Telangana High Court
Smt. V. Maya Murthy vs Mr. Vedula Bhima Shankar Murthy on 27 July, 2023
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
FAMILY COURT APPEAL No.252 of 2010
JUDGMENT:(per Hon'ble Smt. Justice P.Sree Sudha) This Family Court Appeal is filed against the Order dated 11.08.2010 in O.P.No.309 of 2008 passed by the learned Family Court Judge, Secunderabad.
2. One V.B.Shankar Murthy/husband filed O.P for divorce against his wife Maya Murthy/respondent under Section 12(1)(c) of the Hindu Marriage Act seeking to declare their marriage as null and void and also requested the Court to dissolve their marriage on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act. The trial Court after considering the oral and documentary evidence on record dissolved their marriage by a decree of divorce. Aggrieved by the said Order, respondent therein preferred the present appeal.
3. Appellant/wife mainly contended that the trial Court did not appreciate the facts properly and erroneously granted divorce. Petitioner/husband examined himself as P.W.1 and 2 marked Exs.A1 to A11 on his behalf. The respondent/wife examined herself as R.W.1 and also examined R.W.2 on her behalf and marked Exs.B1 to B14.
4. Parties herein are referred as petitioner/husband and respondent/wife as arrayed before the trial Court for the sake of convenience.
5. Petitioner stated that he is Shaivite Brahmin by caste and Hindu by religion. He married respondent/wife on 14.04.2004 at Arya Samaj Bhavan, Secunderabad. They were not known to each other prior to marriage and they came to know about her only through paper advertisement. His sister and brother-in-law attended the marriage and the parents of the respondent/wife did not attend their marriage. He filed certified copy of the certificate dated 14.04.2004 issued by the Arya Samaj. He is a Postgraduate in Engineering and was working in a private engineering college at the time of marriage. At present, he is working as a lecturer in EME, Secunderabad and respondent/wife was working as a Medical Officer in CGHS, Secunderabad. Though, their marriage was consummated, they have no issues. He stated that at the time of marriage respondent/wife claimed that she is Kshatriya by caste and she 3 has also stated her caste as Kshatriya even in the application filed before Arya Samaj and he filed the said application dated 09.04.2004 under Ex.A2. He stated that he would not marry her if she does not belong to forward caste. He also stated that there were no misunderstandings between them for some time, later when both of them wanted to have a child, after couple of years they consulted a Gynaecologist and then he came to know that respondent/wife is not capable of conceiving. She was suffering from Psychopathic disorder resulting in abnormal, aggressive and irresponsible conduct. She also threatened him stating that she will approach the police and put him in jail on false grounds of ill treatment, as she hails from SC caste.
6. On 12.02.2008, she filed complaint against the petitioner under Section 498-A of IPC, but she has withdrawn the same on 13.02.2008. The petitioner was thrown out from the house by the respondent on 12.02.2008. At that time, he found several papers and documents relating to the complaint lodged by respondent/wife against one J.N.Mehta, CMO-incharge of CGHS, Ahmedabad, in which she stated that she belongs to SC community. He also found another document dated 24.12.2003, which is a copy addressed by one V.M.Parmal, Assistant Director to the Director General, CGHS, Commissioner of Police 4 and to the Additional Director, CGHS, Government of India along with a copy of the complaint written by the respondent, in which she stated that Dr.J.N.Mehta was harassing her. Only then, he came to know that respondent played fraud upon him by not disclosing the fact that she hails from SC community. In her complaint, she admitted that while she was working in Ahmedabad, as she is from SC community, the persons of forward caste harassed her and she invoked provisions of SC and ST (Prevention of Atrocities) Act, 1989 against J.N.Mehta. Respondent also lodged a complaint against Dr.Chawada on the ground of physical harassment. Respondent/wife deliberately suppressed that she belongs to SC community, otherwise, he would have rejected her for marriage. He was shocked and dismayed at the attitude of the respondent that she never disclosed either prior to marriage or after the marriage that she belongs to SC community and it amounts to cruelty. Therefore, he requested the Court to declare their marriage as null and void. He also stated that his consent was obtained playing fraud and by gross mis-representation about her caste, as such marriage is voidable as he came to know about the said fact recently and thus he filed the application to declare their marriage as null and void.
