IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE B.N.RAO NALLA F.C.A.No.230 of 2008 C.M.A.No.333 of 2002 & A.S.158 of 2002 FCA.No.230 of 2008 Between: P.Srinivasulu ..... APPELLANT AND Hemalatha .....RESPONDENT CMA.No.230 of 2002 Between: P.Srinivasulu ..... APPELLANT AND Hemalatha .....RESPONDENT A.S.No.158 of 2002 Between: P.Srinivasulu ..... APPELLANT AND Hemalatha and another .....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE B.N.RAO NALLA F.C.A.No.230 of 2008 C.M.A.No.333 of 2002 & A.S.158 of 2002 COMMON JUDGMENT: (per Hon’ble Sri Justice V.Eswaraiah) All these three appeals are filed by the appellant/husband aggrieved by the orders passed in O.P.1/2003 dated 18.08.2006 and against the common order passed in O.P.19/1999 and O.S.19/2001 dated 31.12.2001 on the file of the Family Court, Kurnool. 2. The parties herein are referred to as “husband” and “wife” for the sake of convenience. 3. The husband filed O.P.1/2003 on the file of the Family Court, Kurnool under Sec.13(1-A)(ii) of Hindu Marriage Act read with under Sec.7(1)(a) of Family Courts Act seeking divorce against the wife on the ground that there has been no restitution of conjugal rights between them for a period of one year or upward after passing of decree of restitution of conjugal rights in O.P.19/1999 dated 31.12.2001. The said OP No.1/2003 was dismissed by the Court below, against which FCA.230/2008 is filed. 4. Earlier to filing the OP.1/2003 by the husband, the wife filed O.P.19/1999 under Sec.9 of the Hindu Marriage Act r/w.Sec.7(1)(a) of Family Courts Act for restitution of conjugal rights, and also filed O.S.19/2001 under Sec.18 of the Hindu Adoption and Maintenance Act for grant of monthly maintenance @Rs.3,000/- p.m. on the file of the Family Court, Kurnool. The Court below delivered a common order in both the O.P. and O.S. filed by the wife and allowed the same. Aggrieved by the same, the husband filed CMA.333/2002 and A.S.158/2002. 5. The case of the husband in the FCA.230/2008 is that he is physically handicapped person and is working in APSRTC as a cleaner. The wife is the native of Gooty, Ananthapur District and their marriage was performed at Kurnool on 05.02.1995. Soon after the marriage, the wife joined the husband and marriage was consummated and both of them lived together for some time. From the date of marriage, the wife used to humiliate the husband and make fun of his handicap and disability. It is stated that from 17.04.1999 there has been no cohabitation between the husband and wife, and the wife deserted the husband and therefore, the husband got issued notice to the wife on 17.06.1999. On receiving the notice, the wife filed O.P.19/1999 for restitution of conjugal rights and also filed O.S.19/2001 for maintenance, which were decreed. The Court below directed the husband to take the wife into his company and provide conjugal rights. It is stated that even after passing of the decree in O.P.19/1999, the wife did not choose to take any steps for joining the company of the husband and lead conjugal life, and the wife was content with receiving the maintenance order alone. Therefore, there has been no marital relationship in between the husband and wife even after passing of decree for restitution of conjugal rights in O.P.19/1999, and hence the husband is entitled for a decree of divorce. 6. The wife filed counter denying all the adverse allegations made by the husband. It is stated that the wife is always ready and willing to join the company of the husband. It is incorrect to state that between 05.02.1995 to 17.04.1999 there was no cohabitation between the husband and wife. It is stated that the wife has taken steps to join the company of the husband after passing of decree in O.P.19/1999, but in fact the husband has not taken any steps to take her back to his house and lead marital life with her. It is stated that the wife filed E.P.6/2003 in O.P.19/1999 for execution of the decree passed in O.P.19/1999, and therefore, the husband is not entitled for a decree of divorce. 7. To prove their respective contentions in O.P.1/2003, on behalf of the husband, the husband himself was examined as PW 1 and marked Ex.A1 and Ex.C-1. On behalf of the wife, the wife herself was examined as RW 1 and marked Exs.B1 to B7. 