Andhra HC (Pre-Telangana)
Smt. Iffath Jamalunnisa vs Mohd. Suleman Siddiqui on 21 September, 2005
Equivalent citations: 2006(1)ALD131, 2005(6)ALT606, I(2006)DMC788, II(2006)DMC107NULL, AIR 2006 (NOC) 196 (ANDH. PRA.)
JUDGMENT P. Swaroop Reddy, J.
1. This appeal is filed against the Judgment of the Family Court, Hyderabad in O.S.No. 189 of 1995 (The suit was originally filed in the Court of the II Additional Judge, City Civil Court, Hyderabad as O.S.No. 293 of 1989 and on its transfer to the Family Court, Hyderabad, it is re-registered as O.S.No. 189 of 1995). The suit was filed for divorce and Mehar amount of Rs. 1.00 Lakh. The present appellant-wife was the plaintiff and the respondent-husband was the defendant. In this appeal, the parties would be referred to, as they are arrayed in the original suit.
2. Necessary facts are as follows: The marriage between the parties took place on 25-12-1975; shortly after the marriage, there were misunderstandings between the spouses; two children - a son and a daughter were born on 13-7-1997 and 27-12-1981 respectively. From October 1984, onwards, the parties, admittedly, are living separate and not lived together for any length of time thereafter. The husband filed O.P.No. 308 of 1986 and O.S.No. 181 of 1987 on the file of the Chief Judge, City Civil Court, Hyderabad, for custody of children and restitution of conjugal rights, the same were dismissed on 11-7-1988, no appeal is filed against the said order and that has become final.
3. According to the averments of the plaint, the defendant-husband developed hatred towards the plaintiff-wife and used to behave in an eccentric manner. He is from Wahbi sub-sect; whereas the plaintiff is the daughter of Sajjad Nasheen Darga-Shareef Gulbarga (Khaja Banda Nawaz) and was brought up in a religious manner; the defendant always resisted the plaintiff from visiting Darga and offering Fathea. As the defendant wanted to settle in Saudi Arabia, he went there in search of job in 1982, he could not get any employment there and returned home after six months. On his return, he developed hot temperament and always used to find fault with the plaintiff; used to demand money, she gave money by pledging her jewellery and finally he drove her out in October, 1984. At the time of marriage the defendant agreed to pay Mehar in the following manner.
(a) Rs. 25,000-00 cash;
(b) 15 Dinar Sukh. One Dinar is equal to one old tola of gold;
(c) 15 Dinar Sharia. One Dinar sharia is equal to 3 grams of gold.
Thus, in all, the defendant agreed to pay Mehar of Rs. 1.00 Lakh.
4. The Defendant, in his written statement, contended that he never developed hatred towards the plaintiff; he has great love and affection towards her and children; both are Sunnis and followers of Hanafi School; there is no sub-sect as Wahabi; he never resisted the plaintiff from visiting Dargha and offer Fathea; he also visited Dargha; he submitted papers on number of topics relating to the Saint of Dargha on invitation from his father-in-law; in 1982 he visited Saudi Arabia, at the instance of the plaintiff and her family members to explore employment opportunities. After return from Saudi Arabia he became hot tempered is incorrect. He never demanded money from the plaintiff. The plaintiff quarreled with him on innumerable occasions on petty issues and he never drove out the plaintiff from the house; on the other hand she, herself, went away in his absence at the instance of her brother and mother.
5. The defendant further submitted that he filed O.P.No. 308 of 1986 for guardianship of the children and O.S.No. 181 of 1987 for restitution of conjugal rights. Those matters were disposed of on 11-7-1988. It is incorrect to say that he did not prefer any appeal against the said order. He preferred appeal and the same is pending. (This appears to be incorrect and no appeal is obviously filed). The allegation that the defendant is due an amount of Rs. 1.00 Lakh towards Mehar is incorrect. The suit is premature, as the appeal filed against the Judgment in O.S.No. 181 of 1987 is pending in the Hon'ble High Court.
6. On behalf of the plaintiff P.Ws.1 and 2 were examined and Exs.A-1 to A-8 were marked and on behalf of the defendant D.W.1, the defendant himself, was examined and Exs.B-1 to B-42 were marked.
7. On appreciation of both, oral and documentary evidence, the learned Judge, Family Court, dismissed the suit on 3-8-1996 holding that the plaintiff failed to establish her case.
8. Undisputed fact is that, the parties are living separate from October, 1984 and even prior to that they have not lived together continuously.
