Telangana High Court
Choppara Rajender vs J.J.Royal Hannah on 23 November, 2023
Author: K.Lakshman
Bench: K.Lakshman
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
&
THE HONOURABLE SMT JUSTICE K.SUJANA
FAMILY COURT APPEAL No.337 OF 2013
JUDGMENT:(Per the Honourable Sri Justice K.Lakshman) Heard Mr. K.Venkatesh Gupta, learned counsel for the appellant-husband and Mr. T. Prasanna Kumar, learned counsel appearing for the respondent-wife.
02. Feeling aggrieved and dissatisfied with the Order dated 03.09.2011 passed in I.D.O.P.No.7 of 2010 by the learned Judge, Family Court-cum-Additional District and Sessions Judge at Mahabubnagar, the appellant preferred the present appeal.
Facts of the case:-
03. The appellant-husband filed the aforesaid I.D.O.P.No.7 of 2010 under Section 10(ix)(x) of the Indian Divorce Act, 1869, (for short 'the Act') seeking dissolution of his marriage dated 27.12.2001 with the respondent-wife on the grounds of desertion and cruelty with the following contentions:-
2
i. The marriage of the appellant with the respondent was solemnized on 27.12.2001 at Calvary M.B. Church Mahabubnagar as per the rites and customs prevailing in Christian community.
ii. After, marriage, they lead married life happily for about one year.
i. They blessed with a baby girl on 07.11.2003 and a baby boy on 25.08.2006.
iii. Thereafter, disputes arose between them.
iv. Before the marriage, she joined in B.Ed. course and after marriage, she completed the course by residing in hostel for which the appellant met all the expenses.
v. She developed dislike against the appellant and used to pick up quarrels with him on small issues and comment in vulgar language. She frequently used to leave the house of the appellant without informing him or to his parents and used to stay with her parents for months together. She used to dance to the tunes of her parents, brother and sister. They never cared for the image of the appellant and his family. Even her parents never cared him. She used to take the services of his parents instead 3 of she serving them. Appellant is having separate ration card apart from his parents as they were residing separately.
vi. At the cradle ceremony of their son at the house of her parents, respondent and her family members picked up a quarrel with the appellant without any reason, abused him in vulgar language and caused much humiliation in front of relatives. She did not try to pacify.
vii. On the next day of cradle ceremony, respondent along with her brother and sister came to the house of the appellant armed with stones and iron rods, abused in filthy language loudly, ransacked the household articles, pelted stones on his father and tried to beat him with iron rods and sticks. Brothers and sister of respondent threatened to kill him and his family members. Then father of the appellant lodged a complaint with the Superintendent of Police, but they did not register any case nor gave any protection to the appellant and his parents.
viii. On the influence of her parents, the Police, Mahabubnagar Rural Police Station registered a false 4 case against him and his brothers under Section 324 of IPC and later the police filed charge sheet by adding Section 498-A of IPC which is taken on file as C.C.No.751 of 2006 by the Judicial Magistrate of First Class at Mahabubnagar.
ix. Father of the appellant also filed a private complaint which is registered as a case C.C.No.820 of 2007 against the brothers and sister of respondent for their attack on him.
x. Appellant and his brothers have filed a writ petition for quashing the criminal case filed by the brothers of respondent, which is pending for consideration.
xi. After that the respondent used to stay with her parents only from August, 2006. In spite of negotiations, she did not come and join with him.
xii. She filed a false Domestic Violence Case, against him and his family members.
xiii. She left his company on 15.08.2006 voluntarily and staying with her parents.
xiv. His brothers and sisters are living at far off places.5
xv. The said DVC case is filed only to put the appellant and his father under pressure to compromise the case filed by the father of the appellant.
xvi. Brothers and sisters of the appellant have filed a petition vide Crl.P.No.482 of 2010 before this Court to stay the proceedings in DVC No.17 of 2009 and this Court granted stay.
xvii. The respondent voluntarily deserted the appellant and staying with her parents. She did not get job in D.S.C. The marriage between the parties is irretrievably broken. Therefore, there is no chance for reunion.
