Allowed

K. Sudhakar Reddy v. K. Venkata Lakshmi

Telangana HC7 Mar 2012FCA/245/2009

Case brief

AI extract

What is this about?

This appeal adjudicated a petition for divorce under the Hindu Marriage Act. The High Court found that positive evidence established the wife's adultery with another man, distinguishing it from a prior case requiring only letters. Consequently, the divorce petition was allowed.

What did the court decide?

The order of the Family Court dismissing the divorce petition is set aside, granting divorce to the appellant from the appellant.

K. Sudhakar Reddy Vs K. Venkata Lakshmi — Matrimonial and Divorce | Telangana HC (2012)

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THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE K.S. APPA RAO

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FCA NO.245 OF 2009

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JUDGMENT: ( per Hon’ble Sri Justice KS Appa Rao, J )

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Aggrieved by the order dated 3-8-2009 passed in FCOP

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No.817 of 2007 by the Judge, Family Court, City Civil Court, Hyderabad, this appeal is filed by the petitioner in the said FCOP. 2. The petitioner-appellant herein filed the said FCOP under Section 13 (1) (i) (ia) and (ib) of Hindu Marriage Act against his wife-1^st respondent herein for divorce on the ground of adultery and desertion.

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3. The brief averments made in the affidavit filed in support of the petition are as follows:-The marriage between the appellant and the 1^st respondent was performed on 6-7-1991 at Yadagirigutta, Nalgonda District, as per Hindu custom and rites. Out of their wedlock, they were blessed with a son on 14-6-1993. The appellant was working in Veerchow Laboratories on shift system. The 1^st respondent expressed her intention to do job and accordingly she joined in a private company at Panjagutta. Thereafter the behaviour of the 1^st respondent changed and she used to come late to house. During conversation between the appellant and the 1^st respondent, their son informed the appellant that the 2^nd respondent was coming to their house during nights,

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whenever the appellant was on night shifts. On 19-4-2006, their son informed the appellant that on that day, the 1^st respondent compelled him to eat and go to bed early and after he slept in the bed room, the door of the bed room was bolted from outside and the 1^st respondent did not open the door in spite of requests of the boy due to fear because of the heavy rain and storm. But the 1^st respondent sent the boy to bring the key of the common grill to their house from the neighbours and the boy brought the key of the grill and handed over the same to his mother and thereafter the boy was again kept in the bed room. The appellant went to office for night shift but he could not attend the duty as he was not feeling well and as such he returned to the house at about 1-30 pm and knocked the door. The 1^st respondent opened the door with the grill key thinking that the neighbour has come to collect the common key, but she was shocked to see the appellant and the appellant was also shocked on observing that a person ran into the bath room immediately after seeing him. The appellant opened the door of the bed room and the boy came out and in the meanwhile, the 1^st respondent has thrown the clothes of the 2^nd respondent into the bath room. After seeing this, the appellant caught the 2^nd respondent, but the 1^st respondent aided the 2^nd respondent to flee away from there. The 2^nd respondent while fleeing away, left his wrist watch, credit card, original driving licence, cell phone and his

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foot wear. When the appellant questioned the 1^st respondent about the presence of the 2^nd respondent, she touched his feet and requested him to pardon her. The appellant’s son intervened and stated that it was not the first time that the 2^nd respondent visiting their house and he was watching the 2^nd respondent number of times in the house in the absence of the appellant and he was told to collect key from the neighbours.

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4. The case of the 1^st respondent was that the 2^nd respondent never came to her house and the allegations in that regard are all false and she has no intimacy or contacts with him. After their marriage they lived happily for about five years. Thereafter the appellant was addicted to vices and demanded the 1^st respondent to bring Rs.2 lacs as additional dowry for which she expressed her inability as her parents were not in a position to give such huge amount. The appellant used to come to the house late in the night and whenever, the 1^st respondent questioned about his attitude, he used to beat her mercilessly. The 1^st respondent was no way concerned with the 2^nd respondent and the allegations are false and baseless.

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5. The case of the 2^nd respondent was that he knows the appellant and the 1^st respondent. The 1^st respondent joined as Assistant to the 2^nd respondent in a private organization. The 1^st

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respondent resigned her job twice due to some family disputes and again joined in the same organization. The 2^nd respondent also used to run a chit wherein the appellant was the subscriber and he used to give monthly subscription to the 1^st respondent and in turn she used to pay the same to the 2^nd respondent. On 12-4-2006 the 1^st respondent called the 2^nd respondent and informed that her husband has arranged the amount of Rs.10,000/- and requested him to visit the house and collect the amount, which he has given to the appellant on earlier occasion. But the appellant, during the course of conversation, manhandled the 2^nd respondent and snatched away his belongings. The 1^st respondent and her mother called the 2^nd respondent and requested him not to make a police complaint and promised to handover his belongings within a few days, but they failed to return the same.

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6. To prove his case, he himself examined as PW-1 and got marked Exs.P-1 and P-2. The 1^st respondent examined herself as RW-1, but no documents were marked. The trial Court, after considering the oral and documentary evidence, dismissed the FCOP. Aggrieved thereby, the present appeal is filed.

