CIVIL MISCELLANEOUS APPEALNo.1052 of2005 K.RamaKumari, W/o K.Anil Kumar Benarji Vs. K.Anil KumarBenarji (died) and another - 05th January 2017 = http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=13863

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY AND HONBLE SRI JUSTICE M.S.K.JAISWAL                

CIVIL MISCELLANEOUS APPEAL No.1052 of 2005      

05-01-2017

K.Rama Kumari, W/o K.Anil Kumar Benarji ..... Appellant

K.Anil Kumar Benarji (died) and another......Respondents

Counsel for the Petitioner: Mr. K.Rathangapani Reddy

Counsel for the Respondents: None appeared
                                                                     
<Gist:

>Head Note:

?  Cases Referred:
1.      (1996) 6 SCC 371
2.      AIR 1957 SC 176
3.      AIR 1964 SC 40

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY        
AND
HONBLE SRI JUSTICE M.S.K.JAISWAL    

CIVIL MISCELLANEOUS APPEAL No.1052 of 2005      

Date:05.01.2017


The Court made the following:


JUDGMENT: (per Honble Sri Justice C.V.Nagarjuna Reddy)

     This Civil Miscellaneous Appeal is filed against order and
judgment, dated 29.08.2005, in O.P.No.766 of 2003 on the file
of the learned II Additional District Judge, Ranga Reddy, NTR
Nagar, whereby he has granted decree dissolving the marriage
between the appellant and respondent No.1.
     For convenience, the parties are referred to as they are
arrayed in the O.P.
     The facts leading to filing of the OP by the petitioner are
briefly stated hereunder:
     The marriage between the petitioner and the respondent
was solemnized on 16.12.1998 according to their community
(Christians) customs. The marital life between the parties ran
into rough weather a few months after the marriage. The
petitioner has filed O.P.No.766 of 2003 for dissolution of
marriage under Section-10(ix) and (x) of the Indian Divorce
Act, 1869 (for short the Act). He has inter alia stated that after
four months of their marriage, the respondent started behaving
in an arrogant way; that she started ill-treating his parents for
no reason; that she never prepared food and washed his clothes;
that she refused to prepare even a cup of tea; that the
respondent never cared him and his mother when they fell sick;
that she refused to lead marital life with him or sharing bed
with him; that she always used to quarrel with him and his
parents and also used to go to her parents house without
intimating either him or his parents; that the respondent always
used to insist on him to purchase jewellery and expensive items
and when he explained his financial position, she used to
quarrel with him; that the respondent left his house on
05.6.2001 by quarreling with the latter and left his company
deserting him; that the efforts made by him and his parents to
bring the respondent back to his house became futile; and that
there is no possibility of their reunion.
     The respondent filed a detailed counter-affidavit, wherein
she has inter alia averred that at the time of her marriage, her
parents gave 5 tulas of gold, furniture, domestic articles and
Rs.10,000/- towards Adapadachu katnam by spending a total
sum of Rs.1 lakh. She denied the allegation of either her
harassing the petitioner or not leading marital life with him. She
also denied her not preparing the food and ill-treating the
petitioner and his parents. She further averred that it is the
petitioner who was harassing her and that, unable to bear the
harassment and ill-treatment meted out by the petitioner and
his parents, both physically and mentally, she was forced to
leave the petitioners house on 05.6.2001 permanently. She
denied the mediations alleged to have taken place at the instance
of the parents of the petitioner. The respondent asserted that she
was prepared to join the petitioner even at the time of filing the
counter-affidavit. She has, accordingly, prayed for dismissal of
the OP with exemplary costs.
     In support of the petitioners case, he has examined
himself as P.W-1 and got Exs.A-1 to A-3 marked on his side. On
behalf of the respondent, she has examined herself as R.W-1
and also examined her mother as R.W-2. No documentary
evidence was adduced by the respondent.
     Having regard to the respective pleadings of the parties,
the lower Court has framed the following point:
Whether the ill-treatment, harassment and desertion
pleaded by the petitioner against the respondent are
true and correct?

