Katragadda Koteswara Rao Vs Katragadda Lakshmi Anusha

Katragadda koteswara rao, s/o rama rao, aged about 45 years, occ. Private employee resident of d.no.41-1/4-46, first line, dwaraka nagar, krishnalanka, vijayawada, ntr district

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...APPELLANT

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AND

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Katragadda Lakshmi Anusha, W/o Koteswara Rao, Aged about 31 years, Occ. Housewife, Presently residing at D.No.49-4-12/5A, Carmelnagar, Konka Road, Nunna, Gundala Bridge, Vijayawada, NTR District.

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...RESPONDENT

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FAMILY COURT APPEAL (FCA) NO: 75/2023

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Between:

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Katragadda Koteswara Rao, S/o.Rarrid Rao, Aged About 45 years, OCC. private employee, resident Of D.No.41-1/4-46, First Line, Dwaraka Nagar, Krishnalanka, Vijayawada, Ntr District.

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...APPELLANT

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AND

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KATRAGADDA LAKSHMI ANUSHA, W/O KOTESWARA RAO, AGED ABOUT 31 YEARS, OCC. HOUSEWIFE, PRESENTLY RESIDING AT D.NO.49-4-12/5A, CARMELNAGAR, KONKA ROAD, NUNNA, GUNDALA BRIDGE, VIJAYAWADA, NTR DISTRICT.

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KATRAGADDA KYATHI SRI, D/O KOTESWARA RAO, AGED ABOUT 5 YEARS, BEING MINOR, REP. BY HER MOTHER AND NATURAL GUARDIAN SMT. KYATHI SRI, PRESENTLY RESIDING AT D.NO.494-12/5A, CARMELNAGAR, KONKA ROAD, NUNNA, GUNDALA BRIDGE, VIJAYAWADA, NTR DISTRICT.

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Counsel for the Appellant:

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1.PRAKASH C

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Counsel for the Respondent:

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1.K V L NARASIMHA RAO

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The Court made the following:

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THE HONOURABLE SRI JUSTICE BATTU DEVANAND

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And

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THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA

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F.C.A. Nos.74 and 75 of 2023

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COMMON JUDGMENT: (Per Hon’ble Sri A. Hari Haranadha Sarma)

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Both these appeals in F.C.A. No.74 and 75 of 2023, are directed against the common order and decree dated 28.12.2022 passed in FCOP No.1167 of 2019 and 1665 of 2018 respectively, by the XIV Additional District Judge, Family Court, Vijayawada.

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The proceedings before the Family Court vide FCOP No.1665 of 2018 are initiated by Katragadda Lakshmi Anusha and K. KyathiSri against the Katragadda Koteswara Rao, who are his wife and daughter.

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Wife initiated the proceedings in FCOP No.1167 of 2019 for restitution of conjugal rights and the said OP was allowed directing the husband to take the wife to the matrimonial home within (90) days of the orders. FCOP No.1665 of 2018 filed for maintenance, was ordered in favour of the wife and daughter, awarding a maintenance of Rs.30,000/p.m. to the wife and Rs.20,000/- p.m. to the daughter from the date of the

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petition. As far as the daughter/2^nd petitioner is concerned till attaining the

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majority, with incidental direction to pay the maintenance amount on or before 10^th of every succeeding month.

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Questioning the decree and orders passed in both the matters, these two appeals are filed by the husband.

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Heard Sri C.Prakash, learned counsel for the appellant and Sri KVL Narasimha Rao, learned counsel for the respondents, extensively.

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For the sake of convenience, parties will be hereafter referred with reference to their status in FCOP No.1665 of 2018, which is the earliest one.

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Case of the petitioners/wife and daughter:

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Marriage between the 1^st petitioner and the respondent was performed on 21.5.2017 at Vijayawada as per Hindu rites and caste customs and it was an arranged marriage. Marriage was followed by entrustment of amount of Rs.15,00,000/- towards pasupu kumkuma etc. and other gifts to the bride groom, apart from incurring marriage expenses, to a tune of Rs.5,00,000/-. Mother in law and co-sister of the petitioner, used to harass her, on the ground that arrangements made for the marriage were not satisfactory and befitting to their standard. The 1^st petitioner came to know that the educational standards of the respondent was suppressed, marriage with the 1^st petitioner was accepted basing on her qualification

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that she would earn money by doing employment and getting wealth by her parents, she bore all the harassment and during the wed lock, the 1^st petitioner and the respondent were blessed with the 2^nd petitioner. When they came to see the newly born baby, the behaviour of the respondent and his family members is not good and they started demanding Rs.5,00,000/to take back the petitioners to their matrimonial home. The 1^st petitioner was ill treated in several ways. The respondent resorted to all the efforts, in creating collusive transactions over his immovable properties. He is getting handsome income, evaded his obligation to maintain the petitioners. The 1^st petitioner was necked out from matrimonial fold along with 2^nd petitioner.

