Andhra Pradesh High Court - Amravati
D Subramanyam Raju vs D Lakshmi Devi on 30 April, 2019
Author: J. Uma Devi
Bench: J. Uma Devi
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATHI -- TUESDAY, TH IE THIRTIETH DAY OF APRIL We TWO THOUSAND AND NINETEEN is H PRESENT \ THE HONOURABLE SRILPUSTICE M.SEETHARAMA MURT THE HONOURABLE M& JUSTICE J. UMA DEVI PAMILY COURT APPEAL NO: 147 OF 2095 (Appeal under Section 19 of Family Courts Act 1984 against the Order and Decree dated Loth March, 2015 passed in FCOP No.129 of 2010 on the file of the Judge, Family Court-cum-V Additional District Judge, Tirupati} Hetween: D Subramanyam Raju, S/o D.Rama Raju, dependent, Hindu, aged about 40 years, previously resided at D.NOA-6-776F, Indira Nagar, Tirupati, Presently residing at Pottirajugaripalle, Kodur Mandal, Y.S.R.Kadapa District. Appellant/Petitioner ANY DD Lakshmi Dewi, W/o D.Subrarne anya Ragu, D/o Narayana Raju,Nouse wife, Hindu, Aged about 35 years, hia DNo.2- 37, Yummala Agraharam, Near Railway station, (presently residing at T. Agraharam), Rajampet. YOR Kadapa District . . Respondent/Respondent Counsel for the Appellant: SRI LJ VEERA REDDY Counsel for the Respendent: SRI MAHESWARA RAO KUNCHEM The Court made the following: ORDER THE HON'BLE SRI JUSTICE M.SEETHARAMA MURT! AND THE HON'BLE MS. JUSTICE J. UMA DEV) FAMILY COURT APPEAL Na, 147 of 2015 ORDER:
[per Hon'ble Sri Justice M. Seetharama Murti] Tris is an appeal by the unsuccessful petitioner-husband under section 19 of the Family Courts Act, 1984, against the decree and order, dated 16.03.2015, of the learned Judge, Family Court-cum-V Additional District Judge, Tirupati, Chittoor District, passed in FCOP no. 129 of 2010, We have heard the submissions of Sri Lid. Veera Reddy, learned counsel, appearing for the appellant-petitioner and of Sri Maheswara Rao Kunchem, learned caunsel, appearing for the respondent. We have perused the material record, The case of the appellant-petitianer-husband, in brief, is this:
The marriage between the petitioner and the respondent was performed, on 17.04.1998, a Rajampet of Kadapa District. immediately thereafter, they had put up their family at petitioner's native village, Pottirajugaripalle of Railway Kodur Mandal of Kadapa District. The respondent ts an illiterate. She was nat mingling with his family members, she used to always threaten the petitioner to put up separate family. The petitioner being the only son af his parents was pacifying her. Three months after the marriage, there was a mediation at the instance of the respondent and with the assistance of her parents. At that time, the respondent threatened and not allowed anyone of the petitioner's relatives into the house. Though the elders of both the sides tried fo convince her, she did not heed the words of the elders, She had left for her parental house. From that date onwards, she was frequently visiting her parental house; and, the petitioner used to bring her back. While so, on 08.07.1999, the respondent gave birth to a male child. Five months after the delivery of the boy, she came to the place of the petitioner and stayed there far two months only. During the said period of stay, she used to give trouble ta the petitioner and his parents. Two of the brothers of the respondent were working in Kuwait, Respondent was insisting upon the petitioner to send her to Kuwait ta work as a maid servant and earn money. The petitioner did not agree for the said proposal. Without his knowledge and with the help of her brothers, the respondent obtained a passport and visa and left for Kuwait, on 24.04.2001, despite the petitioner trying to stop her even at the Airport, Chennai, In order to bring back the respondent, the petitioner also went to Kuwait in the year 2002. However, the respondent did not join him at that place. The petitioner started working in Kuwait, Petitioner and the respondent came down to India, on 28.06.2005. After they stayed for two days in the village of the petitioner, respondent left for her parental house, while leaving the son with the petitioner, She did not return to the matrimonial hame. After five days, the petitioner went to the house af the parents of the respondent and asked her to come to his place, However, she refused to join the petitioner. Thereafter, there was a mediation. As per the advice of elders of both the sides, the petitioner and the respondent had put up their family at Indiranagar, Tirupati, in August, 2005. While staying in that house, the respondent used to question about the earnings of the petitioner at Kuwait and was insisting upon the petitioner niet to question her about her earnings at Kuwait. The petitioner accepted the terms settled by the elders. On 07.09.2005, the respondent went to Kuwait without informing the petitioner and by leaving the son with the petitioner. Hence, the petitioner also went to Kuwait to bring her back. flowever, she refused to return ta India and live with the petitioner.
