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Wednesday, February 5, 2014

Divorce under Section 13(1)(1b) of the Hindu Marriage Act (for short, 'the Act'). - mere living separately for 29 years at the fault of husband and indulging of husband in so many marriages while first marriage with the respondent is subsisting - not entitled for divorce on the ground of irretrievable broken marriage - High court confirmed the dismissal orders of lower family court = K.Nageswara Rao, S/o. Chandra Sekharam, aged about 64 years, Retired Lecturer, Residing at 18/646, Yasin Sahib Street, Near Z.P. Office, Nellore, PSR Nellore District ...Appellant K. Saileswari, W/o. Nageswara Rao, Aged about 58 years, House wife, D.No.23/64, Mulapet, Nellore, SPSR Nellore District.. Respondent = 2014 ( January part )judis.nic.in/judis_andhra/filename=10791

Divorce under Section 13(1)(1b) of the Hindu Marriage Act (for short, 'the Act'). - mere living separately  for 29 years at the fault of husband and indulging of husband in so many marriages while first marriage with the respondent is subsisting - not entitled for divorce on the ground of irretrievable broken marriage - High court confirmed the dismissal orders of lower family court =

"Whether the appellant proved the ground of desertion on the part of the
respondent?" 

There is no denial of the fact that the appellant and the respondent started
living separately for more than two decades.  
In the normal course, that itself
should constitute a ground for granting divorce.  
However, if the respondent was
driven out from the house and the appellant indulged in nefarious activities, as
pleaded by the respondent, the latter cannot be made to suffer the penalty.  
The
plea of the respondent that she left the house of the appellant way back in the
year 1972, unable to bear the harassment caused to her by the appellant and his
mother, virtually remained unrebutted.  
Further, if the appellant was sincere
enough to get back the respondent, he ought to have filed a petition under
Section 9 of the Act.  He did not do so.  
The very fact that he compromised the
suits filed for maintenance on two occasions and agreed to pay maintenance,
discloses that he tacitly admitted that the respondent is justified in living
separately.  
There is nothing on record to disclose that the respondent had ever
resisted any attempt made by the appellant to live with her.

The very fact that except the appellant, none else was examined as a witness,
shows the weakness of the case of the respondent.  
Added to that, the appellant
himself admitted that he not only lived with one Sujatha, but also begot four
children through her.  
He has also admitted that he changed the nomination in
the service records by replacing the name of the respondent, with that of some
other woman.  Before that, he indulged in immoral activity of living with other
women.  
A news item was published (Ex.B9), wherein it was mentioned that the 
appellant herein had married as many as nine women with deceitful means and when  
he was making effort to marry another woman, his nefarious activity came to
light.  
No Court can extend its helping hand to the person with such hopelessly
bad character.  
The effort of the appellant appears to be only, to deprive the
respondent of any benefits on account of her being his wife and to pave the way
for another woman.

We, therefore, dismiss the appeal by imposing costs of Rs.25,000/- payable to
the respondent.  If the appellant fails to pay the amount to the respondent
within three months from today, the same shall have charge upon his pensionary
benefits.  There shall be no order as to costs.
2014 ( January part )judis.nic.in/judis_andhra/filename=10791

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL            

FAMILY COURT APPEAL No.7 OF 2014      

02-01-2014

K.Nageswara Rao, S/o. Chandra Sekharam, aged about 64 years, Retired Lecturer,
Residing at 18/646, Yasin Sahib Street, Near Z.P. Office, Nellore, PSR Nellore
District ...Appellant

K. Saileswari, W/o. Nageswara Rao, Aged about 58 years, House wife, D.No.23/64,
Mulapet, Nellore, SPSR Nellore District.. Respondent

Counsel for the Appellant :Sri O. Manohar Reddy

Counsel for Respondent: Sri V. Narayana Reddy

<Gist :

>Head Note :

?Citations:

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        
AND
HON'BLE SRI JUSTICE M.S.K. JAISWAL    

FAMILY COURT APPEAL No.7 OF 2014      

JUDGMENT: (Per Hon'ble Sri Justice L. Narasimha Reddy)  

The petitioner in F.C.O.P.No.240 of 2009 on the file of the Family Court,
Nellore, is the appellant.  He filed the O.P. against the respondent for divorce
under Section 13(1)(1b) of the Hindu Marriage Act (for short, 'the Act').  The
trial Court dismissed the O.P. through order, dated 16.08.2013.  Hence, this
appeal.