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Case of the respondent/husband:

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[i] The case of the respondent/husband is that the auto mobile

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business referred by the petitioner, belongs to his brother and he is a part time employee therein, he is not the owner of the shop and he has no right over any of the properties. The allegations as to false representation of educational and financial status of the respondent to the 1^st petitioner’s family prior to marriage etc., are all false. There was no neglect by the respondent, the 1^st petitioner was adamant in nature and she has left matrimonial home under the guise of pregnancy and she is not in touch with the respondent, thereafter the respondent was not allowed to approach the petitioners. In fact, the 1^st petitioner claimed that she wants divorce, but

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demanded for huge property and money. Even the marriage was performed by the respondent with his own money, allegations contra are false. The 1^st petitioner for no reason turned hostile to the respondent and his family members. The respondent is living with the parents in the first floor and his brother stays in the ground floor, having his own business. Neither the respondent nor his parents are in any way connected in the business of his brother. The 1^st petitioner and her family members developed hostility against the respondent and his family and every time they demanded that property to be conveyed in the name of the respondent. The respondent is earning only Rs.15,000/- per month. The claims contra are baseless and the 1^st petitioner has also initiated proceedings in Domestic Violence Case vide DVC No.188 of 2019 against the respondent and his family members, apart from a case registered under Section 498-A IPC with the only object of getting the properties transferred in her name.

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[ii] In fact, the 1^st petitioner is not interested in leading conjugal life when the same was questioned, she has expressed that she has no interest to lead the matrimonial life with the respondent and the efforts of the respondent to get back the petitioners are failed, in fact the 1^st petitioner herself neglected and deserted the respondent. Therefore, not entitled for any relief and both the proceedings are liable to be dismissed.

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Pursuant to the orders in interlocutory application, both the matters were clubbed together and decided under common judgement by the learned judge, Family Court.

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Arguments were advanced by the learned counsel on both sides, in

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respect of both the appeals together.

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Arguments on behalf of the appellant/husband:-

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There are no grounds to allow the petition for restitution of conjugal rights, as the 1^st petitioner/wife left the society of the respondent/appellant on her own. The Family Court should have appreciated the intention of the wife to have the registration of properties in her name; the Family Court ought to have considered the failure of several mediations at the instance of wife. The quantification of maintenance done at Rs.30,000/- for the wife and Rs.20,000/- for the daughter is baseless. When separate living is not justified and there was voluntary desertion by the wife, entitlement of wife for maintenance does not arise, but this aspect is ignored by the learned judge, Family Court. The appellant is working as a private employee earning Rs.8000/- per month and the maintenance of Rs.50,000/- per month ordered against him is exorbitant.

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Arguments on behalf of the petitioners/wife and daughter:-

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There is ample documentary evidence indicating the properties standing in the name of the respondent/appellant and efforts of the respondent to convey the same in favour of the others, therefore, the liability imposed and quantification of maintenance is based on the evidence and require no interference. The proceedings for restitution of conjugal rights are initiated by the wife vide FCOP No.1167 of 2019, which indicates the falsity in the husband's claim and establishes the genuineness of the contention of the wife. In the absence of any evidence from the husband side to indicate his intention to have the restitution of matrimonial home, and evidence indicating justification for his separate living and wilful withdrawal of the society by the wife, the wife is entitled for the relief for restitution of conjugal rights, when she specifically prays for the same and she is also entitled for the maintenance. With regard to minor daughter, there cannot be any other argument than accepting the liability.

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Perused the impugned common order and decree and other material available on record.

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Thoughtful consideration is given to the arguments advanced by both sides.

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Now, the points that arise for determination are -

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1. Whether the maintenance awarded at Rs.30,000/- per month to the wife/1^st petitioner, and Rs.20,000/to the 2^nd petitioner/daughter and charge created in respect of petition schedule properties under the impugned common order and decree dated 28.12.2022 in FCOP No. 1665 of 2018 are sustainable in law or on facts, or require any interference? If so, on what grounds and to which extent?