9. Now the contention of the leaned counsel for the plaintiff is that the learned trial Judge on erroneous appreciation of the facts and evidence dismissed the suit, in spite of there being material to hold that there was cruelty towards the plaintiff and harassment by the defendant. On the other hand, the contention of the learned Counsel for the defendant is that there is absolutely no material to prove any of the allegations made in the plaint.
10. Now, the point for consideration is whether there are any grounds for allowing the appeal.
11. As parties are living separate since 1984 - for more than two decades, as the petition for restitution of conjugal rights filed by the present defendant was dismissed as long back as 11-7-1988, more than fifteen years back, against which no appeal is filed, we feel that it is a case of irretrievable break down of marriage, as such there is no point in giving a finding on merits, and enhance the bitterness between the parties, we intend to decide the matter without going into the merits of the case i,e., with regard to the correctness of allegations and counter allegations.
12. In a recent decision of the Hon'ble Supreme Court in Durga Prasanna Tripathy v. Arundhati Tripathy 2005 (6) SCJ 452 : 2005 (1) Decision Today (SC) 760, it is held that in a case where the spouses lived separate for fourteen years, the marriage between the parties has been rendered complete dead wood, all the efforts for reconciliation and rapprochment of the parties failed, in that view, there is no possibility of the parties resuming normal marital life and there has been irretrievable break down of marriage, on account of desertion for fourteen years. The Hon'ble Supreme Court referred to the decisions in Anjana Kishore v. Puneet Kishore and Swati Verma v. Rajan Verma , and observed that the Hon'ble Supreme Court took consistent view that where it is found that the marriage between the parties has irretrievably broken down and has been rendered a dead wood, exigency of the situation demands, dissolution of such a marriage by a decree of divorce to put an end to the agony and bitterness. In paragraph-24 of the Judgment, the Hon'ble Supreme Court observed that:
"Likewise, in the following three cases, this Court has observed that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation.
(a) Sant Kumar Agarwal v. Nandini Agrawal
(b) Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi (2002) 2 SCC 308)
(c) G. V.N. Kameswara Rao v. G. Jabilli "
13. In the present case also, the anterior and subsequent conduct to actual separation of the parties show that there is no possibility of reunion. The Hon'ble Supreme Court also referred to a decision in Chandrakala Trivedi v. Dr. S.P. Trivedi wherein it was observed that:
"When leave was granted, this Court observed that they are granting leave because it appears to them that the marriage between the parties was in all practical purposes dead and the enforced continuity of the marriage will only mean that the parties will spend more years in bitterness against each other".
14. The Hon'ble Supreme Court also referred to the decision in V. Bhagat v. D. Bhagat , wherein it was observed that:
"Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinizing the evidence on record to determine whether the ground (s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the Court finds it in the interest of both parties".
15. The Hon'ble Supreme Court also referred to the decision in Romesh Chander v. Savitri wherein the Hon'ble Supreme Court directed dissolution of the marriage, as parties to the marriage have not enjoyed the company of each other as husband and wife for twenty-five years. Finally, the Hon'ble Supreme Court observed that the circumstances in the above cases referred disclose that reunion is impossible; that the case on hand was also one where the reunion is impossible. It was finally observed by the Hon'ble Supreme Court that:
"It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned Counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot".
16. Before parting with the case Hon'ble Supreme Court observed that:
"Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce".
17. The facts of the present case are very close to the circumstances referred to in the decision of the Hon'ble Court in D. P. Tripathy case (1 supra), as well as to the other decisions of the Supreme Court, particularly in the cases of Chandrakala Trivedi (4 supra); V. Bhagat (5 supra); Romesh Chander (6 supra). In the instant case also the parties have lived separately for more than twenty years (i.e. from October, 1984); conciliations failed; bitterness between the parties continues; reunion is impossible as revealed from the circumstances, they indulged in continuous litigation and there is additional fact of the case filed for restitution of conjugal rights by the husband being dismissed on 11-7-1988. In all these circumstances, we feel that there is irretrievable break down of marriage between the parties without any possibility of reunion. Both the children have become majors. There s need to clear up the insoluble mess and put an end to the unpleasant litigation, as workable solution is not possible, and as the parties, at this stage, cannot reconcile themselves and live together forgetting their past.
18. Thus, we hold that by deleting the findings recorded by the Family Court, the judgment impugned has to be set aside for the reason of there being irretrievable breakdown of the marriage.
19. During the course of arguments it was reported that Mehar amount was already paid; as such there is no need to pass any order with regard to the same.
20. Thus, the appeal is allowed deleting the findings recorded by the learned Judge, Family Court, Hyderabad in O.S.No. 189 of 1995. A decree of divorce accordingly is granted dissolving the marriage between the appellant-wife and the respondent-husband. There shall be no order as to costs.