Garikapati Siva Kumar vs Boyapati @ Garikapati Jayalakshmi

Namavarapu Rajeshwar Rao, J

Heard Sri K. Ramchandra, learned counsel for the appellant and Sri C.S.N. Raju, learned counsel for the respondent.

The present appeal is filed by the appellant/husband challenging the order and decree dated 15.03.2016 in H.M.O.P. No.22 of 2015 on the file of the Senior Civil Judge, Shadnagar, whereby the trial Court dismissed the petition filed by the petitioner/husband under Section 13(1)(ia) and (iii) of the Hindu Marriage Act 1955 seeking dissolution of his marriage with the respondent/wife.

For convenience, the parties are hereinafter referred to as they are arrayed before the trial Court.

The brief facts of the case are that the petitioner’s marriage with the respondent was solemnized on 22.05.2013 at Kuntlarami Reddy function hall, Chatanpally, as per Hindu customs. Soon after marriage, the couple went to Vaddvalli village, where the petitioner showed his willingness to have physical attachment with the respondent, but the respondent avoided the same. The respondent harassed the petitioner by maintaining silence without talking. She was always murmuring in her own method according to her own choice. The petitioner took a house on rent at Anakapalli to lead a conjugal life, but the respondent refused to come and did not cooperate with her pungent nature. The petitioner’s family members and the elders advised the respondent to lead a conjugal life with better hope, but she did not heed their advice. The respondent left the petitioner’s company on 07.07.2013. The petitioner issued registered notices to the respondent on 21.05.2014 and 24.06.2014, respectively, and she received the same and gave a false reply. As such, he filed the present petition for divorce on the grounds of cruelty and mental disorder.

The respondent filed a counter stating that at the time of marriage, the parents of the respondent gave five lakh cash and also fifty thousand Adapaduchu katnam to the sister of the petitioner. During the marriage, twenty tulas of gold articles were presented by her parents, which are in the custody of the petitioner and his mother. The petitioner behaved like a psycho with the respondent and created terror on the very first night. The respondent tolerated the same and continued her marital life with the petitioner. The marriage of the petitioner with the respondent is against his will, and the petitioner and his family used to harass the respondent, saying that she is not match to the petitioner and demanded additional dowry. During the nights, the petitioner used to behave with the respondent peculiarly like a beast and used to talk indecent manner like anything.

The petitioner and his family members asked the respondent to sell away the Ac.3.00 land in Kothavaripalem and gave the amount to them to start a business. When the petitioner intended to put up a separate family at Anakapally, he demanded her to bring two lakh rupees. Her father requested some time, but the petitioner, his mother and his sister had beaten the respondent on 08.04.2014. On

04.2014, the petitioner left the respondent in the house of his relatives in Hyderabad. Now, the respondent is ready to petitioner’s company. She had not committed any cruelty against the petitioner. Accordingly, prayed to dismiss the petition.

To prove his case, the petitioner got examined PWs 1 to 3, and no document was marked. On behalf of the respondent, she got examined RWs. 1 and 2 and got marked Ex.R1 and R2. Based on the evidence available on record, the trial Court dismissed the O.P.

Learned counsel for the appellant submitted that the trial Court did not observe the departed relationship of husband and wife since their marriage. He further submitted that though the petitioner alleged that the respondent had been suffering from mental disorder, the trial Court did not take any steps to send the respondent for medical examination. He further submitted that the trial Court ought to have seen the significance of evidence of PWs 2 and 3, but appreciated the evidence of RW.1 and her mother RW.2. Accordingly, prayed to allow the appeal.

On the other hand, learned counsel for the respondent submitted that the trial Court, after hearing both sides and considering the material available on record, has rightly passed the impugned order and no interference is required from this Court.

The trial Court dismissed the H.M.O.P. based on three grounds (i) There is no material to prove the mental illness of the respondent (ii) The petitioner did not take the respondent for any medical examination (iii) The petitioner did not examine any Medical Expert to show that the respondent took treatment for her mental disorder.

Findings of this Court:

The petitioner contended that after their marriage, he showed his willingness to engage in marital relations with the respondent. However, the respondent avoided such interactions, expressing her aversion to physical intimacy. She refused to cooperate, pushed him off the bed, and even showed disapproval towards his attempts at embracing her. From the very beginning of their matrimonial life, the respondent declined to cohabit with him. Subsequently, the petitioner observed that she was suffering from a mental illness. The respondent, in her counter alleged that the petitioner behaved like a psycho with the respondent and created terror on the very wedding night. However, on perusal of the impugned order, it is clear that the respondent admitted that her marriage was not consummated. Therefore, the allegations made by the respondent against the petitioner are irrelevant. The respondent further admitted that, prior to marriage she sought treatment from a neuro doctor at Asha Hospital.

