A spouse cannot claim divorce based on cruelty or desertion when evidence establishes that they themselves prevented the other spouse from cohabiting, and failed to meet the statutory burden of proof for the alleged grounds under the Hindu Marriage Act.

JUDGMENT

(Per Hon’ble Justice B.R.MADHUSUDHAN RAO)

1. This Memorandum of Family Court Appeal is filed under Section 19 of Family Courts Act, 1984 (for short ‘FCA’) assailing the order passed by learned Additional Family Court at Hyderabad, in O.P.No.526 of 2009 dated 03.02.2016.

2.1. Appellant is the petitioner and respondent is the respondent in O.P.No.526 of 2009.

2.2. For the sake of convenience parties will be herein after referred to as appellant-husband and respondent-wife.

3.1. Learned Senior Counsel for the appellant-husband submits that the learned Family Court has failed to consider the evidence adduced by the parties with that of the documents marked thereon. Appellant – husband is acquitted in C.C.No.560 of 2015 for the offences under Sections 498A , 506 and 323 of IPC along with his family members. Senior Counsel further submits that he has filed two separate applications to receive additional documents i.e., chief examination, affidavits of Shilpa (respondent-wife) in DVC.No.6 of 2009, Chief examination affidavit of Kishan Rao in DVC No.51 of 2010, copy of the order in DVC No.74 of 2012 and copy of the judgment in Criminal Appeal No.645 of 2017, copy of FIR.No.271 of 2011 and copies of chief examination affidavit of Bhaskar Rao – PW.1 (appellant-husband), Ch.Laxman @ Shankar – PW.2, I.Shekar @ Govind Rao – PW.3, K.Hari – PW.4, Shilpa – RW.1 (respondent-wife), S.Kishan Rao – RW.2 in OP.No.526 of 2009 and the copy of the judgment in C.C.No.560 of 2015. Senior Counsel further submits that since the appellant husband is acquitted in the criminal case, respondent-wife has not preferred any appeal against the said judgment, the ground of cruelty is proved and that the appellant – husband is entitled for grant of divorce.

3.2. Counsel further submits that respondent-wife made an allegation that the appellant – husband is having illicit intimacy with a Muslim woman which is not proved by her and on that ground also the appellant - husband is entitled for grant of divorce.

3.3. Learned Senior Counsel in alternate submits that O.P. may be remanded for fresh consideration by taking into consideration the documents filed by the parties.

4. Learned counsel for the respondent-wife submits that the respondent-wife has not preferred appeal against the judgment in C.C.No.560 of 2015 as she was interested to lead marital life with her husband, couple are blessed with a daughter by name Surakshita and she is studying B.Tech II year and the learned Trial Court has assessed the evidence of the parties in right perspective and rightly dismissed the OP filed by the appellant - husband. No interference is called for and prayed to dismiss the appeal.

5.1. Appellant-husband has filed O.P under Section 13 (1) (ia) (ib) of the Hindu Marriage Act, 1955 to dissolve his marriage on the grounds of cruelty and desertion.

5.2. It is stated in the petition that the marriage of the parties is performed on 14.08.2005 at Hyderabad as per Hindu Rites and Customs, the marriage is consummated and they are blessed with a female child. Respondent-wife did not adjust herself in the family. She appears to be a psycho and used to quarrel with her husband, mother-in-law, sister-in-law and brother-in-law without any reasons on petty matters, used to leave the company of her husband and go to her parents' house. Respondent-wife was trying to marry her younger sister by name Swetha to the appellant-husband’s brother and she used to motivate her brother-in-law for marrying her sister – Swetha. Father of the appellant-husband has beat his mother due to which she lost her teeth and was hospitalized. Respondent-wife has left the society of the appellant-husband for delivery and she gave birth to a female child on 12.07.2006. She joined his company in the month of April 2007. Respondent-wife has left his company on 30.04.2007 and did not return back in spite of his best efforts. Howe