HON’BLE SRI JUSTICE R. SUBHASH REDDY And HON’BLE SRI JUSTICE A. SHANKAR NARAYANA FAMILY COURT APPEAL Nos. 417 of 2013 & 45 of 2009 DATE: 17.04.2014 Between :
A. Venkata Ramanaiah.
And .….Appellant Ch. Lavanya @ Alahari Lavanya.
…..Respondent.
For Appellant : Appellant appeared in person.
For Respondent : Sri P.Ganga Rami Reddy, Advocate.
< Gist:
> Head Note:
? CITATIONS:
1. AIR 1978 AP 6
2. AIR 1988 CAL 192
3. (2002) 10 SCC 478
4. AIR 1998 P&H 65
5. AIR 1975 BOM 88 (1)
6. AIR 1977 SC 2218
7. (1984) 4 SCC 90
8. AIR 2001 SC 1285 C/15 HON’BLE SRI JUSTICE R. SUBHASH REDDY And HON’BLE SRI JUSTICE A. SHANKAR NARAYANA FAMILY COURT APPEAL Nos. 417 of 2013 & 45 of 2009 COMMON JUDGMENT : (Per Justice R.Subhash Reddy) F.C.A.No.417 of 2013 is preferred under Section 19 of the Family Courts Act, 1984, by the petitioner in FCOP.No.20 of 2011 on the file of Family Court, SPSR Nellore District, aggrieved of order dated 08.11.2013, by which, the Family Court has dismissed the application filed by him under Section 13(1-A)(i) and 13(1)(ia) of Hindu Marriage Act, 1955, seeking dissolution of marriage performed on 12.02.2003, on the ground of non- resumption of cohabitation between the parties for a period of one year after passing of decree of judicial separation. F.C.A.No.45 of 2009 is filed by the same appellant, aggrieved of the order dated 05.01.2009, passed by the Family Court, Nellore, in FCOP.No.296 of 2008, by which, the appellant herein was directed to pay maintenance at the rate of Rs.2,500/- per month, to his daughter.
2. The appellant’s marriage with the respondent was performed on 12.02.2003 at Nellore, in accordance with the Hindu rites and customs and they were also blessed with a female child on 06.03.2005. The petitioner is working as a Programmer (Group-A Officer) in Anti Corruption Branch of Central Bureau of Investigation, Hyderabad and the respondent is working as School Assistant in Zilla Parishad High School, Nidiguntapalem, SPSR Nellore District.
3. Earlier, the appellant herein has filed FCOP.No.214 of 2008 under Section 13(1)(ia) of the Hindu Marriage Act, before the Family Court, Nellore, seeking the relief of dissolution of marriage between him and the respondent on the ground of cruelty. At the same time, the respondent herein has filed FCOP.No.210 of 2008 under Section 9 of the Hindu Marriage Act, seeking the relief of restitution of conjugal rights. The Family Court, Nellore, by common order dated 05.01.2009, dismissed the petition filed by the respondent herein in FCOP.No.210 of 2008 and also rejected the relief of dissolution of marriage as sought by the appellant herein in FCOP.No.214 of 2008, but granted the decree for judicial separation for a period of two years. In the said judgment, the Family Court, observing that both the parties are young and are blessed with a daughter and they are living apart since two to three years and hoping their good senses may prevail for reconciliation, instead of granting decree of divorce, has granted the decree for judicial separation. The operative portion of the said order dated 05.01.2009, reads as under :
“Both the parties are young and are blessed with a daughter aged about 3 years 10 months. They are living apart since 2 to 3 years. If the respondent is granted the relief of restitution of conjugal rights and if such decree remains unexecuted for one year, it would be a ground for divorce. If divorce is granted to the petitioner as prayed for, the interest of their minor daughter will be jeopardized and her life will be in peril. If some time is given by granting judicial separation, good sense may prevail on them and the disputes in between them may be reconciled in due course enabling them to lead happy marital life. In the meantime, the respondent can make all her efforts to get herself transferred to Hyderabad where the petitioner is working or she having resigned her job can also join him. Similarly the petitioner having realized that the salary earned by him is not sufficient in these harden days to live in comfort and give good education to his daughter, may change his idea of getting the respondent transferred to Hyderabad and allow her to continue her job in Nellore District and get himself transferred to the C.B.I. office at Chennai so that he will be at a little distance from the respondent. Hence, to meet the ends of the justice, the petition filed by the respondent for restitution of conjugal rights is to be dismissed. Similarly the relief prayed for by the petitioner to grant divorce is negatived, but in the facts and circumstances stated supra, the parties to this case are granted a decree for judicial separation for two years.”