During the cross-examination, the respondent admitted that neither she nor her parents informed the petitioner or his parents about her health issues prior to the marriage. She also revealed that the first night could not take place due to menstruation, and the marriage was not consummated. Even if her claims are assumed to be true, there is no explanation as to why she did not cohabit with her husband after her menstruation ended. She further stated that before the marriage, she had received treatment from a neurologist at Asha Hospital. According to the pleadings, the respondent left the petitioner on 7. 07.2013 and has made no effort to reconcile with him since. Moreover, she filed a domestic violence case (DVC) only after the petitioner initiated divorce proceedings. In the said case, she mentioned that her father consulted medical officers at NIMS Hospital about her condition, and she was prescribed medication in 2004 and 2005. She further stated that she is currently unwell and had once asked her father-in-law to bring "Trinexyphenidyl hydrochloride" 2 mg tablets when she visited her in-laws' house in Sathennapally.

The trial Court in DVC observed that the evidence deposed by PW.1 (i.e. respondent herein) is beyond the pleadings of her petition, and the entire cross-examination reveals that the PW.1 is suffering from mental ill-health and could not understand the questions put to her. She stated that she does not know the nature of the present case, and she did not approach any Court against her husband to file any case. The trial Court further observed that “It is difficult to ascertain as to whether PW.1 could lead marital life with her husband happily at least for some period and whether PW.1 has led marital life with her husband at the first place or not. In such circumstances, PW.1 is not entitled to any relief under this Act merely because she married the respondent. It is also creating doubt on the petitioner/PW.1 and her parents that without disclosing about her mental health condition, she was given in marriage to the respondent No.1 even affecting his mental health.” Accordingly, the said DVC was dismissed. Against the dismissal order in DVC, the respondent/wife preferred Criminal Appeal vide Criminal Appeal No. 32 of 2022, but the same was also dismissed.

After the marriage, whenever the petitioner intended to have physical intimacy with his wife/respondent, she has avoided the same for one or other reasons. Admittedly, the parties have been living separately since 2013, and now we are in 2024. So, their marriage has broken down irretrievably. Because of her acts and behaviour for a long period, the petitioner finds it extremely difficult to live with her any longer in view of her mental cruelty. In the circumstances, they cannot reconcile for matrimonial life. On these grounds, the petitioner is entitled to get divorce from his wife/respondent.

The Supreme Court in the case of Amit Kumar Vs. Suman Beniwal MANU/SC/1293/2021 decided on 11.12.2021  dealt with waiver of mandatory period of six months for divorce by mutual consent under Section 13(B)(2) of the Hindu Marriage Act, 1955. In that case, the parties had been living separately for almost 14 months and about soon after three days of marriage. The petition was preferred seeking the relief of divorce by way of mutual consent. First motion was granted. Application moved for waiver for six months statutory period, however, was rejected. In challenge made against thereto, High Court refused to grant the relief. The Supreme Court held as follows:

“… … … If the marriage has broken down irretrievably, the spouses have been living apart for a long time, but not been able to reconcile their differences and have mutually decided to part, it is better to end the marriage, to enable both the spouses to move on with the life.

Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filling of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage. Thus, if the marriage has broken down irretrievably, the spouses have been living apart for a long time, but not been able to reconcile their differences and have mutually decided to part, it is better to end the marriage, to enable both the spouses to move on with the life.”

In the present case, the petitioner seeking divorce on the grounds of irretrievable breakdown of marriage and cruelty are made out. Especially, considering that the marriage failed to progress from the very beginning over the course of nearly 11 years. Consequently, we find that the marital relationship has irreparably deteriorated and cannot be restored. Thus, the facts stated in the above case are squarely applicable to the present case.

In another case, in the case of Poonam Vs. Surender Kumar MANU/SC/1098/2021 decided on 29.09.2021 wherein the Supreme Court held as follows:

“8. We had in a recent judgment analyzed the issue arising from the unwillingness of one of the parties to go in for a divorce and whether in that scenario this Court would invoke powers Under Section 142 of the Constitution of India to dissolve the marriage on the ground of irretrievable break down of marriage in Sivasankaran v. Santhimeenal Civil Appeal Nos. 4984-4985/2021 decided on 13.09.2021. In the facts of the case, we had found both cruelty made out as also the marriage not having taken off from the very inception for almost 20 years, somewhat similar in the present case. We thus observed that there was disintegration of marital unity and thus disintegration of the marriage and went out to notice that there was no initial integration itself which would really allow disintegration afterwards. The position is not different in this case. We are thus of the view that it is appropriate that the parties formally part company having actually lived apart for about 19 years.”

In the case on hand also, the willingness of the petitioner to go for divorce on the grounds of the irretrievable breakdown of marriage and cruelty are made out as also the marriage not having taken off from the very inception for almost 11 years. We, thus, find that there was a disintegration of marital unity, which cannot be reunited.

In view of foregoing discussion, the C.M.A. is liable to be allowed.

Accordingly, the Civil Miscellaneous Appeal is allowed by setting aside order and decree dated 15.03.2016 in H.M.O.P. No.22 of 2015 on the file of the Senior Civil Judge, Shadnagar. There shall be no order as to costs.

Consequently, miscellaneous petitions pending, if any, shall stand closed.