8. The husband as PW 1 stated that the OP.19/1999 filed by the wife was decreed against him, but the wife did not display any sincere efforts to translate the decree into action till 31.12.2002. After expiry of statutory period, he filed the O.P.1/2003 for divorce on 04.01.2003. The wife filed E.P.2/2002 for realization of costs awarded in O.P.19/1999. The wife also filed E.P.6/2003 seeking attachment of properties shown in Col.11 of E.P. for execution of the decree in O.P.No.19/1999. In the cross examination the husband stated that he did not remember as to what was ordered in decree in O.P.19/1999, and he did not remember if he gave to his advocate the decree passed in O.P.19/1999 for filing OP for divorce. He stated that he acted as per the directions given in the decree in O.P. and as per the said decree he was directed to take the wife into his company and provide her conjugal rights. The husband stated that he personally went to the wife and asked her to come and live with him, but the wife, her mother, father and brother all drove him away and threatened him that they would look at the matter in the Court. The husband stated that he did not remember the month or date when he went to the wife’s house in the year 2001 and he did not mention the same in his petition. The husband categorically admitted that from the beginning the wife is asking him to take her back to his house and live with her, but he is refusing to do so in order to seek divorce. The husband specifically stated that he is not willing to take back his wife and live with her even if she is willing to join and live with him. The husband also admitted that the wife filed E.P.6/2003 stating that he disobeyed the orders passed by the Court below for restitution of conjugal rights. 9. The wife as RW 1 stated that her OP filed for restitution of conjugal rights was decreed on 31.12.2001 directing the husband to take her back to his house and provide her conjugal happiness. But the husband never cared with the said order and never made any positive attempts to take her to his company and live with her. On the other hand, herself, her parents and brother made several attempts and tried to persuade the husband to take her back and live with her happily. It is stated that the husband and his parents warned the wife that if she makes any attempt to live with the husband, serious consequences would follow. She got issued a registered notice to the husband on 11.01.2003 requesting him to take her back to his house and live with her, giving conjugal happiness. The husband having received the said notice, got issued a reply with all false allegations, and therefore, she filed E.P.6/2003 for execution of the decree of restitution of conjugal rights. It is stated that the husband is not entitled for decree of divorce as he is alone at fault in not obeying the decree of restitution of conjugal rights. 10. Except the husband and wife, no other persons were examined in corroborating their respective contentions in O.P.1/2003. 11. The wife filed O.P.19/1999 for restitution of conjugal rights and also filed O.S.19/2001 for maintenance on the file of the Family Court, Kurnool. The Court below tried both the cases together and recorded common evidence in O.P.19/1999. 12. On behalf of the wife, the wife herself was examined as PW 1 and got examined PW 2 in support of her contentions and marked Exs.A1 to A3 and Exs.X-1 and X-2. On behalf of husband, the husband himself was examined as RW 1 and got examined RW 2 for corroborating his evidence. No documentary evidence is adduced on his behalf. 13. The court below on considering the oral and documentary evidence available on record, allowed both the OP.19/1999 and OS.19/2001 14. The learned counsel appearing for the husband contends that the wife is guilty of desertion and she is a quarrelsome lady and always humiliating the husband and developed aversion towards husband and hence she is not entitled for restitution of conjugal right. The learned counsel also contends that the maintenance awarded in O.P.19/2001 is disproportionate and the husband is not capable to pay such amount of Rs.3,000/- per month as he was working as a Cleaner in APSRTC with a meager salary. 15. The learned counsel appearing for the wife contends that the husband himself deserted the wife and not allowing her to join him and lead marital life. The learned counsel also contends that the husband is capable enough to pay the maintenance as awarded by the Court below and he got movable and immovable properties and getting sufficient rental income. 