Mudireddy Dontireddy Vijaya Laxmi vs Mudireddy Yadagiri Reddy

This Civil Miscellaneous Appeal is preferred under Section 28 of the Hindu Marriage Act, 1955 challenging the judgment and decree dt.04.11.2020

passed in H.M.O.P.No.82 of 2018 of the Senior Civil Judge, Nalgonda.

Brief facts of the case:

The appellant herein is wife of respondent, and they got married on 13.06.2002.

The respondent had filed the said O.P. seeking divorce under Section 13 (1)(i)(a) of the Hindu Marriage Act, 1955 contending that the parties had

lived together happily only for one year, and thereafter, the appellant used to pick up quarrels with respondent on petty occasions and used to visit her

parental house very frequently; that appellant gave birth to two female children who are in the care and custody of the appellant; the brother and

mother of appellant continuously instigated the appellant to set up separate family by dividing the respondent from his parents, and on this pretext, the

appellant used to pick up quarrels with respondent and his family members; that in March, 2004 the appellant picked up a quarrel with respondent and

left the house and went to her parental house without any reasonable cause and started living there, and though he approached appellant’s family

members and requested to send the appellant and the children to his matrimonial house, the brother of the appellant beat the respondent and her

mother, abused the respondent and refused to send the appellant to live with respondent. He also stated that he was working as car mechanic at

Hyderabad.

He contended that there was a panchayati held with village elders, and in March, 2004 the appellant joined his company and lived with him for some

period, but on 02.04.2004, she again left his company and even lodged a false complaint before the Police at Vemulapalli against the respondent.

Thereafter, upon the advice of elders, the appellant rejoined his company.

But again on 10.06.2004, the appellant left his company and on 8.07.2006, filed another complaint with the police alleging that the respondent and his

family members committed offences punishable under Sections 498-A and Section 4 of the Dowry Prohibition Act which ended in an acquittal in

C.C.No.563 of 2006 on 20.05.2008 by the Additional Judicial I Class Magistrate, Miryalguda. He alleged that he was employed as a car mechanic at

Hyderabad, but the appellant wanted a luxurious life and since he could not provide the same, the appellant harassed him and made it impossible for

him to live with her. According to him, the appellant intentionally deserted him from 12.06.2004.

Counter filed by the appellant

The appellant filed a counter admitting the relationship between the parties but stated that Rs.2 lakh and four tolas of Gold and other house-hold

articles were given as dowry on the demand of respondent and his family members. She denied that she picked up any quarrel with the respondent as

alleged.

She contended that the respondent worked as Mechanic at Hyderabad but kept the appellant with his mother at Tungathurthi, and he used to visit

Tungathurthi now and then, and when he came to Tungathurthi, he and his parents, sister and brother-in-law harassed the appellant for additional

dowry and subjected her to ill-treatment.

She denied that her mother and brother interfered with her family life or that she wanted the respondent to set up separate family at Hyderabad or

that she left the respondent in March, 2004 and left the matrimonial home.

According to her, the respondent necked her out of the house and asked her not to come back to the house without additional dowry of Rs.50,000/-

and that he would get married again.

She admitted that there was a Panchayat on 05.04.2004 at Vemulapalli Police Station with the intervention of certain elders, and so she joined the

company of respondent but again she was ill-treated and necked out by the respondent on 10.06.2004. She admitted to have given another criminal

complaint against the respondent under Section 498-A.

In the Family Court, the respondent examined himself as P.W.1 and one of the elders who mediated in the dispute between himself and the

appellant’s family as P.W.2. He also marked Exs.P.1 to P.3. The appellant examined R.W.s 1 to 4 and did not mark any document.

The order dt.04.11.2020 in HMOP.No.82 of 2015

By judgment and decree dt.04.11.2020, the Court below allowed the O.P. with costs and dissolved the marriage between the parties.

The Court below recorded that the evidence of P.W.1 is corroborated by P.W.2 (a third-party); that the appellant left the society of respondent

without any reasonable cause and she was living separately from the respondent for the past (13) years and all efforts made by the respondent for

their living together went in vain.

It also referred to the evidence of R.Ws.2 to 4 about the alleged harassment caused to the appellant by the respondent.

It then took note of the fact that respondent was acquitted in the criminal case filed alleging offences under Section 498-A of I.P.C. at the

instance of appellant in C.C.No.563 of 2006 and the said judgment was also confirmed in Criminal Appeal No.53 of 2011 by the Appellate Court. It

then referred to the contention of respondent that the appellant had subject him to cruelty and deserted him in 2004, that she filed a false criminal case

alleging dowry harassment which ended in acquittal, and therefore the respondent is entitled to divorce. It rejected the plea of appellant that mere

acquittal of the respondent in a criminal case filed by the appellant cannot be a ground for grant for divorce.

It relied on the unreported decision of the Supreme Court in Mr. Rani Narsimha Sastry vs. Rani Suneela Rani (2019) SCC Online SC 1595 that a

person who undergoes trial in which he is acquitted of the allegation of committing offence under Section 498-A of I.P.C. of the allegation leveled

against the wife by the husband cannot be said to be not subjected to cruelty. It held that Exs.P.2 and P.3, the decision of the criminal cases show that

the respondent was falsely implicated in the criminal cases filed under Section 498-A of I.P.C., and on that ground he is entitled to seek divorce.

It also took note of the fact that parties were living separately since 26.10.2004 and the plea of appellant that she was necked out of the house for

dowry was not accepted in the criminal cases C.C.No.563 of 2006 and Criminal Appeal No.53 of 2011 and there is no material to prove that the

appellant had any sufficient reason to live separately.

