Telangana High Court
Smt. Dhulipala Rajyalakshmi vs Sri Dhulipala Venkata Subramanya Vara ... on 30 July, 2025
*THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
+ FAMILY COURT APPEAL No.48 OF 2024
% 30--07--2025
# Smt. Dhulipala Rajyalakshmi
... Appellant
vs.
$ Mr. Dhulipala Venkata Subramanya Vara Prasad
... Respondent
!Counsel for the Appellant: Mr. Seema Yasmeen, learned counsel
representing Mr.C.Vikram Chandra
^Counsel for Respondent: Mr. Thakur Vijayender Singh, learned counsel
representing Mr.Aadesh Varma
<Gist :
>Head Note :
? Cases referred:
1. 2001 (4) SCC 250
2. 2017 (12) Scale 118
3. 2023 INSC 896 : 2025 (3) SCC 790
4. Law Finder Doc ID # 121550
5. Law Finder Doc ID # 219385
6. 2019 AIR Andhra Pradesh 61
7. FCA No.5/2023 dated 10.02.2025 of The High Court
for the State of Telangana, Hyderabad.
8. Law Finder Doc Id # 366999
9. AIR 2006 SC 1675
10. 2006 LawSuit (SC) 1040
11. AIR 2013 SC 2176
12. AIR 2022 SC 1099
13. AIR 2007 Rajasthan 93
14. FCA Nos.135 and 136/2014 dated 08.12.2022 of The High
Court for the State of Telangana
15. FCA No.111/2011 dated 01.03.2023 of The High Court
for the State of Telangana
16. CMA No.512/2023 dated 20.06.2024 of The High Court
for the State of Telangana
17. FCA No.53/2014 dated 14.02.2025 of The High Court
for the State of Telangana
18. (2002) 1 SCC 308
2/25 MB,J & BRMR,J
FCA_48_2024
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
FAMILY COURT APPEAL No.48 OF 2024
Between:
Smt. Dhulipala Rajyalakshmi
... Appellant
And
Mr. Dhulipala Venkata Subramanya Vara Prasad
... Respondent
JUDGMENT PRONOUNCED ON: 30.07.2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
1. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : No
______________________________
B.R.MADHUSUDHAN RAO,J
3/25 MB,J & BRMR,J
FCA_48_2024
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
F.C.A.NO.48 OF 2024
JUDGMENT:(per Justice B.R.Madhusudhan Rao)
1. This appeal is filed by the appellant-wife aggrieved by the order passed by the learned I Additional Family Court Judge, at Hyderabad, in O.P.No.161 of 2019, dated 30.01.2024.
2. Parties will be herein after referred to as appellant-wife and respondent-husband.
3.1. Respondent-husband has filed O.P. against his wife under Section 13 (1) (ia) & (ib) of Hindu Marriage Act, 1955 with a prayer to dissolve his marriage which took place on 04.05.1980 at Venkateswara Vignana Mandir, Guntur.
3.2. Respondent-husband stated in the petition that his wife started pressurizing him to resign the job at Rourkela and go to Madras, finally he convinced his wife and continued the marital life, they are blessed with a daughter by name Srividya in the year 1981. The appellant-wife was adamant and harassed the respondent-husband to shift the family to Madras. In the year 4/25 MB,J & BRMR,J FCA_48_2024 1984, they are blessed with a son by name Srinivas Pavan Kumar. In the year 1990, the respondent-husband resigned his job in Rourkela and moved to Madras. Thereafter, the appellant-wife again started harassing him to shift the family to Rourkela, ultimately the respondent-husband shifted the family to Rourkela and withdrawn his resignation with great difficulty. The appellant- wife started pressurizing the respondent-husband to secure a job abroad and with great efforts he secured a job in Muscat, Sultanate of Oman and left to Muscat in 1994. On 02.10.1995, he returned to Bombay. Finally, he shifted to Hyderabad, his father has secured a job for him in Apollo Hospital and he joined on 09.05.1998.
