HON’BLE SRI JUSTICE D.S.R. VARMA AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR FCAMP No. 359 of 2010 in F.C.A. No. 146 of 2008 and F.C.A. No. 146 of 2008 Date: 21.10.2010 FCAMP No.359 of 2010 Between: Sanagala Anil Kumar .. Petitioner/Respondent And Smt. Sanagala Manasa. .. Respondent/Appellant FCA No.146 of 2008 Between: Smt. Sanagala Manasa. .. Appellant/Respondent And Sanagala Anil Kumar .. Respondent/Petitioner HON’BLE SRI JUSTICE D.S.R. VARMA AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR FCAMP No. 359 of 2010 In F.C.A. No. 146 of 2008 And F.C.A. No. 146 of 2008 Common Order: (per Hon’ble Sri Justice B. Chandra Kumar) This appeal is filed by the appellant/wife challenging the order and decreetal order dated 19.06.2008 passed in O.P. No. 7 of 2008 by the Judge, Family Court, Eluru, granting a decree of restitution of conjugal rights in favour of the respondent herein. 2. The parties hereinafter will be referred to as they are arrayed in the lower Court for the sake of convenience. 3. The petitioner/husband filed the petition in O.P. No.7 of 2008, under Sections 9 and 13(1)(ia) of the Hindu Marriage Act, 1955 (for short ‘the Act’), seeking a decree of restitution of conjugal rights directing the respondent/wife to join the matrimonial home, alternatively for a decree of divorce dissolving the marriage between the petitioner and the respondent and such other reliefs which appear to be just in the circumstances of the case. 4. The brief facts of the case are as follows. The marriage of the petitioner was solemnized on 03.07.2002 at Ganapavaram as per the Hindu rites and rituals. After the marriage, the respondent joined the petitioner and they lived together at Eluru and lead happy marital life. They are blessed with a male child, namely Viswasai Nikhil. The petitioner’s case is that on the occasion of “Sravana Masam Nomulu”, the respondent along with their child went to her parents place i.e., the house of her fostered father and mother on 17th August, 2005 and since then she had been residing with them and in spite of his making best efforts she did not join him. Though, the respondent promised to return in the first week of September 2005, but she did not turn up. Then the petitioner, along with his elder brother and their family elder Rangacharyulu visited Ganapavaram to take back the respondent in the last week of September 2005. On persuasions by the elders, at last, the respondent agreed to join the petitioner at Eduru within four days, but she did not join the petitioner. Then the petitioner got issued a legal notice on 22.12.2005 demanding the respondent to join him along with the child. However, the respondent got issued a reply notice dated 10.01.2006 with all false and untenable allegations. The petitioner again got issued a rejoinder notice on 16.01.2006. It is also the specific case of the petitioner that no amount towards dowry was offered by the parents of the respondent nor received by him at the time of marriage. It is also the case of the petitioner that he came to know that the respondent came to Eluru and started learning beautician course. Alleging that the respondent had intentionally abandoned him without any reasonable cause and denied the conjugal happiness and his love and affection to the child and that the conduct of the respondent amounts to cruelty, the petitioner filed the OP for the relief of restitution of conjugal rights or alternatively a decree of divorce on the ground of cruelty. 5. The respondent/wife contested the matter and filed counter, inter alia, alleging that the petitioner demanded her to get the house of her father conveyed to her and also demanded additional dowry and since she was unable to fulfil the unlawful demands of the petitioner, he ill-treated, abused and harassed her. It is also alleged that the petitioner had driven her out of his house after a serious incident on 15.08.2005 and that her maternal uncle came and took her to her parents house on 17.08.2005. It is also the case of the respondent that the petitioner is a sadist and developed grave suspicion about her character and very often he used to abuse and harasses her and that he also went to the extent of denying the paternity of the child. The respondent, however, admitted that the petitioner came to Ganapavaram along with mediator Rangacharyulu and made a request to send her along with him. It is also her case that then she and her parents wanted the petitioner to give a bond along with his relatives promising not to harass her any longer and also to arrange surety as security and that the petitioner did not agree for the same and as a result she remained with her parents along with her minor son. It is also her case that it is not safe for her to live with the petitioner and rejoining him will endanger her life itself. She had also contended that she has no objection to agree for divorce, provided sufficient financial security is provided to her and to her minor son. 6. The trial Court formulated a point as to whether the respondent left the company of the petitioner without any reasonable cause and whether the petitioner is entitled for the reliefs as sought for. 7. On behalf of the petitioner, the petitioner himself was examined as PW.1 and Exs.A1 to A5 were marked. On behalf of the respondent, the respondent herself was examined as RW.1, but no documents were marked. Ex.A1 is the wedding card, Ex.A2 is the marriage photo, Ex.A3 is the registered notice dated 22.12.2005 issued to the respondent, Ex.A4 is the reply notice dated 10.01.2006 of the respondent and Ex.A5 is the rejoinder notice dated 16.01.2006 of the petitioner with acknowledgment. 