Remarriage during the appeal period does not invalidate the marriage but is subject to the outcome of the appeal against the divorce decree.

JUDGMENT:

Ravi Nath Tilhari, J.

Heard Sri Sanka Anil Kumar, appellant, appearing in person through virtual mode, Smt. Nimmagadda Revathi, learned amicus curiae, and Ms. Taddi Sowmya Naidu, learned counsel for the respondent.

2. The appellant and the respondent-Sanka Sruthi @ Sujatha were married on 31.10.2020 as per the Hindu customs and rites.

3. The H.M.O.P.No.35 of 2022 was filed by the respondent-wife seeking decree of divorce under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 by dissolving her marriage with the appellant dated 31.10.2020. The case set up was that the marriage was not consummated. The appellant did not have any interest to lead conjugal life, for no reasons. The respondent went to her father’s house and continued to live with her parents at Bobbili. Panchayat was held in the presence of the elders to resolve the dispute. The appellant though attended, but did not cooperate and resolution could not take place. The respondent suffered with mental agony, mental cruelty and neglect of the appellant. She issued a legal notice on 08.06.2021 for restitution of the conjugal rights, which was replied with false averments. Consequently, the petition for divorce was filed.

4. The appellant/husband denied the case of the respondent. The marriage was not denied. He submitted that the marriage was consummated.The respondent went to her parents house on the pretext of some ceremony there and finally did not return, though in between they lived together from 01.01.2021 to 13.01.2021 at Gajuwaka. He further stated that the caste elders made conciliation on 04.08.2021 and 13.08.2021, but the respondent/wife failed to associate the appellant and for no justifiable reasons, she gave report against the appellant and his family members on 15.08.2021 making allegations of matrimonial cruelty. The appellant gave reply on 01.07.2021 to the notice of the respondent/wife asking her to come and perform the conjugal rights but she failed to respond for that notice. So, the appellant also filed FCOP.No.1836 of 2021 before the Family Court, Visakhapatnam for restitution of conjugal rights. He prayed to dismiss the divorce petition.

5. The learned trial Court framed the following points for consideration:

1. “Whether the petitioner proved the grounds on which the relief of annulment of marriage is sought for?

2. Whether the petitioner proved the grounds on which the relief of divorce sought for?

3. Whether the petitioner is entitled for the decree of divorce as prayed by annulling her marriage with the respondent?”

6. In HMOP No.35 of 2022, the respondent/wife examined herself as PW 1 and further examined one Varanasi Nagaraju as PW 2 and marked Exs.A1 and A2, the documents relating to wedding invitation and photograph of marriage.The appellant examined himself as RW 1 and produced no documents.

7. On point No.1, the finding was recorded that there was no material to prove that the appellant was an impotent. So, on that point, there was no sufficient material/evidence to satisfy the Court to nullify the marriage by declaring it as void under Section 12 (1) (a) of the Hindu Marriage Act, 1955 .

8. On point No.2, the finding was recorded that the appellant intentionally avoided and refused to lead sexual life with the respondent, without any reasonable cause and thereby committed mental cruelty upon the wife. So, the condition under Section 13 (1) (ia) of Hindu Marriage Act, 1955 to seek divorce on the ground of cruelty was satisfied.

9. On point No.3, the petition was