IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD. WEDNESDAY THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HONOURABLE SMT. JUSTICE T. MEENAKUMARI AND THE HONOURABLE SRI JUSTICE B. NARAYAN RAO FCA.NO. 2 5 2 OF 2009. Between: Kanisetti Venkata Rangarao, S/o. Durga Rao, aged about 32 years, Occupation: Advocate, R/o. H.No.9-7-116, KT Road, Kothapet, Vijayawada-1. … Appellant V/s. Kanisetti Jyothi Durga Bhavani, w/o W/o. Venkata Rangarao, aged about 30 years, D/o. Panda Venkateswara Rao, R/o. Q.No.C/5/2, SDMSD Quarters, Gunadala, Vijayawada. … Respondent Counsel for the Appellant : M.G.L.NAGESWAR RAO (6963) Counsel for the Respondent : Mr. V. RAGHU THE HONOURABLE SMT. JUSTICE T. MEENAKUMARI AND THE HONOURABLE SRI JUSTICE N.B. NARAYAN RAO F.C.A.No. 2 5 2 OF 2009. JUDGMENT : (Per the Hon’ble Smt. Justice T. Meena Kumari). Aggrieved of the order dated 16-3-2009 passed in I.A.No. 683 of 2006 in OP.No. 380 of 2005 by the learned Judge, Family Court-cum-IV-Additional District and Sessions Judge, Vijayawada, Krishna district, dismissing the petition filed by the appellant- petitioner-husband against the respondent-wife under Orde-9, Rule-9 and Section 151 of the Code of Civil Procedure seeking to restore the main O.P., which was dismissed for default on 10-7- 2006 and permit him to continue the proceedings, the present appeal is filed by the appellant-husband. 2. For the sake of convenience, the parties to this appeal would hereinafter be referred to as they are arrayed in OP.No. 380 of 2005. 3. The facts of the main O.P. are that the marriage between the petitioner and respondent was a love marriage and it was performed as per Hindu rites and customs at Kankadurga temple, Vijayawada in the presence of friends on 11-5-1998. Immediately after consummation of marriage, the petitioner and respondent lived together as husband and wife peacefully for two months and further they lived till 2004 with cruelty. It is stated that out of their wedlock one male child was born viz., Master K. Venkata sai Jaswanth at Charitasri Hospital, Vijayawada on 19-9-1999 and he is under the custody of respondent. It is further stated that subsequent to the marriage, the respondent developed aversion, antipathy, ill-will, hatred towards the petitioner without any justifiable excuse or reasonable cause. As usual, the respondent went and her whereabouts are known after enquiry on cell phone, then the petitioner took the respondent from bus stand and railway stations in may ways. It is further stated that many a times the petitioner asked the respondent about her behaviour but she did not heed the words and used to make galatas and tried to press the neck of the male child and acted suicidal activities on a silly and simple reasons and further the respondent spit out on the face of the petitioner in many times. It is also stated that the petitioner asked the parents of the respondent for her behaviour, they openly said that the respondent did not heed words of them and advised the petitioner to bear her acts. It is also stated that the parents of the respondent said that it is the duty of the petitioner to bear the acts of the respondent. Subsequent to the birth of the male child, the respondent began to ill-treat, humiliate, harass and annoy the petitioner brutally and even by beating him on several occasions. Further it is stated that the petitioner swallowed and secreted all the insults and beatings of the respondent with a fond hope that she would mend herself at least in future. On so many occasions, the respondent openly declared and proclaimed that she dislikes the petitioner and went away to her parental house without any consent but the parents of the respondent forcefully bring back the respondent to his house. Even the respondent often bites the petitioner with teeth and ruptured the body of the petitioner with nails without any pretext. Further the respondent did even to perform minimum domestic work like cleaning of house and utensils and even to care to cook food. Whenever the petitioner went outside for his duty, the respondent did not care to close the house doors and that due to the acts of the respondent, some thieves trespassed into his house and committed theft of household articles, some valuables and thereby caused huge loss to the petitioner. Further the respondent did not care to prepare tiffin and meals to the petitioner and always insisted the petitioner to bring the same from hotel. Other wise she will destroy the household articles and utensils. She even did not prepare milk to the minor child and he cried many times against her activities. Moreover the respondent oftenly threatening that she would commit suicide by pouring kerosene on herself and foist a false case against the petitioner and his parents and thereby she is causing mental agony and disturbing mental peace of the petitioner. It is also stated that the neighbours of the petitioners are all aware of the conduct of the petitioner and inducement and cruelty unbecoming adamant behaviour of the respondent in the