8. The Judge, Family Court, on appreciation of the entire oral and documentary evidence, came to the conclusion that the respondent did not mention in her chief affidavit that the petitioner harassed her demanding additional dowry and driven her out of his house after a serious incident on 15.08.2005 and that the evidence on record shows that the petitioner made sincere efforts to get back the respondent and that the allegations made by the respondent appears to be not correct. On such findings, the lower Court has allowed the OP filed by the petitioner/husband granting a decree of restitution of conjugal rights directing the respondent/wife to join the matrimonial home of the petitioner within a period of one month from the date of the order. The lower Court, however, dismissed the alternative relief of the petitioner for grant of divorce by observing that it is not a fit case to consider such request at that stage. 9. Aggrieved by the same, the respondent/wife filed the present appeal. As seen from the grounds of appeal, the only contention of the respondent/wife is that she sought some assurance from the petitioner/husband in view of his cruel behaviour and that if at all the petitioner is interested in marital life he would have provided some kind of assurance. It is also her case that PW.2 is not a direct witness with regard to the allegations made by the petitioner and that the very act of the petitioner in seeking divorce as an alternative remedy demonstrates his ulterior motive. 10. Along with the appeal, the respondent/wife has filed FCAMP No.260 of 2008 seeking stay of all further proceedings in OP No.7 of 2008. However, no such stay was granted by this Court and both parties were directed to present before the Court on 11.02.2009. Accordingly, the petitioner/husband presented before the Court and participated in the conciliation proceedings. However, the respondent/wife did not attend the Court owing to her pre-occupation in appearing for the examinations. Then the matter was posted to 25.02.2009, on which date, the Secretary, A.P. High Court Legal Services Committee, has reported that the conciliation efforts made by them have ended in failure. Then the matter was ordered to be posted for final hearing. 11. At that stage, the petitioner/husband filed FCAMP No.359 of 2010 contending that though the family Court passed a decree of restitution of conjugal rights and directed the respondent/wife to join the matrimonial home within one month from the date of the order, the respondent did not comply with the said order and that the one year period from the date of passing of the order by the Family Court expired by 19.06.2009 and that admittedly the conciliation efforts were failed on 25.02.2009 and in the above circumstances he is entitled for a decree of divorce under Section 13(1A)(ii) read with Section 23-A of the Act. In support of his contention, he relied on the decisions reported in Dharmendra Kumar v. Usha Kumar[1], and S. Rashmi Pradipkumar Jain v. Pradeep Kumar, S/o Nemichand Jain[2]. 12. Learned counsel for the respondent/wife submitted that the learned Family Judge failed to appreciate the evidence in proper perspective. 13. The points that arise for consideration are; (1) Whether there are any grounds to allow the appeal; and (2) Whether the petitioner/husband is entitled for a decree of divorce in view of the changed circumstances. POINT NO.1: 14. It is not in dispute that the marriage between the petitioner and the respondent was solemnized on 03.07.2002 at Ganapavaram village and they are blessed with a son on 19.05.2003. It is also not in dispute that the respondent has been residing with her fostered father and mother since 17th August 2005. As rightly observed by the lower Court, it appears that the petitioner has made efforts by taking his elder brother and one Rangacharyulu to the house of the respondent. In fact, in the reply notice Ex.A4 itself the respondent stated that she was ready to join the petitioner if he gives an assurance that he would not harass her. Even the petitioner along with his elder brother and Rangacharyulu went to the house of the respondent and persuaded her and her fostered parents to send the respondent to the house of the petitioner. The only point where they could not agree is that the respondent and her parents seems to have demanded the petitioner to execute a bond and also arrange surety, which appears to be not acceptable to the petitioner. It is most unfortunate that on this small issue, the parties, though accepted to live together, could not live together in spite of their having a son aged about more than 2 years by then. Though the respondent had made certain allegations against the petitioner that he demanded additional dowry and also forced her to get the house of her father conveyed to her, admittedly, no satisfactory evidence was adduced on her behalf to substantiate the same. It is surprising to note that on one hand wife wants to join the company of the petitioner and on the other hand she challenges the decree of restitution of conjugal rights, but, alas, specifically says that she has no objection to agree for divorce provided that maintenance is provided to her and to her child. It has to be seen that she apprehends danger to her life if she joins her husband. In the above circumstances, it appears that the findings of the lower Court are based on proper appreciation of evidence. Even as seen from the grounds of appeal, the only contention raised by the respondent/wife is that she sought an assurance from the petitioner and if at all the petitioner is interested he would have furnished the required assurance. Thus, it is clear that there are no valid grounds to interfere with the reasoned order passed by the lower Court. 