1. Heard Mr. Srinivas Polavarpu, learned counsel for the appellant and Sri A.Prabhakar Rao, learned counsel for the respondent.
2. Feeling aggrieved and dissatisfied with the order and decree dated 24.12.2010 passed by the Additional Metropolitan Sessions Judge for Trial of JHCBBC – cum – Additional Family Court – cum – XXIII Additional Chief Judge, Hyderabad in FCOP No.214 of 2010, the appellant filed the present appeal.
3. The respondent/husband has filed a petition under Section 13(1) (ia) (ib) of the Hindu Marriage Act, 1955 (for short, ‘the Act’) vide FCOP No.23 of 2009 seeking dissolution of marriage on the ground of cruelty and desertion. Originally the said petition was filed before the learned Senior Civil Judge, Siddipet. The appellant herein filed Tr.C.M.P.No.405 of 2009 to transfer the proceedings in O.P.No.23 of 2009 from the learned Senior Civil Judge, Siddipet to the Additional Metropolitan Sessions Judge for Trial of JHCBBC – cum – Additional Family Court – cum – XXIII Additional Chief Judge, Hyderabad and the same was allowed. On transfer, the petition was re-numbered as FCOP No.214 of 2010. The respondent /husband has filed aforesaid O.P. against the appellant/wife on the ground of desertion contending as follows:-
i. The marriage of the respondent with the appellant was performed on 01.05.1998 at Yadagirigutta.
ii. It is second marriage to him. His first wife died.
iii. Even it is second marriage to the appellant herein.
iv. Respondent blessed with three sons with his first wife i.e. Sathya Narayana Reddy, Vamshidhar Reddy and Vijeyender Reddy.
v. His third son died. According to him, his first son is handicapped. However, the said fact was disputed by the appellant/wife.
vi. She is also having a daughter by name Swetha Reddy, with her first husband. Her daughter is married to one Sri Harsha.
vii. Respondent is getting pension approximately Rs.9,400/- per month. As the family expenditure is growing, the appellant started ill-treatment towards him and his family members. Ultimately she left Siddipet and started living at Hyderabad with her daughter and son-in-law in a flat purchased by him out of his own earnings.
viii. During her stay at Hyderabad, she has also lodged a complaint against him with the police, Malakpet Police Station. He has issued legal notice dated 13.09.2007 for providing maintenance of Rs.800/- per month but she refused to receive the said notice.
ix. She along with her son-in-law insisted the respondent to execute conveyance deed in her favour with regard to said flat, failing which, they will implicate him in a criminal case. Thus, the appellant and her son-in-law continuously causing threat to him over phone, insisted to register flat in her name otherwise, they will see his end. The appellant, her daughter and son-in-law have no right over the said property.
x. Due to the said attitude of the appellant towards him, he suffered physical ill-health. He is unable to do any work and on the hand he effected with hypertension, diabetes and other ailments. Thus, the appellant subjected him to cruelty and deserted him.
4. The appellant herein/wife filed counter denying the said allegations, contending as follows:-
i. It is second marriage to both of them and they have children with their first spouses.
ii. She has also filed a petition under Section 125 of Cr.P.C. vide M.C.No.335 of 2008 seeking maintenance.
iii. They lived happily for four years out of 15 years.
iv. She never harassed him and on the other hand, he harassed her.
v. She never harassed him stating that he is not fit for family affairs.
vi. After performing the marriages of his three sons, he and the appellant along with her daughter started living in a separate house. After his retirement, they had shifted to Hyderabad and started living in Flat No.11, H.No.16-2-741/S-205, Sailaja Apartments, T.V.Tower, Malakpet, Hyderabad belongs to respondent/husband.
vii. There also, he continued abusing her for simple reasons and harassed her.
viii. He was getting pension of Rs.10,000/- per month and he used to give only Rs.2,000/- to her and when she requested to pay more amount, he used to abuse her and beat her. He used to give his pension to his sons.
ix. She also stated about lodging complaint with police, Malakpet Women Police Station etc. and that he rejoined her society in January, 2007.
