Telangana High Court
Kurukunda Hema Prasad vs K. Sailaja on 7 June, 2024
Author: K.Lakshman
Bench: K.Lakshman, P.Sree Sudha
THE HON'BLE SRI JUSTICE K. LAKSHMAN
AND
THE HON'BLE SMT. JUSTICE P.SREE SUDHA
FAMILY COURT APPEAL No.149 OF 2012
JUDGMENT:(Per Hon'ble Sri Justice K.Lakshman) Heard Sri L.Preetham Reddy, learned counsel representing Sri L.Prabhakar Reddy, learned counsel for the appellant and Sri P.Ravi Kiran, learned counsel for the respondent.
2. Feeling aggrieved by the order and decree, dated 31.12.2011 passed in O.P.No.410 of 2008 by the learned Judge, Family Court, Ranga Reddy District at L.B. Nagar, Hyderabad, the appellant/husband preferred the present appeal.
3. The appellant/husband had filed the aforesaid O.P.No.410 of 2008 against the respondent/wife under Section 13(1)(ia)(ib) of the Hindu Marriage Act seeking dissolution of marriage on the ground of cruelty and desertion. According to the appellant, i. His marriage with the respondent was performed on 26.04.2001 at Chinna Tekuru Village, Kallur Mandal, Kurnool District as per Hindu rites and customs.
2 KL,J & PSS,J FCA No.149 of 2012 ii. It is an arranged marriage. iii. The father of the appellant died on 27.04.2001. iv. The respondent/wife stayed till the completion of
cremation of appellant's father and went along with her parents.
v. Despite making repeated requests, respondent did not come and join the society of the appellant.
vi. After making consistent efforts, respondent joined company of the appellant at Chennai in February, 2002.
vii. Thereafter, their marriage was consummated. viii. During pregnancy, respondent insisted the appellant to accept for abortion for which the appellant did not accept and ultimately, they were blessed with a daughter on 19.08.2003.
ix. The respondent was suffering from T.B. and the appellant got treated her.
x. On 28.04.2003, when the father and brother of the respondent came to Chennai, respondent left with them by locking the house by handing over the key to neighbour while the appellant was in office.
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KL,J & PSS,J FCA No.149 of 2012 xi. During March, 2005, the appellant was informed by his company i.e. HCL Technologies in Chennai that the respondent along with her father, sister and child came to his office and informed that they do not know the whereabouts of the appellant for the last 20 months and requested them to furnish the contact details of the appellant. Thereafter, they got issued a legal notice to the said company. On account of the said attitude, the reputation of the appellant was damaged.
xii. The appellant got an offer in USA and left for the job. The respondent threatened that she would commit suicide if he did not come back to India.
xiii. Having waited for so many days, the appellant got issued a legal notice calling upon the respondent to come and join his company at USA.
xiv. On receipt of legal notice, the respondent got issued a reply notice with false and frivolous allegations.
xv. The appellant was staying in USA. As such, he could not see his child in India. The child is with the respondent. 4
KL,J & PSS,J FCA No.149 of 2012 xvi. The respondent and her parents did not allow the mother of the appellant to see the child and lodged a complaint against her and she was arrested on 25.03.2006 by Women Police Station, Saroor Nagar, Cyberabad. After exchange of notices during the year 2005 and initiation of criminal complaint, etc., there was no possibility of reunion between the parties.
xvii. Therefore, the appellant filed the aforesaid O.P. seeking dissolution of marriage on the ground of cruelty and desertion. According to the appellant, the respondent subjected him to cruelty and deserted him.
4. The respondent/wife filed counter denying the allegations made by the appellant. According to her, i. After completion of cremation of appellant's father, there were unwarranted and emotional comments by the family members of the appellant and other relatives stating that the respondent's marriage with the appellant was inauspicious and she is responsible for the death of appellant's father. 5
KL,J & PSS,J FCA No.149 of 2012 ii. The respondent left Chennai as she was pregnant by leaving all the gold ornaments and silver items etc. with the appellant.
iii. The appellant did not give any attention to the child after delivery.
iv. None including the appellant has come to see the child.
v. The appellant did not extend any support either moral or financial towards the child.
vi. The respondent sent all the documents to the work place of the appellant for process of VISA to go to USA, but the appellant did not process the same which clearly shows that he is not interested to take the respondent and the child to USA.
vii. The appellant went to USA without any information to the respondent. Hence, she was constrained to go to office at Chennai to know the whereabouts of the appellant.
viii. She never subjected the appellant to cruelty and never deserted him.
