Hindu marriage Act - where even if the contents of the OP filed by the appellant are taken on their face value, no relief can be granted to him. The grounds pleaded by the appellant are that the respondent used to wake up at 9:00 a.m., she was not doing any domestic work, and she was in a moody condition and that she is a chronic patient of asthma. It is ununderstandable as to how these grounds even if taken as true, would amount to cruelty. The version of the respondent is that the house is very small and the family members of the appellant used to watch T.V. after 11:30 p.m., and occasional late awakening was cited, as a ground. She further stated that she was suffering from gyeanic problems, and the appellant and mother-in-law never used to care for her. Instead of taking care of his wife,

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY            
F.C.A.No.45 of 2008
(Judgment of the Bench delivered by
the Hon'ble Sri Justice L. Narasimha Reddy)

29-04-2013

R.Jagadeesh ..Appellant

Smt. R. Renuka ..Respondent

Counsel for the appellant:Sri J. Kanakaiah

Counsel for the Respondent:Smt. Ramani Jonna

<GIST:

>HEAD NOTE:  

?Cases referred

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

 The appellant is the husband of the respondent.  Their marriage took place on
23-03-2003, and they were also blessed with a son.  Thereafter, they are living
separately.
The appellant filed FCOP No.259 of 2006 against the respondent in the Family
Court, Secunderabad, under Section 10 of the Hindu Marriage Act, 1955 (for short
'the Act'), for a decree of judicial separation.

It is stated in the O.P. that though they were in good relations for some time,
the respondent was behaving in a peculiar manner, subsequently.  According to
him, the respondent used to wake up only at 9:00 a.m., and was not doing any
household work and she used to be in a moody condition, so much so, that she was
not even noticing the presence of others, around her.  It is also alleged that
the respondent is a chronic asthma patient and was insisting on that the
appellant should set up a separate residence.  The appellant pleaded that on one
occasion, the respondent did not even react, when the T.V. set has fallen upon
the son, right in her presence.  It was also alleged that the respondent refused
to join him, in spite of repeated requests.

A counter was filed by the respondent in the O.P., denying all the allegations.
She stated that though the appellant was in good relation with her, till the boy
was born, he started ill-treating her thereafter, particularly after returning
from Tirupati.  She stated that hardly she was left with any privacy, and the
family members used to watch T.V. even late in the night, up to 11:30 p.m.,
forcing her to remain without any sleep.  She stated that though she was
extending all her cooperation to the other family members, such as, mother and
sister of the appellant, all of them have collectively
ill-treated her, and ultimately sent out from her matrimonial abode.

The respondent filed FCOP NO.357 of 2006 in the same Court against the appellant
under Section 9 of the Act.  Almost the same pleadings were repeated by the
parties.

Through a common order dated 26-10-2007, the Family Court dismissed FCOP No.259  
of 2006, and decreed FCOP NO.357 of 2006.  This appeal is filed against the
order and decree in FCOP No.259 of 2006.
Heard Sri J. Kanakaiah, learned counsel for the appellant and Smt. Ramani Jonna,
learned counsel for the respondent.

Though there were two OPs between the same parties, and they were disposed of
through a common order,
the appellant has filed appeal against the order and decree in one OP, i.e.,
FCOP No.357 of 2006.  In other words, the order and decree in FCOP No.259 of
2006 became final.  It is well settled principle of law that, if a common
judgment was rendered between the same parties, by the same Court,
in two proceedings, failure to file appeal against one of the proceedings, would
make the principle of res judicata applicable, and the appeal filed against one
such order becomes barred.  This one ground is sufficient to on-suit the
appellant.

Assuming that there is no such bar, in the instant appeal, it needs to be seen,
as to whether the appellant has made out a case for grant of judicial
separation, on the grounds of cruelty.

The appellant deposed as PW-1.   PW-2 is the deceased- mother.  No documentary  
evidence was adduced.  The respondent deposed as RW-1.  It is interesting to
note that her father-in-law i.e. the father of the appellant herein, deposed as
RW-2, and supported the respondent.  No documentary evidence was adduced on her  
behalf.

On the basis of the pleadings before it, the Family Court framed the following
points for its consideration:

In O.PNo.259 of 2006:
1) Whether the respondent subjected the petitioner to cruelty?
2) Whether the respondent is suffering from any mental disorder?
In O.P.No.337 of 2006:
1) Whether the petitioner/wife is entitled to seek restitution of conjugal
rights?

The point that arises for consideration in this appeal is, whether the appellant
has made out a case for grant of judicial separation, on the grounds of cruelty,
on the part of the respondent.
The Act confers right upon a spouse to a Hindu Marriage to seek the relief of
judicial separation under Section 10, or divorce under Section 13.  Though the
legal consequences that flow from a decree for judicial separation, on the one
hand, and divorce, on the other hand, are substantially different, no separate
grounds are stipulated for seeking the judicial separation.  Section 10 of the
Act makes it abundantly clear that the relief under that provision can be sought
by pleading any grounds, that are mentioned under Section 13(1) thereof.  It has
already been mentioned that the appellant pleaded that the acts and omissions on
the part of the respondent constitute cruelty, as defined under Section
13(1)(ia) of the Act.

The acts and omissions of a spouse, to constitute cruelty, and thereby, a ground
for judicial separation, or divorce, must be such that, the other spouse is
unable to bear the amount of pain in the marital life.  It is only when the
spouse, complaining of cruelty, is otherwise innocent, and the objectionable
behaviour and conduct emanated from the other spouse, that the Court can grant
the relief.  If the one complaining of cruelty is, himself, or herself, guilty
of such acts and omissions, and the other party has only responded or reacted,
the contention cannot be accepted, much less relief can be granted.

This is a typical case; where even if the contents of the OP filed by the
appellant are taken on their face value,
no relief can be granted to him.  The grounds pleaded by the appellant are that
the respondent used to wake up at 9:00 a.m., she was not doing any domestic 
work, and she was in a moody condition and that she is a chronic patient of
asthma.  It is ununderstandable as to how these grounds even if taken as true,
would amount to cruelty.

The version of the respondent is that the house is very small and the family
members of the appellant used to watch T.V. after 11:30 p.m., and occasional
late awakening was cited, as a ground.  She further stated that she was
suffering from gyeanic problems, and the appellant and mother-in-law never used
to care for her.  Instead of taking care of his wife,
the appellant has made an attempt to cite the ground of
ill-health, for obtaining the relief.

The Family Court has made an important observation.
The appellant did not complain of any enmity between himself and his father.
The very fact that the father of the appellant had supported the case of the
respondent discloses that it is the appellant, who is guilty of acts of cruelty.
Unfortunately, a tendency has developed, in the recent past, wherein
irresponsible spouses are attempting to break the marriage, just by wishing it
away.  Unless such tendency is curbed, the very institution of marriage and the
importance attached to it, are likely to suffer a serious dent.

The appeal is accordingly dismissed. The miscellaneous petitions filed in this
appeal shall also stand disposed of.  

There shall be no order as to costs.
________________________  
L. NARASIMHA REDDY, J.    
______________________  

K.G. SHANKAR, J.  
Dt.29-04-2013