3.3. The appellant-wife has harassed the respondent-husband continuously and finally he filed OP.No.119 of 2002 at Guntur for grant of divorce on the ground of cruelty. On contest the O.P. came to be dismissed on 20.04.2005 and aggrieved by the same, the respondent-husband preferred CMA before the High Court of Andhra Pradesh vide CMA No.1170 of 2005 which came to be dismissed on 10.10.2012, then he approached the Supreme Court by filing Special Leave Petition No.14561 of 2013 which also came to be dismissed on 26.04.2013.
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3.4. The parties are living separately from 17.09.1998 without conjugal life. Respondent-husband requested his wife to come and join him in the month of June, 2001 but she did not join the matrimonial life. The appellant-wife is not interested to join him and she withdrawn the society of the respondent-husband without fault on his side. Appellant-wife deserted him for the past twenty years and he prayed to grant divorce on the ground of cruelty and desertion.
4.1. Appellant-wife filed her counter denying the allegations leveled against her, she further contended that they belong to traditional Brahmin Community, the petition is not maintainable, as the previous OP.No.119 of 2002 was dismissed on merits. At the time of passing the order in OP.No.119 of 2002, dated 20.04.2005 she was ready to join the respondent-husband but he did not take steps for reunion and did not furnish his address or phone number. The respondent-husband himself left the family on 17.09.1998, from that date to till date, he did not send a single rupee to the appellant and to her children. On 17.09.1998, her daughter was studying First year and her son was studying VII class. The respondent-husband even did not attend the marriage of the daughter and discharge his responsibility as a 6/25 MB,J & BRMR,J FCA_48_2024 father to the child, her father-in-law has helped her financially and she has cordial relationship with her mother-in-law till her demise. 4.2. The issues raised in the present petition were already decided by the District Court, High Court and the Supreme Court as such, the respondent-husband cannot raise the same issue. The respondent-husband is aged about 65 years and the appellant- wife is aged about 63 years and their two children are having children, parties are having five grand-children. The respondent- husband himself deserted the appellant-wife and her children. Appellant-wife was ready and willing to join her husband from 17.09.1998 onwards but he has created confusion in the Courts in different styles as he likes and he is living with Swaroopa in USA, prayed to dismiss the petition.
5. Respondent-husband is examined as PW.1, examined PW.2-Nimmagadda Krishna Prasad, PW.3-Tangirala Srinivasa Rao, PW.4-Dhulipala Sivarama Krishna, got marked Exs.P1 to P4. Appellant-wife is examined as RW.1, examined RW.2-P.Siva Subrahmanyam, RW.3-M.Vinod Kumar, RW.4-P.Vijaya Lakshmi, RW.5-R.V.Satyanarayana, RW.6-V.Vamsi Krishna, got marked Exs.B1 to B11.
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6. Learned Trial Court after analysing the evidence led by the parties and after going through the documents marked thereon has allowed the OP filed by the respondent-husband by dissolving the marriage, dated 04.05.1980 with no costs.
7.1. Learned counsel for the appellant-wife submits that the Trial Court erred in granting decree of divorce on the ground of desertion, failed to appreciate the admitted facts and the order and decree is perverse, one sided, biased and suffers with tainted illegalities. The Trial Court ought not to have framed a question with regard to the issue of cruelty (under Section 13 (1) (ia) of Hindu Marriage Act) as the said issue has already attained finality pursuant to the orders of the Supreme Court.
