The appellate court dismissed the appeal against a divorce decree dated 13.03.2009. The court held that examining the merits served no useful purpose as the respondent had subsequently married another person, rendering the appeal futile.
The appeal and miscellaneous petitions were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON’BLE SRI JUSTICE M.S.K.JAISWAL
F.C.A. No.284 of 2013
JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)
The marriage between the appellant and the respondent took place on 30.01.1998. They lived together for some time and they had also one child out of the wedlock. However, differences have arisen between them and the respondent filed F.C.M.O.P.No.26 of 2008 in the Family Court, Srikakulam against the appellant under Section 13 of the Hindu Marriage Act for divorce. She pleaded that the appellant ill-treated her when they were living together and after some time, she had to go to the house of her parents, unable to bear the ill-treatment. It was also alleged that though her parents dropped her at the house of the appellant, same tendency continued and he openly told her that he will give divorce and get rid of her. The F.C.M.O.P. was opposed by the appellant herein. He pleaded that the respondent left the matrimonial home on her own accord and in spite of repeated efforts made by him, she did not join the matrimonial home. The trial Court allowed the O.P. through order, dated 13.03.2009. Hence, this appeal.
Heard Sri K.Someswara Kumar, learned counsel for the appellant.
Notice was ordered to the respondent in an application for condonation of delay. This Court made an endorsement on
an earlier occasion to the effect that the notice is deemed to have been served, since the respondent refused to receive it.
The marriage between the parties is not disputed. In the F.C.M.O.P. filed by the respondent for divorce, the trial Court framed the following points for its consideration:
1. Whether the respondent is guilty of desertion of the petitioner for more than two years immediately preceding the filing of this divorce petition and guilty of cruelty towards the petitioner?
2. Whether the marital tie between the petitioner and the respondent has broken irretrievably?
3. Whether the petitioner is entitled to a decree of divorce, as prayed by her?
On behalf of the respondent, P.Ws.1 to 3 were examined and no documentary evidence was adduced. So far as the evidence of the appellant is concerned, it comprised of his deposition alone as R.W.1. The F.C.M.O.P. was allowed and the marriage between the appellant and the respondent was dissolved.
The only point that arises for consideration is as to whether the order passed by the trial Court warrants interference.
A ground pleaded by the respondent for divorce against the appellant is the one of desertion. The purport of the pleadings is that though the appellant and the respondent lived together for some time and were also blessed with a child, the harassment on the part of the appellant is such that the respondent had to leave away. An occasional living in the
house of the parents of a wife of a man cannot be said to be a ground for granting divorce. However, the consistent conduct on the part of the husband, that forced the wife to leave the matrimonial home can certainly be treated as the one of desertion, apart from constituting cruelty also. The respondent narrated the events not only in the O.P., but also in her deposition as P.W.1. None of the facts pleaded by her were disproved in the cross-examination. Her father deposed as P.W.2 and the trial Court made a detailed reference thereto.
Whatever may be the strength or weakness of the case of the respondent, the evidence of the appellant herein as R.W.1 has, in a way, convinced the trial Court to grant decree for divorce. In his cross-examination, he stated that it is impossible for him to lead marital life with the respondent under the existing circumstances. That single sentence clinchingly proves that it was he, who is responsible for the respondent to leave the matrimonial home. It also proves the act of desertion on the part of the appellant.
Assuming that a different view is possible on the basis of the evidence on record, the events that have taken place subsequent to the decree passed by the trial Court dissuaded us from entertaining the appeal. The F.C.M.O.P. was allowed way back on 13.03.2009. The appeal was presented only on 20.10.2009 with delay. This Court ordered notice on 06.11.2009. The appellant was permitted to take out notice. However, he did not take the immediate steps and it was only on 13.09.2013, that the application for condonation of delay was listed. The result is that for about four and half years from the date of the decree, there was no order of stay and the appeal
itself was presented long after the expiry of period of limitation. In all fairness, the learned counsel for the appellant stated that the respondent has since married another person which, in fact, she was entitled to do. In view of this development, no useful purpose would be served in examining the matter at this stage.
The appeal is accordingly dismissed. There shall be no order as to costs.
The miscellaneous petitions filed in this appeal shall also stand disposed of.
______________________ L. NARASIMHA REDDY,J ______________________ M.S.K.JAISWAL,J Dt:06.11.2013 kdl
2 issues framed by the court
Whether the impugned decree of divorce warrants interference on merits.
Whether the long delay in filing and disposing the appeal precludes further examination given the respondent's remarriage.
Appellant
Respondent
L. Narasimha Reddy
M.S.K. Jaiswal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
