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Judgment
Heard Sri A. Ravinder Reddy, learned Senior Counsel, representing Sri Jella Srikanth, learned counsel appearing for the husband and Sri P. Venu Gopal, learned Senior Counsel, representing Sri D. Gnaneshawara Naidu, learned counsel appearing for wife and children.
Feeling aggrieved and dissatisfied with the order and decree dated 24.03.2014 in F.C.O.P.No.81 of 2011, appellant/husband preferred F.C.A.No.131 of 2014.
Vide the aforesaid order, the learned Judge, Family Court, Khammam, dismissed F.C.O.P.No.81 of 2011, filed by the appellant/husband against respondent/wife seeking dissolution of marriage on the grounds of cruelty and desertion.
Further, the husband has filed Crl.R.C.No.1210 of 2014 challenging the order dated 24.03.2014 passed by the learned Judge, Family Court, Khammam, in M.C.No.22 of 2012. Vide the aforesaid order, learned Family Court granted an amount of Rs.8,000/- per month, each, to the wife as well as her two children towards maintenance, from the date of petition.
The marriage of the appellant/husband with the respondent/wife was performed on 06.05.2001 at Kannapuram Village, West Godavari District, Andhra Pradesh, as per Hindu Rights and Customs. It was an arranged marriage. It was registered in the office of the Sub-Registrar, Chikkadpally, Hyderabad, on 18.05.2001. The said marriage was consummated and they blessed with two children namely, Mallipudi Komala Sai Vaishnavi and Mallipudi Trivikram Aditya Gopal, on 24.11.2002 and 30.04.2004 respectively. Initially, they led happy marital life. Thereafter, disputes arose between them.
According to appellant/husband, respondent/wife subjected him to cruelty and deserted him. There were some misunderstandings between him and his wife for petty reasons. She called her parents to Hyderabad, who came, discussed and convinced her to live with appellant/husband. Respondent/wife used to be in angry mood always. There were some petty disputes with regard to admitting their daughter in Delhi Public School, Hyderabad. The parents of respondent/wife took the respondent/wife and her children to their house on 24.06.2006. Thereafter, she did not come back to Hyderabad as promised. Father of respondent/wife informed that she is doing M.B.A. course and having examinations. Paternal uncle of appellant/husband mediated the said issue and parents of respondent/wife informed him that on completion of her M.B.A. exams, she will join the company of the appellant along with their children. However, she did not come back as promised. Therefore, the appellant/husband has filed a petition under Section 9 of the Hindu Marriage Act, 1955, before Family Court, Hyderabad, vide F.C.O.P.No.44 of 2010 against respondent/wife seeking restitution of conjugation rights. The said O.P. was referred to mediator and the Secretary, District Legal Services Authority, Nyaya-Seva Sadan, City Civil Court, Hyderabad, directed them to appear on 07.05.2010. Despite the efforts made by the mediators, the disputes were not resolved due to the attitude of the respondent/wife.
Thereafter, respondent/wife has filed Tr.C.M.P. No.113 of 2010 before this Court seeking to transfer the proceedings in F.C.O.P.No.44 of 2010 from the City Civil Court, Hyderabad, to the Family Court, West Godavari, at Eluru. The said petition was dismissed vide order dated 07.05.2010. In the said order, this Court observed that the respondent/wife failed to mention any reason seeking transfer of the said petition.
The paternal uncle of the appellant/husband i.e., Mr. Challa Rao, made efforts to settle the disputes. But all his efforts went in vain. The respondent/wife intentionally took away the gold and silver ornaments, costly sarees along with the gold and diamond necklace, etc. Finally, on 30.12.2009, appellant and his parents again sent appellant’s paternal uncle - Mr. Challa Rao, to the respondent/wife’s place, who in turn requested her parents to send her along with her children to Hyderabad to join the company of the appellant. The respondent/wife bluntly refused to join with him. Therefore, he has no other alternative but to file the aforesaid petition seeking restitution of conjugal rights. Since there was no possibility of re-union, he has filed a memo in F.C.O.P.No.44 of 2010 with a request to withdraw the said petition with a liberty to file an application seeking divorce. Therefore, the said F.C.O.P.No.44 of 2010 was dismissed as withdrawn.