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KL,J & PSS,J FCA No.149 of 2012 ix. The appellant created false story only to file the subject O.P. to get rid of her.
5. To prove the allegations of cruelty and desertion, the appellant got examined himself as P.W.1, his cousin as P.W.2, Ex-Sarpanch as P.W.3, his maternal uncle as P.W.4 and his friend as P.W.5 and also got marked Exs.P1 to P13. To disprove the said allegations, the respondent got examined herself as R.W.1 and her father as R.W.2. However, she did not file any documents in support of her claim.
6. The aforesaid contentions would reveal that the marriage of the appellant with the respondent was performed on 26.04.2001 and it is an arranged marriage. It is not in dispute that on the next date of marriage i.e. on 27.04.2001, the appellant's father died. Therefore, according to the respondent, there were unwarranted and emotional comments by the family members of the appellant and other relatives stating that the marriage of the respondent with the appellant was inauspicious and she is responsible for the death of appellant's father. However, the same does not amount to cruelty. 7
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7. It is also relevant to note that even according to the appellant, the respondent joined his company at Chennai in February 2002. The said marriage was consummated and they were blessed with a female child on 19.08.2003. Now she is aged 21 years and staying with the respondent.
8. Though the appellant contended that the respondent was suffering from T.B. and he got treated her, he has not filed any document and he has not examined any witnesses to prove the same. T.B. is a curable disease. It is not a ground to obtain decree of divorce. Assuming for a moment that respondent is suffering with T.B., it does not amount to cruelty.
9. According to the appellant, the father and brother of the respondent came to Chennai and took the respondent along with them without informing the appellant by handing over the key to neighbour while he was in office, but he failed to prove the same by producing any evidence including examining his neighbour or office colleagues. On the other hand, it is the specific case of the respondent that she has informed the appellant that she is 8 KL,J & PSS,J FCA No.149 of 2012 going along with her father and brother since she was pregnant at that time.
10. It is further alleged by the appellant that during March 2005, he was informed by his company i.e. HCL Technologies in Chennai that the respondent along with her father and sister came to his office and made enquiries with regard to the whereabouts of the appellant by informing that they do not know the whereabouts of the appellant since 20 months and requested them to furnish the contact details of the appellant. Thereafter, the respondent got issued a legal notice to the said company. On account of the said attitude, his reputation was damaged.
11. It is the specific contention of the respondent that without informing her, the appellant left to USA. Even, the appellant did not care to see the child after her birth. He is not in contact with her. She did not know the whereabouts of the appellant since the past 20 months. Hence, she was compelled to approach the office of the appellant in Chennai to learn the whereabouts of the appellant. Therefore, the question of damaging his reputation does not arise.
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12. It is the duty of the appellant to take care of his wife and also the child. It is not his case that he did not know about the respondent giving birth to a child on 19.08.2003. He is aware of the said fact. Even then, he left for USA without informing to the respondent. Therefore, there was no other option to the respondent except approaching his employer to know the whereabouts and contact details of the appellant. Hence, it does not amount to cruelty.
13. It is further alleged by the appellant that he was in USA and therefore it was not possible for him to see the child. Therefore, he requested his mother to see the child, but respondent has lodged a complaint against the appellant, his brother and mother and therefore, the Women Police Station, Saroor Nagar arrested his mother on 25.03.2006.
14. As discussed supra, the respondent gave birth to a child on 19.08.2003. Neither the appellant nor his mother went to the house of respondent's father to see the respondent and the child. The respondent was under dark. She does not know the whereabouts of the appellant. During March, 2005, the 10 KL,J & PSS,J FCA No.149 of 2012 respondent went to the office of the appellant at Chennai and made enquiries with regard to his whereabouts and issued notice to the said company. Thus, according to the respondent, she made all her best efforts to trace out the appellant and to know his whereabouts. She could not get the details of the appellant. Therefore, she was compelled to lodge a complaint against the appellant, his mother and brother for the offence punishable under Section 498-A of IPC.
15. It is settled principle that mere lodging a complaint under Section 498-A of IPC is not a cruel act. When the husband, his brother and mother harassed, it is for the wife to lodge a complaint against them for the offence punishable under Section 498-A of IPC. It is not a cruel act.
