Alwala Swamy vs Alwala , Kothi Savithri

Heard Mr. M.Ram Mohan Reddy, learned counsel for the appellant and Mr.C.Damodar Reddy, learned Senior Counsel appearing for respondent.

Feeling aggrieved and dissatisfied with the order dated 27.06.2009 passed in F.C.O.P.No.94 of 2008 by the Judge, Family Court-cum-Additional District and Sessions Judge at Karimnagar, the appellant preferred the present appeal.

Facts of the case:-

The appellant herein filed a petition vide O.P.No.94 of 2008 under Section 10 (ix) (x) of the Indian Divorce Act, 1869 to dissolve his marriage with the respondent/wife on the ground of cruelty contending as follows:-

The marriage of the appellant with the respondent was solemnized on 24.06.1999 at Karimnagar as per Christian religious rites. After marriage, they lived together for about two months.

Thereafter, the respondent/wife started quarrelling with the appellant/ husband for nothing. She used to harass him mentally and subjected him to extreme mental and physical cruelty. 05.09.1999, she left the society of the appellant by filing a false complaint with the Police, I Town Police Station, Karimnagar. She also filed a complaint with the Police, II Town Police Station, Karimnagar on 20.02.2021 stating that the appellant along with his parents, harassed her for additional dowry, which is registered as a case in Cr.No.24 of 2001 for the offence punishable under Section 498-A IPC. On completion of investigation, the Investigating Officer has filed charge sheet against the appellant and the same was taken on file vide C.C.No.237 of 2001 by the Addl.Judicial Magistrate of First Class, Karimnagar. The same was ended in acquittal. She also filed a petition under Section 125 of Cr.P.C. vide M.C.No.17 of 2001 against him seeking maintenance for her minor daughter. During the hearing also, she used to abuse the appellant in filthy language. He filed a private complaint and the same was referred to the Police, II Town Police Station, who registered the same as a case in Cr.No.254 of 2001, but the same was closed. M.C.No.17 of 2001 was allowed granting maintenance of Rs.500/- per month to the minor child. Thus, respondent/wife and appellant/ husband living separately from 05.09.1999. There is no possibility of appellant and respondent living together. It has become necessary for dissolving their marriage. Appellant repeatedly requested the respondent/wife to take steps for dissolution of marriage, but she refused to do so. Therefore, he has filed the petition vide O.P.No.639 of 1999 under section 27 of Special Marriage Act, 1954 seeking divorce and it was dismissed for default on 20.12.2002. Thereafter, he had filed a petition vide O.P.No.510 of 2004 under Section 10 (ix) (x) of Indian Divorce Act, seeking dissolution of marriage and the same was dismissed on 20.01.2005. Thereafter, he had filed third application vide O.P.No.94 of 2008 under Section 10 (ix) (x) of Indian Divorce Act, seeking dissolution of marriage on the ground of cruelty.

The respondent/wife filed counter admitting the marriage and also birth of the child. However, she has denied the allegations made by the appellant against her. In fact according to her, the appellant subjected her to cruelty. He is filing one petition or the other. She has lodged a complaint under compulsion. She has filed M.C.No.17 of 2001 seeking maintenance to her minor daughter since he is not taking care of the welfare of the minor daughter. He has filed a private complaint and the same was taken on file vide C.C.No.254 of 2001. The marriage of the appellant and respondent is love marriage and both of them were employees at the time of their marriage. Sometime after the marriage, the appellant started harassing the respondent and forced her to give divorce. He started canvassing that she is unchaste and she got adulterous relationship with many people. She has tolerated his cruel conduct with a fond hope that he would change his mind in due course.

To prove the said allegations of cruelty, the appellant herein had examined himself as P.W.1 and panchayat elder as P.W.2. He has filed documents Exs.P.1 to P.13. Whereas, to disprove the allegations leveled against her by the appellant/husband, the respondent/wife had examined herself as R.W.1 and filed Exs.R.1 and R.2. On consideration of entire evidence both oral and documentary on record, learned Family Court dismissed the said OP filed by the husband. Feeling aggrieved by the same, the appellant herein preferred the present appeal.