in order to convince her, the petitioner went to the house of the employer 3 of the respondent. She refused to meet him. Gn one such occasion, she gat the pelitianer necked out of the house of her employer. Her brothers also wanted the petitioner not to talk to the respondent. When the petitioner's mother fell sick and when the petitioner was coming to India, on 06.02.2007, the respondent refused to accompany him. Thus, the respondent had voluntarily deserted the petitioner for more than four Years and is living separately at Kuwait. The respondent returned to India and went to her parental house, on 27.06.2009. On coming to Knew about her arrival, the petitioner made efforts te bring her back. As the respondent refused to join the petitioner, the present petition is fled for dissolution of the marriage of the petitioner with the respondent.
The case of the respondent és this:
The relationship between the petitioner and the respondent and the respondent giving birth to a male child under lawful wedlock are true. She was brought up in a village. Knowing the said fact, the petitioner married her. At the time of her marriage, her parents gave Rs.2.00 lakhs in cash besides 15 tolas of gold to the petitioner and his mother. immediately after marriage, she joined the petitioner at Pottirajupatle village. She attended on the petitioner and his rnother as a dutiful wife. They used to abuse her stating that she js an illiterate and she cannot move with their family members. Only on the instigation and the pressure exerted by the petitioner, she requested her brothers, who are working at Kuwait, to send her visa and passport to ga to Kuwait. Accordingly, they arranged for the Passport and Visa for her. Then, she left for Kuwait, by expending money, omy on account of the pressure exerted by the petitioner, When bath of them stayed at Kuwait, she gave away all her earings to the petitioner, Despite all the said facts, the petitioner was il-treating her. In the year 2005, they both returned to India and stayed for two manths at Tirupati, where the sister of the petitioner was residing, Thereafter, both of them went to Kuwait on the same Flight. At that time also, the petitioner was insisting upon her for giving her earnings to him. Later she fell sick. She could not attend to her work. Therefore, she had kept same money aside for her treatment. The petitioner harassed her for that money and developed aversion tawards her and returned to India in the year 2007, without informing her. After staying for 10 days in India, the petitioner went to Kuwait. When the respandent questioned the petitioner, he beat her, Finally, in the year 2009, both of them returned to India, separately. The petitioner first came down ta India. He did nat allow her inta his house at Tirupathi, in which his mother and sister were also residing. They all necked her out of the house. Hence, she went to her parents and informed them about the happenings. Her parents approached the oetitioner along with elders for having a mediation. The petitioner, his mother and sister demanded money. Though the parents of the respondent are prepared to give additional dowry, they could not meet the demands of the petitioner, which were very high. She has gat love and affection towards the petitioner. The petition is filed with false allegations. All the contrary material allegations in the petition of the petitioner are false. The respondent is willing to join the petitioner. There is no cause of action. The petition is liable to be dismissed, At trial, the appellant was examined as PW1 and one of his clase relatives was examined as PW2. The respondent-wife was examined as RW1 and her supporting witnesses were examined as RWs 2 & 3. Exhibits Ai & AZ, Wedding Card and Wedding Photograph were marked on behalf of the petitianer. No documents were marked on behalf of the respondent.
Qn merits and by the order impugned in this appeal, the husband's petition was dismissed. Therefore, the husband is before this Couirt.