04. The respondent-wife filed counter admitting marriage and children etc., however denied the allegations made against her, contended as follows:-
ii. At the time of marriage, her parents gave Rs.50,000/-
cash, 10 tulas of gold and motor cycle to the appellant.
iii. Entire expenditure towards her B.Ed. course was met by her father only.
iv. She studied B.Ed. course during the period from October, 2001 to October, 2002.6
v. The appellant including his family members harassed her for additional dowry.
vi. They blessed with a baby girl on 07.11.2003 and a baby boy on 25.08.2006.
vii. On 02.10.2006 at cradle ceremony of their son, at her parents' house, the appellant abused her and her mother.
viii. On the next day of the cradle ceremony, when her two brothers and sister went to the house of the appellant to discuss family affairs, the appellant and his three brothers attacked them with iron rods and sticks all of a sudden. As such, on the complaint made by her brother, a case in Cr.No.328 of 2006 was registered by the Police, Mahabubnagar Rural police Station. Even the police sent her brothers to medical examination.
ix. Even the appellant and his family members did not permit her to make a phone call to her parents. Thus, parents respected the appellant and his family members.
x. She is always ready to join the company of the appellant but his parents did not permit her.7
xi. Her father tried through caste elders to settle the issues but in vain.
xii. The pastor of MB Church and several caste elders approached his parents but in vain.
xiii. She came to her parents house only for second delivery, since then, appellant and his parents are not permitting her to join with them despite her efforts to join them.
xiv. Only on the pressure of the parents of the appellant, he and the respondent lived in a separate room of the ground floor of the house.
xv. A case C.C.No.820 of 2007 on the complaint lodged by the father of the appellant is pending.
xvi. Even after registration of the case, her parents tried several times for reunion of the parties but appellant and his family members did not come forward.
xvii. She filed DVC case against him. This Court granted stay of proceedings in DVC.
xviii. She never deserted the appellant and on the other hand.
xix. She was selected as a Teacher in October, 2009 and when she is ready to join the company of the appellant, he filed the present case on the ill advice of others.8
xx. The appellant neglected the children.
xxi. She is always ready and willing to join with the appellant for the sake of children.
05. To prove the said grounds of cruelty and desertion, appellant-husband has examined himself as PW1 and marked Exs.A1 and A5 documents. Whereas, respondent-wife has examined herself as RW1 and her mother as RW2 and her junior paternal uncle as RW3.
06. On consideration of evidence both oral and documentary, vide impugned order dated 03.09.2011, learned Judge, Family Court, Mahabubnagar, dismissed IDOP No.7 of 2010 filed by husband seeking dissolution of marriage dated 27.12.2001 between the parties, holding that the appellant failed to establish grounds of cruelty and desertion enabling to seek divorce and to put an end to the matrimonial relationship with respondent.
07. Feeling aggrieved with the said Order, appellant- husband preferred the present appeal on the following grounds:-
9
i. The Family Court ought to have seen that admittedly, the appellant and the respondent are living separately for more than four years and since then there is no cohabitation or contacts between them.
ii. The Family Court failed to see that the respondent herself voluntarily left his company without intimation and living with her parents.
iii. The Family Court failed to see that the respondent lodged a false complaint and harassed him and his family members.
iv. The Family Court failed to see that the marriage between the parties is irretrievably broken.
08. Sri K.Venkatesh Gupta, learned counsel for the appellant would submit that the learned Family Court failed to consider entire evidence both oral and documentary that appellant and respondent are living separately from 15.08.2006 and thus she deserted the appellant and subjected him to cruelty. The marriage of the appellant with respondent is irretrievably broken down. There is no possibility of reunion. Without considering the said aspects, 10 the learned Family Court dismissed the said I.D.O.P. filed by the appellant.
09. Whereas, Sri T. Prasanna Kumar, learned counsel appearing for the respondent would contend that burden lies on the appellant to prove both cruelty and desertion grounds on which he has filed the aforesaid IDOP seeking dissolution of marriage. Appellant failed to prove the same. Therefore, on consideration of entire evidence both the oral and documentary evidence, the learned Family Court dismissed the said IDOP. It is a reasoned order. There is no error in it.
10. As discussed supra, the marriage of the appellant with respondent took place on 27.12.2001. They blessed with two children i.e., a daughter on 07.11.2003 and a son on 25.08.2006. Their children are aged about 20 years and 17 years respectively at present. Appellant filed aforesaid IDOP seeking dissolution of marriage on the ground of cruelty and desertion.
11. As per Section 10(1)(x) of the Act, 2001 any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, 11 may, on a petition presented to the District Court either by the husband of the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent--
"has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent".
12. The appellant has to prove the said ground of cruelty by producing relevant and cogent evidence. To prove the said cruelty and desertion, he has examined himself as PW1 and one K.Rama Rao as PW2. According to the appellant, respondent resorted to cruelty acts as stated above. In fact, the aforesaid acts alleged to have been committed by the respondent-wife are not cruelty as alleged by appellant- husband.
13. The Honourable Supreme Court in A.Jayachandra v. Aneel Kaur 1 observed as under:
"The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a 1 AIR 2005 SC 534 12 reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental 13 cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes."
