THE HON'BLE SRI JUSTICE B.PRAKASH RAO And THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL NO.1384 OF 2002 JUDGMENT: (Per the Hon’ble Sri Justice G.Bhavani Prasad) Grant of judicial separation led the petitioner in O.P.No.702 of 1998 on the file of the Family Court, Hyderabad, to file this appeal against the order dated 19.08.2001. The appellant approached the Family Court with a request for divorce alleging that she was married to the respondent on 18.02.1979 at Hyderabad and the inter-caste marriage was arranged and negotiated through Dr.Kameshwari, a distant relative of the appellant. The parents of the appellant were stated to have borne the entire marriage expenses and after consummation of the marriage, a son by name Karna and a daughter by name Seetha were born through the wedlock. The appellant alleged that even on the first day of their marital life, the respondent threatened the appellant not to have any notions of greater claims over him than his parents and sister and he also proclaimed that he was magnanimous in not demanding any dowry for the marriage. The appellant also contended that all the earnings of the appellant were not permitted to be spent by her according to her choice and she had no physical or financial freedom during the stay with the respondent. She also claimed that the respondent took complete control of the life of the appellant by deciding every minute as to what she has to do concerning her hair style or clothing or any other activity. She was never permitted to visit her parents or other relations. The appellant also alleged that the respondent was a sexual pervert and used to squeeze her breasts hard till she broke down and the pain would last for several days. He used to kick her hard in the bed and derived pleasure out of her helplessness. She also contended that since 1994, the respondent also developed castiest ideas and belittled the caste of the appellant and her parents. The appellant also claimed that when she was offered candidature for Mayorship for one of the National Parties, the respondent was insisting that she should represent the Yadava Community and the respondent also forced his gender prejudices on the children. The respondent was alleged to have slapped and necked out the appellant number of times and because of his arrogance, the mediators never intervened. Ultimately, the appellant was forced to leave the matrimonial home and was compelled to seek dissolution of the marriage. The respondent contested the petition contending that the disputes need to be settled by conciliation to promote the welfare of the children. He claimed that they lived in a most comfortable environment with the grace of God and absolutely, there were no physical or sexual problems in leading conjugal life for twenty {20} years, in which they were blessed with a son and a daughter. The respondent further contended that the petitioner was holding many posts in non-Governmental Service Organizations and lastly, they had their dinner and entertainment in the house of Smt. Shalini Mistra, IAS, in a family get-together. The respondent also contended that on the night of 15.04.1998, the petitioner suddenly declared that she would leave the matrimonial home to join her parents at Hyderabad and then, she filed the petition for divorce without any reason. Even when he opposed and in spite of the intervention by the well-wishers in high positions, the appellant never properly responded. The respondent, therefore, claimed to be in a helpless situation and stressed on the need to protect and preserve the institution of marriage. The trial Court had taken up the matter on such pleadings and examined the appellant as P.W.1 and her daughter as P.W.2 and marked Exs.A1 to A3 on her behalf. On behalf of the respondent, no oral evidence was adduced while Exs.B1 to B30 were marked, which were confronted to the appellant through her cross examination. The trial Court considered the pleadings and the evidence and came to a positive conclusion after elaborate discussion that continuation of acts of cruelty against the appellant were proved and that the marriage between the couple had broken down. Still the trial Court, taking into consideration the future and prospects of the children and the effect of any decree of divorce on the children, considered it appropriate that a decree of judicial separation alone would be fit to be granted. The appellant was aggrieved that in spite of proof of cruelty to the satisfaction of the trial Court and in spite of the trial Court believing continuous physical torture by the respondent, the remedy of divorce was not granted. The appellant was complaining that judicial separation was not fit in the circumstances of the case and a decree of divorce be granted. Sri K.S.Murthy, learned counsel for the appellant and Sri V.Venugopala Rao, learned counsel for the respondent, are heard at length. The only point for consideration is the appropriate relief to be granted on the proof of continuous acts of cruelty by the respondent against the petitioner as found by the trial Court. The marital relationship between the parties is admitted and their conjugal life spreading to almost twenty {20} years, during which they had a son and a daughter, is also admitted. Both the parties are highly qualified doctors and highly connected, as seen from the pleadings and evidence on record and it was sometime since 1994 that, serious differences appeared to have developed between the couple. The trial Court found on the uncontroverted evidence of P.Ws.1 and 2 that the respondent was stated to be casteist and to be a sexual pervert, who was physically abusing the appellant from time to time. The trial Court also noted from the evidence on record that the appellant denied the suggestions contrary to her version in her cross examination and the trial Court further concluded that the appellant corroborated the claim that the respondent had become caste maniac and was harassing her even in respect of the manner she dresses herself in a saree. The trial Court further found that the various incidents narrated by the appellant showed that she was physically assaulted. There was a particular reference to the incidents on 22nd, 23rd and 24th of April 1998, which were very serious in character. Though there was no independent evidence including the medical evidence concerning the sexual harassment by the respondent to the appellant, the trial Court also reasoned that there could have been no independent evidence concerning the happenings between the couple in their bedroom. The various acts of cruelty were also appreciated with reference to the principles laid down in the precedents cited before the trial Court and these findings of the trial Court about the pain and misery imposed by the respondent on the appellant during their marital tie had become final and remained unchallenged by the respondent in any manner. While the appellant stood by her allegations, which were considered proved by the trial Court, in the absence of any challenge to the findings of the trial Court, these acts of cruelty definitely offer substantial justification for dissolution of the marriage and there could not have been more oppressive and unbearable life for such a highly qualified person like the appellant than to receive such cruel treatment from the husband, whom she believed and married. The only ground on which the relief of dissolution was negatived was stated to be taking into consideration the future of the children. While it is true that the interest of the children forms a relevant factor of consideration in such adjudications, the life of the wife could not have been sacrificed merely on that ground, when on the positive evidence placed by her before the Court, she was entitled to be granted divorce. The version of the appellant and her daughter, who was a minor then, was not subjected to cross examination by the respondent nor he had chosen to enter into the witness box to contradict the same or adduce any other oral evidence. Exs.B1 to B30 have absolutely no relevance to the events that led to separation, as alleged by the appellant. Under the circumstances, the trial Court did not exercise the jurisdiction vested in it in the manner in which it should have been exercised and consequently, the impugned order has to be modified. In the result, the appeal is allowed and the order dated 19.08.2001 in O.P.No.702 of 1998 on the file of the Family Court, Hyderabad, is set aside and the said O.P. is allowed granting a decree of dissolution of marriage, as prayed for. There shall be no order as to costs. _________________ (B.PRAKASH RAO, J) ___________________ (G.BHAVANI PRASAD, J) 9th November 2009 RRB