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7. Petitioner/husband further stated that respondent has a flat in her name bearing No.B405, at NCL Godavari, Pet Basheerabad, Jeedimetla, Hyderabad. It was purchased in her name in the year 2003 and got registered in the year 2004. For purchasing the said flat, she has taken loan from the financial institutions and substantial portion of money was invested by him. When he addressed a letter in the year 2006, she admitted the same and stated that she will transfer the flat in his name after clearing the loan. She also admitted that she collected 250 grams of gold brought by him from Dubai and kept in Kitty's Bank Locker and she will return to him as and when required by him. He stated that both of them residing in the said flat till he left the house, when respondent thrown out all his belongings on 12.02.2008. He also stated that original sale deed relating to the flat, land at Shamirpet, original marriage certificate and the original receipts relating to payments made by him for purchase of flat are still remain with the respondent. Ever since, petitioner was residing in a rented house at Yapral. There are two plots bearing Nos.48 and 49, each admeasuring 200 Sq.yards, forming part of Sy.No.1232, situated at Shamirpet and they stands in his name. Except a sum of Rs.2,00,000/- paid by the respondent, the entire sale consideration including Stamp and Registration Charges were 6 paid by him. Even regarding Rs.2,00,000/-, she agreed to adjust towards gold jewelry, which she has taken from him and accordingly he repaid the same in the form of gold jewelry. Regarding the Flat bearing No.405, respondent borrowed money from financial institutions and paid sale consideration of approximately Rs.4,60,000/-. Initially they purchased unfinished and incomplete flat. Petitioner contributed substantial amount for completing the same and spent more than Rs.10,00,000/- towards improvements of the said flat, as such respondent is not entitled for refund of any amount except Rs.2,00,000/-. She has also filed complaint against him, as such he could not live with her any more. Therefore, requested the Court to declare their marriage as null and void or to grant a decree of divorce on the ground of cruelty.
8. In the counter filed by the respondent/wife, she denied all the material allegations and stated that at the time of marriage, petitioner informed her that he is a qualified engineer in 2001. In reply to the advertisement, she stated that petitioner knows the fact that she belongs to SC community and he replied to the advertisement and stated that he wanted to get married as his first wife divorced him. Though, he stated that he was a qualified Engineer, he has not even completed his B.E by that 7 time and cheated her. Petitioner informed her that he took divorce from his first wife V.Nalini. When she insisted for Court papers he stated that they took divorce on mutual consent and his first wife never handed over the divorce papers to him. She also stated that petitioner was suffering from diabetes, hyper tension and hyper lipidemic. She further stated that petitioner informed her not to reveal her caste in the application form in 2004. Though they married in the year 2004, they developed acquaintance from 2001 onwards. Immediately after paper advertisement in Times of India, they started meeting each other at Ahmadabad and also at Hyderabad from 2001 till April 2004. Petitioner visited her house in Ahmadabad and she introduced her younger brother and sister-in-law. Respondent was also visiting Hyderabad till her transfer in the year 2004. After transfer, petitioner proposed her to marry and she also agreed for the same and got married at Arya Samaj and also got it registered. She purchased the flat in the year 2003 with her own money and petitioner had not contributed even single pie, she has taken loan from ICICI Bank for Rs.6.9 lakhs in her name. Both of them shifted to new flat in April 2004 and lived happily for two or three months. Though petitioner stated that he was earning Rs.50,000/-, he never took her for honeymoon or paid single pie to her.
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9. Even in I.A.No.779 of 2008, he stated that he was getting a salary of Rs.20,000/- as he was working as adhoc lecturer, whereas respondent was working in CGHS as Senior Medical Officer and getting a salary of Rs.25,000/- per month. Before marriage, petitioner stated that he was NRI and earned lot of money. Respondent sold the flat at Ahmadabad for Rs.3,00,000/- and handed over the money to her husband and he bought Zen Car for Rs.2,00,000/- and spent the remaining amount for purchase of computer and wood work in the house. Petitioner was abusing her as characterless and is unable to perform the sexual activity, because of his hyper tension and diabetes. He was taking Viagra for getting erection and he was also suffering from inferiority complex. As he performed second marriage, he was under depression. She further stated that he knows about her caste even prior to the marriage, but fabricated a story after four years i.e., from 14.04.2004 to 12.02.2008. Petitioner used to drink along with his friends and come home late in the night and he was under influence of intoxication, as such unable to perform sex and he was criticizing her on her looks, hairs, cooking and her dressing and he was also suffering from impotency.