16. It is relevant to note that the respondent herein had filed an affidavit in C.C.No.217 of 2010 stating that she is not interested to produce any evidence and to prosecute the said case. Therefore, she requested the learned Magistrate to close her evidence. She was interested in the welfare of her husband 11 KL,J & PSS,J FCA No.149 of 2012 and daughter. The appellant has to appreciate the said action of the respondent.
17. During cross-examination, the appellant (P.W.1) categorically admitted that on the same day of marriage, his father died in early hours. However, he denied the suggestion that his father was suffering from heart problem. His village is 100 kilometers away from the respondent's father village. He went to his parents-in-law house only 3 or 4 occasions. In September 2003, he went to his parents-in-law house lastly to see his child. He went to his parents-in-law house along with his mother. However, he denied the suggestion that he did not mention the said aspects in his O.P.No.410 of 2008. He has further admitted that his wife went to her parents' house at 5th month of pregnancy for delivery. She went by herself. He did not cause legal notice to his wife when she went away from his house from Chennai. His family members did not visit his wife at the time of pregnancy. After knowing about delivery by his wife, he and his mother went to see the child. He denied the suggestion that they did not visit his parents-in-law to see his 12 KL,J & PSS,J FCA No.149 of 2012 wife and child in spite of intimation. He went to USA in March 2004. Till he left to USA, he stayed at Chennai. He did not send any money or gifts to his new born child while he was at Chennai and before leaving to USA. He visited India in September 2004 and again went back in October, 2004, he did not see his child when he was in India during September to October, 2004 but he tried to see her. He did not make any deposits in the name of his daughter. He took LIC policy in the name of his daughter, but he did not file the copy of the same.
18. He came to know that his daughter filed Maintenance Case i.e. O.P.No.589 of 2009 against him. The Court has ordered to pay an amount of Rs.10,000/- to her towards monthly maintenance. He did not pay any amount to her daughter towards maintenance though there is a decree against him. He filed a petition to set aside the ex parte decree in the said O.P. He must have attended 6 or 7 times in the said case. The respondent is working at Kalvakurthi and is residing there. The daughter is also residing at New Maruthi Nagar. He did not visit his daughter in the meantime whenever he visited the Court as it 13 KL,J & PSS,J FCA No.149 of 2012 may cause disturbance. He did not file any petition before the Court to permit him to see his daughter. He is a software programmer at USA. He did not get same job at Chennai. He did not address any letter to his wife to join him soon after he went to USA. He gave instructions to issue legal notice to his wife vide Ex.P1.
19. When he was in India, he did not give such notice to his wife. He did not raise any panchayat against the respondent while he was in India. He tried to contact his wife to Vipanagalla through Telephone service connection No.277019. He was getting 5000 dollars per month towards salary. He was getting 116 thousand dollars per year.
20. In the year 2005, he asked to send the photos of his daughter with his wife. He and his wife talked over telephone while she was at Vipanagalla Village. He did not give money to his wife to apply for passport or VISA. In the year 2007, his mother resided at Hyderabad nearer to the house of the respondent. He did not send money to his daughter through his mother when his mother resided at Hyderabad. He did not send 14 KL,J & PSS,J FCA No.149 of 2012 money to his daughter either by transfer into account or through money order when his mother resided at Hyderabad.
21. P.W.2 is the cousin of the appellant. He deposed that the respondent, her parents and some relatives came to the house of the appellant to attend 11th day ceremony of the appellant's father. They have scolded the appellant and his family members. They have also picked up quarrel and created lot of nuisance. He and others tried to pacify them, but there was no use. The parents of respondent took the respondent along with them.
22. Ten months after the death of appellant's father, his father died. As they are of same family, he had asked the appellant's mother to ring up to the respondent and then he asked her to come to his father funeral. Then respondent came to their village along with her father and she stayed in their village till the ceremony of his father was over. Thereafter, respondent had decided to go along with the appellant and went to Chennai along with the appellant. The said allegations would reveal that 15 KL,J & PSS,J FCA No.149 of 2012 the allegations made by the appellant that the respondent subjected him to cruelty, is false and contrary to the record.
23. In fact the appellant himself went to USA without even informing the respondent. Therefore, she was compelled to lodge a complaint with the police.
24. P.W.3 is the Ex-Sarpanch of the Village and also Ex-MPTC member. He also deposed on the same lines. However, during the cross-examination, he has admitted that the chief-affidavit was prepared on his instructions and he has signed in the Court. The appellant filed a petition requesting his wife to join him. In fact the appellant filed the subject O.P. seeking dissolution of marriage not seeking restitution of conjugal rights. Therefore, the evidence of P.W.3 is not useful to prove the cruelty.