Learned counsel for the appellant while reiterating the case of the petitioner-husband, which is stated supra, inter alla, contended as follows:
The order of the Court below is contrary to law, arbitrary and against the weight of evidence & probabilities of the case. The Court below failed to consider the evidence adduced on behalf of the appellant herein. It failed ta see that there is no evidence adduced by the respondent-wife to establish her case. The Court below failed to see that the respandent herein had deserted the appellant and went away to Kuwait at the instance of her brothers & parents, without the consent and knowledge of the appellant herein. The Court below failed to see that the resporicent herein had subjected the appellant to cruelty in several ways including by filing of a case in Crime no.119 of 2013 under Section 498-A IPC and Sections 3 & 4 of Dowry Prohibition Act and Sections 420, 406, 452 and 365 read with Section 517 IPC and by dragging to the Court, the entire family, inctuding the brother-in-law of the appellant. The respondent nerein filed M.C.no.9 of 2014, on 28.11.2014. Thus, the respondent had subjected the appellant to cruelty and also deserted the appellant. As such, the Court below aught to have granted decree of divorce. The Court below ought to have seen that the evidence adduced by the appeliant sufficiently established his case. The Court below is not correct in stating that the appellant had given contradictory version with regard te respondent going to Kuwait, The finding that the evidence on record does not clearly establish the desertion and cruelty on the part of the respondent is net correct. The Court below ought to have seen that the marniage is irretrievably broken down and that there is no chance of re-
urtion in view of the conduct & behaviour of the respondent.
Learned counsel for the respondent supparted the judement of the Court below. He Ynter alia contended that the trial Court cansidered the facts correctly and the evidence in proper perspective, while dismissing the petition of the appellant-husband, and that the said well considered judgement of the Court belaw does not warrant interference. We have gone through the pleadings and evidence, Both the parties in their affidavits fled in lieu of examinations in chief reiterated their respective pleaded cases. The cross examination of PW brings to the fore, the following aspects: - 'He studied upto 10° class. The respondent is an illiterate. As on the date of his deposition in the year 2014, he was residing at Mangalam along with his mother, while his wife is residing at Rajampet and that he is not even aware where his son is studying. He was working as a helper an daily wage, in can water works at Tirupati, He has got Ac.2.00 cents of land at Pottirajugaripalle village and also a house in the same village. He had first applied far passport only after marriage, to go ta Kuwait. The respondent got her passport with the heip of her parents. By the date of marriage, the brothers of the respondent were in Kuwait. When the respondent went to Chennai for leaving for Kuwait, the petitioner, having came ta know of the same, went to Chennai and saw her in Central Railway Station; he stayed with the respandent for two days at Chennai and came back, as she did not listen to his request to come back. He applied for Visa, to work as servant at Kiewait. He worked there in the house of one Muthlag while the respondent vorked in another household. They both stayed in the accommodations aravided by the respective house owners/employers. in Kuwait, ladies are rot permitted to move outside. On 28.06.2005, both of them came over to their village. Both of them went to Pothurajugaripalle and stayed in the house of the petitioner's mother. On 07.09.2005, bath of them went to Kuwait by the same flight. A mediation was held before the parents and uncle of the respondent, on 07.09.2005, that is, before both parties left for Kuwait. Most of the villagers of the petitioner's village went te Kuwait, He alone came hack ta India in the year 2009. Subsequently respondent also came back to india and went away to her parents house at Rajampet.' The _--
cab ove aspects apart, he denied the suggestions given to him in line with the case of the respondent -wife.
