Telangana High Court
Sri M.K. Naveen Kumar vs M.K. Lalitha , Sushma on 7 June, 2024
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
FAMILY COURT APPEAL Nos.122, 123 AND 121 OF 2012
COMMON JUDGMENT:(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. Suri Raghuram, learned counsel representing Ms. K. Sridevi, learned counsel for the appellant-husband and Mr. P. Ravi Kiran, learned counsel for the respondent-wife.
2. All the aforesaid appeals are filed by the appellant-husband against the respondent-wife. For the sake of convenience, the parties are hereinafter referred as they were arrayed in FCA No.122 of 2012.
3. The case of the appellant is as under:
i) The marriage of the appellant-husband with respondent-wife was performed on 13.05.2004 at Millennium Gardens, Secunderabad, as per Hindu rites and customs and it is an arranged marriage. Reception was held on 17.05.2004 at PVRR Function Hall, Hyderabad in a grand manner.
ii) After the marriage, the respondent joined the appellant company. However, the respondent was interested in staying with her parents or in a separate house far from the parents of the appellant.2
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iii) The respondent had conceived. The parents of the appellant arranged a srimantham ceremony and, thereafter left the house of the appellant on 14.06.2005 for delivery. Though initially, the doctor fixed the delivery date as 08.08.2005, she proceeded according to her whims and fancies, the respondent gave birth to a male child on 01.08.2005 without his consent. There is no intimation either from the respondent or her parents with regard to the delivery.
iv) Even, for performing caesarian operation, the respondent did not obtain the consent of the appellant. Despite the efforts made by the appellant to see the child, he could not succeed on account of the acts of the respondent and her parents.
v) Since the appellant lost the faith and hope, he approached the community people to intervene in the matter. On receipt of letter sent by the Community elders, the respondent engaged her advocate, who did not turn up before the community elders. Therefore, the appellant got issued a legal notice dated 01.11.2006 for restitution of conjugal rights.
vi) The respondent got issued reply notice dated 15.11.2006 making certain allegations against the appellant.
vii) Thereafter, the appellant got issued a rejoinder dated 22.11.2006 denying the allegations made by the respondent. 3
KL,J & PSS,J FCA No.122 of 2012 & batch Despite receipt of the rejoinder, the respondent did not join the company of the appellant, due to which, the appellant suffered both mentally and physically. Therefore, the appellant filed FCOP No.216 of 2007 under Section - 13 (1) (ia) of the Hindu Marriage Act seeking decree of divorce on the ground of cruelty.
4. Respondent-wife filed counter contending as under:
i) At the time of marriage, on the demand made by the family members of the appellants, her parents gave a sum of Rs.5.00 lakhs cash; Rs.67,000/- cash for Pulser Bike; two tulas gold ring for the appellant; cash of Rs.15,000/- for marriage suit to the petitioner and furniture worth of Rs.40,000/- and cash of Rs.20,000/- for clothes. Apart from the above amount, her parents incurred expenditure of Rs.1.00 lakh towards engagement expenses and Rs.8.00 lakhs towards marriage expenses.
ii) She denied that she was interested in staying with her parents or in a separate house. However, she admits that the appellant extended lot of love and affection towards her and that is the reason why she is interested to join his company.
iii) It is further contended that when her parents along with Mr. K. Srinivas, one of her relatives, visited the petitioner's house to invite him and his parents on the occasion of first Deepawali, the 4 KL,J & PSS,J FCA No.122 of 2012 & batch mother of the appellant agreed to send newly married couple subject to condition of purchasing a Car in the name of his son.
Thus, the appellant and his family members put forth the demand of additional dowry. Since the parents of the respondent expressed their inability to fulfill their legitimate additional demand of dowry, the parents of the appellant stopped sending the respondent to her parents house.
iv) When the parents of the respondent requested the parents of the appellant to send the respondent for performing sreemantham ceremony, they demanded additional dowry of Rs.5.00 lakhs. Since then, she was not permitted to visit her parents house.
v) While respondent going to her parents house, the mother of the appellant asked her to retain all the gold and house hold articles except Mangalasutra and accordingly she did so.
vi) The doctor advised the respondent that there is likelihood of danger to her life as well as to the child, delivery date was preponed from 08.08.2005 to 01.08.2005. The same was also intimated to the appellant and his parents through the community elders, but they did not come to the hospital.
vii) The respondent along with her counsel and parents went to the advocate of the appellant on 31.01.2007 for negotiations, wherein against the mother and family members of the appellant 5 KL,J & PSS,J FCA No.122 of 2012 & batch agreed to permit her to stay with the petitioner subject to fulfillment of conditions. Since the said demand was not complied with by her parents, she was constrained to live with her parents. The behavior of the appellant and his family members towards respondent by demanding Rs.5.00 lakhs and a Car caused mental and physical agony in her mind.
viii) The respondent did not leave the company of the appellant on her own and on the other hand, the appellant and his family members did not allow her to join his company due to non- fulfillment of additional dowry as mentioned above. She is always ready and willing to join the company of the appellant.
ix) Since there was no element of cruelty on her part, the respondent sought to dismiss the petition filed by the appellant seeking for dissolution of marriage.