x. Her daughter’s marriage with Sri Harsha was scheduled on 07.09.2007. Having come to know about the same, respondent left the appellant on 06.09.2007 i.e. a day earlier to the said marriage. Thus, he subjected her to cruelty.
xi. He never returned to the Society of the appellant. He has not paid any amount to her towards maintenance. On the other hand, he tried to occupy the said flat. Thus, he left the company of the appellant on 06.09.2007 and deserted her.
xii. He has filed the present petition with all false and baseless allegations and he has approached the Family Court with unclean hands.
xiii. Therefore, she also sought for the decree of divorce. According to her, on his retirement, respondent received an amount of Rs.1,64,918/- towards gratuity and Rs.2,09,116/- towards commuted value of pension. He was drawing pension of Rs.10,000/-. He is having spacious house worth Rs.50 Lakhs at Siddipet. Therefore, she sought permanent alimony of Rs.10 Lakhs and permission to get possession of Flat No.11 till her lifetime.
xiv. Thus, she also sought decree of divorce dissolving their marriage dated 01.05.1988, and grant permanent alimony of Rs.10 lakhs and permit her to stay in the subject plot or alternatively to grant an amount of Rs.20 Lakhs towards permanent alimony.
5. To prove the said grounds of cruelty and desertion, the respondent husband examined himself as P.W.1 and filed Ex.A.1 marriage photograph. To disprove the said allegations, she has not examined herself as a witness and any other witness. However, Ex.B.1 legal notice was marked during cross-examination of husband/P.W.1).
6. On consideration of entire evidence both oral and documentary, vide impugned order dated 24.12.2010, learned Family Court allowed the said O.P. dissolving the marriage of the appellant with the respondent by way of decree of divorce. Feeling aggrieved and dissatisfied with the said order, the appellant preferred the present appeal.
7. The facts are not in much dispute. The marriage of the appellant with the respondent was performed on 01.05.1988. It is second marriage to both of them. The appellant herein has one daughter with her fist husband and respondent has three sons with his first wife. According to the respondent/husband, they lived happily about 15 years and whereas according to the appellant/wife, they lived only for four years. Both the appellant and respondent are making allegations of cruelty and desertion against each other.
8. Respondent is a retired Senior Lineman in TRANSCO. He is aged about 82 years and she is 60 years. According to the respondent, the appellant deserted him. But two years prior to filing of the said OP, he has issued Ex.B.1 legal noticed dated 13.09.2007. Even according to the appellant/wife, the respondent/husband deserted her on 06.09.2007.
9. As discussed supra, both the parties made serious allegations against each other. Narrating the same, the appellant/wife also prayed learned Family Court to grant decree of divorce on two conditions i.e. 1) granting an amount of Rs.10 Lakhs towards permanent alimony and 2) to permit her to stay in the Flat purchased by the respondent/ husband i.e. Flat No.11, H.No.16-2-741/S-205, Sailaja Apartments, T.V.Tower, Malakpet, Hyderabad or alternatively to grant an amount of Rs.20 Lakhs towards permanent alimony.
10. As discussed supra, to prove his case, the respondent/husband has examined himself as P.W.1 and filed Ex.P.1 marriage photograph. To disprove the said grounds of cruelty and desertion, the appellant/wife failed to examine any witness including herself. Ex.R.1 legal notice was marked during cross-examination of P.W.1. There is no dispute with regard to marriage, filing of application under Section 125 of Cr.P.C. vide M.C.No.335 of 2008 by the appellant/wife against the respondent/husband and granting maintenance. Neither learned counsel for the appellant nor learned counsel for the respondent informed this Court about maintenance, if any awarded and they have not filed a copy of the said order. However, during the course of arguments, they have stated that an amount of Rs.2,000/- was awarded to the wife towards maintenance and husband is not paying the same.
