Allowed

Sri D. Shyam Kumar v. Smt D. Ratnamala , Pavani

Telangana HC20 Jun 2022FCA/144/2010

Case brief

AI extract

What is this about?

In this matrimonial appeal, the Family Court allowed the husband's petition for divorce and set aside a lower decree that denied divorce and granted restitution of conjugal rights. The Court found the marriage irretrievably broken due to the wife's cruelty, evidenced by a false criminal case filed against the husband, and their separation for over 21 years.

What did the court decide?

The impugned order and decree dated 25.02.2010 were set aside, F.C.O.P.No.29 of 2007 allowed, and the marriage dissolved. Rs.5 lakh granted as permanent alimony.

Sri D. Shyam Kumar Vs Smt D. Ratnamala , Pavani — Matrimonial and Divorce | Telangana HC (2022)

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THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER AND THE HON’BLE SMT. JUSTICE JUVVADI SRIDEVI FAMILY COURT APPEAL No.144 OF 2010

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JUDGMENT (Per Hon’ble Dr. Justice Shameem Akther)

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This appeal, under Section 19 of the Family Courts Act, 1984, is filed by the appellant/husband, aggrieved by the order and decree, dated 25.02.2010, passed in F.C.O.P.No.29 of 2007 by the Judge, Family Court-cum-III Additional District Judge, Warangal, whereby, the subject F.C.O.P. filed by the appellant/husband, under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955, seeking to grant divorce by dissolving the marriage performed between him and the respondent/wife on 14.02.2001, was dismissed and the counter claim of the respondent/wife seeking restitution of conjugal rights, was allowed.

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2. Heard the learned counsel for both sides and perused the record.

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3. Learned counsel for the appellant/husband would contend that the marriage between the parties was solemnized on 14.02.2001 as per Caste Customs prevailing in the community. The marriage was consummated and the parties begot one male

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Dr.SA,J & JS, J F.C.A.No.144 of 2010

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child. There was cruelty and desertion on the part of the respondent/wife. A criminal case vide Crime No.135 of 2004 of Matwada Police Station, under Section 498A I.P.C. and Sections 3, 4 and 6 of the Dowry Prohibition Act, was instituted against the appellant/husband and his family members. On filing charge sheet, the same was registered as C.C.No.100 of 2008 on the file of V Additional Judicial Magistrate of First Class, Warangal and the said case ended in acquittal vide judgment, dated 04.09.2008. Aggrieved by the same, Crl.R.C.No.767 of 2009 was filed by the respondent/wife before the erstwhile High Court of Andhra Pradesh and the same was dismissed vide order, dated 09.09.2009. Ex.A11-copy of the judgment, dated 04.09.2008, passed in C.C.No.100 of 2008 by the V Additional Judicial Magistrate of First Class, Warangal and Ex.A13-copy of the order, dated 09.09.2009, passed in Crl.R.C.No.767 of 2009 by the erstwhile High Court of Andhra Pradesh, dated 09.09.2009, marked through the appellant/husband substantiate the same. Apart from institution of above criminal case, there are several other acts of cruelty on the part of the respondent/wife. The Court below did not advert to the same and had not properly dealt with the evidence put forth before it, while arriving at a conclusion. The parties are living separately

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Dr.SA,J & JS, J F.C.A.No.144 of 2010

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for the past 21 years and there are no efforts from either side to continue the marital life. The marriage between the parties is irretrievably broken down. There is no possibility of reunion between the parties. Hence, the Court below ought to have dissolved the marriage between the parties and ultimately, prayed to set aside the impugned order and decree and allow the appeal, as prayed for. In support of his submissions, the learned counsel placed reliance over the decisions rendered in K. Srinivas v. K. Sunita¹ and Gajjala Shankar v. Anuradha² .

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4. On the other hand, the learned counsel for the respondent/wife would submit that there is no act of cruelty on the part of the respondent/wife. The allegations made in the criminal case instituted against the appellant/husband and his family members are not false. Since the criminal case ended in acquittal, it does not by itself lead to the conclusion that the criminal case was false. It is not a ground to seek divorce. Further, no maintenance is granted to the respondent/wife so far in any proceedings. There are no valid grounds to grant divorce and ultimately, prayed to dismiss the appeal. In support

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1 (2014) 16 SCC 34

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2 2005 (6) ALT 565

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Dr.SA,J & JS, J F.C.A.No.144 of 2010

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of his submissions, the learned counsel placed reliance over the decision rendered in J.L. Nanda v. Smt. Veena Nanda³ .

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5. In view of the above rival submissions, the points that

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arise for determination in this appeal are as follows:

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“1. Whether the appellant/husband is entitled for dissolution of marriage between him and the respondent/wife, which was solemnized on 14.02.2001, as prayed for?

