Partly allowed

Sri T. Vasudeva Rao v. Smt. T. Rama Devi

Telangana HC7 Nov 2013FCA/104/2007

Case brief

AI extract

What is this about?

In an appeal against a divorce decree and alimony order, the court held that the appellant's unjustified separation constituted desertion and cruelty, upholding the divorce but enhancing the permanent alimony from Rs.4,00,000/- to Rs.15,00,000/-.

What did the court decide?

Divorce decree upheld; permanent alimony enhanced to Rs.15,00,000/-; Rs.2,00,000/- each awarded to two daughters for marriage expenses.

Sri T. Vasudeva Rao Vs Smt. T. Rama Devi — Maintenance and Alimony | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND

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HON’BLE SRI JUSTICE M.S.K. JAISWAL

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FAMILY COURT APPEAL Nos.104 OF 2007 AND 56 OF 2010

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COMMON JUDGMENT: (Per Hon’ble Sri Justice L. Narasimha Reddy)

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The marriage between the appellant and the respondent took place on 07.02.1979. The respondent was employed as an Engineer in B.H.E.L. They lived together in Bangalore up to 1982. They were blessed with two daughters. The appellant left the company of the respondent in the year 1982 and stated to have lived in the house of her parents till 1989. The appellant and one of the daughters by name T. Karuna filed F.C.O.P.No.792 of 2005 in the Family Court, Hyderabad, against the respondent for maintenance. Through its order dated 16.05.2007, the trial Court awarded maintenance at Rs.4,000/- per month from 15.05.2003 till the date of filing of the O.P. and future maintenance at Rs.6,000/- per month. It was also directed that the respondent shall pay a sum of Rs.3,00,00/- towards the marriage expenses of their daughter i.e., the 2^nd petitioner in the O.P.

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At that stage, the respondent filed F.C.O.P.No.560 of 2007 under Section 13(1)(ia) and (ib) of the Hindu Marriage Act (for short, ‘the Act’) before the same Family Court against the appellant, for divorce. He pleaded that the appellant did not evince any interest to live with him and that she left the matrimonial home in the year 1982. He pleaded that though reconciliation was brought in the year 1990 with the intervention of Karnataka High Court, the appellant once again left his company in the year 2003 and did not return, in spite of his repeated efforts. It was also stated that he got his daughters educated and has taken every step for their well being.

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The appellant opposed the O.P. by filing counter. She stated that the respondent has sadistic mentality and has harassed her ever since the marriage. She pleaded that at one point of time, the respondent has beaten her to such a level that she has to be treated in Intensive Care Unit (I.C.U.) of a hospital and that it is the respondent, who is squarely responsible for her to live separately.

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F.C.O.P.No.792 of 2005 was partly allowed by the Family Court through order, dated 16.05.2007, directing that the respondent shall pay past maintenance to the appellant @ Rs.4,000/- per month and future maintenance @ Rs.6,000/- per month from the date of the order. It was also directed that the 2^nd petitioner in the O.P., i.e., the daughter of the respondent, by name, T. Karuna shall be paid a sum of Rs.3,00,000/-. Charge was created on the immovable properties of the respondent.

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Through its order dated 30.12.2009, the trial Court allowed the O.P., granted decree of divorce and permanent alimony in the form of Rs.4,00,000/- was also awarded. The same is challenged in this appeal.

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Sri M. Rama Rao, learned counsel for the appellant, submits that the respondent failed to prove the grounds of desertion and cruelty and except his self-serving statement as PW.1, there was no other supporting evidence. He contends that the appellant had to live in the house of her parents because of the ill treatment and cruelty meted out to her by the respondent. He contends that the amount awarded towards permanent alimony is totally inadequate and the appellant would not be able to lead a meaningful life with that amount.

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Sri K. Chidambaram, learned counsel for the respondent, on the other hand, submits that the appellant deserted the respondent more than once, without their being any justification and, that in spite of repeated efforts, she did not return to the matrimonial home. He contends that hardly within three years from the date of marriage, the appellant left the respondent and returned back only in the year 1990 that too with the intervention of the High Court of Karnataka. He submits that the respondent was a highly placed

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official in B.H.E.L. and though he provided all facilities to the appellant and their daughters, the appellant once again deserted him in the year 2003 and did not join him till today. He contends that the appellant is interested more in the property of the respondent than in him. It is also pleaded that the trial Court has awarded a reasonable amount towards permanent alimony, duly taking into account the requirement of the appellant on the one hand and his capacity on the other hand.

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It is rather unfortunate that the parties herein, hailing from an orthodox family had to figure in the proceedings under Section 13 of the Act, that too when they are almost at the retiring age and after their children are married. Instead of standing as examples for a marriage with endurance, they proved their inability to adjust, whatever by their respective roles. The O.P. was filed by the respondent by pleading the grounds of cruelty and desertion on the part of the appellant. The gist of the contentions of the parties has already been mentioned in the preceding paragraphs.

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The trial Court framed only one point for its consideration, namely, whether the petitioner (respondent herein) is entitled to decree of divorce as prayed for?

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The oral evidence on record comprised of the deposition of the respondent as PW.1 and that of the appellant as RW.1. They filed Exs.P1 to P37, and Exs.R1 and R2, respectively.

