution of marriage, so also permanent alimony and ultimately prayed to dismiss the appeal by confirming the order under challenge. 5. In view of the above rival submissions, the points that arise for determination in this appeal are as follows : 1. Whether the appellant/wife is entitled for dissolution of marriage between her and the respondent/ husband as prayed for? 2. Whether the appellant/wife is entitled for permanent alimony of Rs.10 lakhs as claimed by her? 3. Whether the impugned order, dated 04.12.2013, passed in O.P.No.86 of 2011 by the Judge, Additional Family Court, Hyderabad, is liable to be varied as prayed for? POINTS:- 6. The appellant/wife, in the affidavit filed in support of the subject OP No.86 of 2011, categorically stated that the respondent/husband had assaulted her several times suspecting her character by passing sarcastic remarks against her. It was also alleged that the respondent/husband, at the instigation of his parents, demanded to transfer 250 square yards of land in his favour, which was presented to the appellant/wife by his father during his life time and when the appellant/wife refused to do so, she was beaten at least once in a week. Unable to bear the harassment, when the appellant/wife informed the same to her brother, her brother gave a site from his property to the respondent/husband. There is also specific allegation that on one occasion, the respondent/husband went to the beauty clinic being run by the appellant/wife and beat her and tried to kill her by throttling her neck. It was also alleged that when the appellant/wife tried to escape from the hands of the respondent/husband, the respondent/husband caught hold of her, dragged her to kitchen and leaked gas in order to kill her. It was also alleged that one day when the appellant/wife came late to house by ten minutes due to heavy work at the beauty parlour, the respondent/husband refused to open the door and made her to stand on the road for the whole night. There is also allegation that the respondent/husband used to neglect the child and did not pay school fees of the child. Apart from these, there are bundle of allegations against the respondent/husband. To substantiate these allegations, the appellant/wife herself was examined as PW.1, apart from PW.2, who is her brother. There is also allegation that the respondent/husband used to neglect the child and did not pay school fees of the child. Apart from these, there are bundle of allegations against the respondent/husband. To substantiate these allegations, the appellant/wife herself was examined as PW.1, apart from PW.2, who is her brother. The evidence of PW.1 and PW.2 corroborates the pleadings in the affidavit filed in support of the subject OP. Exs.P1 to P13 were marked on behalf of the appellant/wife in support of her case. Ex.P1-Marriage Photo substantiates the marriage between the parties to the litigation. Ex.P2 is the photocopy of proof of residence where the appellant/wife and the respondent/husband lead marital life for some time. Ex.P3 is the photocopy of FIR in Crime No.164 of 2010 of Gudivada I Town Police Station, registered against the respondent/husband and others for the offences under Sections 498A, 447, 506 read with 34 of IPC. Ex.P8 is the copy of Case Diary in Crime No.47 of 2010 of Gudivada I Town Police Station, registered against the respondent/husband and others for the offences under Sections 498A, 323, 506 read with 34 of IPC and Section 3 of the Dowry Prohibition Act. Some documents pertaining to chit transactions were also marked. The respondent/husband was examined as RW.1. Except denying the allegations made by the appellant/wife, he did not adduce any evidence, much less cogent and convincing evidence, to rebut the case of the appellant/wife. However, the Court below, while dealing with the subject matter, in paragraph No.23 of the impugned order, observed as follows : P.W.1 in her cross examination stated that the present OP is filed in January, 2011, four months after filing of 498-A case so the petitioner filed another 498-a case in crime No.164/10 and after filing of that case, the present divorce case is filed. The respondent in the evidence stated that himself, his family members were in jail for three days and he was suspended. So the petitioner filed the 498-A case against the respondent and the respondent was sent to jail. After filing of 498-A case the present case is filed. Still the 498-A case is pending. So the cruelty in 498-A case has to be adjudicated by the criminal court, unless and until the respondent is convicted in the 498-A case it cannot be considered that respondent is cruel towards the petitioner. After filing of 498-A case the present case is filed. Still the 498-A case is pending. So the cruelty in 498-A case has to be adjudicated by the criminal court, unless and until the respondent is convicted in the 498-A case it cannot be considered that respondent is cruel towards the petitioner. The petitioner’s daughter is studying in Gudivada.” 7. Holding so, the Court below concluded that the cruel acts which are alleged by the appellant/wife prior to 2010 cannot be considered as cruel circumstances to grant divorce; so the appellant/wife failed to prove cruelty on the part of the respondent/husband; the appellant/wife also not entitled for permanent alimony in view of the findings on point No.2 and according dismissed the subject O.P. 8. We are not in agreement with the finding of the trial Court that unless and until the respondent/husband is convicted under Section 498A of IPC, it cannot be considered that he is cruel towards the appellant/wife. The standard of proof in a criminal case under Section 498A of IPC is distinct from the standard of proof in a petition for grant of divorce under Section 13(1)(ia) of Hindu Marriage Act. Cruelty can be of two types, i.e., ‘physical cruelty’ and ‘mental cruelty’. ‘Mental cruelty’ is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. Cruelty cannot be decided on the basis of the sensitivity of a party, but has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. Thus, "Cruelty", for the purposes of constituting the offence under the aforesaid section, need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. 