Thus, according to appellant/husband, respondent/ wife deserted and subjected him to cruelty. With the said grounds, he has filed F.C.O.P.No.1519 of 2010 before the Family Court, Hyderabad, against respondent/wife, seeking dissolution of marriage on the grounds of cruelty and desertion.
It is relevant to note that respondent/wife, along with her two children, has filed a petition under Section 125 of Cr.P.C. on the file of learned Judicial First Class Magistrate, Jangareddygudem, vide M.C.No.4 of 2011, seeking maintenance.Vide order dated 12.07.2011 in Tr.C.M.P.No.244 of 2011, the proceedings in F.C.O.P.No.1519 of 2010, pending on the file of the Family Court-cum-Additional Chief Judge, City Civil Court, Hyderabad, were transferred to the Family Court, Khammam and the same was re-numbered as F.C.O.P.No.81 of 2011.
Respondent/wife had filed counter in the aforesaid O.P., denying the allegations made by the appellant/ husband. According to her, appellant/husband has got some kind of sadistic mentality. Even then, she was adjusting, keeping in view her future, reputation of her parents and also the welfare of her children. She further stated that she is interested to join the company of the appellant/husband.
She further contended that during negotiations, appellant/husband put the following five conditions:
a. Respondent/wife should not use cellphone;
b. The mother, father and younger sister of respondent/wife must not visit their house;
c. Respondent/wife should note down the time and sign in a book, maintained by them as log-book, whenever she goes out of house and returns back.
d. Parents of respondent/wife should check-into a hotel whenever they come to Hyderabad to visit their house and they can visit the house of the appellant/husband only after taking permission from him and his parents.
e. Respondent/wife should not say any work to the servants and she should not use the car.
The said conditions are unusual. Even then, respondent/wife tolerated the same keeping in view the future and welfare of her children. She never made any allegations against respondent/husband and she never deserted nor subjected him to cruelty. Since the appellant/husband neglected her and her children, they were not in a position to survive on their own as they did not have any income source, they have filed a petition under Section 125 of Cr.P.C. vide M.C.No.4 of 2011. The learned Judge, Family Court, Khammam, awarded an amount of Rs.8,000/- per month, each, to the respondent/wife and her two children, towards their maintenance.
With the said contentions, respondent/wife sought to dismiss the aforesaid O.P.
To prove the said grounds of cruelty and desertion, appellant/husband examined himself as PW.1 and filed Ex.A.1 – certified copy of the order dated 13.07.2010 in Tr.C.M.P.No.113 of 2010. To disprove the same, respondent/wife had examined herself as RW.1. She did not file any documents.
On consideration of the entire evidence, learned Family Court dismissed the said O.P. on the ground that admittedly there are no serious disputes between the parties as admitted by appellant/husband himself as PW.1 in his cross-examination. Respondent/wife is also ready and willing to join the company of the appellant/husband as deposed by her in her cross-examination, more than once. The appellant and respondent are below (35) years of age. The grounds as alleged by the appellant to seek declaration of divorce on the ground of desertion have not been proved. Learned Family Court has also considered the submission made by the appellant/husband that respondent/wife is living separately from him for a long time. Learned Family Court did not accept the said contention.
Challenging the said order, the appellant/husband preferred the present F.C.A.No.131 of 2014.
As discussed supra, respondent/wife and her two children have filed a petition under Section 125 of Cr.P.C., vide M.C.No.22 of 2012 seeking maintenance. She has examined herself as PW.1 and appellant herein has examined himself as RW.1. Both of them have not filed any documents. However, on consideration of the fact that appellant being husband and father of the two children, has to maintain them and he is under obligation to provide maintenance. Considering the status of the parties, cost of living, etc., learned Family Court awarded an amount of Rs.8,000/- per month, each, to the respondent/wife and her two children, payable from the date of petition. Challenging the said order, the husband filed the present Crl.R.C.No.1210 of 2014.