7.2. The Trial Court failed to upheld the settled legal principles of 'desertion' which envisages that the party who approaches the Court of law seeking divorce on the ground of desertion is liable to prove the same. Exs.P1 to P3 are the final orders of the earlier divorce proceedings and Ex.P4 is the pass-port. 7.3. The Trial Court has not followed the procedure contemplated under Section 9 of Family Courts Act, 1984 (Duty of Family Court to make settlement), shifted the burden of proof of desertion on the appellant-wife that the appellant had not brought her children as 8/25 MB,J & BRMR,J FCA_48_2024 witnesses in the present case, the fact remains that the present case is filed by the respondent-husband and it is duty bound to prove the case that he was deserted by his wife. In support of her contention she relied on the decisions in the cases of 1) Chetan Das Vs. Kamla Devi 1, 2) Santhini Vs. Vijaya Venkatesh 2,
3) Dr.Nirmal Singh Panesar Vs. Mrs. Paramjit Kaur Panesar @ Ajinder Kaur Panesar 3, 4) Smt. Kasibhotla Srirani Vs. Kasibhotla Mahdava Rao 4, 5) K.S.V.V.L. Narasimha Rao Vs. Kamisetty Suguna 5, 6) D.Subramanyam Raju Vs. D.Lakshmi Devi 6, 7) Nishkal Singampalli Vs. Kannepamula Vijaya Kumar 7, 8) Deepak Johri Vs. Kumkum Johri 8 and prayed to set aside the impugned order.
8. Learned counsel for the respondent-husband submits that there is no perversity or illegality in the order passed by the learned Family Court and that the respondent-husband proved the desertion which is from 17.09.1998. In support of his contention has relied on the decision in the cases of 1) Naveen Kohli Vs. Neelu 1 2001 (4) SCC 250 2 2017 (12) Scale 118 3 2023 INSC 896 : 2025 (3) SCC 790 4 Law Finder Doc ID # 121550 5 Law Findier Doc ID # 219385 6 2019 AIR Andhra Pradesh 61 7 FCA No.5/2023 dated 10.02.2025 of The High Court for the State of Telangana, Hyderabad.
8
Law Finder Doc Id # 366999
9/25 MB,J & BRMR,J
FCA_48_2024
Kholi 9, 2) Rishikesh Sharma Vs. Saroj Sharma 10, 3) K.Srinivas Rao Vs. D.A.Deepa 11, 4) Debananda Tamuli Vs. Smt.Kakumoni Kataky 12, 5) Shyam Lal Vs. Smt. Leelawat 13, 6) Sai Prasad Moorthygari Vs. Ram Kumari 14 7) Nuthalapati Srinivas Vs. Nuthalapati Suma 15 , 8) Uppunuri Madhavi @ Gaddam Madhavi Vs. Uppunuri Nageswar Rao 16, 9) Smt.Neerla Jyoshna Rani Vs. Sri Neerla Srinivas 17.
9. Learned counsel for the appellant-wife has filed Synopsis and the Chart showing the chief and cross-examination of the witnesses to show that the Trial Court has erred in not appreciating the crucial admissions of the witnesses and also filed Short List of Dates. Learned counsel for the respondent-husband has also filed Synopsis in support of his contention.
10. Heard learned counsel for the parties and perused the record.
9 AIR 2006 SC 1675 10 2006 LawSuit (SC) 1040 11 AIR 2013 SC 2176 12 AIR 2022 SC 1099 13 AIR 2007 Rajasthan 93 14 FCA Nos.135 and 136/2014 dated 08.12.2022 of The High Court for the State of Telangana 15 FCA No.111/2011 dated 01.03.2023 of The High Court for the State of Telangana 16 CMA No.512/2023 dated 20.06.2024 of The High Court for the State of Telangana 17 FCA No.53/2014 dated 14.02.2025 of The High Court for the State of Telangana 10/25 MB,J & BRMR,J FCA_48_2024
11. Now the point for determination is : whether the order passed by the learned Family Court in OP.No.161 of 2019, dated 30.01.2024 suffers from any illegality, perversity and if so, does it requires interference of this Court or not?
POINT:
12.1. Learned counsel for the appellant-wife submits that immediately after filing the petition by the respondent-husband, the Family Court has not made any efforts for settlement between the parties under Section 9 of Family Court Act which is mandatory.
12.2. On perusal of the Proceeding Sheet, dated 12.12.2019 in OP.No.161 of 2019, it is recorded that "Both parties are directed to attend before the Court for reconciliation on 09.01.2020".
