Research › Search › Judgment

Telangana High Court · body

2025 DIGILAW 892 (TS)

SURABHI MADHAVA REDDY v. SURABI CHANDRAKALA

2025-06-17

B.R.MADHUSUDHAN RAO, MOUSHUMI BHATTACHARYA

body2025
JUDGMENT : B.R. Madhusudhan Rao, J. 1. The Appeal arises out of an order dated 28.07.2014 passed by the learned Additional Family Court at Hyderabad in O.P.No.518 of 2011. The appellant’s petition for divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (for desertion) was dismissed by the Trial Court. 2.1. The appellant is the husband and respondent is the wife. It is stated in the O.P. that the marriage of the appellant with the respondent was performed on 14.05.1983 as per Hindu rites and customs and out of lawful wedlock, they were blessed with a son. The appellant and respondent lived happily for a period of one year thereafter, the respondent has filed dowry harassment case against him and his family members, thereby, the appellant was forced to live separately at Hyderabad. The respondent filed MC.No.7 of 1992 against the appellant and an ex parte order was passed. Since 14.10.1992, the appellant is paying maintenance of Rs.1,000/-, a part from that he is also paying Rs.2,000/- towards maintenance in a Civil Suit. The appellant and the respondent were living separately since 1991 without any reasonable ground. The respondent has refused to live with the petitioner. The son of the parties is aged about 26 years and he is hale and healthy, prayed to dissolve his marriage on the ground of desertion. 2.2. The respondent/wife has filed her counter and contended that since the date of marriage, the appellant is habituated to drinking and he spent his entire salary for that purpose. The appellant has demanded the respondent to bring additional dowry, she was unable to withstand the torture, thereby, she filed dowry harassment case against the appellant and his family members. The appellant has forcibly necked out the respondent along with her child from the house. The respondent unable to maintain herself has filed MC.No.7 of 1992, as the appellant failed to appear before the Court, an ex parte order was passed. The respondent is ready and willing to join the company of the appellant to discharge her marital obligations provided the appellant gives up drinking habit and maintains the family. The appellant has filed the present O.P. as a counter blast to the suit filed by her son for partition. The respondent has faced all odds in life with great difficulty to bring her child and prayed to dismiss the same. 3. The appellant has filed the present O.P. as a counter blast to the suit filed by her son for partition. The respondent has faced all odds in life with great difficulty to bring her child and prayed to dismiss the same. 3. The appellant is examined as PW.1 and also examined his mother as PW.2, got marked Exs.A1 to A11. The respondent is examined as RW.1 and no documents are marked on her side. 4. The learned Trial Court vide order dated 28.07.2014 dismissed the appellant’s petition for divorce on the ground that the appellant has not taken any steps to get the respondent back to his company, on the other hand, the evidence of PW.2 clearly shows that during the pendency of the case, the son of the respondent has invited the appellant to their house and he stayed there at for 15 days. Learned Trial Court has further observed that the appellant has not filed restitution of conjugal rights case nor has issued any notice. Further the respondent is willing to join the petitioner and the question of animus residenti does not arise. 5.1. It is to be noted here that during pending appeal the appellant has filed IA.No.1 of 2023 to amend the Section of Law by adding Section 13(1)(ia) to the existing Section of Law 13(1)(ib) of the Hindu Marriage Act in OP.No.518 of 2011 and also filed IA.No.2 of 2023 to receive additional documents i.e., judgment in Criminal Appeal No.52 of 1997, dated 08.09.1998; judgment in CC.No.648 of 2013, dated 09.09.2016; copy of charge sheet in CC.No.373 of 2018 pending on the file of I Additional Chief Metropolitan Magistrate, Hyderabad and copy of OS.No.600 of 2019 pending on the file of XX Junior Civil Judge, Hyderabad. The above said two applications were allowed by a Co-ordinate Bench on 19.06.2024. 5.2. In view of the orders in IA.No.1 of 2023 dated 19.06.2024, petition in OP.No.518 of 2011 is amended by incorporating Section 13(1)(ia). Now the O.P. for divorce is under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955. 6.1. The above said two applications were allowed by a Co-ordinate Bench on 19.06.2024. 5.2. In view of the orders in IA.No.1 of 2023 dated 19.06.2024, petition in OP.No.518 of 2011 is amended by incorporating Section 13(1)(ia). Now the O.P. for divorce is under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955. 6.1. Learned counsel for the appellant submits that the learned Trial Court has not considered the grounds of desertion and also failed to consider the contentions put forth and the evidence adduced by the parties, failed to see that the respondent/wife herself withdraw the company of the appellant on her own without fault on the part of the husband and has committed manifest illegality. 6.2. The learned Trial Court failed to see that the filing of criminal complaints under Section 498-A of IPC by the respondent on two occasions, which amounts to cruelty. Learned Trial Court has erred in not looking into the complaint lodged by the respondent under Section 498-A and 506 of IPC on 21.06.2013 which is registered as Crime No.124 of 2013 and numbered as CC.No.648 of 2013 on the file of XIV Metropolitan Magistrate, Saidabad at L.B.Nagar, Ranga Reddy District. The order of the Trial Court is vitiated by prejudical notions and the learned Judge has rejected the evidence of the appellant and has committed a blatant error without considering the evidence on record. 