PW is a person who was said to have attended the marriage and attended a mediation. His wife and petitioner's mother are sisters. He said that he does not know anything about petitioner's application fer passport and visa. He also stated that petitioner and respondent went to Kuwait for livelihood and that he does not know the relief claimed in the petition, The relevant aspects in the cross examination of RW1 are as follows: ~ Both parties lived together for three years at Pottirajugaripalle. Her elder brother arranged for her passport and Visa to ego to Kuwait. One month after the marriage, mediation was held at Pottirajugaripalle, in the house of parents in law and in the presence of her parents. Subsequenity, no mediation was held. Visa was arranged by her elder brother. Passport was arranged by her mother, Rs.60,000/- was spent for getting Visa; aut of which she paid Rs.30,000/- te her elder brother. Petitioner came to airport to see her off to Kuwait. She left her sen with her mother in law. Petitioner came to Kuwait in 2002; but, not to take her back as suggested. Both of them came in 2005 to Pottirajugaripalle and stayed there for two days and went to Rajampet and stayed there for one day and later came over to Tirupati. They lived together at Tirupathi for 19 days and went to Pottirajugaripalle and Uved there for 20 days. She then went to Rajamoet and then came over ta Pottirajugaripatle and again bath of them went to Kuwait. They dic not live together at Kuwait. They used te meet once ina month, She alate came to India in 2009 from Kuwait. Petitioner came to her house at Kuwait and catled her to his house for living together. She has got NRE Bank account at Kuwait. After she came over to India on second occasion she was not called by the petitioner: and, she did not go te his house, Her son was forcefully sent away to the house of her mother. After the present application is filed by the husband, her mother and others went to Rajampet police station; and, the petitioner was brought to the police station in the night; mediation was held on the next day at the police station. Having assured to take her back to the matrimonial fold, the petitioner failed to da so. She went to Pottirajugaripalle, in 2013. At that time petitioner was doing coolie work at Tirupati. After she went ta the house of her mother-in-law at Pottirajugaripalle her mother in law left the village and went away to Tirupati. She (respendent) did not ga ta the house of the petitioner at Tirupati. She lodged a report in June, 2013 in Rajampet police station. in May, 2013, a mediation was held at Railwaykodur police station, As per the advice given at the said mediation, they lived together at Railwaykodur for one month. Since petitioner started beating her, from the second day onwards, she lodged a report in Rajampet police station. By that time, her son was studying at Rajampet.' The above aspects apart, she denied the suggestions given to her in line with the case of the petitioner - husband.
RW2 jis the father of the respondent. RW3 is the brother of the respondent. He deposed as follows: 'He took his sister to Kuwait at the request of the petitioner by spending huge amount through his father. The petitioner worked as a driver at Kuwait whereas respondent worked as a maid servant, while residing in the accommodation provided to her in the house of her employer. in Kuwait, there will be a prospect for a couple to 'ive together, only when they are in Government employment." He denied the suggestions put to him to the effect that he took his sister to Kuwait much against the consent and wish of the petitioner and that he does pot Know of the disputes between the petitioner and the respondent arid alsa the mediations that were held.
The first ground urged is desertion. According to the pleading of the petitioner and his evidence in examination in chief, the respondent deserted him in the year 2005 and they were living separately for more than 4 years, since the day the respondent last deserted hirn at Tirupati where they last lived together. The decision in Sanat Kumar Agarwal v, Nandini Agarwal [AIR 1990 SC 594] is relied Upon In support of the ground of desertion. It is submitted that the wife has not joined the husband in the matrimonial home and was insisting to stay separately and later went away to Kuwait leaving the son with the mother in law and that since a iang time both parties are living separately and had adjusted to their separate inodes of fe and hence, the petitioner is entitled to divorce on the ground of desertion. However, the evidence brought on record including the admissions of the petitioner ~ PW1, would reveal that even after 2005 the petitioner and respondent were meeting each other in India and once in a month at Kuwait and they returned to India separately in the year 2009 and that there were mediations. Be it noted that the application befare the Family Court for divarce was filed by the petitioner in september, 2010. His evidence reflects that a mediation was arranged before leaving for Kuwait, on 907.09,2005, and that he returned ta India in 2007, to see his sick mother and that he again went to Kuwait, forty days thereafter ari that he alone again care back to India in the year 2009, The evidence alsa reflects that during their stay at Kuwait between 2007 and 2009, that is, during the second visit they were meeting each other at the respective places of their wark. Petitioner-PW1 admitted that from January, 2073 to June, 2013, the respondent lived in his house at Pottirajugaripalle, 10 Therefore, the contention that there was desertian for good in the year 2005 does not find support fram the statements made by PW in his testimony. The evidence reflects that the spouses, though living separately, are meeting each other of and on and jin fact lived together even after filing of the present petition by the husband and that at any rate there was nc animus descrendi, in any view of the matter. Therefore, we find that on the ground of desertion the petitioner is not entitled to the in the light of the above discussed evidence, it is te be noted that there is no evidence of required standard to safely conclude that there is desertion on the part of the respondent that too without reasonable cause and without the consent or against the wish of the petitioner ar to show that she wilfully neglected the petitioner. On the other hand, the evidence reflects that the petitioner could not establish that the respondent has deserted the petitioner with animus for a continuous period of not less than two years immediately preceding the presentation of the petition. Further, as noted supra, the evidence discloses that the parties lived together after the alleged desertion in the year 2005.