5. The respondent-wife filed FCOP No.179 of 2010 against the appellant-husband under Section 9 of the Hindu Marriage Act, seeking restitution of conjugal rights reiterating the averments made in her counter filed in FCOP No.216 of 2007.
6. Similarly, she along with her son filed another petition vide FCOP No.1281 of 2009 under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, seeking arrears of maintenance of Rs.7,20,000/- for the period commencing from 30.08.2006 to 6 KL,J & PSS,J FCA No.122 of 2012 & batch 11.11.2009 and to grant Rs.20,000/- per month from the date filing the petition towards maintenance.
7. Learned Judge, Family Court, Hyderabad, vide separate orders dated 28.12.2011, dismissed the FCOP No.216 of 2007 filed by the appellant seeking decree of divorce, while allowing the FCOP No.179 of 2010 filed by the wife for restitution of conjugal rights. The learned Judge also awarded maintenance of Rs.5,000/- each to the wife and child per month from the date of petition and continued to pay the same. The appellant was also directed to pay the arrears of maintenance within three (03) months from the date of order.
8. FCA No.122 of 2012 is filed by the appellant-husband challenging the order dated 28.12.2011 in FCOP No.216 of 2007 passed by the Judge, Family Court, Hyderabad, dismissing the petition filed by him seeking decree of divorce on the ground of cruelty.
9. FCA No.123 of 2012 is filed by the appellant-husband challenging the order dated 28.12.2011 in FCOP No.179 of 2010 passed by the very same Court allowing the petition filed by the wife seeking restitution of conjugal rights, while FCA No.121 of 2012 is filed by him challenging the order dated 28.12.2011 in FCOP No.1281 of 2009 passed by the very same Court granting maintenance of 7 KL,J & PSS,J FCA No.122 of 2012 & batch Rs.5,000/- per month each to the wife and minor boy as against of Rs.20,000/- per month and the arrears of maintenance of Rs.7,20,000/- sought by the wife and minor boy.
10. The aforesaid facts would reveal that the marriage of appellant-husband with the respondent-wife was performed on 13.05.2004. It is an arranged marriage. The said marriage was consummated. They were blessed with a male child on 01.08.2005. It is contended by appellant-husband that initially the doctor fixed the delivery date of the respondent-wife on 08.08.2005, but in their own whims and fancies, the respondent gave birth to a male child on 01.08.2005 without his consent. Even, for performing caesarian operation, she did not obtain the consent of the appellant.
11. It is the further contended by the appellant that she demanded for a separate house. Despite the best efforts made by him to see the child, he could not succeed on account of the acts of the respondent and her parents. Matter was carried to elders. Panchayats were held.
12. As discussed supra, to prove the said ground of cruelty, appellant-husband had examined himself as PW.1, his maternal uncle as PW.2, his brothers-in-law as PWs.4 and 5. He has filed Exs.P1 to 8 KL,J & PSS,J FCA No.122 of 2012 & batch P13 documents. To disprove the said ground of cruelty, respondent-wife had examined herself as RW.1, her father as RW.2, her relative as RW.3 and caste elder as RW.4. She has filed Exs.R1 to R5 documents.
13. It is relevant to note that during cross-examination, PW.1 categorically admitted that he blessed with a son in the month of August, 2005. He did not go to the house of the respondent's parents when his wife went to their house till the date of delivery. His parents and other family members did not see the respondent when she was in advanced period stages of her pregnancy.
14. He further admitted that the distance between his house and respondent house is only 5 kms. He saw his son on 1st day of delivery. But, he did not mention the said fact in the O.P filed by him. He further admitted that he did not send any amount from the date of birth and he did not file any petition seeking interim custody of the child and also visitation rights. He only stated about the notice issued to respondent for restitution of conjugal rights.