Proceeding Sheet, dated 09.01.2020 states that "Both parties present and the respondent (appellant herein) reported that the petitioner (respondent herein) left her and went to America. But the petitioner (respondent herein) reported that he was insulted due to the behaviour of the respondent (appellant herein). There is no reconciliation between the parties, for counter call on 14.02.2020".
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12.3. In view of the above said Proceeding Sheet which goes to show that reconciliation is held between the parties before proceeding further in the matter. Hence, the contention of the appellant's counsel that there is no reconciliation held between the parties as provided in Section 9 of Family Court Act is not tenable and the decision in Shanthi's case2 do not assist the case of the appellant.
13. Appellant-wife after making her appearance before the Trial Court in OP.No.161 of 2019 has filed an application that OP is not maintainable as barred by Res judicata vide IA.No.776 of 2019 which is dismissed on merits on 12.12.2019 and attained finality. The appellant is estopped from taking such plea once again. The Trial court observed at Para No.22 of the order that there is a fresh cause of action, hence the decision cited by the appellant's counsel in Deepak Johri's case8 do not assist the case of the appellant. Petition under fresh cause of action is maintainable : Shyam Lal's case13.
14. PW.4 (D.Sivarama Krishna) is examined on behalf of the respondent-husband before the Trial Court, who is also a witness in HMOP.No.119 of 2002 (Ex.P1) examined as PW.2. RW.2 (P.Siva Subramanyam) is also a witness in HMOP.No.119 of 2002, 12/25 MB,J & BRMR,J FCA_48_2024 examined as RW.4. RW.3 (M.Vinod Kumar) is also a witness in HMOP.No.119 of 2002, he was examined as RW.2.
15. Respondent-husband gave evidence as PW.1 and the admissions made by him will be discussed in later part of the judgment.
16. The evidence of PW.2 is not considered by the Trial Court and observed at Para No.23 of its order that "PW.2 who is the neighbour of the respondent-husband prior to 2002, his evidence is in respect of the incidents happened prior to dismissal of previous OP and is not helpful".
17. PW.3 did not speak about the desertion but he only deposed that the mother of the respondent-husband died on 19.12.2020 and father died on 13.04.2007 and that the appellant-wife did not bother to attend the final rites of her mother-in-law and that the respondent-husband felt bad about the conduct of his wife. As PW.3 did not depose about the desertion hence, his evidence is not much helpful to the case of the respondent-husband.
18. PW.4 evidence is that the parties are living separately for the past 25 years and there is no possibility for reconciliation between the parties. In his cross-examination, he stated that he deposed in 13/25 MB,J & BRMR,J FCA_48_2024 OP.No.119 of 2002 that his brother (respondent herein) left India in 1998 and nobody knows his whereabouts.
19. The evidence of the appellant-wife as RW.1 is that she was ready to join the company of her husband in the earlier round of litigation i.e., in HMOP No.119 of 2002 and even today she is ready to join him, but the husband did not take any steps for reunion. It is the husband who left her company on 17.09.1998 and he is living with one Swaroopa in USA. In her cross-examination (dated 22.08.2023) a question is put to her with regard to separation which is as under:
Question: Since how long yourself & your husband staying separately.
Answer: I am staying in the same house where my husband used to stay with me and my husband left me in the year 1998.
She further stated that after the demise of her mother-in-law in the year 2020, there is no person to reconcile the matter. Appellant- wife is still in the house where she and her husband used to stay.
20. RW.2 is the brother of the appellant and he deposed that differences between the parties arose only due to the indulgence of Swaroopa in the life of the respondent-husband, himself and his 14/25 MB,J & BRMR,J FCA_48_2024 wife has performed Kanyadhanam to the appellant's daughter and also performed her son's marriage.
21. The evidence of RWs.3 to 6 is in the same lines with that of the evidence of RWs.1 and 2. No incriminating material is elicited from their cross-examination by the respondent-husband.
