Andhra Pradesh High Court - Amravati
Grandham Sridhar vs Smt. Grandham Jaya Vani on 3 July, 2019
Author: G. Shycm. Prasad
Bench: G. Shyam Prasad
HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI WEDNESDAY, THE THIRD DAY OF JULY TWO THOUSAND AND NINETEEN PRESENT THE HONOURABLE SRI JUSTICE M.SEETHARAMA MURTI AND THE HONOURABLE SRI JUSTICE GUDISEVA SHYAM PRASAD CIVIL. MISCELLANEOUS APPEAL NO: 1274 OF 2005 (Appeal under Section 28 of Hindu Marriage Act, against the Order and Decree dated 03/12/2004 in OP.No. 38/2000 on the file of the Court of the Principal Senior Civil Judge, Elurtt.) Between: Grandham Sridhar, S/o. Rama Rao, Photographer, C/o. Sri Usha Photo Studios, Pott! Sreeramutu Road, Khammam, Khammam District. APPELLANT / Petitioner AND smt.Grandham Jaya Vani, Wio. Sridhar, Near Markandeyaswamy Temple, Southern Street, Eluru, West Godavari District. RESPONDENT / Respondent Counsel for the Appellant : Ms.G.Amulya Spericer, representing Sri G. RONALD RAJU, Advocate Counsel for the Respondents : Sri RAJA REDDY KONETI, Advocate The Court made the folowing: Judgment, HON'BLE SRI JUSTICE M. SEETHARAMA MURTI AND HON' BLE SRI JUSTICE GUDISEVA SHYAM PRASAD JUDGMENT:
(Per Hon'ble Sri Justice G. Shycm. Prasad) This Civil Miscellaneous Appeal is arising out of the order dated 03.12.2004, passed in O.P No.38 of 2000 on the file of the Principal Senior Civil Judge, Fluru, filed under section 13(1j(ia) of Hindu Marriage Act 1955 secking 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 10.04.1996, at Fhuru 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 secking dissolution of marriage. The learned Principal Senior Civil Judge, Eluru, on consideration of the evidence of PWs.1 ta 4 on behalf of the appcliant, and RWs.1 toe 3 on behalf of respondent, and the documents Ex.Al 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. Aggricved 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 CoC NO.G35 ef 2000 on the Me of W Adeditional Judicial Magistrate of First Class, Mlauru under Sections 498-A, 506 PPC and under Sections 3 and 4 of Dowry and Prohibition Act.
(ti) 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 diverce;
(ii) The respondent has never issued any notice to the appellant secking for restitution of conjugal rights.
(iv) The counter claim of the respondent on conjugal rights was filed three years after filing of O.P.No.38 of 2000 secking for dissolution of marriage and therefore the petition under Section 9 of Hindu Marriage Act is filed as a counterblast for divorce O.P.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 al marriage, (vi} The appellant and his relatives have tried their best for re-tuuioen of the couple but the same has failed because of indifferent attitude of the resporident. 'There is no possibility of re-union in this case in view of the longer separation between the couple and therefore the judgment and deeree 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 Sections 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?
2. 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 12 (1}{ (ia} of the Hindu Marriage Act, 1955 (for short 'the Act').
&, The main contention of the learned counsel for the appeHant 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, 2 a therefore, sought for setting aside the order of the trial Court and sought for decree of divoree, my i, Section 13 (1) (ia) of the Act reads as under:
13. Divoree:- (1) Any marriage solemnized, whether before or after the commencement of this Act, may ,ona petition presented by cither the husband or the wife, be dissolved by a deeree of divorce on the ground that the other party;-
(ta) 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. It was held in Vidhya Viswanathan v Kartik Balakrishnan ! that refusal to have sexual intercourse for considerable period by wife amounts to mental crucity.
o. it is held in K.Srinivas Rao v D.A.Deepa 2 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 tiling repeated false complaints would, in the facts of a case amount to causing mental cruelty to the other spouse.
10. Keeping the ratio laid dewn 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 eruelty.
"AME IOLS SC 285 o AIR TOS SOT176 ll. The appellant has clearly stated in para 9 of his evidence as P,W.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 24.04.1998 to 26.04.1998 and later for 2 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, [t 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. in spite af best efforts made by him, she never jomed him to lead marital life,
12. P.W.1 stated in his evidence that the respondent had given a complaint to police and a case in C.C.No.635 of 4000 on the file of the HT Addl. Judi. 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 29.4.2008,
13. Learned counsel for the appellant submits that in view of filing of criminal case against the appeHant, 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, P.Ws. 2 to 4, who are brother-in-law, neighbor and relative of P\W.1 had dismissed the claim of the appeliant.