9. According to Section 13(1)(ia) of Hindu Marriage Act, 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 has, after the solemnization of the marriage, treated the petitioner with cruelty. 9. According to Section 13(1)(ia) of Hindu Marriage Act, 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 has, after the solemnization of the marriage, treated the petitioner with cruelty. In the instant case, there is ample ocular and documentary evidence adduced on behalf of the appellant/wife demonstrating that the appellant/wife was subjected to cruelty and it fulfils all the requirements under Section 13(1)(ia) of Hindu Marriage Act, to dissolve the marriage in between the parties. The Court below did not properly consider the evidence on record and arriving at a conclusion. The Court below ought to have granted divorce on the ground of cruelty meted out by the respondent/husband to the appellant/wife. 10. Be that as it may. It is an undisputed fact that due to irreconcilable differences, the parties are living separately from the last ten years. The appellant/wife filed two criminal cases against the respondent/husband, apart from the subject OP seeking divorce, with bundle of allegations amounting to cruelty. On the other hand, the respondent/husband, in his evidence as RW.1, stated that he was suspended from service and that he and his family members were in jail for three days in view of the criminal case filed against them by the appellant/wife. The respondent/husband also did not choose to file a petition for restitution of conjugal rights. Further, the child, who is said to be presently residing with the appellant/wife, would have attained the age of majority by this time, since she was stated to be 8 years old at the time of filing of the subject OP. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. In the instant case, we feel that the differences between the parties to the litigation are of such magnitude that it would be practically impossible for them to reunite and cohabit again. 11. Here, it is apt to state that irretrievable breakdown of marriage by itself is not a ground for divorce under the Hindu Marriage Act, 1955. In the instant case, we feel that the differences between the parties to the litigation are of such magnitude that it would be practically impossible for them to reunite and cohabit again. 11. Here, it is apt to state that irretrievable breakdown of marriage by itself is not a ground for divorce under the Hindu Marriage Act, 1955. But where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the Courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others, necessitating severance of marital tie. A marriage, which is dead for all purposes, cannot be revived by the Court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up, there is hardly any chance of their springing back to marital life on account of artificial reunion created by the Court’s decree. Courts can dissolve a marriage as irretrievably broken down when the Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving and it is broken beyond repair. 12. In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558 , a three-Judge Bench of the Hon’ble Apex Court observed as follows : “Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. 13. The Hon’ble Apex Court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution of India for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which, the divorce could be granted (see Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511 ; Sukhendu Das Vs. Rita Mukherjee, (2017) 9 SCC 632 . 14. In the instant case, since the marriage between the parties is emotionally dead, totally unworkable, beyond salvage and has broken irretrievably as discussed above, we deem it appropriate to dissolve the marriage between the parties by granting a decree of divorce. As regards the permanent alimony claimed by the appellant/wife, though the respondent/husband did not adduce any evidence to the effect that the appellant/wife is earning and has sufficient means to maintain herself and her daughter, it is an undisputed fact that the appellant/wife is running a beauty parlour, which is a profitable business. Moreover, the parties have parted their ways and are living separately from the last ten years. If at all the appellant/wife has no means to maintain herself and her daughter, she would have claimed maintenance from the respondent/husband at the earliest point of time. She did not choose to do so. Hence, it cannot be said that she has no means to maintain herself and her daughter. Under these circumstances, the request of the appellant/wife to direct the respondent/husband to pay permanent alimony of Rs.10 lakhs cannot be acceded to. 15. Accordingly, this appeal is allowed in part, by setting aside the order, dated 04.12.2013, passed in O.P.No.86 of 2011 by the Judge, Additional Family Court, Hyderabad, to the extent of rejecting the request of the appellant/wife for grant of divorce between the parties. The marriage solemnized between the parties on 07.05.1999 shall stand dissolved by a decree of divorce under clause (ia) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955. It is made clear that the appellant/wife is not entitled for permanent alimony claimed by her. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this appeal, shall stand closed.