Decisions cited by the Appellant's counsel:
22.1. In Chetan Das case1, the Supreme Court held that the wife despite the husband's misconduct, expressed willingness to live with him if he ended his relationship with another woman, Sosamma Thomas. The husband claimed that the wife deserted him due to dissatisfaction with the living conditions were found baseless. Husband cannot seek divorce based on his own fault or claim irretrievable breakdown of marriage. 22.2. The appellant-husband is aged about 89 years and respondent-wife is aged about 82 years. The respondent all throughout her life has maintained the sacred relationship since 1963 and has taken care of her three children all these years, despite the fact that the appellant-husband had exhibited total hostility towards them. The respondent is still ready and willing to take care of her husband and does not wish to leave him alone at this stage of life. She has also expressed her sentiments that she 15/25 MB,J & BRMR,J FCA_48_2024 does not want to die with the stigma of being a "divorcee" woman.
In contemporary society, it may not constitute to be stigma but here we are concerned with the respondent's own sentiment. Under the circumstances, considering and respecting the sentiments of the respondent wife, the Court is of the opinion that exercising the discretion in favour of the appellant under Article 142 by dissolving the marriage between parties on the ground that the marriage has irretrievably broken down, would not be doing "complete justice" to the parties, would rather be doing injustice to the respondent : Dr.Nirmal Singh Panesar3.
22.3. In Smt. Kasibhotla Srirani4, the High Court observed that the desertion plea set up by the husband seeking divorce has not been proved. Whoever approaches the Court with a plea that there is desertion, it is for the party to prove that there is a desertion. When the other spouse proves that there is desertion then the burden of proof shifts to the other party.
22.4. The Supreme Court in Adhyatma Bhattar Alwar Vs. Vadhyatma Bhattar Sri Devi 18 held that the essential ingredients of desertion in order that it may furnish a ground or relief are (i) the factum of separation (ii) the intention to bring cohabitation permanently to an end i.e., animus deserendi (iii) the element of 18 (2002) 1 SCC 308 16/25 MB,J & BRMR,J FCA_48_2024 permanence which is a prime condition requires that both essential ingredients should continue during the entire statutory period of two years immediately preceding presentation of the petition for divorce (iv) mere living apart by the parties is not desertion (v) Burden proof of the fact of desertion lies on the person who alleged it. Which is followed in K.S.V.V.L. Narasimha Rao5. 22.5. In D.Subramanyam Raju6, the parties lived together after the alleged desertion in the year 2005 : Nishkal Singampalli7 dealt in respect of the cruelty. The above two decisions will not assist the case of the appellant in any manner. Decisions cited by the Respondent's counsel: 23.1. It is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.
17/25 MB,J & BRMR,J
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In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond : Naveen Kohli's case9 (Para Nos.90, 91). 23.2. Both the parties have crossed 49 years and living separately and working independently since 1981. There being a history of litigation with respondent-wife repeatedly filing criminal cases against the appellant which could not be substantiated as found by the Courts. This apart, the wife also has made certain allegations against her husband, that the husband has already remarried and is living with another lady as stated by her in the written statement.
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In our opinion it will not be possible for the parties to live together and therefore there is no purpose in compelling both the parties to live together. Therefore, the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully for remaining part of their life : Rishikesh Sharma10.
23.3. The appellant-husband and the respondent-wife are staying apart from 27.04.1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. If we refuse to sever the tie, it may lead to mental cruelty.
We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage 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 19/25 MB,J & BRMR,J FCA_48_2024 dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the Court's decree :
K.Srinivas Rao11 (Para Nos.25, 26).
23.4. Desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.
The intention on the part of the respondent-wife to resume cohabitation is not established. Thus, in the facts of the case, the factum of separation has been proved. From the evidence on record, an inference can be drawn that there was animus deserendi on the part of the respondent-wife. She has not pleaded and established any reasonable cause for remaining away from her matrimonial home : Debananda Tamuli'12.