     The afore-mentioned point was answered in favour of the
petitioner and the decree for dissolution of marriage was
granted by the lower Court as noted hereinbefore.
     Before proceeding further, it needs to be noted that the
petitioner died during the pendency of this appeal. By order,
dated 02.4.2015, his mother was brought on record as
respondent No.2 in the appeal.
     During the hearing of the case, Mr. B.Purushotham Reddy,
the learned counsel for the petitioner, argued that as his client
died, the cause in the appeal does not survive for adjudication.
     Mr. K.Rathangapani Reddy, the learned counsel for the
respondent, opposed this submission and placed reliance on the
judgment of the Supreme Court in R.Lakshmi Vs. K.Saraswathi
Ammal .
     The facts in the said case are that the husband died after
obtaining an ex parte decree of divorce. On coming to know
about the said ex parte decree, the wife filed an application
under Order-IX Rule-13 C.P.C. for setting aside the decree of
divorce. The trial Court dismissed the said application by
observing that since divorce is a personal remedy, it cannot be
pursued after the death of the husband. On appeal, the trial
Courts view was reversed by the appellate Court. But, the
appellate Courts view was, in turn, reversed by the High Court.
On a further appeal filed before the Supreme Court, it was held
as under:
We are of the opinion that the wife should be and is
competent to maintain the application under Order-
IX Rule-13 CPC. Even though the husband is dead, 
yet the decree obtained by him is effective in law
and determines the status of the appellant. If the
appellant says that it is an ex parte decree and ought
to be set aside, her application has to be heard on
merits. The decree of divorce determines her status
as a wife apart from determining her rights in the
properties of her deceased husband. This gives her
sufficient locus standi and right to contest the
divorce proceedings even after the death of her
husband. 

     The facts in the said case are almost identical to the instant
case with the exception that in the instant case the decree of
divorce was granted on merits and the petitioner died during
the pendency of this appeal.
     In the light of the dicta laid down by the Supreme Court in
R.Lakshmi (supra), we were of the opinion that the cause in the
appeal survives for adjudication. Hence, we have heard the
learned counsel for both sides on merits on 30.12.2016 and
when we proposed to dictate the judgment in the open Court on
that day, Mr. B.Purushotham Reddy, the learned counsel for the
petitioner, requested for an adjournment to get instructions
from his client-respondent No.2 herein as to whether she is
willing to part with a reasonable part of the family properties, in
which her son has a share. Accepting this request, we have
adjourned the case to today. Today, when the case was called in
the pre-lunch session, none appeared for the petitioner. Even
after the case was passed over, no one represented the petitioner
in the post-lunch session. Therefore, we have chosen to dispose
of the case on merits.
     As noted above, the petitioner has filed the OP for
dissolution of marriage under Section-10(ix) and (x) of the Act.
This provision reads as under:
Grounds for dissolution of marriage: (1) Any
marriage solemnized, whether before or after the
commencement of the Indian Divorce (Amendment  
Act, 2001), may, on a petition presented to the
District Court either by the husband or the wife, be
dissolved on the ground that since the solemnization
of the marriage, the respondent-
(i) has committed adultery, or
.              
(ix) has deserted the petitioner for at least two years
immediately preceding the presentation of the
petitioner; or
(x) has treated the petitioner with such cruelty as to
cause a reasonable apprehension in the mind of the
petitioner that it would be harmful or injurious for
the petitioner to live with the respondent.

     The point that arises for consideration in this appeal is
whether the petitioner was able to produce sufficient evidence
to satisfy the Court that the respondent has deserted him or
whether she has treated the petitioner with such cruelty so as to
cause a reasonable apprehension in the mind of the petitioner
that it would be harmful or injurious for him to live with the
respondent.
     In his evidence affidavit given as P.W-1, the petitioner has
reiterated the contents of the O.P regarding the alleged ill-
treatment of himself and his parents by the respondent and also
her deserting the matrimonial home. In his cross-examination,
he has deposed that he and the respondent lived happily for
about one year after the marriage; that the respondent used to
behave arrogantly by going to the house of her parents without
informing him or his parents; and that she used to suspect his
character. He has further deposed that in the year 2001, the
respondent left his house at about 9.30 am without informing
him. A suggestion was put to him that the respondent did not
leave his house without informing him and that she was not
suspecting his character. It was also suggested to the petitioner
that he did not lead marital life with the respondent at Suryapet
and he used to maintain distance with her and that he brought
the respondent from Suryapet and left her in her parents house
at Malkajgiri, Hyderabad on 05.6.2001.
     In her evidence affidavit given as R.W-1, the respondent
deposed as under:-
I submit that after my marriage, I went to the house
of the petitioner situated at H.No.18-310,
Mallikarjuna Nagar, Malkajgiri, Secunderabad,
where the parents of the petitioner are residing.
After I went to the house of the petitioner to the said
house to lead my conjugal life with the petitioner,