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7. Learned counsel for the appellant-husband contended that though the 2^nd respondent was impleaded to establish that the 1^st respondent had developed illicit intimacy with the 2^nd respondent and the fact that the 2^nd respondent never choosen to enter the

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witness box to deny the same, clearly established that the 1^st respondent was leading an adulterous life. Learned counsel further argued that the letter written by 1^st respondent, which is marked as Ex.P-1, clearly established the ground of adultery, the trial Court ought to have allowed the OP. On the other hand, learned counsel for the 1^st respondent-wife argued that except the self serving evidence of PW-1, there is no other independent evidence to support the version of the husband. It is further argued that inasmuch as the 1^st respondent was working under the 2^nd respondent, in the same office, there would be some acquaintance and, therefore, the trial Court, rightly dismissed the petition. In support of his argument, he relied on the decision of this Court in ALAPATI VENKAYAMMA vs. ALAPATI KESAVA RAO (2005 (2) ALD NOC 100)

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8. Now the point for consideration is whether the order of the trial Court is sustainable and that the appellant has proved the alleged grounds of adultery and desertion for grant of divorce ? Point:-

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9. In order to substantiate the allegation of adultery against the 1^st respondent, the appellant himself was examined as PW-1 and got marked Exs.P-1 and P-2. A specific allegation was made against the 1^st respondent by the appellant in the petition as well as in the affidavit filed towards his chief examination that on 19-4-

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2006, he left the house with an intention to attend his night shift duty, but as he was not doing well, he returned to home by 10-30 pm and knocked the door. Immediately, the 1^st respondent came and opened the door thinking that the neighbour, from whom the key of the grill gate was obtained by the 1^st respondent through his son, might have knocked the door for the key. But, on seeing the appellant, the 1^st respondent expressed surprise. The appellant went inside and astonished on seeing the 2^nd respondent running into bathroom nakedly. He observed that the doors of the bedroom was bolted from outside. He opened the doors and their son came out and informed that it is not the first time for the 2^nd respondent to visit their house and he is in the habit of visiting their house during the night time in the absence of the appellant. Their son also informed the appellant that on 19-4-2006, the 1^st respondent instructed him to take dinner and go to bed early. After he went to the bedroom, his mother bolted the door outside and despite his cries due to fear of heavy rain and storm, she did not open the door of the bedroom. It is also the evidence of the appellant that he tried to catch hold of the 2^nd respondent, but the 1^st respondent aided the 2^nd respondent to flee him away from there. The appellant collected the driving licence, credit cards of HSBC and ICICI banks, a wrist watch and footwear belonging to

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the 2^nd respondent in the house. Behind curtain affairs between the parties will not be known to the third parties, as it is a secret affair between the parties concerned. Moreover, it is difficult to prove the offence of adultery, rape and outrage of modesty of woman etc., as those offences were not accepted to be committed in the presence or within the visibility of anybody else. However, the circumstances of the case have to be taken into consideration to give a finding on that score.

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10. The husband in unequivocal terms attributed unchastity to his wife having seen her with the 2^nd respondent in his dwelling house at the relevant point of hour. It is also the specific evidence of the appellant that he was informed by his son about the continuous intimacy of the respondent No.1 with respondent no.2 during the nights in the absence of the appellant in the house, and hence, non-examination of the son of the appellant will not affect the case of the appellant in any manner in the background of the case on hand. Moreover it is pertinent to observe that though the 2^nd respondent filed counter, he did not choose to enter the witness box to deny the allegations made against him. Moreover, he is the best person to explain the circumstances in which his belongings i.e., driving licence, credit cards of HSBC and ICICI Banks, wrist watch and footwear, were in the custody of the appellant. A reference is also made to Ex.P-1 letter written by

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the 1^st respondent in her own handwriting admitting her mistake with a promise not to repeat the same in future before her sister and brother-in-law who also signed it. Inspite of the same, she could not change her conduct and continued her relationship with the 2^nd respondent.

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11. At this juncture, whether the decision relied on by the learned counsel for the 1^st respondent in Alapati Venkayamma’s case (1 supra) is applicable to the facts of the present case, is it to be seen. In the case cited, it is a case where some person has wrote two letters to a married woman and under those circumstances, it was held that illicit intimacy cannot be inferred between them and the wife being in the company of another person or conversing with him, adultery or illicit intimacy cannot be ascribed to them. Therefore, the above decision has no application to the instant case on hand in view of the discussion stated supra. 12. In the aforesaid observations, in view of the positive evidence of PW-1, the finding of the trial Court that nonexamination of the son of PW-1 is fatal to the plea of the appellant, is not sustainable, as the appellant has made out a case that the 1^st respondent was leading adulterous life with the 2^nd respondent and therefore, the appellant is entitled for divorce on that score itself.

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13. In the result, the appeal is allowed. The order of the trial

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Court dated 03-08-2009 passed in F.C.O.P.No.817 of 2007 is set aside. Consequently, F.C.O.P.No.817 of 2007 is allowed granting divorce to the appellant from the 1^st respondent. However, it is needless to mention that the 1^st respondent-wife may take appropriate steps, if any, against the petitioner-husband and his properties, for permanent alimony etc., if she is otherwise entitled. No costs.

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__________________ _ __ Ghulam Mohammed, J __________________ K.S.Appa Rao,J Dated: 7-3-2012 Nrg.

K. Sudhakar Reddy v. K. Venkata Lakshmi

Case brief

What is this about?

What did the court decide?

K. Sudhakar Reddy v. K. Venkata Lakshmi

Case brief

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