It is relevant to note that respondent/wife had filed Tr.C.M.P.No.113 of 2010 to transfer the proceedings in F.C.O.P.No.44 of 2010 (filed by husband seeking restitution of conjugal rights) from the file of Family Court, Hyderabad to Family Court, West Godavari, Eluru. A learned Judge of this Court dismissed the same vide Ex.A.1 order dated 13.07.2010. In the said order, it was observed about conducting counseling; after some time, they have agreed to live together; however, it was submitted by the parties that respondent/wife left for Jangareddygudem along with her children and did not join the company of the appellant. The respondent/wife did not state any reason for opposing the aforesaid O.P.No.44 of 2010. With the said observations, the said Tr.C.M.P. was dismissed by this Court vide order dated 13.07.2010. The said order was marked as Ex.A.1 in F.C.O.P.No.81 of 2011.
Even during the pendency of the F.C.A.No.113 of 2014, this Court interacted with the parties and also their children. The said fact was mentioned by this Court in the order dated 05.10.2017. During the interaction, the parties made allegations and counter allegations against each other. Recording the said statements, this Court directed the Registry to list the matter for final hearing itself. In the order dated 27.08.2014, this Court observed that respondent/wife agreed to join the company of appellant/husband along with her children during Dasara Vacation. Vide order dated 14.09.2017, this Court, recording the submissions of the parties and that appellant/husband and respondent/wife have agreed to live together as husband and wife along with their two minor children, studying in Rajahmundry, directed the appellant/husband to go to Rajahmundry bring back the respondent/wife with their two minor children to Hyderabad on Saturday i.e., 16.09.2017. In the meanwhile, appellant/husband shall get admission of their children in a school at Hyderabad. The same was not materialized.
However, according to respondent, appellant/ husband agreed to stay in Guntur. Therefore, she took the transfer certificates of her two children and joined them in Guntur. Thereafter, appellant left to Hyderabad leaving them abruptly at Guntur. With great difficulty, she took the transfer certificates of her children and joined them in a school at Rajahmundry.
It is relevant to note that at present, the daughter of appellant and respondent is prosecuting M.B.B.S. III-year at GITAM College and their son is studying B.Sc. final-year in Vishakapatnam.
It is also relevant to note that during cross-examination in F.C.O.P.No.81 of 2011, appellant/ husband (PW.1) admitted that, “There are no grave reasons for petty disputes between me and respondent. As per me such reasons for disputes between me and respondent are petty, but as per respondent those reasons are grave.” He has also admitted about filing of a petition seeking restitution of conjugal rights and that respondent/wife had filed counter stating that if the appellant changes his mind, she will come and join his company. He further admitted that since respondent/ wife levelled allegations, therefore, he has withdrawn the said O.P. filed by him seeking restitution of conjugal rights. However, he has denied with regard to the five conditions said to have been mentioned by him as alleged by respondent/wife. He has further admitted that his parents have good status.
On consideration of the said evidence only and considering the fact that the disputes between the appellant and respondent are petty disputes and that the appellant failed to prove both the grounds of cruelty and desertion, learned Family Court, Khammam, dismissed the said F.C.O.P.No.81 of 2011 filed by appellant/husband vide order dated 24.03.2014. On consideration of the financial status of the respondent, cost of living, etc., learned Family Court granted an amount of Rs.8,000/- per month, each, to the respondent/wife and her two children, towards their maintenance.
It is also relevant to note that this Court, vide order dated 13.08.2014, granted interim stay of the maintenance order, on the condition of appellant/husband paying an amount of Rs.5,000/- per month to the respondent/wife, with all arrears, within one month. In respect of maintenance granted to their two children, there is no stay. This Court also granted time to the appellant to deposit the said amount. According to the respondent/wife, appellant/husband has deposited only an amount of Rs.5,00,000/-. After hearing the arguments of both appellant as well as the respondents, opining that there is an element of settlement, vide our order dated 10.01.2024, this Court directed the parties to appear before us in person along with their two children, for interaction. Accordingly, they were present along with their two children on 24.01.2024. We have interacted with them separately.