the petitioner left me in the said house of his and
went to Suryapet of Nalgonda District and used to
reside at Suryapet and as such, the petitioner spent
six months at Suryapet and used to visit the house of
the parents of the petitioner and used to maintain
distance from me, though I tried to come near to the
petitioner. Vexed with the attitude of the petitioner, I
informed the same to my parents and upon that, my
parents came to the house of the petitioner and
questioned the attitude of the petitioner as to why he
was maintaining such sort of distance from me and
upon that, the petitioner acted as he was convinced
and took me to Suryapet and put up family at
Suryapet where he was residing i.e., Kudakuda road
and after that, the petitioner used to harass me by
stating that as to why I informed his attitude to my
parents and after one year, the petitioner shifted me
from Suryapet to the house of the parents of the
petitioner i.e., H.No.18-310, Mallikarjuna Nagar,
Malkajgiri, Secunderabad and again the petitioner
went to Suryapet and used to reside at Suryapet. As
the petitioner is away from me, nobody was there in
the parents of the petitioner to look after me well
and the parents of the petitioner, his sister-
Jyothirmai, his brother-Vivekananda used to abuse
me in a filthy language and used to harass me
psychologically by demanding more dowry and also
for want of issues to me. Besides that, in the year
2001, the petitioner came to his parents house in a
drunken state and tried to kill me by pressing my
neck and also tried to kill me with L.P.G. by making
the gas leak in the house of the parents of the
petitioner. The parents and the brother-in-law of
the petitioner never allowed us to lead happy
marital life for the reasons best known to them. At
last, the petitioner and their family members necked
me out on 05.6.2001 and after I was necked out, I
went to my parents house situated at Miryalaguda
of Nalgonda District and after that, myself and my
parents placed the matter before the elders at
Suryapet and as per the advise of the said elders, I
went to the house of the petitioner at Suryapet, but
the petitioner again forcibly took me to his parents
house situated at Malkajgiri and left me there and
again the petitioner went to Suryapet and after the
petitioner left to Suryapet, all the family members of
the petitioner abused me in a filthy language and
necked me out from their house and when there is
no alternative left to me, I again went to my parents
house and informed about the incident to my
parents and after that my parents again placed the
matter before the elder and again as per the advise
of the elders, I again went to Suryapet to the
company of the petitioner, but again the petitioner
on the same day forcibly brought me to his parents
house at Malkajgiri and I bore all the humiliations
and the harassment caused by the family members
of the petitioner and on 26.10.2003 again all the
family members of the petitioner abused me in a
filthy language and again necked me out from their
house by threatening me with dire consequences
and as such, I again went to my parents house and
now I am residing with my parents and living at the
mercy of my parents. Subsequently, the petitioner
filed the present petition for grant of divorce, with
all false allegations and after receiving the notices by
me in the above O.P., the petitioner and his father
threatened me with dire consequences, if I do not
come to the Court in the above O.P. and in view of
the attitude of the petitioner and his family
members, I lodged a police complaint in the
Malkajgiri Police Station on 09.6.2004 and the same
is under investigation by the said police.

     In her cross-examination, while denying that her father
had no capacity to give dowry and other gifts, the respondent
has stated that her parents convened a panchayat and convinced
the petitioner to take her back on 05.6.2003. The suggestion put
to her that no such panchayat has taken place was denied by
her. She has also denied the suggestion that the petitioner did
not harass her and further stated that number of times, the
petitioner used to take her to Suryapet and bring her back to
Hyderabad. She has also denied the suggestion that neither the
petitioner nor his parents or their daughter has harassed the
witness both physically and mentally. She has also denied the
suggestion that she left the house of her parents-in-law on
05.6.2001 without informing anyone and that, she did not
return to their house thereafter. She claimed that she has filed
some documents to show that she resided in the house of her
parents-in-law till 26.10.2003. She denied the suggestion that
she has sated in her sworn affidavit that she is prepared to go
and join the respondent in his house with the sole intention of
denying the divorce to him.
     R.W-2-the mother of the respondent has spoken in detail
about the alleged harassment meted out to her daughter by the
petitioner and his parents. In her cross-examination, she has
deposed that when the respondent complained of harassment by
the petitioner and his family members, they have persuaded the
petitioner to take the respondent to Suryapet in the years 2001
and also 2002. She has also deposed that while she has not filed
any document to show that the respondent lived with the
petitioner till the year 2003, her daughter approached the Police
and gave a complaint under Section-498-A IPC when the
petitioner and his family members approached the Court against
her daughter. She denied the suggestion that the petitioner and
his family members did not beat and drive away the respondent
from their house on 05.6.2001.
     It needs to be observed that though the O.P was filed by
the petitioner both on the grounds of desertion as well as
cruelty, no specific finding has been rendered by the lower
Court on the latter ground. Therefore, it is unnecessary for this
Court to delve into that aspect.
     In Bipin Chandra Vs. Prabhavati , the Supreme Court
while dealing with desertion, elaborately considered several
English decisions in which the ingredients of desertion were
considered and, approved the following summary of the law in
Halsburys Laws of England (3rd Edition) Volume-12, which
reads as under:
In its essence, desertion means the intentional
permanent forsaking and abandonment of one
spouse by the other without that others consent, and
without reasonable cause. It is a total repudiation of
the obligations of marriage. In view of the large
variety of circumstances and of modes of life
involved, the Court has discouraged attempts at
defining desertion, there being no general principle
applicable to all cases.

