HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY C.M.A.No.104 of 2000 JUDGMENT: (per Hon’ble Sri Justice G.Krishna Mohan Reddy) This Appeal is filed against order dated 03-12-1999 passed in O.P.No.73 of 1998 on the file of Judge, Family Court, Secunderabad (O.P). 2. The appellant herein is the respondent and the respondent herein is the petitioner in the O.P. For convenience sake, we refer the parties as arrayed in the O.P. 3. It is necessary to note briefly the pleadings/allegations made in the petition for proper appreciation of the petition, they are as follows: The petitioner (husband) and the respondent (wife) were married on 25-12-1972 at Secunderabad as per Hindu rites and custom. The marriage was consummated. Out of their wedlock, two sons and a daughter were born to them. The petitioner is a Medical Practitioner who worked in Iran for about 13 years. He returned to India in 1994 and put up medical practice at Musheerabad. He is the owner of a house bearing Door No.6-1-103/48, comprising ground floor and first floor situated at Abhinava Colony, Padmarao Nagar, Secunderabad, being his self acquired property. It is alleged that the respondent started forcing and threatening the petitioner to transfer the said house property in her name. When he refused to do so, the respondent, her father and their henchmen abused him in filthy language and threatened to kill him by administering poison on account of which he stopped taking food in the house for long time. The petitioner performed the marriage of his daughter on 16-02-1995. The respondent at the instigation of her father filed a false complaint against the petitioner which was registered in Crime No.57 of 1995 for offence punishable under Section 324 IPC whereas after full-fledged trial, that case ended in acquittal. Further on 28-01-1995, 28-02-1995 and 26-04-1996 the respondent, her father and their henchmen tried to dispossess the petitioner from the house, however with great difficulty he restrained them following which he filed suit i.e., O.S.No.6 of 1995 on the file of Judge, Family Court, at Hyderabad and obtained interim injunction in I.A.No.48 of 1995 dated 28-04-1995. Later the plaint was returned for the presentation of it before proper Court following which he represented the plaint in the Court of Assistant Judge, Secunderabad where it was renumbered as O.S.No.1045 of 1996. It is further alleged that the respondent at the instigation of her father lodged another complaint which was registered in Crime No.110 of 1995 for offence punishable under Section 498-A IPC in which after conducting necessary investigation charge sheet was filed which was numbered as C.C.No.327 of 1996 on the file of the Court of XXII Metropolitan Magistrate, Hyderabad. It is claimed that the said acts of the respondent resulted in causing extreme mental tension and agony to him. Further he filed O.P.No.7 of 1996 on the file of Judge, Family Court at Secunderabad for judicial separation which was dismissed on 12-11-1997. Further the respondent has been living separately since one week or ten days after the date of marriage of his daughter which took place on 16-02-1995. Further the respondent without any legal cause treated him with cruelty and also deserted him. Therefore, he filed the O.P. seeking a decree of divorce dissolving their marriage against the respondent. 4. The respondent filed counter denying the allegations made in the petition specifically. According to her the house bearing Door No.6-1-103/48 at Abhinava Colony, Padmarao Nagar, Secunderabad is not the self acquired property of the petitioner. She claims that she also contributed substantial amount by selling her jewellery presented by her parents to purchase the site and further the building was constructed mainly from out of her funds and the funds of her father. She asserts that at no point of time she threatened or forced the petitioner to transfer the house in her name. It is alleged that on 28-02- 1995 the petitioner assaulted her and caused her grievous head injury by reason of which she was admitted in NIMS and crime was registered against the petitioner at instance of the doctors in NIMS. The petitioner harassed the respondent to bring Rs.50,000/- from her father for the marriage of their daughter whereas when she refused to do so, the petitioner assaulted her with iron telephone stand by reason of which she gave a report to the police following which criminal prosecution was initiated against the petitioner by reason of which he filed the present petition with false allegations. According to her after 01-05-1998 both of them are residing in the same house along with their children. She further claims that the petitioner filed the present O.P. even though earlier another O.P. (O.P.No.7 of 1996) filed for judicial separation between them was dismissed which bars the filing of latter O.P. Hence, she prayed for the dismissal of the O.P. 5. The Court below, without deciding the question of cruelty and granting of divorce, passed the orders as follows: “In the result petition is allowed and having regard to the circumstances of the case instead of dissolving the marriage straight away by a decree of divorce a decree for judicial separation is granted in favour of the petitioner u/s. 13-A of the Hindu Marriage Act.” Therefore, aggrieved by the order of the Court below, the present appeal is filed. 6. It is the contention of learned counsel for the respondent (wife) that when O.P.No.7 of 1996 filed for judicial separation between the petitioner and the respondent was dismissed on 12-11-1997 that operates as res judicata against the findings of the Court below in this matter. Further ample evidence was placed to the effect that both the spouses along with the children have been living together. He pleads that the question of cruelty though relevant was not discussed or ascertained to dispose of the issue of divorce. Further the petitioner failed to adduce necessary evidence oral and documentary to uphold his claim. Hence he seeks to set aside the order of the Court below. 7. When the O.P. was filed for divorce, there should be clear finding from the Court below in that context, but no discussion was made accordingly. Further various questions raised with regards to granting the relief of judicial separation was not discussed by the Court below. 8. Hence, we feel that it is advisable to remand the matter to the Court below for meeting the questions raised. Further it is advisable to direct the court below to dispose of the matter within a period of two months from the date of receipt of a copy of this order. 9. Accordingly, the Civil Miscellaneous Appeal is disposed of. No costs. 10. Consequent upon the disposal of the C.M.A., miscellaneous petitions, if any, pending shall stand closed. ____________________ ASHUTOSH MOHUNTA, J _________________________ G. KRISHNA MOHAN REDDY, J Date: 11-12-2012 YCR