THE HON'BLE SRI JUSTICE L.
NARASIMHA REDDY F.C.A.No.45 of 2008 (Judgment of the Bench delivered by the Hon'ble Sri Justice L.
Narasimha Reddy) 29-04-2013 R.Jagadeesh ..Appellant Smt.
R.
Renuka ..Respondent Counsel for the appellant:Sri J.
Kanakaiah Counsel for the Respondent:Smt.
Ramani Jonna HEAD NOTE: ?Cases referred JUDGMENT
:Per the Hon'ble Sri Justice L.
Narasimha Reddy) The appellant is the husband of the respondent.
Their marriage took place on 23-03-2003, and they were also blessed with a son.
Thereafter, they are living separately.
The appellant filed FCOP No.259 of 2006 against the respondent in the Family Court, Secunderabad, under Section 10 of the Hindu Marriage Act, 1955 (for short 'the Act'), for a decree of judicial separation.
It is stated in the O.P.
that though they were in good relations for some time, the respondent was behaving in a peculiar manner, subsequently.
According to him, the respondent used to wake up only at 9:00 a.m., and was not doing any household work and she used to be in a moody condition, so much so, that she was not even noticing the presence of others, around her.
It is also alleged that the respondent is a chronic asthma patient and was insisting on that the appellant should set up a separate residence.
The appellant pleaded that on one occasion, the respondent did not even react, when the T.V.
set has fallen upon the son, right in her presence.
It was also alleged that the respondent refused to join him, in spite of repeated requests.
A counter was filed by the respondent in the O.P., denying all the allegations.
She stated that though the appellant was in good relation with her, till the boy was born, he started ill-treating her thereafter, particularly after returning from Tirupati.
She stated that hardly she was left with any privacy, and the family members used to watch T.V.
even late in the night, up to 11:30 p.m., forcing her to remain without any sleep.
She stated that though she was extending all her cooperation to the other family members, such as, mother and sister of the appellant, all of them have collectively ill-treated her, and ultimately sent out from her matrimonial abode.
The respondent filed FCOP NO.357 of 2006 in the same Court against the appellant under Section 9 of the Act.
Almost the same pleadings were repeated by the parties.
Through a common order dated 26-10-2007, the Family Court dismissed FCOP No.259 of 2006, and decreed FCOP NO.357 of 2006.
This appeal is filed against the order and decree in FCOP No.259 of 2006.
Heard Sri J.
Kanakaiah, learned counsel for the appellant and Smt.
Ramani Jonna, learned counsel for the respondent.
Though there were two OPs between the same parties, and they were disposed of through a common order, the appellant has filed appeal against the order and decree in one OP, i.e., FCOP No.357 of 2006.
In other words, the order and decree in FCOP No.259 of 2006 became final.
It is well settled principle of law that, if a common judgment was rendered between the same parties, by the same Court, in two proceedings, failure to file appeal against one of the proceedings, would make the principle of res judicata applicable, and the appeal filed against one such order becomes barred.
This one ground is sufficient to on-suit the appellant.
Assuming that there is no such bar, in the instant appeal, it needs to be seen, as to whether the appellant has made out a case for grant of judicial separation, on the grounds of cruelty.
The appellant deposed as PW-1.
PW-2 is the deceased- mother.
No documentary evidence was adduced.
The respondent deposed as RW-1.
It is interesting to note that her father-in-law i.e.
the father of the appellant herein, deposed as RW-2, and supported the respondent.
No documentary evidence was adduced on her behalf.
On the basis of the pleadings before it, the Family Court framed the following points for its consideration: In O.PNo.259 of 2006:
1. Whether the respondent subjected the petitioner to cruelty? 2) Whether the respondent is suffering from any mental disorder? In O.P.No.337 of 2006:
1. Whether the petitioner/wife is entitled to seek restitution of conjugal rights? The point that arises for consideration in this appeal is, whether the appellant has made out a case for grant of judicial separation, on the grounds of cruelty, on the part of the respondent.
The Act confers right upon a spouse to a Hindu Marriage to seek the relief of judicial separation under Section 10, or divorce under Section 13.
Though the legal consequences that flow from a decree for judicial separation, on the one hand, and divorce, on the other hand, are substantially different, no separate grounds are stipulated for seeking the judicial separation.
Section 10 of the Act makes it abundantly clear that the relief under that provision can be sought by pleading any grounds, that are mentioned under Section 13(1) thereof.
It has already been mentioned that the appellant pleaded that the acts and omissions on the part of the respondent constitute cruelty, as defined under Section 13(1)(ia) of the Act.
The acts and omissions of a spouse, to constitute cruelty, and thereby, a ground for judicial separation, or divorce, must be such that, the other spouse is unable to bear the amount of pain in the marital life.
It is only when the spouse, complaining of cruelty, is otherwise innocent, and the objectionable behaviour and conduct emanated from the other spouse, that the Court can grant the relief.
If the one complaining of cruelty is, himself, or herself, guilty of such acts and omissions, and the other party has only responded or reacted, the contention cannot be accepted, much less relief can be granted.
This is a typical case; where even if the contents of the OP filed by the appellant are taken on their face value, no relief can be granted to him.
The grounds pleaded by the appellant are that the respondent used to wake up at 9:00 a.m., she was not doing any domestic work, and she was in a moody condition and that she is a chronic patient of asthma.
It is ununderstandable as to how these grounds even if taken as true, would amount to cruelty.
The version of the respondent is that the house is very small and the family members of the appellant used to watch T.V.
after 11:30 p.m., and occasional late awakening was cited, as a ground.
She further stated that she was suffering from gyeanic problems, and the appellant and mother-in-law never used to care for her.
Instead of taking care of his wife, the appellant has made an attempt to cite the ground of ill-health, for obtaining the relief.
The Family Court has made an important observation.
The appellant did not complain of any enmity between himself and his father.
The very fact that the father of the appellant had supported the case of the respondent discloses that it is the appellant, who is guilty of acts of cruelty.
Unfortunately, a tendency has developed, in the recent past, wherein irresponsible spouses are attempting to break the marriage, just by wishing it away.
Unless such tendency is curbed, the very institution of marriage and the importance attached to it, are likely to suffer a serious dent.
The appeal is accordingly dismissed.
The miscellaneous petitions filed in this appeal shall also stand disposed of.
There shall be no order as to costs.
________________________ L.
NARASIMHA REDDY, J.
______________________ K.G.
SHANKAR, J.
Dt.29-04-2013