Sri M.Ram Mohan Reddy, learned counsel for the appellant would contend that after marriage, both the parties lived together for about two months. Since 05.09.2009, they are living separately and therefore, there is no chance of reunion. During the pendency of the present appeal, the appellant re-married and he is staying with his second wife. The Family Court did not consider the said aspects and dismissed the O.P. erroneously.

Whereas, Mr.C.Damodar Reddy, learned counsel for the respondent/wife would contend that the appellant in order to obtain decree of divorce to get rid of the respondent/wife filed one petition after the other. Respondent never subjected the appellant to cruelty. In fact, the appellant himself did not take care of their minor daughter and did not pay the maintenance. The appellant and his parents subjected the respondent/wife to cruelty and therefore, she was compelled to file a complaint. However, the same was ended in acquittal. She was compelled to file M.C.No.17 of 2001 seeking maintenance to her daughter. Despite the same, she is willing and ready to join the company of the appellant. Both are employees. Considering the entire evidence and material on record only, the Family Court vide impugned order dismissed the petition filed by the appellant. There is no error in it. Learned senior counsel also placed reliance on the Division Bench judgment of Bombay High Court in Mrs.Lavina Martin Vs. Sam Bosco Martin AIR 2017 Bombay 156.

Perusal of the record including the evidence of P.Ws.1 and 2 and R.W.1 would reveal that the marriage of the appellant and respondent was solemnized on 23.06.1999 as per the Christian religious rites. During the course of cross-examination, the appellant herein (P.W.1) categorically admitted that in the year 1999, he converted into Christianity. One month before their marriage, the respondent/wife converted into Christianity. It is love marriage. They blessed with a daughter on 16.02.2000. During the course of cross-examination, the appellant admitted that their marriage was consummated. It is the specific contention of the appellant that since 05.09.1999, the respondent/wife is living separately from his society. There is no possibility of the appellant and respondent living together. Therefore, it has become necessary for dissolving their marriage by decree of divorce. Though the appellant repeatedly requested the respondent/wife to take step for dissolution of the marriage, she refused to do so. Therefore, he has filed a petition seeking dissolution of marriage.

The aforesaid facts would reveal that the appellant never initiated any steps to take respondent to his company. On the other hand, he has filed a petition vide O.P.No.639 of 1999 under Section 27 of the Special Marriage Act, seeking dissolution of marriage. Respondent/wife entered appearance in the said O.P. and contested. Thereafter, the same was dismissed for default. Subsequently, he had filed second petition vide O.P.No.510 of 2004 under Section 10 (ix)(x) of Indian Divorce Act, seeking dissolution of marriage. The same was also dismissed on 20.01.2005. This is the third petition filed by him under Section 10 (ix) (x) of Indian Divorce Act, seeking dissolution of marriage on the ground of cruelty. The said facts were also admitted by P.W.1 during the course of cross-examination. The aforesaid facts would reveal that the appellant herein has been filing one petition or the other with an intention to obtain decree of divorce.

As discussed supra, the appellant herein had filed first petition in 1999, second petition in 2004 and third petition in 2008. Whereas, the respondent/wife filed a petition under Section 125 of Cr.P.C. vide M.C.No.17 of 2001. The same was allowed and the child was granted maintenance of Rs.500/- per month.

The respondent had filed a complaint against the appellant which was registered as a case in Cr.No.24 of 2001 for the offence punishable under Section 498-A of IPC and the same was taken on file vide C.C.No.237 of 2001. However, the same was ended in acquittal vide judgment dated 17.03.2005. The aforesaid facts would reveal that it is the appellant, who had first filed the aforesaid O.P.No.639 of 1999 seeking dissolution of marriage. Then the respondent/wife filed the aforesaid M.C.No.17 of 2001 and Cr.No.24 of 2001 in the year 2001. Therefore, the contention of the appellant that the respondent/wife subjected him to cruelty cannot be believed.