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2. Whether the impugned order and decree, dated 25.02.2010, passed in F.C.O.P.No.29 of 2007 by the Judge, Family Court – cum – III Additional District Judge, Warangal, are liable to be set aside?

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POINTS :

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6. The marriage between the parties took place on 14.02.2001. Both the parties are in Government service. Admittedly, a criminal case was instituted against the appellant/ husband and his family members in the year 2004 and the same was assigned C.C.No.100 of 2008 on the file of V Additional Judicial Magistrate of First Class, Warangal. After due trial, the said C.C. ended in acquittal vide judgment, dated 04.09.2008. Aggrieved by the same, the respondent/wife filed Crl.R.C.No.767

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3 AIR 1998 Supreme Court 407

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Dr.SA,J & JS, J F.C.A.No.144 of 2010

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of 2009 before the erstwhile High Court of Andhra Pradesh, which resulted in dismissal vide order, dated 09.09.2009. Copies of the said judgments marked as Exs.A11 and A13 substantiate the same. The Court below, vide the impugned order and decree, while declining to grant divorce in favour of the appellant/husband, granted restitution of conjugal rights in favour of the respondent/wife. But, the respondent/wife did not make any effort to execute the decree passed in her favour and against the appellant/husband. All conciliation proceedings made before the Family Court failed.

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7. In K. Srinivas ’s case (supra 1), relied on by the learned counsel for the appellant/husband, the Honourable Apex Court, held that filing of one false complaint by wife is sufficient to constitute matrimonial cruelty and dissolved the marriage performed between the parties therein on the ground of cruelty. In the instant case also, a criminal case was instituted by the respondent/wife against the appellant/husband and his family members and the same ended in acquittal. The facts of the case on hand are similar to the facts in the aforesaid decision.

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8. Further, in Gajjala Shankar ’s case (supra 2), relied on by

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the learned counsel for the appellant/husband, this Court had

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also taken a similar view, apart from taking into consideration that the parties were living separately since 13 years. In the instant case, as per the evidence on record, the respondent/wife left the company of the appellant/husband in the month of June, 2001. So, more than 21 years have been passed till date. There are no negotiations or efforts by either of the parties to live together.

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9. In J.L. Nanda ’s case (supra 3), relied on by the learned counsel for the respondent/wife, the differences between the parties therein were trivial in nature. The facts of the case on hand are different. Moreover, in the instant case, a false criminal case was filed against the appellant/husband and his family members, which resulted in acquittal. Therefore, the aforesaid decision has no application to the facts of the case on hand.

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10. In view of institution of criminal proceedings against the appellant/husband and his family members, and since the respondent/wife left the company of the appellant/husband in the month of June, 2001, and living separately till date and since no efforts are being made by either of the parties for reconciliation or mediation, the appellant/husband could able to

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Dr.SA,J & JS, J F.C.A.No.144 of 2010

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prove the cruelty and desertion on the part of the respondent/wife. The marriage between the parties had irretrievably broken down. There are no chances of reunion between the parties. Therefore, we deem it appropriate to dissolve the marriage between the parties by granting a decree of divorce.

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11. Accordingly, the appeal is allowed by setting aside the order and decree, dated 25.02.2010, passed in F.C.O.P.No.29 of 2007 by the Judge, Family Court-cum-III Additional District Judge, Warangal. Consequently, F.C.O.P.No.29 of 2007 stands allowed and the marriage solemnized between the parties on 14.02.2001 stands dissolved.

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12. Before parting, it is appropriate to state that the appellant/husband agreed to pay an amount of Rs.5,00,000/towards permanent alimony to the respondent/wife to reach to an amicable settlement. But, the respondent/wife refused the same. Though the respondent/ wife is an employee, since the son of the parties is pursuing medicine, taking into consideration the financial status and capability of the appellant/husband, an amount of Rs.5,00,000/- (Rupees five lakhs only) is granted towards permanent alimony to the respondent/wife payable by

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Dr.SA,J & JS, J F.C.A.No.144 of 2010

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the appellant/husband within a period of eight (8) weeks from today. The respondent/wife shall furnish her bank account details to the appellant/husband to enable the appellant/husband to credit the amount granted by this Court towards permanent alimony.

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Miscellaneous petitions, if any, pending in this appeal,

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shall stand closed. There shall be no order as to costs.

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______________________ Dr. SHAMEEM AKTHER, J

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___________________ JUVVADI SRIDEVI, J

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Date: 20-06-2022 MD

Sri D. Shyam Kumar v. Smt D. Ratnamala , Pavani

Case brief

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Sri D. Shyam Kumar v. Smt D. Ratnamala , Pavani

Case brief

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