Appeals against a Family Court divorce decree and permanent alimony. The Supreme Court held the petitioner failed to prove cruelty or desertion, set aside the divorce decree, and dismissed the alimony appeal as infructuous.
Decree of divorce set aside; FCASR dismissed as infructuous; no order as to costs.
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
FCA No.175 of 2009
AND
FCA No. 433 of 2013
FCA No.175 of 2009
Between:
Smt. B. Hemalatha @ Rukmini
… Appellant
And
B. Vikram Kumar
…. Respondent.
THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
and
THE HON’BLE SRI JUSTICE M.S.K.JAISWAL
FCA No.175 of 2009
AND
FCA No. 433 of 2013
COMMON JUDGMENT: (Per the Hon’ble Sri Justice L. Narasimha Reddy)
These two appeals arise out of an order dt. 06.04.2006 passed by the Family Court, Hyderabad in O.P.No.608 of 2004. Hence, they are disposed of through this common judgment. For the sake of convenience, the parties are referred as arrayed in the O.P.
2. The petitioner is the husband of the respondent. Their
marriage took place on 07.05.1999. Alleging that though they lived together for about one and half years, the respondent/wife started harassing him in several ways and deserted him without any justification, the petitioner filed the O.P., for divorce under Section 13(1)(ia) & (ib) of Hindu Marriage Act, 1955 (for short 'the Act'). He stated that the respondent is accustomed to costly habits and when the petitioner was unable to meet those demands, she used to express her displeasure and humiliate the petitioner. He made reference to the filing of complaint under Sec.498-A of the Indian Penal Code by the respondent.
3. The O.P., was opposed by the respondent/wife. She denied the allegations made against her. According to her, the petitioner and his family members started demanding huge amounts towards dowry and additional dowry and, at one point of time, her brother arranged a sum of Rs.1,25,000/-. She pleaded that unable to bear the harassment caused to her by the petitioner, she started living in the house of her parents, and a complaint was also filed narrating the relevant facts. She expressed her willingness to live with the petitioner.
4. Through the order under appeal, the trial Court passed a decree for divorce and granted permanent alimony of Rs.2.00 lakhs payable to the respondent. While the respondent filed FCA No.175 of 2009 feeling aggrieved by the decree of divorce, the petitioner filed FCA No. 433 of 2013 aggrieved by the quantum of permanent alimony.
5. Sri G. Madhusudhan Reddy, learned counsel for the respondent/wife submits that the petitioner was not able to prove the grounds of either cruelty or desertion and the trial Court passed the decree for divorce without any basis. He submits that PWs.2 and 3, who were examined on behalf of the
petitioner, admitted in their cross-examination that they did not take any steps for the alleged reconciliation nor they are aware of the relationship between the parties. He contends that the decree could not have been granted just on the basis of selfserving statement of the petitioner as PW-1.
6. Sri Sai Baba Itapu, learned counsel for the petitioner/ husband, on the other hand, submits that the harmony between the parties was hardly for one and half years and though the petitioner made every effort to keep the matrimony intact the respondent/wife deserted him. He submits that the respondent did not evince any interest to join him even after a notice was issued in that behalf. Learned counsel submits that the trial Court has undertaken a comprehensive discussion on the points urged by the petitioner and has arrived at a just and proper conclusion. He, however, submits that the petitioner is not possessed of adequate financial resources and the amount fixed towards the permanent alimony is on the higher side.
7. The marriage between the petitioner and the respondent is not disputed. As a matter of fact, they lived together without any complaint for about one and half years. It is thereafter that misunderstandings developed between them. The petitioner prayed for divorce by pleading the grounds of cruelty and desertion. The respondent strongly opposed the same not only by denying the allegations made against her, but also making certain other allegations against the petitioner and other family members.
8. The trial Court framed the following points for consideration:
9. On behalf of the petitioner, PWs.1 to 3 were examined and Exs.P.1 to P.4 were filed. On behalf of the respondent, the respondent herself deposed as RW-1, and Exs.R.1 and R.2 were filed.
10. The decree was passed as prayed for by granting permanent alimony of Rs.2.00 lakhs. Both the parties are before this Court ventilating their own respective grievances.
11. The points that arise for consideration before us are:
(ii) If so, whether the amount of permanent alimony granted by the trial Court is on the higher side?
12. POINT No.1: The petitioner reiterated the contents of his O.P., by deposing as PW-1. The gist of his evidence is that the respondent did not evince any interest in doing the household works, and she is accustomed to costly habits of going to big cinema halls, purchasing of costly sarees etc. Even if what is stated by him is true, those acts do not constitute cruelty. It is only when the respondent has taken any extreme or undesirable steps against the petitioner for not complying with her demands, that the acts of cruelty can be inferred. Though Pws.2 and 3 sought to support the case of PW1, they clearly admitted in their cross-examination that they are not acquainted with the family of the parties herein and that they did not take any steps, to bring reconciliation between the parties.
13. The trial Court did not undertake any independent
discussion about the aspect of cruelty, nor did it record any finding in that behalf. Before this Court also the learned counsel for the petitioner is not able to point out any acts or omissions on the part of the respondent, that constitute cruelty.
14. Coming to the question of desertion, the respondent, no doubt, is living separately from the petitioner. However, it is only when such separate living is not with any justification, then the respondent can be held guilty of desertion. In her evidence, the respondent stated that the petitioner and his family members used to harass her demanding additional dowry, and, at one point of time, a sum of Rs.1,25,000/- was arranged. She has also filed a complaint under Sec.498-A of IPC.
15. Whatever be the truth or otherwise of these allegations, one thing that emerges from the evidence is that the respondent was not feeling comfortable, in the company of the petitioner. In case, the petitioner wanted her back, the normal course would have been to file a petition under Sec.9 of the Act. Straight away, the petitioner filed O.P., for divorce. We too have made an attempt to bring reconciliation between the parties. While the respondent expressed her willingness to live with the petitioner, the latter, however, was totally disinclined to receive the respondent. Under these circumstances, it is difficult to conclude that the petitioner is otherwise inclined to live with the respondent and that the latter has deserted him without any justification.
16. We, therefore, answer the Point No.1 in favour of the respondent/wife and hold that the petitioner failed to prove the grounds of cruelty and desertion.
17. POINT No.2: In view of our answer to the first point, it is not necessary to deal with this point.
18. Accordingly, FCA No.175 of 2009 is allowed and the decree passed by the trial Court is set aside. The FCASR No.27829 of 2006 is dismissed as infructuous. There shall be no order as to costs. Consequently, the miscellaneous petitions, if any pending, stand disposed of accordingly.
_____________________ L. NARASIMHA REDDY, J
________________ M.S.K. JAISWAL,J
Dt. 03..12..2013 Kv/Smr
THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
and
THE HON’BLE SRI JUSTICE M.S.K.JAISWAL
FCA No.175 of 2009 AND
FCA No. 433 of 2013
(Common Judgment of the Division Bench delivered by Hon’ble Sri Justice L. Narasimha Reddy)
03..12..2013 Kv/Smr
2 issues framed by the court
Whether the petitioner proved the grounds of cruelty and desertion to grant decree of divorce?
Whether the amount of permanent alimony granted by the trial Court is on the higher side?
2 provisions across 2 enactments
Smt. B. Hemalatha @ Rukmini
B. Vikram Kumar
L. NARASIMHA REDDY
M.S.K. JAISWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