15. Perusal of the record also would reveal that respondent had approached her caste association i.e., A.P. Vanjari Sangham by way of submitting Exs.R1 and R2 representations and Ex.R3 is the letter addressed by her to the Secretary, the International Centre for 9 KL,J & PSS,J FCA No.122 of 2012 & batch Alternative Dispute Resolution, Regional Centre, Hyderabad. Ex.P12 is the Memorandum of Understanding dated 03.08.2007. Though, the appellant stated that he went to his in-laws house to see his son and that they did not allow him, he did not adduce any evidence in proof of the same. He further admitted that he came to know about caesarian operation of his wife on 01.08.2005 and that his father-in- law informed him about the same. He and his mother went to the hospital and saw the child. He also admitted that his wife had filed a petition seeking cancellation of Ex.P12-Memorandum of Understanding dated 03.08.2007.
16. PW.2 is the maternal uncle of PW.1. According to him, he went to the house of appellant three or four times. During the said visits, he never found the appellant and respondent quarrelling with each other. Both of them are living together as per the direction of Court for about four (04) months. He never advised any of them to take divorce.
17. PW.4 is the brother-in-law of PW.1, he also deposed that he did not conduct any panchayat for reunion of parties and no panchayat was held. PW.5 is the brother-in-law of PW.1, he also deposed in very same lines.
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18. During cross-examination, RW.1 specifically deposed that she went to her in-laws house along with her parents and elders namely M.K. Dayanand, S. Mallesh, Pandaraiah, S. Krishna in the month of November 2005 and December 2005.
19. In the month of November, 2005, elder namely M.K. Dayanand approached her in-laws on her behalf. In the month of December, 2005, S. Mallesh approached her in-laws on her behalf. As per the conditions mentioned in Ex.R1, she should not go to her parents and that parents also should not come to her while she was in her in-laws house. The aforesaid facts would reveal that respondent never subjected the appellant to cruelty. The incidents narrated by her does not amounts to cruelty to take extreme step of obtaining divorce. Non obtaining consent for caesarian operation from the husband by the wife as alleged by the husband does not amount to cruelty. Respondent has approached caste elders, where they have entered into an MoU dated 03.08.2007. According to appellant, respondent stayed only for four (04) months. But, according to respondent, she never left his company.
20. Thus, according to appellant, respondent subjected him to cruelty by visiting her parents house, leaving the appellant without informing him, not informed about the birth of her son, gave birth 11 KL,J & PSS,J FCA No.122 of 2012 & batch preponing to the date of delivery by conducting caesarian without his consent, violated the conditions of Ex.P12-MoU dated 03.08.2007, she is not interested in living with the appellant. Thus, according to appellant, respondent subjected him to cruelty in the manner stated above.
21. As discussed supra, the said incidents do not constitute cruelty and they are petty issues. The aforesaid contentions including the contention that respondent gave birth to the boy, preponing the date of delivery by conducting caesarian operation without taking consent of the appellant is also contrary of his own evidence in the manner stated above. He is a permanent employee working in APCPDCL.
22. In Samar Ghosh vs. Jaya Ghosh1 , the apex Court relying on its earlier judgment in Naveen Kohli vs. 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 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 1 (2007) 4 SCC 511 2 (2006) 4 SCC 558 12 KL,J & PSS,J FCA No.122 of 2012 & batch 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 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. 13
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(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.
23. They are only illustrative, but not exhaustive. In the light of the aforesaid discussion, the incidents narrated by appellant are pretty ego issues and a mutual understanding could be reached andit does not amount to cruelty.
24. On consideration of the entire evidence both oral and documentary, learned Family Court vide separate orders dated 28.12.2011 dismissed the F.C.O.P.No.216 of 2007 filed by appellant-husband seeking dissolution of marriage and allowed the F.C.O.P.No.179 of 2010 filed by respondent-wife seeking restitution of conjugal life and also allowed F.C.O.P.No.1281 of 2009 filed by respondent-wife and her son seeking maintenance. On consideration of the entire evidence, including Salary Certificate, Bank Statement of the husband, learned Family Court awarded an amount of Rs.5,000/- towards monthly maintenance on or before 10th of every month.
25. The said orders are reasoned orders and well founded. Appellant herein failed to make out any case to interfere with the said 14 KL,J & PSS,J FCA No.122 of 2012 & batch reasoned orders. These appeals are liable to be dismissed and are accordingly dismissed. There shall be no order as to costs.
As a sequel, the miscellaneous applications, if any, pending in the appeal shall stand closed.
___________________ K. LAKSHMAN, J ___________________ P. SREE SUDHA, J 07.06.2024 Ssy