Andhra HC (Pre-Telangana)
Soma Ramchandram, S/O.Late ... vs Vs on 22 June, 2017
Author: N.Balayogi
Bench: N.Balayogi
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE SRI JUSTICE N.BALAYOGI
Family Court Appeal No.267 of 2008
22-6-2017
Soma Ramchandram, S/o.Late S.Venkatachalam, Aged: 38 years, Occ: Teacher, R/o.H.No.2-1-559/A,Urmila Nivas, Old Nallakunta, H
Vs.
1.Soma Anitha, W/o.Soma Ramchandram, Aged: 26 years, Occ: Nurse, R/o.H.No.28-174,Near Pochamma Temple, Waddepally, Hanmakond
2.K.Ramesh, S/o.Ramajouli, Aged: 40 years, C/o Sunil Tailors, Kumarpally, Hanmakonda, Warangal District Respondents/Responde
Counsel for the Appellant: Mr.M.Damodar Reddy
Counsel for the Respondent: Mr. P.Venkanna
(Not present)
<Gist:
>Head Note:
? Cases referred:
Nil.
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SRI JUSTICE N.BALAYOGI
Family Court Appeal No.267 of 2008
and
FCA MP No.48 of 2014
Judgment: (per V.Ramasubramanian, J.)
This appeal by the husband of the 1st respondent is
directed against the judgment of the Family Court refusing to
grant divorce on the ground of cruelty.
2. Heard Mr. M.Damodar Reddy, learned counsel for the
appellant.
3. Though the 1st respondent had engaged a counsel, the
counsel was not present on 25-4-2017 when the appeal
appeared before another Bench. The absence of the counsel for
the 1st respondent was noted by the Bench and the case was
adjourned to 05-6-2017.
4. Even on 05-6-2017, the counsel for the
1st respondent was absent. But we adjourned the matter to 07-
6-2017 to see if the counsel for the 1st respondent would
appear.
5. However, even on 07-6-2017, the counsel for the
1st respondent did not appear. Therefore, we directed the
learned counsel for the appellant to take personal notice to the
1st respondent informing her that her counsel had not
appeared on two occasions and that she should appear
personally before this Court today at 02.30 p.m. Notice has
been accordingly sent and the counsel for the appellant has
filed Affidavit of service enclosing the postal acknowledgement
card. The name of the 1st respondent was called out in Court.
But she has not turned up. Her counsel has also not turned
up.
6. It is seen from the pleadings as well as the evidence on
record that the petition for divorce was filed by the appellant on
the short ground that the 1st respondent was having illicit
intimacy with the 2nd respondent and that despite the
persuasions of the appellant, she was prepared to give up the
appellant but not the 2nd respondent. Therefore, the appellant
alleged cruelty against the 1st respondent.
The appellant examined himself as P.W.1 and examined
two independent witnesses as P.Ws.2 and 3. P.W.2 was
a friend of P.W.1. He was examined to corroborate the
allegations of the appellant.
7. P.W.3 is a handwriting expert. He was examined for
the purpose of showing that Ext.P-5 letter was written by the
1st respondent to the 2nd respondent.
8. The 1st respondent examined herself as R.W.1.
The 2nd respondent came before Court, filed a counter and also
examined himself as R.W.2. The 1st respondent examined her
elder sister as R.W.3 who was none other than the wife of
R.W.2. They naturally support the case of the 1st respondent.
9. Believing the evidence on the side of the respondents,
the Court below dismissed the petition for divorce. Therefore,
the appellant has come up with the above appeal.
10. But it appears that the parties also had separate
proceedings for maintenance under Section 125 Cr.P.C.
The maintenance petition was contested on the ground that the
1st respondent was living in adultery with the
2nd respondent and they also have a child. Therefore, the
appellant took out an application in Crl.M.P.No.89 of 2009 in
M.C.No.8 of 2009 for sending the minor child for a DNA Test.
Though the Trial Court dismissed the said application, this
Court allowed the petition in Crl.P.No.777 of 2010.
Accordingly, a DNA Test was conducted. As per the DNA Test,
the appellant has been held to be not the biological father of the
minor child given birth to by the 1st respondent.
11. Unfortunately, neither of the respondents is present
before us to controvert any of the above averments. Therefore,
on the basis of the material available on record, we have no
alternative except to allow the appeal. Therefore, the appeal is
allowed and the judgment of the Family Court is set aside. The
petition for divorce is allowed on the ground of cruelty. FCA MP
No.48 of 2014 is ordered. The other miscellaneous petitions, if
any, pending in this appeal shall stand closed. No costs.
___________________________
V.RAMASUBRAMANIAN, J.
________________ N.BALAYOGI, J.
22nd June, 2017.
Ak Additional documents marked as per orders in FCA MP No.48 of 2014, dated 22-6-2017 Ex.R-3 Copy of order in Crl.P.No.777 of 2010 passed by the High Court on 13-11-2012.
Ex.R-4 Certified copy of the judgment in C.C.No.759 of 2007 on the file of III Additional Judicial Magistrate of First Class, Warangal, dated 08-02-2010.
___________________________ V.RAMASUBRAMANIAN, J. ________________ N.BALAYOGI, J.
22nd June, 2017.