Learned counsel appearing for the appellant/ husband placed reliance on the decision of the Hon’ble Apex Court in Rakesh Raman v. Kavita 2023 SCC OnLine SC 497 and a decision of this Court in P. Jayamma v. P. Sudha Lakshmi 2014 (2) ALD 360 (DB) to contend that the marriage of the appellant and respondent is irretrievably broken down and there is no possibility of their re-union. Irretrievable breakdown of a marriage is not a ground to grant divorce. On the said ground this Court cannot grant decree of divorce. Despite recommendation of the Law Commission of India to include the same as a ground, it is not included so far. However, Hon’ble Apex Court is having power to consider the same and grant decree of divorce in exercise of its powers under Article 142 of the Constitution of India to do complete justice to the parties. Whereas, we do not have such power. We cannot grant decree of divorce while exercising our powers under Section 19 of the Family Courts Act, 1984, on the ground of irretrievable breakdown of marriage.
Vide the aforesaid order dated 10.01.2024, we have directed the learned counsel appearing for appellant/husband to file copies of latest Income Tax Returns of the appellant. He has filed the Income Tax Returns for the Assessment Years 2021-22, 2022-23 and 2023-24. We have perused the said returns.
Perusal of record also would reveal that the appellant did his M.S. in Germany after engineering. He has also completed L.L.B. His mother, after obtaining voluntary retirement, started Poultry business. The said fact was admitted by the appellant during the course of hearing. His father is also in a good position.
According to respondent/wife, though she has completed her M.B.A., she is taking care of welfare of her two children. She is not doing any job and she does not have any other income source.
In the light of the aforesaid discussion, appellant herein failed to prove the grounds of cruelty and desertion.
On consideration of the entire evidence, learned Family Court vide separate orders in F.C.O.P.No.81 of 2011 and M.C.No.22 of 2012 dated 24.03.2014 and 24.03.2014, respectively, dismissed the O.P. filed by the appellant/husband seeking dissolution of marriage on the grounds of cruelty and desertion and allowed the M.C. granting an amount of Rs.8,000/- per month, each, to the respondent/wife and her two children, towards their maintenance.
As observed by the Family Court in the order dated 24.03.2014 in F.C.O.P.No.81 of 2011 and also as admitted by the appellant/husband during the course of hearing, the disputes between the appellant and respondent are on petty issues and there are no serious disputes between them. We have interacted with the parties and their children. At present, the appellant/ husband is aged about 48 years and the respondent/wife is aged about 46 years and their daughter and son are aged about 21 and 19 years respectively.
The afore-stated facts would reveal that respondent/wife made every effort to join with the company of the respondent/husband. The same could not be materialized. However, she has grown up her children, and their daughter is now studying M.B.B.S. III-year at GITAM College and their son is studying B.Sc. final-year at one Degree College in Vishakapatnam, Andhra Pradesh.
As discussed supra, appellant herein failed to prove both cruelty and desertion.
In the light of the aforesaid discussion, according to us, there are no errors in the orders passed by the learned Family Court in F.C.O.P.No.81 of 2011 and M.C.No.22 of 2012, both dated 24.03.2014. Thus, both the Family Court Appeal and Criminal Revision Case are liable to be dismissed.
According, Family Court Appeal No.131 of 2014 and Criminal Revision Case No.1210 of 2014 are hereby dismissed. The appellant/husband is directed to pay the arrears of maintenance granted to the respondent/wife and their two children, within one month from today, failing which, liberty is granted to respondent/wife and her two children to take steps in accordance with law.
As a sequel, miscellaneous petitions, if any, pending in this Family Court Appeal and Criminal Revision Case shall stand closed.