Dismissed

Malireddy Venkata Rama Rao v. Smt. Malireddy Sathyaveni

Telangana HC13 Mar 2012FCA/138/2006

Case brief

AI extract

What is this about?

This appeal against a Family Court order dismissing a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act was dismissed. The court held that the appellant failed to prove cruelty or desertion and did not discharge the burden to establish grounds for divorce.

What did the court decide?

The appeal was dismissed and the order dated 26.9.2006 passed by the Family Court confirming the original order was upheld.

Malireddy Venkata Rama Rao Vs Smt. Malireddy… — Matrimonial and Divorce | Telangana HC (2012)

¶1

HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE K.S. APPARAO

¶2

F.C.A. NO. 138 OF 2006

¶3

Between: Malireddy Venkata Rama Rao

¶4

………….Appellant

¶5

AND

¶6

Smt. Malireddy Sathyaveni

¶7

………….Respondent

¶8

JUDGMENT: (Per Hon'ble Sri Justice K.S. APPARAO, J)

¶9

This Family Court Appeal has been filed aggrieved by the Order dated 26.9.2006 passed in O.P.No. 359 of 1997 on the file of Family Court Judge, Hyderabad.

¶10

Appellant herein is the petitioner in O.P.No. 359 of 1997. He filed the petition under Section 13 (1) (i) (ia) (b) of the Hindu Marriage Act, 1955n (for brevity ‘the Act’) for dissolution of the marriage solemnized on 1.3.1994 between the petitioner and respondent. The trial Court after due enquiry dismissed the petition filed by the husband. Aggrieved by the same, the present appeal is filed.

¶11

The learned counsel appearing for the appellant has merely urged that the lower court simply disbelieved the version of the appellant-petitioner and dismissed the petition without going into the documentary evidence viz., Exs. A1 to A3 produced by the appellant. He argued that the Trial Court

¶12

mistakenly came to the conclusion that nothing was found in the examination of the appellant to show that why the respondent has refused to join his company without any reason, after she gave birth to a male child and why he was insulted, while it is the specific case of the appellant that the respondent incorrigible behaviour of not heeding to the appellant and always showed interest to reside with her father at her native place. He further argued that the Trial Court grossly erred in doubting the genuineness of the appellant and held that Exs A1 to A3 do not help the case of the appellant to show that he was a resident of Hyderabad. He further argued that the respondent filed series of complaints and cases against the appellant for no fault of the appellant and thereby caused mental agony and therefore, it is a fit case where divorce can be granted as prayed for. He placed reliance on the Judgment of the Supreme Court reported in NAVEEN KOHLI VS. NEELU KOHLI^[1] and urged that the attitude of the

¶13

respondent in initiating several civil and criminal proceedings against husband indicates her resolve to make life of her husband a miserable hell and hence it is a fit case to grant divorce.

¶14

While giving reply to the arguments, the leaned counsel for the respondent mainly argued that the trial court while discussing the facts on record came to the conclusion that the appellant-husband failed to prove the grounds seeking divorce and evidence of RWs 1 to 3 clearly shows that the appellant has failed to prove that he was subjected to harassment in the hands of respondent and her father and he supported the judgment of the trial Court while placing reliance on the judgment of the Supreme Court reported in DUTT SHARMA VS. MANJU SHARMA^[2] .

¶15

Now the point that arises for consideration is whether the impugned order dated 26.9.2006 is sustainable and whether the petitioner-appellant is able to discharge his burden to prove that the conduct of the respondent in deserting the appellant amounts

¶16

to cruelty for a decree of divorce.

¶17

Before going into the merits of the case, for better and proper understanding, the parties referred to in the court below are similarly referred to in this appeal also.

¶18

The petitioner in proof of his contention, he himself examined as PW-1 and got marked Exs. A1 to A3. On behalf of the respondent RWs 1 to 3 were examined and no document was marked. RW-1 is the wife, RW-2 is the father of RW-1 and RW-3 is an elder of Vadlamuru Village.

¶19

Now let us see to what extent the evidence of PW-1 fulfils the ingredients of Section 13 (1)(i)(ia)(b) of Hindu Marriage Act.

¶20

Admittedly, in his chief examination PW-1, stated that at the instance of RW-1 (wife) he purchased Ac. 5.00 of land in the name of RW-1 at Vodlamuru Village. According to his evidence in September 1996 when he went to Vadlamuru Village along with his relatives, they were not allowed inside the house of RW-1 and they were made to stand

¶21

outside in the heavy rain and he was not allowed to see the child and he did not see the child even on the date of his deposition. His further evidence is that in the month of June 1997 he approached RW-1 but she has refused to join his society and asked him to file a petition for divorce. In the cross-examination he has admitted that he did not take RW-1 to any doctor at Hyderabad when she became pregnant and she was examined at Kakinada and Rajamundry.