14. The Honourable Supreme Court in Vinita Saxena v. Pankaj Pandit 2 observed as under:
It is settled by catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the Section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
The word 'cruelty' has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It 2 AIR 2006 SC 1662 14 is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
15. The Honourable Supreme Court in Savitri Pandey v. Prem Chandra Pandey 3 held as under:
Following the decision in Bipinchandra's case (AIR 1957 SC 176) this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so 3 Appeal (Civil) Nos. 20-21 of 1999 decided on 08.01.2002 15 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. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.
There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. As desertion in matrimonial cases means the 16 withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties. The basis for this theory is built upon the recognised position of law in matrimonial matters that no-one can desert who does not actively or wilfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case. However, the party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong. In the instant case the appellant herself pleaded that there had not been cohabitation between the parties after the 17 marriage. She neither assigned any reason nor attributed the non-resumption of cohabitation to the respondent. From the pleadings and evidence led in the case, it is apparent that the appellant did not permit the respondent to have cohabitation for consummating the marriage. In the absence of cohabitation between the parties, a particular state of matrimonial position was never permitted by the appellant to come into existence. In the present case, in the absence of cohabitation and consummation of marriage, the appellant was disentitled to claim divorce on the ground of desertion.
16. PW1 in his cross examination categorically admitted that:
"Even if respondent is willing to withdraw the case, I am not willing to take respondent into my company".
He failed to examine any other witness to prove the said cruel acts said to have committed by his wife including his family members. He failed to prove the alleged quarrel picked up by respondent and her parents during cradle ceremony of their son. He also failed to prove by examining any witness with regard to alleged incident of brother and sister of respondent coming to the appellant's house and abused him in vulgar 18 language and forcibly opened the gates and entered into his house, armed with iron rods and sticks. As discussed supra, he failed to examine his father or mother to prove the same.
17. It is settled principle that the burden lies on the appellant to prove the cruelty and desertion by producing relevant and cogent evidence. In the present case on hand, appellant failed to prove the said cruelty.
18. The appellant also failed to prove the desertion by producing any evidence. PW2 during his cross-examination categorically admitted that he has no personal knowledge about the matrimonial affairs between the appellant and respondent mentioned in the chief examination affidavit. He came to know all those issues through appellant only. Therefore, the evidence of PW2 is of no use to the appellant to prove the aforesaid acts of cruelty and desertion.
19. It is apt to note that PW1 has not issued any notice to the respondent after 02.08.2016 demanding her to join his company. He has not filed any application under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. He has not made any efforts or initiate legal 19 proceedings seeking custody of child including visitation rights. Burden lies on the appellant to prove that respondent deserted her, by producing cogent evidence. In the present case on hand, the appellant failed to prove the said desertion too.
20. It is apt to note here that the respondent (RW1) stated that she is ready and willing to join the company of appellant. RW2 father of the respondent and RW3 paternal uncle also deposed in the same lines.
21. On the other hand, the appellant (PW1) during cross-examination categorically admitted that even if the respondent is willing to withdraw the case, he is not willing to take the respondent into his company. Learned Family Court considering the said admissions, definition of cruelty and also desertion, principle laid down by the Honourable Supreme Court in several Judgments, dismissed the IDOP filed by the appellant holding that the appellant failed to prove both cruelty as well as desertion as alleged by him. The learned Family Judge also considered the fact that the appellant and respondent are blessed with two children. 20
22. On the analysis of entire evidence, the learned Family Court gave the following specific finding that:
"Cumulative effect of all the instances placed on record and considering conduct of the parties, I feel problems can be sorted out in a cool atmosphere by adopting principles of give and take and by forgetting the past events at least for the sake of children. This Court hopes and trusts that the differences between the petitioner and respondent without standing on prestige by either side and without pointing out finger to opposite party about past misdeeds, if any, can be sorted out."
23. It is apt to note here that as on the date of aforesaid IDOP, the appellant was 39 years and respondent was 33 years. She is working as School Assistant. As on the date of filing this FCA they are aged about 41 years and 35 years respectively. It appears they are now aged 53 years and 47 years respectively. The children are aged 20 years and 17 years. Their daughter is studying B.Sc., and son is studying Intermediate second year.
24. In the light of the aforesaid discussion, we are of the considered view that the learned Family Court on 21 considering the entire evidence dismissed the IDOP filed by the appellant seeking dissolution of marriage on the grounds of cruelty and desertion. It is a reasoned order and well founded. It does not require any interference by this Court. Therefore, this Family Court Appeal is liable to be dismissed.
25. Accordingly, this Family Court Appeal is dismissed. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
__________________ K.LAKSHMAN, J ______________ K.SUJANA, J Date: 23-NOV-2023 KHRM