16. The wife as PW 1 in OP.19/1999 stated that after the marriage she joined the husband and they used to reside in the joint family consisting of the husband, his three brothers and parents. Right from the day of her entering the house of the husband, he began to ill treat her and also used to abuse her in vulgar language and always insisting her to leave his company. It is stated that the other members of the family of the husband also developed dislike against her and encouraged the husband to discard her. On 05.07.1995 the husband and his family members thrown all her belongings and necked her out of the house, and also seized all her gold ornaments except talibottu chain and a necklace. Her mother, father and her maternal uncle came over to Kurnool and held mediations but the husband did not allow her to enter his house. Thereafter, the husband got issued a registered notice with all false allegations for which she gave a suitable reply. The husband demanded divorce and no divorce petition is filed and therefore, she was constrained to file O.P.19/1999 for restitution of conjugal rights. She also filed OS.19/2001 for maintenance @ Rs.3,000/- per month. It is stated that the husband is the member of joint family and residing with his parents in Tagoornagar, Kurnool. His father is a big contractor and possessed properties worth Rs.3 crores. They have also real-estate business and he owned 23 houses in Tagornagar. In fact, the father of the husband himself narrated the above facts at the time of negotiation of her marriage with the husband. Besides that the father of the husband also offered to give assets worth of Rs.10,00,000/- and house properties in her favour. Apart from that, the husband is getting salary of Rs.4,700/- per month. 17. PW 2 P.Kesanna was examined on behalf of wife and he stated that to his knowledge, the father of the husband had purchased assets worth Rs.5 crores and they are in well to do position. The husband and wife led amicable family life for one year in the joint family house and later he came to know that the husband wanted to get rid of the wife and began to harass her. Then himself, one Guruswamy, Sanjeeva Rayudu, Medam Sankarappa, Donthu Venkataswamy of Kurnool as elders mediated the issue and persuaded the husband and his parents, but the parents of the husband did not agree. In the cross examination PW 2 stated that the father of the husband got about 15 to 16 houses in Maddurnagar besides house sites and a building in Veldurthy. 18. The husband as RW 1 in OP.19/1999 stated that for a period of 10 months both of them resided in the joint family and later the wife picked up quarrels with his parents without any just cause and used to proclaim that she has no liking for the marriage with him. It is stated that because of the said quarrels raised by the wife, the husband put up separate family in a rented house and changed five houses in four years. It is stated that always the wife used to say that she has no liking for her husband. It is stated that his gross salary is Rs.3,900/- and after deductions he got net salary of Rs.2,901/- only. The wife is not entitled for restitution of conjugal rights and for maintenance as she herself deserted the husband. In the cross examination the husband stated that there was no need for his parents to take dowry since they are already well-off. It is stated that the car in which he came to the court belongs to his father. He also admitted that in the reply given by his wife, she strongly wished to join him for leading marital life. The husband also stated that from the beginning himself and his parents were insisting only for divorce and not for restitution of conjugal rights. At present the husband, his brothers and father and grand-father were living together as joint family. 19. One D.Venkataswamy was examined as RW 2 in support of the husband and also stated with regard to the promises made by the parents of RW 1 at the time of negotiating the alliance. In the cross examination, he admitted that he told the parents of the wife stating that the family of the husband is affluent, rich and respectable and that the wife will be very comfortable and will live in happy in their family, and then the parents of the wife did not hesitate to give their daughter to the husband in spite of his physical condition. He also admitted that except once, he never received any complaint about the behaviour of the wife. He stated that he did not know whether the father of the husband has got more than four crores of rupees worth property. He also stated that he felt that it would be better for the wife and husband to stay together to lead happy marital life. 20. The evidence available on record in OP.19/1999 goes to show that the husband is a rich persons and he is a member of the joint family and there was no fault on the part of the wife. But the behaviour of the husband and his family members is indifferent and they are not willing for restitution of conjugal rights. The Court below on appreciation of evidence available on record, rightly allowed the OP.19/1999 and OS.19/2001 filed for restitution of conjugal rights and for maintenance. 