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1. Whether the order and decree dated 28.12.2022 passed in FCOP No.1167 of 2019 for restitution of conjugal rights in the form of directing the husband [appellant herein], to take back the wife, to the matrimonial home is sustainable in law and on facts ? Or require any interference? If so, on what grounds and to which extent?

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1. What is the result in FCA No.74 of 2023?

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1. What is the result in FCA No.75 of 2023?

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Point No.1 :-

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Before adverting to the discussion on the points framed, it is relevant

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to take note of certain facts, not in dispute:-

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(1) Marriage between the parties.

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(2) Birth of the 2^nd petitioner in FCOP No.1665 of 2015 during the wed lock.

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(3) The 1^st petitioner along with the 2^nd petitioner, are living separately from the respondent.

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(4) Legal proceedings for restitution of conjugal rights are initiated by wife.

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(5) There was no legal notice at least from appellant/respondent, demanding for restitution of conjugal rights inviting his wife and daughter to matrimonial fold.

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In the impugned orders at para 17, learned Judge, Family Court has addressed the points relating to the negligence and providing medical treatment and avoiding formal customary functions prior to sending wife for delivery, found those aspects in favour of appellant/husband. Likewise the allegations that he was not invited for Annaprasana (food feeding function) and Barasala function found against him and found that, there is evidence from the petitioners end that Malabar gold invoices are in the name of PW.1 purchased by the 1^st petitioner herself. In para 18, learned Family Court has extracted the provision of law and judgments relied on both sides, which is only extracting of head notes of the judgments. However, the observations in para 20 of the judgment would show that there are wild allegations as to illicit intimacy of the respondent etc., and that there was no convincing evidence from the petitioners side to establish the evidence of illicit intimacy etc. Likewise there is no satisfactory evidence from the husband side as to making efforts for reunion. In this context, it is relevant

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to note that wife leaving the matrimonial home for parental abode for delivery purpose cannot be said as voluntary withdrawal of conjugal society. When there is clear effort from the wife in the form of legal proceedings for restitution of conjugal rights, whereas there is no effort from the husband inviting his wife to matrimonial fold, it cannot be said that the wife is not interested to have matrimonial home and that she is not entitled for any relief. The findings of the Family Court touching the aspect of desertion by husband and entitlement of wife to seek for restitution of conjugal rights found fit to be accepted. Point No.1 is answered accordingly.

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Point no.2:-

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There is no evidence indicating payment of any amount by the respondents to the petitioners. Admittedly, the petitioners/wife and daughter, are living separately. Earning capacity of the wife is not shown. The respondent’s contention that he is working in the shop of his brother, is not proved. Evidence of wife/1^st petitioner would show that there are immovable properties valued in crores, and there was monthly income, whereas the contention of the appellant/husband is that he was getting only Rs.8000/- per month. Salary Certificate Ex.A10, indicating payment of Rs.8000/- per month as salary, is not a public or official document to have credibility. Particularly when it is seen in the light of Ex.P12 to Ex.P15- Gift settlement deeds, they are between the respondent and his brother as

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rightly observed by the Family Court. At one stage, appellant/ husband claims that he is earning Rs.15000/- and at one stage claimed that he is getting Rs.8000/- as salary by working in the shop of his brother. The stand of the appellant is contradictory, self serving and unbelievable.

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The appellant/respondent alleged that 1^st petitioner is in earning and maintenance should not be a pleasure or pressure, but he failed to prove any kind of employment in which the 1^st petitioner/wife is engaged. It is one of the grounds of the appeal that the 1^st petitioner used to harass the appellant for registration of immovable properties in her name, which suggests that there are some properties in appellant’s name. There is no satisfactory explanation from the appellant/husband as to transfer of properties covered by Ex.P12 to Ex.P15-Gift settlement deeds, in favour of his brother and Ex.P5 to Ex.P7 Sale deeds jointly in the name of the appellant and his brother, one Srinivasa Rao, Ex.P8-another Sale Deed, exclusively in his name. Ex.P9 Development Agreement-cum-GPA between the appellant and APCRDA dated 29.8.2018 and Ex.P10-copy of sale deed in the name of the appellant dated 04.12.2014. These documents would speak about the financial potentiality of the respondent/appellant. The learned Family Court has taken care in giving credit to the interim maintenance granted in DVC proceedings.