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 C.C.No.635 of 2000 on the file of the If Addl. Judi. Magistrate of I Class, Eluru was registered. Qn 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 cach of them. The respondent appears to have lived with him for short period afler the marriage and thereafter a criminal complaint was given and the criminal case ended im 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 passibility of re-amion, 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 (C.M.A.Nos.444lof 2004 and 621 of 2006) held in para 9 as follows:
"Phe aforementioned dicta of the Supreme Court apphed im 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 na chances of reunion 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 separaicly for more than 22 years and there is no possibility of reunion and the respondent is also not scriously contesting the matter and a therefore, sought for dissolution of tarriage between the parties to lead their lives separately.
19. The appellant got examined himsclf 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.8 and 4 as they have stated in their crass- examination that they have not mediated the matter and that they have no personal knowled ge about the family affairs of the appellant and the respondent. The trial Court has disbelieved the evidence of PWs.2 to 4 with regare to the proof of cruelty on the part of the respondent /wite.
20. The evidence of PW.1 clearly reveals that the respondent was not willing for the marriage from the beginning with the appellant and thai 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 appclant. The appellant has filed a petition for dissolution of his marriage and the respondent as a counterblast filed counter claim for restitution of corupal rights.
Qe. Admittedly the marriage was performed on 10.04.1996. After four years of the marriage, the appellant has filed O.P.No.38 of 2000 for dissolution of his marriage. Thereafter the respondent has filled criminal case in C.C.No.635 of 2000 under Sections 498A, 506 IPC and Sections 3 and 4 of Dowty Prohibition Act and also counter claim for restitution of conjugal rights.
2G. 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 H Additional Judicial Magistrate of I Class, Eluru under sections 498A, 506 IPC and Sections 3 and 4 af 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 erant af divorce on that ground. The trial Court has not considered the said fact and dismissed the petition of the appellant.
29. The ather 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 appeHant 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 appcllant which clearly reveals that the respondent had no intention to join the appellant.
26. [tis mamly argued that the respondent has been residing separately from her husband/appellant from nearly 24 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 appclant 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 ta 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 Hife 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 mo reasons coming forward for the respondent for not joing the association of her husband in spite 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 nol properly appreciated in the light of the events that have taken place since the date of marriage. The trial Court has also net given any satisfactory reasons for disbelicving 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 A reunion and the criminal case filed by the respondent is also ended in acequ ittal ariel the marriage is irretriovably broken down and in such circumstances, placing rehiance on the Judgment of the apex Court in Wohli ve N eelu Nokli? and the judgment of this Court in CMA Nos.4441 of 2004 and 621 of 2006, this is a fit case where dissoalittion of marriage has to be granted on the grounds u rged.
3G, On consideration of material on record, we are of the considered view that the appeHant is crititled for grant of a deerce of dissolution of marriage under Section 13 (1) fia) of ithe Act and at the same time, the counter claim by the respondent under Section 9 of the Act is Hable to be dismissed.
S1. In the result, the appeal is allewed setting aside the order, dated 03.12.2004 in O.P.No.38 of 2000 passed by the Principal Senior Civil] Judge, Eluru and the said OP. is allowed granting a décoree dissolving the marriage between the partics, Mowever, the counter claim made by the respondent for restitution of conjugal rights is distnissed No order as to costs. MisceNlancous petitions, if any pending in this appeal shall : stemncd cleseci.
Sd/- FP. RAMAKRISHNA JOINT REGISTRAR TRUE COPY: --
SECTION OFFIGER , 3 tharama IWharti:
One Fair Capy te the: Honourable SH Justice Mi Séel = . » (for nis Lordships 'Kind Perusal) i | 3 shyam: Prasad One Fait Copy tothe Honourable: Sritustice Gudisava $ Shy " (far his hardships! ieiniel | Perusal) oe Te, "TAG Principal Senior: Civilvucge, Eluru, Yvest Godavari District. (with recards, if any} One CC to Sri G Nonald Raju, Advocate [QPUL] - / One GO to Sri Raja Reddy Kaneu, Advocate. LOPUC} LR Copies wes :
. ae Under Secretary, Union: of India: Ministry of Law Juste e and Company Affairs, New. Delhi
8. The Secretary, AVP High Court Advocates' Association, High Court Bull ings Hyclerahacd |
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