Telangana High Court
B. Krishna Menon vs Smt Rekha , Uma on 7 June, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P.SREE SUDHA
FAMILY COURT APPEAL No.204 OF 2011
JUDGMENT:(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. Mirza Safiulla Baig, learned counsel for the appellant.
2. Sri R.Dheeraj Singh, learned counsel appearing for the respondent would submit that respondent is not in contact with him and therefore, he has sent a notice through Registered Post with Acknowledgment Due. The same was returned unserved with an endorsement "Left without instructions. Returned to sender." According to him, he has sent the said notice to the address available with him.
In the light of the said submission, vide order dated 18.10.2023, we have held that as per Section 27 of the General Clauses Act, sending notice to the party to the address available is sufficient. However, it is a statutory appeal which will be decided basing on the record available. This appeal is of the year 2011. We have received record from the Family Court. Perused the record. 2
3. The appellant-husband had filed the aforesaid O.P.No.1368 of 2009 under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (for short, 'the Act') before the Additional Family Court, Hyderabad, seeking dissolution of his marriage dated 13.05.2004 with the respondent-wife on the ground of cruelty contending as follows:-
i. His marriage with the respondent was solemnized on 13.05.2004 as per Hindu custom and rites.
ii. After the marriage, they lived happily for a short period. Her mother also stayed with them.
iii. Thereafter, on the demand of the respondent and her mother for separate accommodation, his mother permitted them to reside separately in the first floor of the same house belongs to her. iv. Even then, she never used to prepare food for him and he used to take outside food.
v. Since the marriage, she did not cooperate with him in sexual activities and used to maintain distance as she did not want to beget children.
vi. She left his company immediately after the first anniversary of marriage along with his brother Dubbaka Vamana Murthy without any reason and started living along with her mother and younger brother Rama Chary.
3vii. Despite request made by him and his mother, the respondent did not join his company.
viii. Several times, the petitioner along with elders visited the house of brother of the respondent at Malakpet, Hyderabad and also the house where the respondent is residing along with her mother and held panchayath, but in vain.
ix. On 10.10.2007, she joined him and lived happily for a short period and thereafter she demanded him and his mother for partition of the house property in which the petitioner, his mother and younger brother are residing and his mother maintaining herself from the rents of the said house. x. She used to insult him before the other family members and relatives for nothing.
xi. On 16.5.2008 in his absence, she left the house without any intimation either to him or his mother and living along with her mother at Laldarwaza X Roads, Hyderabad.
xii. Despite his request to join him, she bluntly refused. xiii. She also threatened him that she will implicate him and his family members in criminal cases and send them to jail. xiv. As there is no option, he has issued a legal notice on 19.8.2009 to her, but she did not receive the same.
4xv. Again on 20.10.2009, the petitioner issued another legal notice which she received, but neither replied nor joined him.
4. The respondent filed counter, admitting marriage, denying the allegations made by the petitioner and contending as follows:-
i. The petitioner took dowry at the time of marriage. ii. He harassed her with a demand of additional dowry. iii. When she refused to provide additional dowry, he used to harass her both mentally and physically and also beat her. iv. He has sold away all the gold, silver and other articles given to him at the time of marriage, for his bad habits i.e. for playing cards, drinking alchohol and to meet other bad habits. v. After two years of the marriage, he used to come to home daily by consuming alchohol.
vi. He used to play cards along with friends in the house. vii. When she questioned him about his acts, he used to beat her with belt and with other articles available in the house. viii. Her parents always ready to cooperate with him, but he did not care them.
ix. The petitioner and his family members starved her for not providing them additional dowry and used to beat and torture her mentally and physically, they also stated that they will 5 perform his marriage with another girl. They also forced her to give divorce.
x. She came to know through reliable sources that he is having extra marital relationship with other women but she dared not to question him as he warned her not to interfere with his personal life.
xi. The petitioner is financially sound as he is getting income from employment and also owning a house bearing No.2-3- 512/A/10 situated at Chennareddy Nagar, Hyderabad worth of Rs.30,00,000/- and getting rent of Rs.8,000/- per mouth and also having a Plot bearing No.3 in Sy.No.137 (in H.No.1-40/1) admeasuring 198-0 sq.yards situated at Samatha Nagar, Rangareddy District worth of Rs.40,00,000/-. xii. He never co-operated with her to lead conjugal life. xiii. She also filed a petition vide I.A.No.268 of 2010 seeking to grant a sum of Rs.30.00 lakhs to her towards permanent alimony from the petitioner and the same was dismissed.
5. To substantiate his case, the petitioner examined himself as P.W.1 and also his tenant as P.W.2. On the other hand, the respondent examined herself as R.W.1 and Sri D.Krishnamurthy, her elder brother as R.W.2.
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6. On hearing both sides and perusing the evidence on record, the Family Court, vide order dated 24.06.2011 dismissed the O.P.No.1368 of 2009. However, the Court directed the appellant herein to deposit a sum of Rs.3,000/- per month towards maintenance to the respondent/wife till further orders on or before 10th of every month.