The appellant pleaded that his marriage with the respondent was performed on
04.06.1972 and that the respondent deserted him in the third week of August,
1972 and again on 25.09.1972 by picking up quarrel.  He stated that he made
efforts to get the respondent back, but on failure of the efforts, he had
approached the Family Court for divorce.  He has also stated that the respondent
filed O.P.No.6 of 1977 in the Court of Principal District Munsiff, Nellore, for
maintenance and that the same was compromised and O.S.No.621 of 1979 filed by  
the respondent for the same relief was also compromised on 17.06.1981, providing
for payment of maintenance at Rs.140/- per month.  He ultimately pleaded for
divorce stating that they are living separately for the past 29 years and that
the marriage has broken irretrievably.

The respondent filed written statement admitting her marriage with the
appellant.  She, however, stated that she had to leave the matrimonial house, on
account of the ill treatment meted by the appellant and his mother.  She alleged
that the appellant married several women over the period and his illegal
activities have even been reported in press also.  She has also furnished the
names of the women, whom the appellant is said to have married as well as the
details of certain proceedings.

Sri O. Manohar Reddy, learned counsel for the appellant, submits that the
respondent left the company of the appellant way back in the year 1972 and in
spite of his efforts to get her back, she did not agree.  He contends that the
ground of desertion is proved beyond reasonable doubt and still the trial Court
did not grant the decree of divorce.

Sri V. Narayana Reddy, learned counsel for the respondent, on the other hand,
submits that the respondent had to leave the home of the appellant, unable to
bear the harassment caused to her by the appellant and his mother.  He contends
that the appellant is a person bereft of any character and there is enormous
evidence to prove that the appellant married or unlawfully lived with several
other women during the subsistence of his marriage with the respondent, and that
the trial Court has taken into account the relevant facts, and dismissed the
O.P.

The O.P. was filed by pleading the ground of desertion alone.  The trial Court
has framed only point for its consideration, namely,
"Whether the appellant is entitled for grant of divorce on the ground of
desertion?"

The appellant deposed as PW.1 and filed Exs.A1 to A11.  The respondent deposed
as RW.1 and she filed Exs.B1 to B9. The trial Court dismissed the O.P. through
order, dated 16.08.2013.

The only point that arises for consideration in this appeal is,

"Whether the appellant proved the ground of desertion on the part of the
respondent?" 

There is no denial of the fact that the appellant and the respondent started
living separately for more than two decades.  
In the normal course, that itself
should constitute a ground for granting divorce.  
However, if the respondent was
driven out from the house and the appellant indulged in nefarious activities, as
pleaded by the respondent, the latter cannot be made to suffer the penalty.  
The
plea of the respondent that she left the house of the appellant way back in the
year 1972, unable to bear the harassment caused to her by the appellant and his
mother, virtually remained unrebutted.  
Further, if the appellant was sincere
enough to get back the respondent, he ought to have filed a petition under
Section 9 of the Act.  He did not do so.  
The very fact that he compromised the
suits filed for maintenance on two occasions and agreed to pay maintenance,
discloses that he tacitly admitted that the respondent is justified in living
separately.  
There is nothing on record to disclose that the respondent had ever
resisted any attempt made by the appellant to live with her.

The very fact that except the appellant, none else was examined as a witness,
shows the weakness of the case of the respondent.  
Added to that, the appellant
himself admitted that he not only lived with one Sujatha, but also begot four
children through her.  
He has also admitted that he changed the nomination in
the service records by replacing the name of the respondent, with that of some
other woman.  Before that, he indulged in immoral activity of living with other
women.  
A news item was published (Ex.B9), wherein it was mentioned that the 
appellant herein had married as many as nine women with deceitful means and when  
he was making effort to marry another woman, his nefarious activity came to
light.  
No Court can extend its helping hand to the person with such hopelessly
bad character.  
The effort of the appellant appears to be only, to deprive the
respondent of any benefits on account of her being his wife and to pave the way
for another woman.

We, therefore, dismiss the appeal by imposing costs of Rs.25,000/- payable to
the respondent.  If the appellant fails to pay the amount to the respondent
within three months from today, the same shall have charge upon his pensionary
benefits.  There shall be no order as to costs.

The miscellaneous petition filed in this appeal shall stand disposed of.
___________________  
L. NARASIMHA REDDY, J.    
______________
M.S.K. JAISWAL, J.
02.01.2014

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