23.5. A marriage, which is dead for all purposes, cannot be revived by the Court's verdict, if the parties are not willing. This is 20/25 MB,J & BRMR,J FCA_48_2024 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 : Sai Prasad Moorthygari14. 23.6. The relationship is irretrievably broke down and no hope as of now survives for the couple to live together hereafter. That apart, what we could find is that the attitude of the respondent is the root cause for all sufferings : Nuthalapati Srinivas15. 23.7. Uppanuri Madhavi @ Gaddam Madhavi16 is in respect of grant of divorce on the ground of cruelty.
23.8. In Smt.Neerla Jyoshna Rani17, wife has deserted the husband from 2002 till the filing of divorce petition on 15.02.2011. 24.1. Ex.P1 is the certified copy of order passed in HMOP No.119 of 2002 which is filed by the respondent-husband under Section 13 (1) (ia) (cruelty) of Hindu Marriage Act to dissolve the marriage dated 04.05.1980 by decree of divorce.
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24.2. On reading FCOP.No.161 of 2019 with that of the order passed under Ex.P1 (HMOP No.119 of 2002), pleadings with regard to the cruelty are one and the same.
24.3. It is observed in Para No.19 of Ex.P2 that "it is true to say that while working at Apollo Hospital, I developed close association with one lady by name Swaroopa. Swaroopa was my colleague. She was in Computer Department. As Head of the Material Department, I had regular contacts with Swaroopa as well as other Heads of Department. My wife has questioned me about my moments with Swaroopa. It is also observed in Para No.20 of Ex.P2 that "the circumstances enumerated make it clear that in fact the petitioner involved in harassing the respondent because of his behavior. Divorce cannot be granted unless there is clear evidence of cruelty against the petitioner from the respondent which is absent here".
24.4. Respondent-husband pleaded in HMOP No.119 of 2002 that he left the company of his wife on 17.09.1998 without informing anybody unable to put up with the cruelty and harassment, it was only after several months in the end of 1999 he informed the family that he was in Canada. He came back only in June, 2001 and with the wife's consent took away the son to Canada and he is educating him thereat, he could not take his 22/25 MB,J & BRMR,J FCA_48_2024 daughter in the middle of her BCA. Respondent's-husband's father being a respectable old timer allowed his wife and daughter to stay in his house "Dulipala House" in Jubilee Hills and collect the monthly rents of Rs.15,000/- from other portions and maintain themselves.
25. In FCOP No.161 of 2019, respondent-husband pleaded in Para No.6 of the petition that he had requested the appellant-wife to come and join him in the month of June, 2001 but the appellant-wife could not join him. Whereas in HMOP No.119 of 2002 the husband pleaded that he came back to India in June, 2001, and with his wife's consent took his son. The pleadings in FCOP No.161 of 2019 is contra to the pleadings in the earlier OP filed by him.
26. The OP filed by the respondent-husband vide HMOP No.119 of 2002 has attained finality under Ex.P3.
27. Appellant-wife pleaded in her counter in HMOP No.119 of 2002 that her husband after joining Apollo Hospital was going out with another woman every day which fact is stated in Page 5 of Ex.P1. The Trial Court while deciding HMOP No.119 of 2002 has also answered about the contentions raised by the appellant-wife in the above said OP. Appellant-wife has raised similar 23/25 MB,J & BRMR,J FCA_48_2024 contentions in FCOP No.161 of 2019. As the ground of cruelty pleaded by the respondent-husband has attained finality, we do not wish to dwell again into the aspect of cruelty.