25. P.W.4 is the maternal uncle of the appellant. He deposed that the respondent used to work in School during December 2010. He tried to talk to her for settlement, but she spoke in adamant manner. She did not give any respect to his relation or age. However, during cross-examination, he has admitted that his chief-affidavit was prepared on his instructions. It was 16 KL,J & PSS,J FCA No.149 of 2012 prepared at Hyderabad and that there is no endorsement on his chief-affidavit that it was prepared on his instructions and its contents were explained to him in Telugu. Therefore, his evidence is not useful to prove the cruelty.
26. P.W.5 is the friend of appellant. He deposed that the appellant went to USA in December 2004. The appellant requested him to go to the house of respondent and convince her to join his company at USA along with the child. He went to the house of the respondent's father and tried to convince the respondent to join the company of the appellant. As per the request of the appellant and his mother, he went to Veepunigandla Village of Mahabubnagar District where the respondent was living with her parents. He spoke to them. He tried to convince them. But the father of the respondent argued saying that what is the guarantee for the life of the respondent. He had advised them to apply for passport and also VISA. He offered to give some money towards expenses and he will collect the same from the appellant later. But the father of the respondent did not agree for the same. However, he has 17 KL,J & PSS,J FCA No.149 of 2012 informed P.W.5 that they will apply for passport and VISA for the respondent and her child.
27. During cross-examination, he has admitted that he do not know the contents of main petition filed by the appellant and he do not know whether the appellant made any mention about his mediation in the main petition. He does not know where the respondent is residing now. After his attempt to settle the dispute between the parties in 2004, he never met the respondent. Therefore, his evidence is also not useful to the appellant.
28. Cruelty is not defined in any statute. The Family Court has to come to a conclusion that the allegations made by a spouse constitute cruelty. In Samar Ghosh vs. Jaya Ghosh1, the Honourable Apex Court relying on its earlier judgment in Naveen Kohli v. Neelu Kohli 2 observed certain incidents of cruelty in paragraph No.101 which are as under:-
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases 1 (2007) 4 SCC 511 2 (2006) 4 SCC 558 18 KL,J & PSS,J FCA No.149 of 2012 of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and 19 KL,J & PSS,J FCA No.149 of 2012 dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.20
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29. The same are illustrative, but not exhaustive. In the light of the aforesaid facts, as discussed supra, the allegations made by the appellant do not constitute cruelty. In fact the appellant subjected the respondent to cruelty. He did not even take care of the welfare of his daughter who was born on 19.08.2003. He completely neglected both the respondent and his daughter. It is relevant to note that the appellant's daughter had filed O.P.No.589 of 2009 against the appellant seeking maintenance. The said O.P. was allowed and an amount of Rs.10,000/- was awarded to her towards monthly maintenance. But according to the appellant, it is an ex parte order and he has filed a petition to set aside the said order. He has not complied with the said order. The said facts would reveal that the appellant did not take care of his child apart from taking care of his wife. The daughter of the appellant and the respondent is now aged 21 years. She is staying with her mother.
30. Considering the entire evidence both oral and documentary, the learned Family Court dismissed the subject 21 KL,J & PSS,J FCA No.149 of 2012 O.P. filed by the appellant holding that the appellant failed to prove the cruelty and desertion.
31. To seek divorce on the ground of desertion, there should be two years of desertion. The burden lies on the appellant to prove the said desertion. In the present case, the appellant failed to mention the date of desertion and failed to prove the same by producing legally acceptable evidence. On mere allegations, divorce cannot be granted. The appellant who filed the aforesaid O.P. seeking dissolution of marriage on the ground of cruelty and desertion has to prove the same by producing legally acceptable evidence. Burden lies on him. In the present case, he failed to produce the same and he failed to discharge the burden in proving the said grounds of cruelty and desertion. On consideration of the said aspects, the learned Family Court rightly dismissed the aforesaid O.P. It is a reasoned order and well founded. The appellant failed to make out any case to interfere with the said reasoned order. The appeal fails and is liable to be dismissed.
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32. Accordingly, the Family Court Appeal is dismissed. There shall be no order as to costs.
Miscellaneous applications, if any, pending in this appeal shall stand closed.
____________________ K. LAKSHMAN, J ____________________ P. SREE SUDHA, J Date: 07.06.2024.
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