THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA F.C.A.Nos.18 and 19 of 2008 Date: 24-8-2010 F.C.A.No.18 of 2008: Between Mamidi Swarnalatha … Appellant/Respondent and Mamidi Rajasekhar … Respondent/Petitioner F.C.A.No.19 of 2008: Between Mamidi Swarnalatha … Appellant/Petitioner and Mamidi Rajasekhar … Respondent/Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA F.C.A.Nos.18 and 19 of 2008 Oral Common Judgment: (per D.S.R.Varma, J.) Heard both sides. 2. Since these two appeals do arise out of a common order dated 17-01-2008 in O.P.Nos.441 and 748 of 2005 passed by the Judge, Family Court, Visakhapatnam, respectively, and the parties being common, they are being disposed of by this common judgment. 3. F.C.A.No.18 of 2008 is filed against the order passed in O.P.No.441 of 2005 dissolving the marriage between the parties and F.C.A.No.19 of 2008 is filed against the order passed in O.P.No.748 of 2005 dismissing the petition for restitution of conjugal rights. 4. The appellant in both the appeals is the wife and the respondent is the husband in both the O.Ps., before the Court below. 5. For the sake of convenience, the parties herein are referred to as the wife and the husband, respectively. 6. Both the O.Ps., were heard together and an order was passed by the Court below allowing O.P.No.441 of 2005 filed by the husband granting a decree for divorce, while dismissing O.P.No.748 of 2005 filed by the wife for restitution of conjugal rights. 7. The facts, which are not in dispute, are that the marriage between the wife and the husband was performed in the year 2003 and the same was consummated. They lived together for a month only. It was the claim of the husband before the Court below that the wife used to abuse and harass him and used to make threats to commit suicide and send him to jail. It was further claimed that she attempted suicide twice and thereby caused mental agony and cruelty towards him. When the same was reported to the paternal uncle of the wife, he promised to take the wife to a doctor for check-up and on 16-4-2003 he sent his wife who took away the wife with her and since then she did not return back. The mediation efforts also failed. Therefore, the husband issued a legal notice to the wife but the same was not received, however, she got issued a reply notice with false allegations on 16-7-2005. 8. On the other hand, it is the case of the wife while admitting the marriage that at the time of marriage a sum of Rs.4,25,000/- was paid as dowry. She further stated that the husband had informed her on the day of nuptials that he had illicit intimacy with one Madhuri and he married her with an intention to grab the property and that the husband always used to praise the said Madhuri and insult the wife, that the husband demanded to get a sum of Rs.4,00,000/- from her father. Finally, she expressed her willingness to lead a conjugal life with her husband. She also filed O.P.No.748 of 2005 under Section 9 of the Hindu Marriage Act, 1955 for restitution of the conjugal rights. 9. Learned counsel for both the parties did not advance their arguments upon the merits of the case challenging the decrees. The main relief that is being sought for by the wife, at this stage, is ‘permanent alimony’. Perhaps, the said claim is being made on account of the absolute incompatible situation that is prevailing even as on today. 10. Even if we have to proceed on merits, it is to be seen that notwithstanding the averments made by the husband, the wife made counter allegations against the husband. Those allegations, in our considered view, are highly derogatory to the husband. It is not as though counter allegations cannot be made at all, but such allegations shall not be to the extent of attributing illicit intimacy with another woman, who was already married. No proper evidence had been adduced in this regard except making some suggestions and the same were denied. 11. This attitude was held to be counter productive by the judgment rendered by this Court in Jayakrishna Panigrahi v. Smt. Surekha[1], following the judgment of the apex Court in V.Bhagat v. D.Bhagat (AIR 1994 SC 710), wherein it was held that the material available on record would eloquently points to the fact that one spouse deliberately hurled the allegations against another spouse, may be, as a counter blast to the proceedings initiate by the spouse seeking divorce. It was further observed that the pleadings together with the deposition of the parties if appear to be capable of maligning the other party would undoubtedly fall within the ambit of mental cruelty. It was further observed that such allegations made in the written statement or the counter, as the case may be, shall be treated as additional particulars for granting the relief sought for. 12. The said judgment was followed by us in an unreported judgment dated 03-8-2010 in F.C.A.No.246 of 2008. Therefore, there is absolutely any amount of justification for the Court below to grant divorce for satisfactory reasons and there is no other option to the Court below except to dismiss the other O.P., filed by the wife under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. There is no need for us to go into further details of the matter, inasmuch as, we have already pointed out that not much is being argued on merits of the case, virtually amounting to not pressing for the original relief sought for. 13. The only alternative that is now pending consideration is -- granting of ‘permanent alimony’ in the facts and circumstances of the case. 14. The Court below did not grant any permanent alimony nor there was any petition in that regard filed by the wife. Now, it is being urged before this Court by the learned counsel for the wife that permanent alimony may solve the problem and give a quietus to the litigation. Therefore, we are proceeding only in the direction of granting ‘permanent alimony’. That is the only question that remains for consideration. Furthermore, the spouses were very young. 15. In this regard, it is to be seen that the husband has been working as a Clerk cum Cashier in State Bank of India and earning considerable amount towards salary. It is being claimed by the wife that he has other properties also. Of course, there is no positive proof made available to us in that regard. However, in view of the fact that the husband has been working as a Clerk cum Cashier in a nationalised bank, we can expect the earning capacity of the husband. 16. Therefore, having regard to the facts and circumstances, keeping the age of the parties and the earning capacity of the husband, we deem it appropriate to direct the husband to pay a sum of Rs.5,50,000/- (Rupees five lakhs and fifty thousand only) towards ‘permanent alimony’ to the wife. 17. It is made clear that out of the said amount, a sum of Rs.3,00,000/- (Rupees three lakhs only) is to be paid on or before 15-9-2010 and the balance amount of Rs.2,50,000/- (Rupees two lakhs and fifty thousand only) shall be paid on or before 30-11-2010. 18. With the above directions, F.C.A.No.18 of 2008 is disposed of. 19. F.C.A.No.19 of 2008: In view of the final order passed in F.C.A.No.18 of 2008, no further orders need be passed in this appeal and accordingly, this appeal deserves to be dismissed and accordingly dismissed. _________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE B.N.RAO NALLA 24th August, 2010. Ak THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA F.C.A.Nos.18 and 19 of 2008 (Common Order of the Division Bench delivered by DSRV, J.) 24th August, 2010. (Ak) [1] 1995 (3) ALT 207 (DB)