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10. She purchased a flat in NCL Godavari in 2003, by taking loan from ICICI Bank and she withdrawn 75% of GPF amount from her savings and paid back the loan in August, 2007 and received the original documents. Immediately, petitioner pressurized her to obtain another loan from Cholamandalam Bank and forced her to avail the mortgage loan, but she protested the same. Later, she agreed for the same and taken loan of Rs.13.5 lakhs for purchase of two plots at Shamirpet and he signed as the co-applicant for the said loan. Petitioner had also taken 25 signatures on blank white papers along with 20 signed blank Cheques of SBI Jeedimatla Branch from her. Petitioner was not giving any money as his salary was not sufficient for his drinking and shopping. Petitioner registered two plots in his name with her money and committed offence under Section 403 of IPC. She also stated that as she was a busy doctor, in good faith she signed on papers and never thought that her husband would file a petition for divorce on flimsy and trivial grounds.
11. She further stated that he has not spent Rs.10,00,000/- for renovation. During the arguments in I.A.No.779 of 2008, on 18.12.2008, he stated that he was earning only Rs.20,000/-, as he was working as adhoc lecturer, as such he has no source to 10 spent Rs.10,00,000/-. She also stated that as petitioner stolen her bag containing all the important documents including paper advertisement, she obtained a copy of the advertisement from State Central Library, after a great deal of labour. She further stated that he was suffering from erectile dysfunction and he was not cooperating with her. She also stated that even she is unable to conceive child that is also a ground for divorce. On 12.02.2008, petitioner beat her, as such she registered a case against him. When he promised that he will not create any trouble, she has withdrawn the same. Petitioner has not even passed M-Tech, but cheated her by telling the same. She stated that petitioner intended to marry another woman, as such he created false story and she also denied that she received 250 grams of gold. She further stated that she has no objection to live with petitioner, if he repays Rs.13.5 lakhs to her.
12. In a rejoinder filed by the petitioner/husband, he stated that advertisement dated 24.06.2001, was in a local edition confined to Mumbai and he denied all other allegations made by the respondent.
13. In the Cross-examination of P.W.1, he stated that he was working as a lecturer in Military Engineering College and 11 drawing a salary of Rs.19,000/- PM. He worked in Dubai in the year 1995 and returned to India in 1996. He has not filed any salary slip before the Court. Ex.A10 is the decree of divorce in O.P.No.286 of 2000. He obtained divorce on mutual consent from his first wife. They lived together only for three days and filed application for divorce after one year. He stated that he met respondent at Ahmadabad only once before marriage. She did not inform him about her first marriage and divorce. He admitted that he went to Ahmadabad in May 2003, but he did not bother to find out the antecedents of respondent before marriage. He simply proposed her to get married, if she get transferred to Hyderabad and he was not interested whether her parents participated in the marriage or not. He stated that on 14.06.2005, they went to Vijaya Diagnostic Centre and got examined themselves and took Ex.A.11 to C.G.H.S Doctor, who opinioned that respondent is incapable of conceiving and she was suffering from Psychopathic disorder. He also stated that on 12.02.2008, when he brought a second hand TVS Scooty, on that issue trouble started, respondent went to police station and gave complaint under Ex.A4. Later, she has withdrawn the case. He also stated that he did not remember how much amount he invested in procuring flat No.B-405, NCL Godavari and he has not drawn any amount from the Bank. He also stated that he 12 has not paid any single installment to Cholamandalam Bank. May be respondent might have taken Rs.13,00,000/- from Cholamandalam Bank as loan and there is no written agreement to pay installments in the bank. He simply signed as co-appellant. He further stated that respondent gave two Cheques for purchase of two plots at Shamirpet and each Cheque is of Rs.1,00,000/-. He also stated that his father purchased a plot at Shanker Hills, but it was taken over by Government. He stated that he has not filed any document to show that he has done renovation at NCL Apartments and he denied all other contentions made by the respondent.