day-to-day conjugal life as well as routine life. The endeavours and efforts to appease the respondent ended in smoke. But all the hopes of the petitioner have been shattered and battered into pieces. Further the respondent is habituated to go to her parents house on every day and the petitioner told her to change her attitude but the respondent never changed and harassed him in many ways on simple reason. Thereafter, the petitioner asked the respondent for re-union of marital life but she refused. It is stated that the petitioner send mediators for mediation with the respondent for reunion but the respondent bluntly refused and used vulgar language. Therefore, in view of the above compelling circumstances, the petitioner came to a conclusion that there is no possibility and feasibility for reconciliation with the respondent and therefore he is compelled to file the main O.P. against the respondent for divorce on the grounds of legal cruelty. 4. The facts leading to the filing of this appeal can be summarized as follows: It is stated that the respondent gave a false complaint against the petitioner and the same was duly registered as Cr.No.129/2006 for the offence under section 498-A of IPC and that she influenced the police illegally against him due to which on 10-7-2006 he did not appear before the court for his appearance and that the main petition is dismissed for default of petitioner. Hence he prayed to allow the application filed under Order-9, Rule-9 and section 151 of the Code of Civil Procedure seeking to restore the main O.P., which was dismissed against him on 10-7- 2006 for default and permit him to prosecute the same. 5. On the other hand, in the counter-affidavit filed by the respondent, it is averred that the allegations made in the OP are not true and correct and they were all tissue of arrant falsehoods only with a view to harass the respondent. The respondent denied all the allegations made in the OP except those, which are specifically traversed and admitted by her in the counter. It is averred that the respondent filed a case under section 498-A of IPC in Cr.No.129 of 2006 prior to the filing of the O.P. In fact the petitioner filed the OP in the year 2005 and the crime number referred by the petitioner is of the year 2006. It is averred that the respondent never influenced the police nor the police is responsible for the non-appearance of the petitioner. In fact, the petitioner filed a “not press memo” expressing his intention to withdraw the petition and while the said memo is under consideration, the petition was dismissed for non-appearance of the petitioner. Thereafter, the petitioner filed I.A.No. 786 of 2005 forging the signatures of respondent on the notice memo. Hence, she prayed to dismiss the petition. 6. On appreciation of facts and circumstances and in view of the rival contentions raised by both the parties, the learned Judge, Family Court, dismissed the application holding that the petitioner himself is not clear and not assigned any proper reason for not attending the Family Court on 10-7-2006, as to on which date the petition was dismissed for his non-appearance. The learned Judge, Family Court held that there is no reasonable ground for the absence of the petitioner before the Family Court. Hence, the learned Judge, Family Court held that the petitioner is not entitled to seek any relief and therefore, dismissed the application filed under Order-9, Rule-9 and section 151 of the Code of Civil Procedure seeking to restore the main O.P., which was dismissed for default against him on 10-7-2006. 7. Aggrieved thereby, the present appeal is filed by the appellant-petitioner (husband). 8. Heard the learned counsel for the appellant as well as the respondent. Though several grounds are sought to be urged by the learned counsel for the appellant, we are not inclined to advert to the same. On perusing the impugned order, it appears that the Family Court has dismissed the petition for default for non- appearance of the petitioner and the petition filed by him seeking to restore the main OP was also dismissed on the ground that the petitioner has not assigned any valid reasons for not attending the court on the date of dismissal of the petition. But however in view of the reasons adduced in the affidavit filed in support of the petition for the non-appearance of the appellant before the Family Court, we deem it appropriate to afford one more opportunity to the appellant to prosecute the case diligently and the order dated 16- 3-2009 passed in I.A.NO.683 of 2006 in OP.No. 380 of 2005 by the learned Judge, Family Court-cum-IV-Additional District and Sessions Judge, Vijayawada, is liable to be set aside and the same is accordingly set aside and the matter is remanded back to the Family Court for passing appropriate orders. 9. Accordingly, the Family Court Appeal is allowed. In the circumstances, there shall be no order as to costs. __________________________ JUSTICE T. MEENA KUMARI ___________________________ JUSTICE N.B. NARAYAN RAO 14-10-2009 I s L