Caming to the ground of cruelty, the respondent is alone complaining that she was ill-treated and was beaten up by the petitioner and was harassed by his mother and sister; and, it is not the case of the petitioner that he was subjected by the respondent to any cruelty by physical acts on her part or by words spoken to by her.
Learned counsel for the appellant - petitioner contended as follows: 'The respondent was staying away from the petitioner having left for Kuwait. Though the petitioner also went ta Kuwait thereafter, there was no possibility for conjugal life at that place for various reasons, They both 42 separately returned to India in the year 2009. After the said year, the present petition for divorce was filed by the husband. As the petitioner was denied conjugal society, the present case is a case of mental cruelty. The petitianer was subjected to mental cruelty by the respondent. There fs break down of marriage. Though the ground that the Marriage Was broken down irretrievably is no ground for divorce, as per law, yet in view of absence of conjugal society between the spouses for a ione time and in view of the conduct of the wife in lodging a complaint under Section 498- A of the frdian Penat Code ['IPC', far short] and sections 3 & 4 of the Dowry Prohibition Act and also sections 420, 406, 452, 365 read with 517 of JRC, against the petitioner and against his mother, sister and another by raping them alse, unnecessarily, and in view of the fact that the calendar case in CC no.93 of 2015 on the file of JMFC, Rajampet, ended in acquittal, there is ample evidence to shaw that the respondent subjected the petitioner to mental cruelty by denying canjugal society and by falsely implicating him and his close relatives in a criminal case. Therefore, on this eraund the petitioner is entitled to a decree of divorce dissolving the marriage between the spouses. ' Copies of the calendar & judgment in the afore-stated Calendar Case, would show that all the accused {the petitioner and his family members} were charged for various offences on the ground that they criminally trespassed into the house at P. Agraharam, where the respondent herein was staying, and demanded her to give divarce and threatened her with dire consequences and dragged her out of the house bY halding her tuft of hair and attempted to kidnap her. The judgment, dated 1S.01.Z2077, im the above Calendar Case also reflects that the petitioner and his family members are found not guilty of the offences punishable under the above stated penal provisions and that they were acquitted, Learned counsel for the appellant-petitioner placed reliance on the decision of the Supreme Court in K. Srinivas Rao v. D.A. Deepa [AIR 2013 SC 2476] in support of the contention that staying together under the same roof is net a precondition for mental crueity and that a spouse can by staying away and denying conjugal saciety can cause mental cruelty by such conduct. He urged that in the case on hand, the wife not only stayed away from the petitioner but also lodged a false camplaint and that since a long time, the spouses are living separately and that the marriage is dead for all ourpases and there is ma passibility far reunion.
The decision in G.V.N. Kameswara Rao v. G. Jabili [AIR 2002 SC 576] was alsa relied upon in support of the ground of mental cruelty and it is sought to be contended that in this instant case there is ample evidence in proof of mental cruelty in view of the non cordial attitude of the respondent wife and her non cooperation and the traumatic experience, to which the petitioner and his family members are subjected to on account of the criminal trial they were forced to face due to the false complaint lodged by the respondent - wife.
Per contra learned counsel far the respandent contended that in the ease an hand, there is every possibility for the spouses joining together provided the husband comes forward to stay with the wife. He further submitted as follows: - 'In fact even after the divorce petition was filed, the spauses were meeting each other. They in fact lived together on a few eecasions. The wife was constrained to file a police report, on 28.06.2013, when there was insistence for divarce by subjecting her to acts of cruelty as stated in her criminal complaint. The husband came away fram Kuwait ta Incia all alone in the year 2009, The respondent followed her and returned to india in 2009. The petitioner - husband filed the petition for diverce in September, 7010. Even thereafter, there was mediation in May, 3 a.