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The points that arise for consideration in this appeal are:

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1)	Whetherthe respondent proved the grounds of cruelty and desertion on the part of the appellant?
2)	Whether the amounts awarded by the trial Court in both the O.Ps., towards alimony or otherwise warrants any modification?

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POINT No.1:- Though the parameters and consideration for adjudication of grounds of cruelty on the one hand and desertion on the other are separate and independent, more often than not, they overlap each other; and a set of facts, that constitute the basis for one ground, would become relevant in respect of the other ground also. First it is to be seen as to whether there was any act of desertion on the part of the appellant.

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In the O.P., the respondent pleaded that the appellant left his company for the first time in the year 1982 and returned only in the year 1990. For the second time, she is said to have left the company of the respondent in the year 2003. Separate living of the spouses by itself cannot lead to a conclusion that there was an act of desertion on the part of any spouse. In case one of the spouses lives separately on account of the circumstances created by the other spouse, the latter cannot plead the ground of cruelty. In the instant case also, had the appellant proved that she left the company of the respondent due to this harassment or ill treatment meted out to her, the plea of the respondent can certainly be rejected.

¶20

Though the appellant resided almost for a period of eight years separately from the respondent, since 1982 it is not necessary to take the same into account, in view of the fact that the parties were re-united in the year 1990. After such re-union, they lived together for 13 years. By the year 2003, the parties were residing at Bangalore. However, the appellant left Bangalore and started living with her parents at Hyderabad from the year 2003 onwards. Once the factum of living separately is not disputed, the justification therefor must emanate from the spouse, who left the company of the other. In this regard, though the appellant pleaded that the respondent subjected her to cruelty and ill treatment, she was not able to substantiate the same.

¶21

The trial Court took note of the fact that in the cross examination, the appellant as RW.1 did not even mention that she was beaten by the respondent. There was no evidence to show that she was admitted into any hospital, much less in I.C.U. thereof, and even she was not able to furnish the name of the hospital. Observation was also made to the effect that she did not even furnish the date of such alleged incidents or

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the nature of harassment or humiliation. In the course of counselling, the trial Court made an effort to ascertain the views of the parties. The appellant expressed her disinclination to join the respondent. We also made efforts for two consecutive days to unite the appellant and the respondent, duly assuring that the respondent would be put to whatever conditions, the appellant wants. The efforts however did not fructify. The net result is that the appellant left the company of the respondent on her own accord and she is living separately for the past 13 years. Therefore, the ground of desertion stands proved.

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Coming to the ground of cruelty, it is not necessary to the party complaining of it must have received any bodily injuries from the other spouse. The cruelty can be to the mind or body, of the concerned spouse. In the institution of the marriage, irrespective of the community, to which the parties thereto belong, one of the most important attributes thereof is that the parties to the marriage must live together. Many a time, it is just being in the company of the life partner, that would be a source of satisfaction and peace of mind for a party to the marriage. If a person is denied the company of the spouse for no fault of him, that too for a prolonged period, such person is certainly subjected to cruelty. This aspect was emphasised by the Hon’ble Supreme Court in several precedents.

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Though the mere living separately cannot be treated as a ground for granting divorce, if it is for a prolonged period and without justification, it would constitute cruelty and a ground for granting divorce. The party who is accused of that must justify such acts or omissions or must leave to the Court, to draw the necessary conclusions. In view of the unjustified act living separately, on the part of the appellant, the respondent was certainly subjected to cruelty and the trial Court, obviously, was left with no other alternative, except to grant decree of divorce. Learned counsel for the appellant is not able to demonstrate as to how the conclusions arrived at by the trial Court in this behalf are erroneous. We do not find any basis to interfere with the decree of divorce passed by the trial Court.

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POINT No.2:- Coming to the second point, the trial Court awarded permanent alimony of Rs.4,00,000/- to the appellant. This is in addition to the arrangement under F.C.O.P.No.792 of 2005. Whatever may have been the circumstances under which divorce had been granted, the fact remains that the appellant had to maintain herself and for leading a meaningful life, she needs reasonable amount. The respondent no doubt is not a pensioner and is said to be getting around Rs.9,000/- per month as interest from the Contributory Provident Fund. However, he is said to be having certain items of immovable properties. It is not clear as to whether these properties are self-acquired or ancestral, in nature. In the facts and circumstances of the case, we are of the view that the permanent alimony can be fixed at Rs.15,00,000/-.

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Hence, F.C.A.No.56 of 2010 is partly allowed upholding the decree of divorce passed by the trial Court, however, by enhancing the permanent alimony to Rs.15,00,000/-, payable to the appellant. The respondent shall also pay Rs.2,00,000/- each to his two daughters towards the marriage expenses. Four months time from today is granted for payment of the said amounts.

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In view of the arrangement directed in the F.C.A.No.56 of 2010, the one made by the trial Court in F.C.O.P.No.792 of 2005 merges therein and accordingly the decree passed therein shall stand set aside. F.C.A.No.104 of 2007 is accordingly allowed.

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There shall no order as to costs.

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The miscellaneous petitions filed in these appeals shall stand disposed of.

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___________________________ L. NARASIMHA REDDY, J.

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07.11.2013

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M.S.K. JAISWAL, J.

Sri T. Vasudeva Rao v. Smt. T. Rama Devi

Case brief

What is this about?

What did the court decide?

Sri T. Vasudeva Rao v. Smt. T. Rama Devi

Case brief

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What did the court decide?

What the court decided

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