Allowed

V.Venkata Bhaskar Somu v. Smt.Peketi Tulasi

Telangana HC3 Sept 2010CRP/2482/2010

Case brief

AI extract

What is this about?

This revision petition under Article 226 of the Constitution challenged the Family Court's dismissal of an I.A. to amend a divorce O.P. The High Court allowed the amendment, holding a G.P.A. holder can plead non-consummation and granting new opportunity to contest allegations of fraud.

What did the court decide?

Impugned order setting aside; I.A. for amendment of O.P. allowed; no order as to costs.

V.Venkata Bhaskar Somu Vs Smt.Peketi Tulasi — Matrimonial and Divorce | Telangana HC (2010)

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HON'BLE SRI JUSTICE A.GOPAL REDDY

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CIVIL REVISION PETITION No.2482 of 2010

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Between: V.Venkata Bhaskar Somu

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… Petitioner

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And Peketi Tulasi

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… Respondent

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This Court made the following:

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HON’BLE SRI JUSTICE A.GOPAL REDDY

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CIVIL REVISION PETITION No.2482 of 2010

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ORDER:-

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This revision, under Article 227 of the Constitution, is filed seeking to revise the orders of the Family-cum-Additional District Judge, East Godavari District at Rajahmundry, dated 29.04.2010, passed in I.A.No.245 of 2010 in O.P.No.197 of 2009, wherein the petition filed by the revision petitioner herein seeking amendment of O.P., for dissolution of marriage by granting a decree of divorce, has been dismissed.

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2. Petitioner/husband filed the above O.P. under Section 13(1)(1A) and 12(c) of the Hindu Marriage Act, 1955 seeking divorce, wherein he filed the impugned I.A., through his father to whom the General Power of Attorney was given for amendment of the O.P., by adding the following pleadings:

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As a matter of fact the marriage is not consummated

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due to non-cooperation of respondent and her disinclination to maintain any relation with the petitioner from the time of marriage.

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After marriage and prolonged silence of respondent,

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which made petitioner to make enquiries as to her disinclination to furnish her degree certificate, to his shock petitioner learnt that respondent and her father have purposefully furnished

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wrong date of birth and time of birth of respondent as 04.10.1974 at 11.45 P.M., whereas the true date of birth of respondent is 04.08.1974 as had been rightly recorded in her passport and birth register maintained by Registrar of Birth at Kakinada.

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· The horoscope of respondent as per her date of birth is 04.08.1974 is not at all compatible with petitioner’s horoscope particularly because the respondent suffers what is known as ‘kuja dosha’. If at all the respondent and her parents have truthfully informed about the correct date of birth of respondent the marriage would not have taken place at all.

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· Such a conduct of respondent and her parents amply reveal of fraudulent and deceitful nature of respondent and her parents and their oblique motives

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· Whereas before marriage respondent and her father represented to petitioner that respondent completed B.Sc., as is evident from document No.3 filed along with this application, it is realized that as a matter of fact respondent appeared for her B.Sc., examination only in March, 2008, i.e., that is almost one year after the marriage. The provisional certificate issued by Andhra University confirms such fact. Thus, even in respect of the educational qualifications of respondent, she and her parents made false representations.

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In the affidavit filed in support of the I.A., it is pleaded by the petitioner’s father that after the petitioner filing the O.P., and the respondent/wife filing transfer C.M.P., seeking transfer of the case from the Family Court, City Civil Court, Hyderabad, he received definite information regarding the date of birth etc., of the respondent as well as the document relating to her educational qualification. Thereupon, he pleaded all those facts in the counter filed in the said transfer C.M.P., which was allowed and the case was transferred to the Family-cum-Additional District Court, East Godavari District at Rajahmundry. Therefore, the petitioner wants to bring all those facts in the O.P. by amending the O.P.

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3. The respondent/wife filed counter denying the affidavit allegations.

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4. The trial court dismissed the I.A., holding that the father of the petitioner being the power of attorney holder is seeking amendment of the O.P., stating that the marriage of the petitioner is not consummated due to non-cooperation of the respondent on her disinclination to maintain any relation with the petitioner from the time of marriage etc. Consummation of marriage between the petitioner and the respondent will be within the four walls of the house and the father of the petitioner is not a competent person to say on behalf of the petitioner that the marriage was not consummated. Further in para 1 of the petition, it is mentioned that after the marriage, both the petitioner and the respondent lived together for one month as wife and husband. If really the marriage was not consummated, the petitioner would have filed the main petition under Section 12 of the Hindu Marriage Act, 1955 and the proposed amendment will change the nature and scope of the proceedings and accordingly dismissed the I.A.

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5. In the O.P. filed for dissolution of marriage, the petitioner pleaded in paras 4 to 8 that on the first night after their marriage the respondent asked the petitioner as to whether he had any extra marital relations. Then the petitioner was shocked and kept silent for a while, but however consoled himself that the respondent hails from village atmosphere and from here onwards she will learn the manners. Further, when the petitioner requested the respondent to furnish the graduation certificate for obtaining visa, she evaded to give the certificate by saying one or the other reason. Even after lapse of one year, the respondent did not give her graduation certificate in order to apply for Visa and the petitioner, inspite of his marriage, is suffering alone in Canada and he was mentally tortured with the behaviour of the respondent and was deprived of his matrimonial life due to her attitude and arrogant nature.

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6. In the petition filed for amendment as referred to above, the petitioner wants to be more specifical with regard to the behaviour of the respondent and non-consummation of the marriage between them,

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which amounts to cruelty.

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7. The petitioner’s father, who is the General Power of Attorney, of course, cannot give evidence as to what happened within the four walls between the husband and wife and ultimately it is for the petitioner to examine himself and justify about the non-consummation of marriage between them. However, there is no bar for the General Power of Attorney holder to take such a plea in the O.P., by amending the O.P.

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8. It is well known that the parties for the reasons best known to them do not give full details on which they seek divorce with the understanding that they can obtain divorce without casting aspersions against each other.

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9. Having received definite information regarding date of birth etc., of the respondent as well as the document relating to her education qualification, after the petitioner filing the O.P. and the respondent filing the transfer C.M.P., which was allowed, the petitioner wanted to amend the plaint with full details, to establish the cruelty meted out to him by his wife. Further, in the counter-affidavit filed by the respondent also, she has not specifically denied or asserted about the consummation of the marriage.

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10. In view of the same, it is a fit case where the petitioner can be permitted to amend the O.P., and thereby the respondent also will have an opportunity to contest the claim of the petitioner.

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11. For the reasons aforementioned, the impugned order is set aside and the present I.A. filed by the petitioner is allowed. Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs.

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_________________ A.GOPAL REDDY, J

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3^rd September 2010 lmv

V.Venkata Bhaskar Somu v. Smt.Peketi Tulasi

Case brief

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V.Venkata Bhaskar Somu v. Smt.Peketi Tulasi

Case brief

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