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20. In this case, the wife and daughter of appellant/the petitioners, did

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not choose to file any appeal. Section 19 of the Family Courts Act provides for appeal, viz., reads as follows:-

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“ 19 . Appeal .-

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“(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

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(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):Provided that nothing in this subsection shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 1991).

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(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

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(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.

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(5)Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.

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(6)An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges .”

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The scope of appeal and procedure to be followed in an appeal is

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silent under the Family Courts Act. There is no prohibition for applying the Civil Procedure Code and provisions of O-41, Rule 33 to the extent possible

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can be applied, by virtue of the nomenclature that power is not prohibited under Section 19 of Family Courts Act.

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In, Pannalal vs. State of Bombay¹ , Chaya vs. Bapusaheb² and Pralhad vs. State of Maharashtra³ , the scope of Order- 41 Rule-33 CPC and the powers of appellate Court are explained by Hon’ble Supreme Court

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that the appellate Court can grant relief to the respondent also in appropriate cases. Relevant observations in said three cases, are as

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follows:-

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“ In Pannalal v. State Of Bombay, with respect to Order 41, Rule 33, the Hon'ble Apex Court held that wide wording of Order 41, Rule 33 CPC, was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal, but also to give such other relief to any of the respondent as “the case may require”. It was further held that if there was no impediment in law, the High Court in appellate court therefore, though allowing the appeal of the defendant by dismissing the plaintiffs suit against it, but the plaintiff/respondents decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this

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1 AIR 1963 SC 1516

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2 (1994) 2 SCC 41

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3 (2010) 10 SCC 458

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position abundantly clear the illustration puts the position beyond argument.

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In Chaya v. Bapusaheb, the Hon'ble Apex Court held that this provision (Order 41 Rule 33 C.P.C) is based on a salutary principle that the appellate court should have the power to do complete justice between the parties. The rule confers a wide discretionary power on the appellate court to pass such decree or order as ought to have been passed or as the case may require, notwithstanding the fact that the Appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross-objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said rule.

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In Pralhad v. State of Maharashtra, the Hon'ble Apex Court held that the provisions of Order 41, Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression “order ought to have been made” would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying “the court may pass such further or other order as the case may require”. This expression “case” would mean the

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justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.

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It is apt to refer Para No. 18 as under:—

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“ 18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression “order ought to have been made” would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying “the court may pass such further or other order as the case may require”. This expression “case” would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.”

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Certain matters of general importance, found fit to be observed that while granting maintenance to daughters it is desirable to keep their entitlement open till they get married, instead of granting maintenance till they attain majority. The same can be made subject to the rider that till they get married or getting independent income. While awarding maintenance, either arrears or future maintenance, there can be a direction to pay the interest for at least, post decretal period in respect of maintenance fixed to

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ensure proper payment. These things are found missing in the impugned judgment, however, since the appeal is continuation of original proceedings, for the post decretal period interest @6% p.a. from the date of this appellate decree on the maintenance awarded and arrears thereon, is granted. With regard to entitlement of the 2^nd petitioner/ daughter for maintenance is concerned, it is extended up to the marriage or till the 2^nd petitioner getting the earning capacity. Accordingly, the point No.2 relating to maintenance is answered.

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Points 3 and 4:-

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24.. In view of the above discussion and conclusions drawn under points 1 and 2, appeal in FCA No.74 of 2023 against the order for restitution of conjugal rights is liable to be dismissed, confirming the orders passed in FCOP No.1167 of 2019 and the appeal in FCA No.75 of 2023 questioning the maintenance granted under the impugned order dated 28.12.2022 is liable to be dismissed, confirming the orders passed in FCOP No.1665 of 2018, with some modifications as to interest on the maintenance amount and entitlement of daughter beyond majority.

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In the result , both the appeals are dismissed . However, the entitlement of the 2^nd petitioner vide FCA No.75 of 2023, for maintenance shall be till she getting married or getting sufficient income of her own, and

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the arrears of maintenance shall carry interest @6%p.a. from the date of this judgment, till the date of realisation. There shall be no order as to costs.

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As a sequel, miscellaneous petitions pending, if any, shall stand closed.

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__________________________ JUSTICE BATTU DEVANAND

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__________________________________ JUSTICE A.HARI HARANADHA SARMA

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Dated: 10 .10.2025 Pnr

Katragadda Koteswara Rao v. Katragadda Lakshmi Anusha

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Katragadda Koteswara Rao v. Katragadda Lakshmi Anusha

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