     It was further explained by the Supreme Court as under:-
If a spouse abandons the other spouse in a state of
temporary passion, for example, anger or disgust,
without intending permanently they cease
cohabitation, it will not amount to desertion. For the
offence of desertion so far as the deserting spouse is
concerned, two essential condition must be there (1)
the factum of separation and (2) the intention to
bring cohabitation permanently to an end (animus
deserendi). Similarly, two elements are essential so
far as the deserted spouse is concerned (1) the
absence of consent and (2) absence of conduct
giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention
aforesaid Desertion is a matter of inference to
be drawn from the facts and circumstances of each
case. The inference may be drawn from certain facts
which may not in another case be capable of leading
to the same inference, that is to say the facts have to
be viewed as to the purpose which is revealed by
those acts or by conduct and expression of intention,
both anterior and subsequent to the actual acts of
separation. If in fact, there has been a separation the
essential question always is whether that act could
be attributable to an animus deserndi. The offence of
desertion commences when the fact of separation
and the animus deserndi co-exist. But, it is not
necessary that they should commence at the same
time. The de facto separation may have commenced
without the necessary animus or it may be that the
separation and the animus deserndi coincide in
point of time.

     This judgment was referred to and reiterated by the
Supreme Court in Lachman Utamchand Kirpalani Vs. Meena @  
Mota
     When we examine the case on record keeping in view the
above noted legal position, we are of the opinion that the
petitioner miserably failed to prove animus deserendi on the
part of the respondent, a sine qua non for grant of decree of
dissolution of marriage on the ground of desertion.
     Though there is a serious dispute as to whether the
respondent has left the matrimonial home on 05.6.2001 or in
the year 2003, the fact, however, remains that except the ipsi
dixit of the petitioner, no evidence has been placed before the
Court through independent witnesses such as panchayatdars,
who allegedly mediated between the petitioner and the
respondent, in an alleged attempt to persuade the latter to join
the former.
     If we analyse the evidence on record from proper
perspective, it appears that differences cropped up between the
spouses leading to the respondent leaving her matrimonial
home. While there is no evidence in support of the plea of the
respondent that the petitioner and his parents have harassed
her, the petitioner, on whom the initial burden lies to show that
the respondent has deserted him, equally failed to produce any
evidence to prove such desertion. What is relevant to be
mentioned in this context is the stand taken by the respondent in
the counter-affidavit expressing her willingness to join the
petitioner. This offer of the respondent was spurned by the
petitioner by terming the same as a foul play to deny him the
decree of dissolution of marriage. If the respondent has
abandoned the petitioner and the latter was keen to live with his
wife, the least that was expected of him was to cause a legal
notice calling upon her to join his company. No such notice was
issued by the petitioner. Though he has claimed that himself and
his parents got a mediation held, no mediator was examined to
support this plea. It is also relevant to note that on 12.12.2011,
both the parties have appeared before this Court and after
conducting conciliation, this Court has passed the following
order:
Both the parties appeared. On conciliation, both of
them agreed to live together. The husband stated
that he would take his wife in a weeks time.
        In view of this development, post after two
months.

     Unfortunately, the petitioner did not stand on his word
and thereafter, he has passed away. From the afore-mentioned
facts and evidence on record, we have no hesitation to hold that
the petitioner failed to prove that the respondent has deserted
the petitioner. In the absence of proper evidence, the act of the
respondent leaving her matrimonial home cannot be construed
as desertion, but only as a temporary measure taken on account
of simmering differences between herself and the petitioner.
     What is significant is that the respondent has been
consistently taking the stand that she is ready and willing to join
the company of the petitioner. The Court below having observed
that though the conduct of the respondent in visiting her
parents house frequently is not a ground to dissolve the
marriage, however, jumped to the conclusion that the
respondent has deserted the petitioner on 05.6.2001. We find
no basis for this finding of the lower Court.
     Before concluding this case, it is necessary to observe that
respondent No.2 herein has taken an objection in the counter-
affidavit filed in this appeal that the appeal filed under Section-
28 of the Hindu Marriage Act is not maintainable. However, this
point has not been pressed into service by the learned counsel
for the petitioner-respondents herein, obviously, realizing that
this is an inadvertent mistake as, the provisions of the Indian
Divorce Act, 1869 alone govern to the parties in the appeal.
     For the afore-mentioned reasons, the order of the lower
Court is not sustainable and the same is set aside. The O.P. filed
by respondent No.1 is dismissed.
     The Civil Miscellaneous Appeal is, accordingly, allowed.
___________________________  
JUSTICE C.V.NAGARJUNA REDDY      
___________________
JUSTICE M.S.K.JAISWAL  
05th January 2017

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