7. Feeling aggrieved by the said order, the appellant/husband preferred the present appeal, on the following grounds:-
i. The Family Court ought to have appreciated the evidence of respondent.
ii. The Family Court failed to consider the aspect that the respondent is not interested to join him. iii. The Family Court was not justified in relying upon the false and baseless allegations made by the respondent against him without any proof.
iv. The Family Court failed to consider that the respondent left his company on 16-5-2008, living separately and even after issuing legal notice under Ex.P.3 and P.6 inviting her to conjugal life, but she neither joined him nor replied. v. The Family Court ought to have considered the cross-
examination of respondent wherein she herself stated that she cannot say when they have demanded for additional dowry 7 and that she left the matrimonial house after 4 years of their demand for additional dowry. She herself admitted that she is not willing to join him.
vi. The Family Court ought to have considered that the respondent subjected him to cruelty.
vii. The Family Court ought to have considered that the matrimonial relationship between the appellant and respondent has irretrievably broken down and there is no scope for reunion.
viii. The Family Court was not at all justified in directing the appellant to pay an amount of Rs. 3,000/- per month towards maintenance to her till further orders, without any application filed by her and without any evidence submitted by her.
8. It is relevant to note that during cross-examination, respondent- wife admitted that she left the matrimonial house since her husband and her mother-in-law and Aadapaduchulu (husband's sisters) demanded her for additional dowry. She left the matrimonial house after four (04) years of their demand for additional dowry. Panchayat was held in the presence of caste elders and their relatives after two (02) years of marriage. In the said Panchayat, there was no written agreement. She has not lodged any complaint with the police. She 8 did not conceive during the period of her stay with the appellant. However, she has denied a suggestion that she used to get distance from the appellant in the sexual relations and whenever sexual relation took place, she demanded the appellant to use condom. She has also denied a suggestion that since she is not interested to begot any children through the husband, she maintained distance. She also denied a suggestion that she used to work in Tanishq Jewellery Shop. She has further admitted that at the time of marriage, her husband worked as Goldsmith and later on he did not work. After three (03) years of her marriage, her husband started working in Hero Honda Show Room at Nallakunta. He used to earn an amount of Rs.10 to 12 thousand per month.
9. During cross-examination, she further admitted that she is not willing to join the appellant even though her husband is ready to join her at Lal Darwaja with her mother since her husband is not rectifying his mistakes and habits. Even though, the appellant is willing to take her back, she is not willing to join the company of her husband since he has filed divorce O.P.
10. RW.2 is her elder brother. He has also admitted that appellant herein addicted to bad habits like chewing gutkha, playing cards and drinking alcohol. He used to maintain illicit relationship. He has 9 demanded additional dowry. He has also admitted that appellant is a Goldsmith. It is not in dispute that respondent-wife is not having her father. Her marriage was performed by her brothers.
11. PW.2 is tenant of PW.1 and according to him, wife left the company of husband in May 2008. They lead happy marital life for about two (02) months. Appellant-husband is a Goldsmith. He denied a suggestion that respondent was not liking the appellant that there was no sexual relationship between them. He came to know the said fact through his mother and he has no personal knowledge regarding alleged harassment. He has also admitted that a Panchayat was held. According to PW.2, apart from the house in which he is tenant, appellant is also having another house at Amberpet. He is getting rent there.
12. It is also relevant to note that the learned Family Court dismissed the I.A.No.268 of 2010 filed by respondent seeking permanent alimony of Rs.30 lakhs. However, learned Family Court directed the husband to pay an amount of Rs.3,000/- and according to him, he has been paying the said amount.
13. The aforesaid facts would reveal that though the marriage of appellant with the respondent was performed on 13.05.2004 and the same was not consummated. According to the appellant, respondent 10 is not cooperating with him in leading conjugal life. She is not cooperating with him in sexual activities. She is maintaining distance as she did not want to beget any children. Respondent-wife denied the said allegation. But the fact remains that marriage was not consummated.
14. Respondent-wife made a serious allegation that appellant is maintaining extra-marital relationship with another woman. Even according to RW.1 and RW.2, appellant addicted to bad habits like chewing gutkha, playing cards and alcohol apart from maintaining extra-marital relationship with another woman. They are staying separately from 16.05.2008.
15. During cross-examination, respondent-RW.1 categorically admitted that she is not interested to join the company of appellant to lead marital life. Since, he failed to look after his mistakes and he has filed the present divorce O.P.
16. In the light of the aforesaid discussion, we are of the considered opinion that there is no possibility of reunion of the parties.
17. Admittedly, appellant-husband is paying the aforesaid amount of Rs.3,000/- to the respondent-wife towards monthly maintenance in compliance with the order passed by the learned Family Court. Respondent-wife also filed an Interlocutory Application vide 11 I.A.No.268 of 2010 seeking to grant an amount of Rs.30 lakhs to her towards permanent alimony. The said I.A was dismissed.
18. In the affidavits filed in lieu of examination in chief, both RW.1 and RW.2 specifically deposed that they have given certain articles, furniture and marriage expenses worth of Rs.3,00,000/- at the time of marriage.
19. Learned Family Court did not consider the said aspects and dismissed the aforesaid O.P filed by husband seeking dissolution of marriage. The impugned order is not on consideration of entire evidence both oral and documentary more particularly the cross-examination of respondent-RW.1 and also the fact that she sought permanent alimony of Rs.30 lakhs by way of filing an Interlocutory Application. Therefore, the impugned order is set aside. O.P.No.1368 of 2009 filed by appellant seeking dissolution of marriage is allowed. The marriage of appellant with the respondent, performed on 13.05.2004 is dissolved by way of granting decree of divorce on the condition of appellant-husband paying an amount of Rs.5,00,000/- to the respondent-wife towards permanent alimony within two (02) months from the date of receipt of copy of this order. Failing which, liberty is granted to respondent-wife to take steps in accordance with law.
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19. In the result:-
This appeal is allowed. There shall be no order as to costs. As a sequel, the miscellaneous petitions, if any, pending shall stand closed.
_________________ K. LAKSHMAN, J _________________ P.SREE SUDHA, J 07.06.2024 Ssy