together at Railway Kodur for one month. Accarding to the respondent, O13 in Railway Kadur police station. At that time, the parties lived she was forced to leave the house of the petitioner on account of the cruelty meted out to her. The evidence of petitioner shows that he doesn't even know the whereabouts of his son. Thus, he is interested in getting rid of his wife, Therefore, instead of filing a petition for restitution of conjugal nights, he filed a petition for divorce. If he was really of the opinion that ne was being denied conjugal society, he could have filed a petition for restitution of canjugal rights. However, as he is not interested in reunion and as he is interested in harassing the wife, he filed the petition for divorce. He intentionally avoided filing a petition for restitutian of conjugal rights, as he is fully aware that the wife would join him, if he were to file such a petition. The parties lived together even just before the time, the police complaint was lodged by the wife on the ground that she was being threatened and forced to give divorce. From the eviderice, it is clear that the husband is desperately searching for one ground or the other to somehow get rid of the wife. Hence, he is nat entitted to seek divorce om any ground. When the wife was threatened and was subjected to cruelty to somehow compel her to agree for divorce, there was no other aption to her but te file a police report, The petitioner - husband cannat rake advantage of his own unholy conduct and complain that he is entitled ta divorce as the wife filed a police complaint against him and his farnily members."
We have given earnest consideration to the facts and submissions.
We have already held that for the estrangement, the wife was not respansibie and that even after the alleged separation in the year 2005, the spouses were. meeting frequently either in india ar Kuwait and that the respondent lived in the house of the petitioner frorm January, 2013 to i4 June, 2013 and that even after the wife approached the police in May, Ms é Cee aah sd there was a mediation at Railvay Kodur Police statian and that thereafter they lived together at that place for one month durine that period and that, therefore, the ground of desertion is not available to the husband. it is discernable fram the evidence that the wife had never subjected the husband to cruelty by physical acts or spoken words. The Wife says that she went to Kuwait at the instance of the husband. The husband also went to Kuwait thereafter. While working separately at Kuwait, they were meeting occasionally or ance in a month, though there was no possibility for conjugal life at that time, in the peculiar circumstances in which they were living at Kuwait. The petitioner returned to India, once in the year 2007, for a short stay, and again returmmed ta Kuwait. They both separately returned to India in the year 2009. Both of them left the son to the care of his grand mathers. Even after the filing of the present application by the husband and till the wife lodged the police report, which lead te the calendar case, there are no serious disputes and they were meeting each other new and then and lived together of and on. AS rightly pointed out by the learned counsel for the respandent, when the husband is of the view that the wife is denying him conjugal society, he ought to have filed a petition for restitution of canjugal rights; nevertheless, he filed the present petition for divarce. According ta the wife, as insistence was made and as she was threatened and was forced to give divorce by subjecting her to cruelty, she had no option, but to lodge a police repart. On careful scrutiny of evidence, we are of the view that the contention of the petitioner - husband that the marriage is broken dawn irretrievably and that the marriage is dead for all purposes and it cannot be revived is unacceptable as in the light of the facts & evidence, the passibitity of reunion between the spouses is not unthinkable and as the wife is still interested in saving the marriage. The sam barn tn the year 7990 J8 a mrajar by mow.
Further, the spouses lived together voluntarily even after the Institution of this instant petition for divorce by the husband ts an indicia of the fact that the husband is nat seriausly interested in seeking divorce and that in any view of matter, he is prepared to over look the man cea- operative attitude, if any, or the part of the respondent and that in fact he condoned such canduct, if any, af the wife by leacing family ite with her ane) thus, waived the grounds on which the petition was filed, Qn such analysis of the evidence, the facts & circumstances of the case and on consideration of the contentions of the learned counsel for the respondent - wife, which merit consideration, we are of the considered view that the contention of the husband that he is entitled to divorce on the eround of cruelty particularly mental cruelty does not stand the best of scrutiny and that in that view of the matter, he is nat entiibeel ter seek chivarce an the saich ground.
in the result, FCA is dismissed, Yhuere shalt be necarcer as to coasts.
Pending miscellaneous petitions, if any, shail stand closed.
Sd/- PRAMABRISHNA JOINT REGISTRAR TRUE COPY ;
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