It also took note of the fact that the appellant admitted that since 2006 till 2020 she never got issued any notice or filed any case asking for the

respondent to take her back and she never made any effort to join the respondent after the acquittal of respondent in the criminal case. It also relied

on the decision of the Supreme Court in Naveen Kohli vs. Neelu Kohli 2006 (4) SCC 558 that if both parties have separated, and separation continued

for a sufficient length of time, and one of them had presented a petition for divorce, it can well be presumed that the marriage has broken down. It

also relied on other decisions of the Supreme Court wherein the said principle was reiterated.

The present CMA

Challenging the same, the present Civil Miscellaneous Appeal is filed.

Heard Sri G.L. Narasimha Rao, counsel for appellant.

Contentions of the counsel for appellant :

The counsel for appellant contended that the appellant was subjected to harassment by the respondent and his family members and she had been

necked out of the matrimonial house by the respondent, and merely because the respondent had been acquitted in the criminal case filed against him

by the appellant under Section 498-A of I.P.C., it cannot be said that the respondent had not subjected the appellant to cruelty. According to him, the

Court below erred in granting divorce to respondent on the said ground.

Consideration by this Court :

From the facts referred to above, it is clear that the parties had got married to each other on 13.06.2002, that they have two female children, and

that from 10.06.2004 they have been living separately. Also, the appellant had filed C.C.No.563 of 2006 alleging that the respondent had committed an

offence under Section 498-A of I.P.C., and the Additional Junior I Class Magistrate, Miryalaguda acquitted the respondent which was also confirmed

in Criminal Appeal No.53 of 2011.

While it is the case of respondent that the appellant was insisting that he lived separately from his parents and was quarrelling with him and his

family members constantly, this is denied by the appellant who stated that on account of dowry harassment, she was necked out of the house by the

respondent.

It is admitted by the appellant that on 20.05.2008, C.C.No.563 of 2006 was decided by the Additional Junior I Class Magistrate, Miryalaguda

acquitting the respondent and it was confirmed in Criminal Appeal No.53 of 2011. She stated in her evidence that she was living away from the

respondent for seven years since 2006 and she never issued any notice or filed any case demanding the respondent to take her back for conjugal life.

She stated that even after the acquittal of the respondent in the Criminal Appeal she never approached the respondent along with her elders to request

the respondent to take her back.

Though the respondent had stated that ten times there was a panchayat held and examined some persons as panchayatdars, the said witnesses

(Exs.R.W.2 to R.W.4) did not even give the dates of the holding of the panchayat and all of them stated that no documents were executed at the time

of conducting such panchayat. Even the appellant states that in the panchayats the elders advised her to join the respondent for a matrimonial life. At

least, after the acquittal of the respondent in the criminal case, the appellant should have got issued a notice to the respondent to take her back or

initiated proceedings to compel him to take her back.

In Naveen Kohli (1 supra), the Supreme Court observed that once the parties have separated, and the separation has continued for a sufficient

length of time, and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. It held that though

the Court should seriously make an endeavour to reconcile parties, yet if it is found that breakdown is irreparable, then divorce should not be withheld,

because consequences of preservation in law of the unworkable marriage which has long ceased to be effective, are bound to be a source of greater

misery for the parties.

It held that where there was a long period of continuous separation it may fairly be surmised that the matrimonial bond is beyond repair; and by

refusing to severe the tie, the law does not serve the sanctity of marriage, but on the contrary, it shows scant regard for the feelings and emotions of

parties.

It observed that there is no acceptable way in which a spouse can be compelled to resume life with the consort and so nothing is gained by trying to

keep the parties tied forever to a marriage that in fact has ceased to exist.

The said principle certainly applies to the instant case where the parties have not been living together for 14 years and there is a history of

acrimony between them.

In Vishwanath Agrawal., S/o. Sitaram Agrawal vs. Sarla Vishwanath Agrawal (2012) 7 SCC 288, the Supreme Court held that if there is an

acquittal of the husband of the allegation of demand of dowry under Section 498-A of I.P.C., the said allegation has to be taken as incorrect and

untruthful, and it can unhesitatingly be stated that such an act creates a mental trauma in the mind of the husband as no one would like to face criminal

proceeding of this nature on baseless and untruthful allegations.

Similar view has been expressed in Malathi Ravi vs. B.V. Ravi and another (2014) 7 S.C.C. 640 and K. Srinivas Rao vs. D.A. Deepa (2013) 5

S.C.C. 226.

The Court below, in our opinion, has correctly taken into account the relevant circumstances in holding that the appellant has treated the

respondent with cruelty and that the marriage between the parties has to be dissolved by granting divorce.

However, in the Court below, it appears that no permanent alimony or maintenance has been awarded to the appellant and the two children born

to the parties during the subsistence of their marriage.

This is a matter which would require evidence considering the fact that the respondent is said to be an agriculturalist, but working as a mechanic at

Hyderabad, while the appellant is said to be a house-wife.

Therefore, we give liberty to the appellant to initiate appropriate proceedings for maintenance / permanent alimony for herself and also

maintenance for the daughters by way of fresh proceedings in an appropriate Forum.

Accordingly, the Civil Miscellaneous Appeal is dismissed as above giving liberty to the appellant to initiate appropriate proceedings for

maintenance / permanent alimony for herself and also maintenance for the daughters by way of fresh proceedings in an appropriate Forum. No order

as to costs.

As a sequel, miscellaneous petitions pending if any in this Appeal, shall stand closed.