6.3. Learned counsel further submits that the appellant is entitled for grant of divorce on the ground of cruelty also as he succeeded in Criminal Appeal No.52 of 1997 vide judgment, dated 08.09.1998 preferred against the judgment of conviction in SC.No.271 of 1996, was also acquitted for the second time for the offences under Section 498-A of IPC in CC.No.648 of 2013 on the file of XIV Metropolitan Magistrate, L.B.Nagar at Hyderabad vide judgment dated 09.09.2016. Counsel in support of his contentions has relied on the decisions in the case of (1) Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi MANU/SC/0719/2001, (2) D.Narsimha & others Vs. Smt. D.Anita Vaishnavi , [MANU/TL/1026/2024]. 7.1. Learned counsel for the respondent submits that the appellant has forcibly necked out the respondent and her child from the house, the respondent unable to maintain herself has filed MC.No.7 of 1992. The respondent all through her life has suffered due to indifferent attitude of the appellant and that she is ready to lead conjugal life with her husband. 7.1. Learned counsel for the respondent submits that the appellant has forcibly necked out the respondent and her child from the house, the respondent unable to maintain herself has filed MC.No.7 of 1992. The respondent all through her life has suffered due to indifferent attitude of the appellant and that she is ready to lead conjugal life with her husband. The evidence of PW.2 goes to show that she is not willing to accept the respondent if she joins her husband. The appellant has not taken any steps to get back the respondent to his company and the son of the parties has filed a suit for partition and separate possession which is pending adjudication. The appellant has lodged a false criminal case against the respondent in CC.No.373 of 2018 for the offences under Sections 324, 448, 509 r/w 34 of IPC in Crime No.586 of 2017 and the respondent was acquitted of the charges. The appellant is not entitled for divorce. 7.2. Counsel for the respondent does not dispute the fact of the respondent filing criminal cases against the appellant. 8. The grounds for divorce in the O.P. are cruelty and desertion i.e., Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955 which are set out below: Section 13 - Divorce : (1) Any marriage solemnised, 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 solemnisation of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. 9. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there., namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi ). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid; Bipin Chander Jaisinghbhai Shah Vs.. Prabhawati , [MANU/SC/0058/1956 : (1956) 1SCR838]. 10. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. Prabhawati , [MANU/SC/0058/1956 : (1956) 1SCR838]. 10. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion; Smt. Rohini Kumari Vs. Narendra Singh , [MANU/SC/0484/1971 : (1972) 2SCR657]. The same principles are enunciated in Adhyatma Bhattar Alwar’s case, (supra). 11. We are not marking the additional documents filed along with IA.No.2 of 2023 but we are taking judicial notice of the same. 12.1. It is an admitted fact that the respondent has lodged a complaint against the appellant and his family members under Sections 448, 498-A and 307 of IPC r/w Section 34 of IPC, basing on which a Crime is registered and it is numbered as SC.No.271 of 1996 on the file of the II Additional District and Sessions Judge, Ranga Reddy District. A1 therein in SC.No.271 of 1996 is the appellant herein, who has been convicted for the offence under Section 498-A of IPC and sentenced to undergo imprisonment for a period of 6 months. The mother of the appellant was shown as A2 and his sister is shown as A3, they were acquitted of the charges. The appellant was also acquitted of the charges under Sections 448 and 307 of IPC. 12.2. The appellant has filed Appeal against the judgment in SC.No.271 of 1996 dated 25.06.1997 vide Criminal Appeal No.52 of 1997. It is note worthy to mention here that according to the case of the respondent in the Sessions case disputes arose between the respondent and the appellant on 22.10.1990 and the same were placed before the elders and the accused No.1 therein (appellant herein) under took that he will not make any demand for dowry and promised to live happily. The brother of the respondent was examined as PW.2 in SC.No.271 of 1996 wherein he did not say any word about the conduct of A1 (appellant herein) in demanding dowry and subjecting his wife to cruel treatment. 12.3. It is observed in the judgment in Criminal Appeal No.52 of 1997, dated 08.09.1998 that the charges does not show that the accused in a drunken condition was subjecting PW.1 to cruelty. 12.3. It is observed in the judgment in Criminal Appeal No.52 of 1997, dated 08.09.1998 that the charges does not show that the accused in a drunken condition was subjecting PW.1 to cruelty. Learned I Additional Sessions Judge, Ranga Reddy District at Saroornagar has allowed the Criminal Appeal No.52 of 1997 filed by the appellant vide judgment, dated 08.09.1998 holding that the evidence of the brother of the respondent, who does not say anything about the dowry, therefore, the accused was entitled for benefit of doubt and allowed the Appeal by setting aside the conviction and sentence imposed by the II Additional District and Sessions judge in SC.No.271 of 1996 dated 25.06.1997. 13. Respondent has admitted in her cross-examination that the complaint lodged by her against the petitioner and his family members in Hayathnagar Police Station in the year 1996 in which the appellant was acquitted of the charges. 