21. The learned counsel for the husband submitted that the joint family properties have been settled and the husband has taken net cash of Rs.10,00,000/- in lieu of his share in the immovable properties. We are of the opinion that there cannot be any such settlement transferring the immovable properties in favour of other joint family members without there being any registered partition deed. It appears that in order to escape from the liability of payment of maintenance amount they are making such an attempt. We are of the opinion that it is always open for the wife to execute the decree of maintenance by attaching the undivided share of the properties of the husband. 22. In view of the above, we do not see any merits in these two appeals i.e. CMA.333/2002 and A.S.158/2002 and they are liable to be dismissed with costs, as the husband himself deserted the wife and neglected to maintain her. 23. In so far as the FCA.230/2008 is concerned the Court below having considered the ground taken by the husband that there has been no restitution of conjugal rights between the parties for a period of one year or upwards after passing of decree for restitution of conjugal rights and other grounds about the cruelty and desertion, rightly held that none of the grounds have been made out and accordingly dismissed the OP.1/2003 filed by the husband. 24. It is the case of the wife that the husband himself was at fault in disobeying the decree of restitution of conjugal rights, and in fact he has not been paying the maintenance amount also regularly and therefore, she was constrained to file O.S.19/2001 for payment of maintenance and after that only the husband filed O.P.1/2003 seeking divorce. We are of the opinion that had the husband obtained a decree of restitution of conjugal rights, and if the wife failed to join with the husband within a period of one year, he is entitled to file O.P.under Sec.13(1-A)(ii) of Hindu Marriage Act seeking dissolution of marriage. Even if the wife obtains a decree of restitution of conjugal rights, when the wife failed to join the husband, then also the husband is entitled to file OP for divorce. But the evidence available on record in O.P.1/2003 goes to show that the wife is always ready and willing to join the company of the husband, and the same is also admitted by the husband in his cross examination, and therefore, it cannot be said that the wife was at fault in not joining the husband and lead conjugal life with him. Merely because the husband is entitled to file such an application on the ground that there was no restitution of conjugal rights, we are of the opinion that the husband cannot take advantage of his own wrong in not obeying the decree in O.P.19/1999 dated 31.12.2001 and take action for his advantage. Under Sec.23 of the Hindu Marriage Act, in any proceedings under the Hindu Marriage Act if the Courts satisfy that even if the party is entitled for any relief, he cannot be allowed to take advantage of his own wrong. 25. In the cases of Pavuluri Murahari Rao v. Povuluri Vasantha Manohari[1] and Hirachand Srinivas Managaonkar v. Sunanda[2] the Hon’ble Supreme Court of India and this Court held that a defaulting spouse, who has suffered a decree for restitution of conjugal rights, cannot take advantage of his or her own wrong because he or she has failed to comply with the decree of restitution of conjugal rights. In view of the above ratio, as laid down by the Hon’ble Supreme Court of India, we are of the opinion that the husband cannot take a ground that there was no restitution of conjugal rights even after the decree of restitution of conjugal right, which was suffered by him stating that the wife did not join the company of husband and led conjugal life with him. In fact, the husband disobeyed the order of the Court below in not allowing the wife to join him and lead marital life, as admitted in his cross examination. Therefore, the husband cannot be allowed to take advantage of his own wrong. 26. For the foregoing reasons, we do not find any merit in FCA.230/2008 and the same is also liable to be dismissed with costs. 27. Accordingly, all these three appeals viz. FCA.230/2008, CMA.333/2002 and A.S.158/2002 are dismissed with costs. However, it is always open for the parties to reconcile, rejoin and live together, as suggested by Mr.D.Venktaswamy, elderly caste person, who was examined as RW 2 on behalf of husband in OP.19/1999. ___________________ V.ESWARAIAH,J _____________________ B.N.RAO NALLA,J Dated: 28.04.2010 Dsr [1] AIR 1984 Andhra Pradesh 54 [2] 2001(2) ALD 117 (SC)