11. The appellant having agreed for dissolution of marriage in the counter filed in FCOP No.214 of 2010, filed the present appeal challenging the impugned order dated 24.12.2010 passed by the learned Family Court granting decree of divorce. It appears she is aggrieved by denial of permanent alimony and to stay in the flat during her lifetime. Though she claims that she is staying in the flat purchased by respondent, she has not filed any document to show that the respondent has purchased the said flat, she is staying in the said flat and she is in possession of the same. Though she has claimed that respondent is owning spacious house at Siddipet worth of Rs.50 Lakhs, she has not filed any document and she has not examined any witness including herself. She has not filed any proof to show that the respondent is getting an amount of Rs.10,000/- towards pension. She has not filed any document to substantiate her claim of Rs.10 Lakhs towards permanent alimony or Rs.20 Lakhs in alternative. Therefore in the absence of the same, the learned Family Court granted decree of divorce dissolving the marriage dated 01.05.1988 of the appellant with the respondent.
12. The respondent cannot seek a decree of divorce conditionally i.e. payment of an amount of Rs.10 Lakhs towards permanent alimony, permission to stay in the flat owned by the respondent/husband or in alternative amount of Rs.20 Lakhs towards permanent alimony. If at all, she has any property disputes with respondent/husband, she has to take steps separately but she cannot seek divorce conditionally.
13. As discussed supra, she has not filed a copy of the order in M.C.No.335 of 2008. She has not filed any document to show that respondent is in a position to pay the aforesaid amount of permanent alimony. Admittedly, he is aged 82 years as on today. Though she has claimed that she gave 20 tulas of gold cash worth Rs.50 Lakhs at the time of the marriage, she has not pleaded the same in the counter. No suggestions were made to P.W.1 to the said effect, during cross-examination.
14. Learned Family in paragraph No.8 of the impugned order considered the fact that the appellant herein did not adduce any evidence though she attributed desertion and cruelty to him. Family Court gave a finding that it can be inferred that the relationship among the parties broke down. Since the appellant herself sought for decree of divorce, learned Family Court allowed the said application and granted decree of divorce.
15. Sri Sunil Polavarapu, learned counsel for the appellant placing reliance on the principle laid down by the Apex Court in Dr.Nirmal Singh Panesar vs. Mrs. Paramjit Kaur Panesar @ Ajinder Kaur Panesar 2023 LiveLaw (SC) 873 would submit that the Family Court cannot dissolve the marriage on the ground of irretrievable break down of marriage. There is no dispute with regard to the said legal position. Irretrievable break down is not a ground to grant decree of divorce. But in the present case, respondent/husband filed the aforesaid OP seeking dissolution of marriage on the ground of cruelty as well as desertion. The appellant/wife filed counter admitting desertion and denying cruel acts, however, according to her, respondent /husband subjected her to cruelty. Therefore, she sought to dissolve the marriage between them by way of granting decree of divorce on the aforesaid two conditions, learned Family Court considered the same and granted decree of divorce.
16. However, Sri Srinivas Polavarapu, learned counsel for the appellant failed to explain this Court as to how the appellant is aggrieved by the impugned order granting decree of divorce, despite filing counter seeking decree of divorce.
17. As discussed supra, it is a second marriage to both of them. He is 82 years old and she is 60 years old as on today. While deciding an appeal like this, we have to adopt human approach. This Court on consideration of the pleadings, evidence on record can come to a conclusion as to whether there is any possibility of re-union of the aprties. In the present cae, ther is no possibility of re-union. Husband filed petition seeking divorce and wife filed counter seeking divorce wit two conditions. She cannot seek divorce with conditions and it is impermissible.
18. As discussed supra, the disputes between the parties are property disputes. Both of them sought decree of divorce. If they have property disputes, the appellant has to take steps separately. She cannot seek divorce with conditions. Moreover, she did not examine any witness and file any documents to substantiate her claim of permanent alimony. Therefore, learned Family Court on consideration of entire evidence on record, vide impugned order, granted decree of divorce. It is a reasoned order. There is no error in it. Therefore, this appeal is liable to be dismissed.
19. In the light of the aforesaid discussion, this appeal is dismissed.
Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