14. The respondent has lodged another complaint against the appellant before S.H.O. Women’s Police Station, Saroornagar, basing on which case in Crime No.124 of 2013 is registered, after filing charge sheet it is numbered as CC.No.648 of 2013, the offences are under Sections 498-A, 506 of IPC. The said case was tried by the XIV Metropolitan Magistrate, Hyderabad at L.B.Nagar. The respondent is examined as PW.1 and also examined her son as PW.2 and Investigation Officer as PW.3. The appellant was found not guilty for the offence under Section 498-A, 506 of IPC and he was acquitted under Section 248(1) of Cr.P.C. vide judgment dated 09.09.2016 in CC.No.648 of 2013. It is to be noted here that the above said judgment came to be passed by XIV Metropolitan Magistrate at L.B.Nagar after disposal of O.P.No.518 of 2011 on 28.07.2014. 15. The acquittal assumes significance in the light of the allegations made by the respondent against the appellant. The acquittal casts a shadow on the truth of the allegations made by the respondent in D.Narsimha’s case (supra). 16.1. 15. The acquittal assumes significance in the light of the allegations made by the respondent against the appellant. The acquittal casts a shadow on the truth of the allegations made by the respondent in D.Narsimha’s case (supra). 16.1. The appellant has stated in his cross-examination that at the time of separation, his son was aged about 4 or 5 years and he filed the O.P. against his wife as she filed dowry harassment case and that he is not willing to take back his wife and his son by saying good-bye to the habitual drinks as she filed so many cases against him and his family members and that they are residing separately since 1991 or 1992. The appellant further stated in his cross-examination that as the respondent filed harassment case against him as such, he was forced to live separately. 16.2. PW.2 is the mother of the appellant, she stated in her cross-examination that her son has filed the O.P. as the respondent has filed dowry harassment case and if the respondent joins the appellant, she is not willing to accept, her son is in a habit of drinking rarely and she cannot say the date, month and year when the respondent has left the company of the appellant and that she is convicted for a period of two months in dowry harassment case, she went to the house of the respondent on two occasions to call upon her to join the company of the appellant and that her grand-son has taken the appellant to his house for 15 days about two months back. 17. It is the case of the respondent that she is ready to join the company of the appellant to discharge her marital obligations and the appellant has filed O.P. as a counter blast to the partition suit filed by her son. The respondent in her cross-examination stated that she is not willing to give divorce to the petitioner and she filed dowry case against her husband about 20 years back at Hayathnagar Police Station when she was residing at Kuntloor Village. She has filed three cases against the appellant from the date of marriage till the date of her cross-examination i.e., 30.12.2013, her son is married and they have invited the appellant to the marriage, who attended the same. She has filed three cases against the appellant from the date of marriage till the date of her cross-examination i.e., 30.12.2013, her son is married and they have invited the appellant to the marriage, who attended the same. The respondent further stated in her cross-examination that she approached the office of the appellant along with her son with a request to take her back. The appellant used to stay with them for 2 or 3 months and leave the house. 18. At the time of filing the O.P. the age of the appellant was 55 years and the respondent was 43 years, as on today they are blessed with grand-children. The present age of the appellant is 70 years and the respondent age is 62 years. The respondent counsel contended that the appellant has lodged a false case in CC.No.373 of 2019 for the alleged offences under Sections 324, 448, 509 r/w Section 34 of IPC in Crime No.586 of 2017 and the respondent was found not guilty, which criminal case is filed after disposal of the O.P. 19. The mother of the appellant in her cross-examination stated that she made efforts to bring back the respondent to the society of his son but it is the respondent, who used vulgar language and beat PW.2. 20. The respondent except stating in her pleadings that she is ready to join the company of her husband, has not placed any evidence to show that she is willing to discharge her marital obligations with her husband. Except the self serving testimony of the respondent no other evidence is placed by her to show that the appellant was at fault. The evidence of PW.2 is sufficient to come to a conclusion that she made efforts to bring back her daughter-in-law to the society of the appellant but could not be materialised. Even otherwise, the appellant was acquitted in two criminal cases filed by the respondent which proves that it is the respondent who is at fault and she is trying to take advantage of her own wrong. 21. Even otherwise, the appellant was acquitted in two criminal cases filed by the respondent which proves that it is the respondent who is at fault and she is trying to take advantage of her own wrong. 21. The Trial Court finding that the petitioner has not filed O.P. for restitution of conjugal rights nor issued any notice is liable to be set aside, moreover, the Trial Court has not analysed the evidence in proper perspective, and we hold that the order passed by the learned Trial Court dated 28.07.2014 in O.P.No.518 of 2011 is liable to be set aside. 22. FCA No.145 of 2015 is allowed and the impugned order dated 28.07.2014 in O.P.No.518 of 2011 is set aside. All connected applications are disposed of. There shall be no order as to costs.