JUDGMENT

(Per Hon’ble. Justice Moushumi Bhattacharya)

The Family Court Appeal arises out of an order passed by the learned Judge, Family Court, at Secunderabad (‘Trial Court’) dismissing the Family Court Original Petition (‘FCOP’) filed by the appellant for dissolution of the appellant’s marriage with the respondent on the ground of cruelty under section 13(1)(ia) of The Hindu Marriage Act, 1955 (‘the 1955 Act’).

2. The Trial Court dismissed the appellant’s FCOP.No.93 of 2012 on the ground that the appellant developed intimacy with another lady and neglected the respondent and cast aspersions on the respondent for being unsuitable for conjugal life. The Trial Court came to the conclusion that the appellant had filed the divorce petition without any grounds for grant of divorce and only to get rid of the respondent/wife for the sole purpose of continuing to cohabit with the other lady.

3. Learned counsel appearing for the appellant submits that the Trial Court failed to consider the evidence relied upon by the appellant for establishing the ground of cruelty. Counsel submits that the cruelty on the part of the respondent would be evident from the fact that the respondent filed a false case against the appellant under section 498-A of The Indian Penal Code, 1860 and also that there was no cohabitation between the appellant and the respondent. Counsel submits that the respondent refused to provide proper food to the appellant and instead requested the appellant’s mother to cook food for the family. Counsel submits that the respondent underwent a Hysterectomy operation which further contributed to the appellant and the respondent not having a conjugal life.

4. Learned counsel for the respondent/wife seeks to sustain the impugned order by submitting that the appellant failed to produce any evidence of cruelty before the Trial Court. Counsel relies on the evidence of P.W.2 (Manager of the petrol bunk where the appellant used to work) to urge that there was no evidence produced to show that the respondent visited the appellant’s place of work and harassed him. Counsel also relies on the evidence of R.W.2 (the son of the appellant and the respondent) to submit that the appellant had intended to marry the other woman and had in fact informed the R.W.2 of this fact. Counsel places the relevant part of the evidence of R.W.2 to also submit that the appellant intended to make the other woman stay in the same house after marriage which was vehemently opposed by the respondent.

5. We have heard the competing arguments made on behalf of the appellant and the respondent.

6. At the very outset, it is important to focus on a technical issue which is evident from the impugned order. The impugned order dismissed the appellant’s FCOP for dissolution of marriage. The impugned order however proceeded to grant restitution of conjugal rights to the parties on the prayer of the respondent/wife. Admittedly, the respondent did not file any application for restitution of conjugal rights but included a prayer for such in the counter filed by the respondent to the appellant’s FCOP. The counter ends with a prayer portion and prayer (i) reads as follows.

“(i) To direct the petitioner to restitute the conjugal life with the respondent”

7. In paragraph 10, the impugned order records that the prayer of the respondent/wife in her counter, which reads as follows:

“…..The prayer of the respondent-wife in her counter to direct the petitioner-husband to restitute the conjugal life with her is hereby allowed…”

8. Notwithstanding the absence of a formal application, we find that the respondent had pleaded a case for restitution of conjugal rights in her Counter and made out a case for the prayers contained therein. Sections 21 and 23-A of the 1955 Act read with Order VIII Rule 6A and 6B of The Code of Civil Procedure, 1908 (CPC), relating to Counter-Claims by the defendant (the respondent herein) makes it clear that the Trial Court was authorized to grant the prayer for restituti