The other contention of the appellant is that the respondent subjected him to cruelty by harassing him picking up quarrels on small things and by leaving his society without intimation. The appellant failed to prove the said aspects by producing relevant evidence. He had examined P.W.2-a panchayat elder. The appellant during cross-examination of R.W.1 created a story that the respondent caught hold of his caller on 02.03.2009 and 03.03.2009 at his work place but he failed to examine any witness to prove the same. On consideration of the said aspects, the Family court gave a finding that the appellant failed to prove cruelty as well as the said alleged incidents dated 02.03.2009 and 03.03.2009. The Family Court also gave a finding with regard to acquittal of the appellant in C.C.No.237 of 2001. Thus, the appellant/husband failed to prove cruelty subjected by the respondent/wife as alleged by him, by producing sure, safe and relevant evidence. Therefore, the said allegation of the appellant cannot be believed. The impugned order is a reasoned order and well founded. The appellant failed to make out any case to interfere with the order impugned herein.

In support of his case, Mr. M.Ram Mohan Reddy, learned counsel for the appellant also placed reliance on the judgment of the Division Bench of the Apex Court in K.Srinivasa Rao Vs. D.A.Deepa (2013) 5 SCC 226 wherein the Apex Court held that making unfounded indecent/defamatory allegations against spouse or his/her relatives in pleadings, filing repeated false complaints or cases in Court, issuing notices or new items which may have adverse impact on business prospects or job of spouse etc., are all illustrative cases of mental cruelty which would warrant grant of divorce.

In the present case, the appellant/husband though sought divorce on the ground of cruelty, did not mention such kind of  unfounded, indecent/defamatory allegations against him and made repeated complaints against him without any reason which caused him mental cruelty for grant of divorce to him. Moreover, the facts of the said case and the case on hand are quite different.

During the course of hearing, Sri M.Ram Mohan Reddy, learned counsel for the appellant, on instructions, submitted that the marriage of the appellant with the respondent is irretrievably broken and there is no possibility of reunion. Appellant had re-married and staying with his second wife is also employee in Medical and Health Department. He offered an amount of Rs.10 lakhs towards permanent alimony to the respondent and her daughter. The said offer given by the appellant is not acceptable to the respondent and she is ready and wiling to join the company of the appellant. In the light of the same, we have interacted with the appellant and respondent and their daughter who is studying MBBS III year. During interaction the appellant informed us that during pendency of the appeal, he re-married and he is staying with the second wife. He also informed us that she did not begot any child with the second wife and according to him, only for support, he got married second time and there is no need of children to him. The said facts would clearly reveal the attitude of the appellant/husband.

As discussed supra, appellant had filed the aforesaid O.P.No.94 of 2008 seeking dissolution of marriage on the ground of cruelty. On consideration of entire evidence both oral and documentary, learned Family Court dismissed the same holding that the appellant failed to prove cruelty. Irretrievable break down of marriage is not a ground for grant of decree of divorce under Section 10 of the Indian Divorce Act. Therefore, on the said ground, we cannot grant decree of divorce. The said principle was laid down by the Apex Court in Anil Kumar Jain vs. Maya Jain (2009) 10 SCC 415. However, the Apex Court is having such power to grant decree of divorce on coming to a conclusion that the marriage is irretrievably broken down, in exercise of its powers under Article 142 of the Constitution of India.

Thus, as discussed supra, the appellant utterly failed to prove the cruel acts of the respondent as alleged by him. At the cost of repetition, as discussed supra, he filed one petition after the other to obtain divorce from the respondent/wife. In the said course of action, he has filed aforesaid petition vide O.P.No.636 of 1999. Thereafter, only respondent had filed M.C.No.17 of 2001 and the complaint in the year 2001. Therefore, the appellant cannot blame the respondent.Thus, this appeal is liable to be dismissed.

In view of the above discussion, this appeal is dismissed.

Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.