¶22

Petitioner being husband did not take any interest to take his wife to a doctor when she was pregnant and her parents took her to Kakinada and Rajamundry for medical examination. Therefore, the conduct of the petitioner can safely infer about his negligence about the welfare of his wife. There is nothing in the evidence of PW-1 to show that the reasons why RW-1 has refused to join the company of PW-1 after she gave birth to a male child and why PW-1 was insulted by RW-1 and what made RW-1 to spoil her own marital life and for what purpose she was refusing to join the company of PW-1. In the

¶23

cross examination PW-1 admitted that when the cradle ceremony was performed at the house of his father-in-law, he attended the same. He also admitted that his father-in-law is a President of Vadlamooru Gram Panchayathi and he is a landlord. One Pallkurthi Abbulu, Venti Veerabhadra Rao, Malireddy Babyrao and Malreddy Rambabu, who were elders on his side, tried to effect the reconciliation, but they were not examined on his behalf for the reasons best known to him. More so, he also did not examine his parents to show his bonafides.

¶24

From the evidence of PW-1 coupled with his admissions in the cross examination, it can safely be inferred that without any slightest doubt that from the beginning of the conception of the child by the respondent, he was showing his disinterest so that he did not take any medical care about the welfare of his wife at the time of her pregnancy. The evidence of RWs 1 to 3 clearly reads that the petitioner from the beginning neglected to treat the respondent

¶25

affectionately. According to the evidence of RW-1, she never lived with PW-1 at Hyderabad at any point of time except visiting Hyderabad on 20^th January 1999 to visit his sister’s house for 10 days. RW-1 further stated that when she delivered a male child at Madhavi Nursing Home, Kakinada, PW-1 and his mother came to hospital as they were informed on telephone. But PW-1 did not see the child as it was not auspicious for PW-1 to see the boy without Barasala ceremony and she has further stated that PW-1 visited the child and RW-1 thrice after the Barasala ceremony, but he was not prepared to take back RW-1 and the child.

¶26

A perusal of the entire documentary as well as oral evidence shows that the petitioner has not taken any steps for filing restitution of conjugal rights or issued notice to the respondent to join him to the matrimonial house. RW-2, is the father of RW-1. According to him also PW-1 and RW-1 never resided at Hyderabad and RW-1 was taken to his house from the house of PW-1 during her pregnancy and when

¶27

RW-1 gave birth to a male child, the same was informed to PW-1 and his parents over phone and PW-1 and his relatives came to hospital and saw the child and RW-1 and when Barasala was arranged at his house at Vadlamuru on the 11^th day of the child, PW-1 and his family members attended the function and thereafter PW-1 was evading to take RW-1 and the child to his house. Therefore, on perusal of the entire oral and documentary evidence, it is clear that the petitioner right from the beginning is not interested to lead marital life with the respondent and he has not shown any grounds to prove his bonafides as stated in the petition.

¶28

The Judgment of the Supreme Court in NAVEEN KOHLI’s case (supra-1), relied on by the learned counsel for the appellant, has no application to the facts and circumstances of the present case on hand. In the other judgment, relied on by the learned counsel for the respondent reported in DUTT SHARMA’s case (supra-2) , it was held that it is to be

¶29

noted that when the petitioner filed a petition under Section 13 of the Hindu Marriage Act it is for the petitioner to establish the grounds therein, to seek divorce. In this connection for ready reference, paragraph 10 of the said judgment is extracted hereunder:

¶30

“10. In this connection it may be noted that in Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) there are several grounds for granting divorce e.g. cruelty, adultery, desertion etc., but no such ground of irretrievable breakdown of the marriage has been mentioned for granting divorce. Section 13 of the Act reads as under:

¶31

“13. Divorce (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party---

¶32

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

¶33

(ii) has ceased to be a Hindu by conversion to another religion; or

¶34

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that

¶35

the petitioner cannot reasonably be expected to live with the respondent. xxxxxxxx xxxxxxxx (iv) has been suffering from a virulent and incurable form of leprosy; or

¶36

(v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or

¶37

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.”

¶38

On a bare reading of the above, it is crystal clear that the appellant has not established that he was subjected to cruelty by the respondent. Hence, we are not inclined to interfere with the finding arrived at by the trial Court and therefore, the present appeal has no merit and accordingly, the same is dismissed confirming the order dated 26.9.2006 passed in O.P.No. 359 of 1997 by the Family Court, Hyderabad. There shall be no order as to costs.

¶39

________________________ GHULAM MOHAMMED, J

¶40

K.S. APPARAO, J DATE: 13.3.2012 KA

…….REGISTRAR

// TRUE COPY //

SECTION OFFICER