15. It is the faith which binds wife and husband. Faith and love and affection in one another and love and affection and concern for their children always plays a key role in maintaining harmonious relations between wife and husband. The parents have to think about the welfare of their children. They must give top priority to the future wellbeing of their children and also for the feelings of their children. They must be prepared to sacrifice something in their life. Differences, suspicious attitude, hasty steps, adamant attitude, without any due regard to the future consequences and with utter disregard to the future wellbeing of their children will ruin the relationship and ultimately may result in breaking the family relationship. A study of recent reports reveals that 60% of the children lodged in juvenile homes are from the disturbed families. It is the parents or at least one of them is responsible for disturbing the minds of the children and creating frustration and dissatisfaction among them and thereby forcing them to adopt unreasonable and anti-social attitude in their future life. Even if there is difference of opinion on any aspect they must sit together, discuss with open heart and try to understand the view point of others. Even if the attitude of one of them is not reasonable or even hurting, they have to forgive and forget. They have to adjust at least for the sake of their children. Disturbed families and children of disturbed families may create unhappy environment and problems to the society. POINT No.2: 16. Coming to the application of the petitioner/husband in FCAMP No.359 of 2010, it is clear that the Family Court passed a decree for restitution of conjugal rights on 19.06.2008, thereby directing the respondent/wife to join the matrimonial home of the petitioner/husband within one month from the date of the order. Admittedly, the respondent did not join the petitioner. It is also on record that the order passed by the Family Court, though challenged in the appeal by the respondent/wife, remains in force, since the same is not suspended by this Court. When the order of restitution of conjugal rights passed in favour of the petitioner/husband is in force, it is obligatory on the part of the respondent/wife to join matrimonial home. 17. Section 13(1A) of the Act is as follows. “(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.” 18. In Dharmendra Kumar v. Usha Kumar (1 supra), the apex Court held as follows. “Section 13(1A)(ii) of the Hindu Marriage Act, 1955 allows either party to a marriage to present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties for the period specified in the provision after the passing of a decree for restitution of conjugal rights. The grounds for granting the relief under Section 13 are subject to the provisions of Section 23 which provide that in any proceeding under this Act, if the Court is satisfied that any of the grounds for granting relief exists and the petitioner is not, in any way, taking advantage of his or her own wrong or disability for the purpose of such relief, the Court may pass a decree for the relief claimed.” 19. In S. Rashmi Pradipkumar Jain v. Pradeep Kumar, S/o Nemichand Jain (2 supra), it was held that in view of sub-section (1-A)(ii) of Section 13 of the Act, either party to marriage may present a petition for dissolution ofmarriage by decree of divorce if there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. 20. Section 23A of the Act is as follows. “23A. Relief for respondent in divorce and other proceedings.- In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.” 21. In this case, admittedly, the wife did not join the husband for a period of more than one year in spite of passing a decree for restitution of conjugal rights directing her to join the company of the petitioner. Thus, it is clear that the petitioner/husband can also make a counter claim for any relief under the Act. In the circumstances, the request of the petitioner/husband appears to be in accordance with law and therefore it has to be granted. 22. We have considered various aspects as above and having taken stock of the whole situation, including the conciliation proceedings conducted by this Court, we fell it expedient to fix a sum of Rs.5,00,000/- (Rupees Five Lakhs only) towards permanent alimony payable to the appellant-wife. 23. For the foregoing reasons, FCA No.146 of 2008 is dismissed, but FCAMP No.359 of 2010 in FCA No.146 of 2008 is allowed granting a decree of divorce dissolving the marriage of the petitioner/husband and the respondent/wife. In the circumstances, no costs. ______________ D.S.R. VARMA, J. ___________________ B. CHANDRA KUMAR, J Date: 21.10.2010 Nsr [1] (1977) 4 Supreme Court Cases 12 [2] 1996-BCR-1-502