28. The admissions made by PW.1 (respondent-husband) in his cross-examination are that he do not know who has performed the marriage of his two children and he has five grand-children, his marriage with his wife is still subsisting when his children got married. He want divorce from his wife as she treated him with cruelty, insulted him, manipulated in many ways, in earlier petition it has been stated in detail and in the present petition it is stated in brief. He got a job in Muscat, Sulatanate of Oman by way of agency placement and he went in the year 1994-95, took his wife and children and stayed there for 10 to 11 months. He was not in India from 1998 to 2001. As he was fed up with his wife, he did not contact or made efforts of contacting her from 1998 to 2001. He did not meet his parents, children and he came to India in 2001 from Canada and asked his wife in the year 1998 for taking mutual consent divorce but she did not agree. After 2013 he tried to reach his wife through his brother-in-law by name Ramalinga Sastry calling his wife and children to join in Canada and that no meeting was held for taking steps for reconciliation and that his wife has not filed any case till date pertaining to marital dispute.
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Respondent-husband further stated that his wife did not raise hand on him at any point of time and that he has not made any efforts from the year 1998 to 2002 asking his wife to join his company in Canada, he has not approached his wife personally calling her to join his company during the period 1998 till date (29.08.2022), so also he did not address any letter to his wife asking her to join his company except issuing legal notice in the year 2002. He further went on to say that he has not furnished his complete address in any of the material papers, in his divorce petition vide HMOP No.119 of 2002 except mentioning his address as resident of Canada. He further stated that the appellant-wife never told him that she would give divorce to him at any point of time. He went to US in the year 2002-03, frequently moving from US to Canada on his job purpose.
29. The evidence of PWs.3 and 4 do not assist the case of the respondent-husband in any manner. PW.4 who is the brother of the respondent-husband stated that he did not make any reconciliation efforts between the appellant and the respondent as his father did not allow him to do so.
30. Desertion means the intentional permanent forsaking and abandonment of one party by the other without that others 25/25 MB,J & BRMR,J FCA_48_2024 consent and without reasonable cause. It is a total repudiation of one party obligation. The Court may find that a marriage is broken down irretrievably if the party satisfies the Court that the other party has deserted him for a continuous period of at least two years immediately preceding the presentation of the petition.
31. Desertion is not to be tested merely by ascertaining which party left first. If one party is forced by the conduct of the other to leave it may be that party responsible for the driving out his guilty of desertion. There is no substantial difference between the case of a man who intends to seize cohabitation and leaves his wife and the case of a man who with the same intention compels his wife by his conduct to leave him.
32. For desertion to exist there must be both the factum or physical separation and the animus deserendi or the intention to desert in the sense of bringing cohabitation to an end.
33. Respondent-husband should be able honestly to say that he was all along willing to fulfill his duties and that the desertion is against his will and continued throughout the statutory period without his consent.
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34. There is higher decree of burden to prove the desertion on the husband that the fault is on the part of his wife. Section 23 (1)
(a) of Hindu Marriage Act states that the party who is at fault cannot take advantage of its own wrong.
35. Respondent-husband has gone to an extent of saying that he tried to reach his wife through his brother-in-law by name Ramalinga Sastry to call his wife and children to Canada. The said witness is not examined on his behalf. Appellant-wife is staying in the house of the respondent-husband since 1998.
36. The decisions cited by the respondent's counsel do not assist his case in the view of the fact that the facts in the present case are completely different with the cases cited.
37. The observations of the Trial Court in Para Nos.21, 31, 32, 37, 40, 42 and 43 are perverse and which is against the pleadings of the parties and the admissions made by the respondent- husband in his cross-examination. Respondent-husband is trying to take advantage of his own wrong. We are of the firm view that this is a fit case to set aside the impugned order passed by the Trial Court. Respondent-husband failed to prove desertion and he is not entitled for grant of divorce on the said ground and the impugned order is liable to be set aside.
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38. FCA No.48 of 2024 is allowed. The order passed by the learned I Additional Family Court Judge, at Hyderabad, in O.P.No.161 of 2019, dated 30.01.2024 is set aside. Consequently, OP is dismissed.
Interim orders granted, if any, shall stand vacated. Miscellaneous applications stands closed. There shall be no order as to costs.
___________________________________ MOUSHUMI BHATTACHARYA, J _______________________________ B.R.MADHUSUDHAN RAO, J Dated: 30.07.2025 PLV