14. R.W.1 stated that she knows that petitioner was Brahmin by caste at the time of marriage. Only once she advertised in Times of India edition in Bombay. At that time, she was residing at Ahmadabad and petitioner was residing at Hyderabad. P.W.1 addressed a letter to her by seeing the advertisement, but she has not filed the same before the Court. She admitted that none of her relatives attended the marriage. She also admitted that both of them are not living together from 12.02.2008 and she gave complaint against petitioner. She has not filed any medical record to show that P.W.1 is an impotent. She stated that Ex.A7 is the complaint given by her against Dr.J.N.Mehtha under the 13 provisions of SC & ST Act. Ex.A8 is the copy of communication addressed by one V.M.Paramar, Assistant Director dated 24.12.2003. She stated that she was getting a net salary of Rs.35,000/- and Gross salary of Rs.70,000/-. She also admitted that even P.W.1 is with her, there is no possibility of conceiving. She also alleged that his date of birth is wrongly mentioned in the passport and in the transfer certificate and he took eight years to complete B-Tech.
15. R.W.2 is the younger brother of R.W.1. In his Cross-examination, he stated that he did not attend the marriage of R.W.1, as it was objected by his parents.
16. No doubt, both petitioner and respondent are well educated and both of them divorced their first spouse and performed another marriage. The main contention of the petitioner is that respondent belongs to SC community and she has suppressed the said fact before marriage. Admittedly, they were in touch with each other from 2001 onwards, and petitioner himself admitted that he approached respondent on seeing the advertisement in a daily news paper and after three years i.e., in the year 2004, they got married. Petitioner stated that respondent suppressed the fact that she belongs to SC 14 Community from him. Petitioner also stated that if he knows that she belongs to SC Community before marriage, he should not married her and he wants to marry a person from the forward caste. When they were acquainted with each other for three years, it cannot be said that there was no scope between them to enquire regarding the caste of each other. In the Certificate issued by the Arya Samaj, her caste was mentioned as Kshatriya and petitioner belongs to Brahmin community. Respondent stated that he insisted her to mention her caste as Kshatriya for the sake of his sister and brother-in-law, who are attending the marriage. All those facts show that petitioner had knowledge about the caste of the respondent and asked her to mention the same as Kshatriya for the sake of his relatives. The main issue started when both of them decided for conceiving children and consulted a doctor on 14.06.2005. Petitioner alleged that respondent is incapable of conceiving, whereas, respondent stated that petitioner is also suffering from several ailments including erectile dysfunction. He was coming late in drunken state and unable to perform sex and he is impotent and thus both of them made allegations and counter allegations against each other for not begetting children. As on the date of filing O.P for divorce, both of them aged about 43 years. 15
17. Another issue regarding both of them is regarding investments made by them for purchase of properties. Respondent stated that she was getting a salary of Rs.25,000/- and she took loan from ICICI Bank and Cholamandalam Bank and she purchased properties in her name. She also stated that in I.A.No.779 of 2008, petitioner admitted that he was working as adhoc lecturer and earning Rs.20,000/- PM, but he cheated her by saying that he is NRI and the petitioner stated that he invested substantial amount for purchase of said properties, but respondent stated that he has not paid even single pie. The trial Court observed that it was not inclined to go into the issue of properties, as it has to be decided by a competent Civil Court. Petitioner also stated that he brought 250 grams of gold to the respondent, but she denied the same. Respondent further stated that petitioner questioned her looks, hair style and her dressing, but the same was denied by the petitioner. Admittedly, both of them are not residing together from 12.02.2008, and the trial Court granted decree of divorce on 11.08.2010. Respondent clearly stated that she will think of staying with petitioner only when he repays Rs.13.5 lakhs to her, and the present appeal was preferred in the year 2010. The parties herein are not residing together for the past 15 years. Respondent filed appeal against the Order of the trial Court, but she has not filed O.P for 16 restitution of conjugal rights before the trial Court and she was very particular regarding the refund of Rs.13.5 lakhs for joining the petitioner. Even during the pendency of O.P before the trial Court, the marriage between the parties was irretrievably broken down beyond repair. Therefore, this Court finds no reason to interfere with the Order of the trial Court.
18. In the result, the Family Court Appeal is dismissed, confirming the Order of the trial Court dated 11.08.2010 in O.P.No.309 of 2008. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
________________________ JUSTICE K.LAKSHMAN _________________________ JUSTICE P.SREE SUDHA DATE: 27.07.2023 tri 17 THE HONOURABLE SRI JUSTICE K.LAKSHMAN AND THE HONOURABLE SMT. JUSTICE P.SREE SUDHA FAMILY COURT APPEAL No. 252 of 2010 (per Hon'ble Smt. Justice P.Sree Sudha) DATE: 27.07.2023 TRI