4. Respondent herein has carried the matter in appeal before this Court in F.C.A.No.100 of 2009, aggrieved of dismissal of her application for restitution of conjugal rights in FCOP.No.210 of 2008, and this Court, by order dated 15.04.2013, dismissed the appeal, and thus, the decree of judicial separation granted in the application filed by the appellant herein in FCOP.No.214 of 2008, has become final.
5. The present petition in FCOP.No.20 of 2011 is filed by the appellant herein seeking dissolution of marriage by granting decree of divorce, on the ground that there was no resumption of cohabitation between the parties for a period of one year or upwards after passing the decree of judicial separation and also on the ground of cruelty.
6. F.C.A.No.45 of 2009 is filed by the appellant, aggrieved of the orders in FCOP.No.296 of 2008, filed by his minor daughter, represented by her mother. In the aforesaid FCOP, the Family Court has granted monthly maintenance of Rs.2,500/- to the child of appellant, and pursuant to the interim orders passed by this Court, the appellant is depositing Rs.2,000/- per month towards interim maintenance to the daughter.
7. In FCOP.No.20 of 2011, it is the allegation of the appellant herein that the respondent was away from him from 13.01.2006 till date and she has subjected him to cruelty. It is alleged that after the orders of judicial separation were passed, on 17.01.2009, at about 9 pm, the brother of respondent by name Ch.Prasada Rao and her maternal uncle by name Nunna Anand trespassed into the house of appellant, caught hold of his cousin A.Venkata Prasad Rao by his shirt, kicked him, beat him and thrown him into Municipal waste water canal, due to which, his cousin received multiple injuries. At that time, the appellant’s father Sri Alahari Venkata Swamy has tried to pacify them, but they also beat his father with hands and the incident was witnessed by neighbours, namely, Sri P.Kameswara Rao and Sri D.Balakrishna Reddy. It is stated that on the complaint given by the appellant’s cousin, a case was registered against Sri Ch.Prasada Rao and Nunna Anand at II-Town Police Station, Kavali in Crime No.6 of 2009 for the offences under Sections 448, 323 r/w.34 of IPC, and as a counter- blast to the said complaint, Sri Nunna Anand has filed a complaint against the petitioner and his family members before the II-Town Police Station, Kavali, and the same was registered in Crime No.7 of 2009 for the offences under Sections 324, 323, 379 r/w.34 of IPC. It is stated that the Police have conducted investigation into both the complaints and filed a report stating that the complaint filed by Sri Nunna Anand was false. It is alleged that the respondent is harassing the appellant and his parents by booking false criminal cases and causing mental agony and defamation by humiliating him and his parents and such conduct of respondent is making it impossible for him to live with her. It is also stated that the father of appellant has visited the respondent’s house for reconciliation on two occasions, but the house was found locked and the efforts made by them to find the respondent’s residential address went in vain. Appellant had also gone to Zilla Parishad High School, Ramatheerdham on 20.06.2009 and tried to talk with the respondent, but she communicated through some person that she did not want to talk to him and thus insulted him. It is also stated that on 14.06.2010 also, he went to the respondent’s school at Nidiguntapalem and tried to talk to her, but she refused. It is stated that the respondent has been continuously harassing the appellant by calling to the CBI office and abusing him and intimidating him by threats to his life and trying to defame and insult him and his family members before his relatives. Thus, alleging that the respondent is not interested in leading marital life with him, the appellant sought for dissolution of marriage on the ground of cruelty and also on the ground that there is no resumption of cohabitation for one year after granting the decree of judicial separation by the trial Court in FCOP.No.214 of 2008.
8. Respondent has filed counter affidavit, admitting her marriage with the appellant and birth of child out of their wedlock and also filing of cases between them, including the maintenance case and passing of decree of judicial separation for two years. In the counter, respondent has pleaded that she made an effort to get transferred to Hyderabad on the ground that her husband was employed in Hyderabad, but as the appellant has not consented for her transfer, she could not get inter-district transfer from Nellore to Hyderabad. While denying all the allegations of harassment, respondent pleaded that the appellant had never made any attempt for resumption of cohabitation with her, and on the other hand, when she made her sincere attempts to approach the appellant for cohabitation with him, the same resulted in retraction, so the appellant cannot take advantage of his own wrong as a cause of action for dissolution of marriage. In the counter, reference was also made to an appeal preferred against the order and decree in FCOP.No.214 of 2008 and the said appeal is pending (but it is the case of appellant that such an averment is wrong and no appeal was preferred against the judgment and decree in FCOP.No.214 of 2008, but appeal is preferred against the dismissal of her application in FCOP.No.210 of 2008, which is also dismissed by this Court). Further, pleading that as there is no cause of action for filing the petition for divorce and as the cruelty attributed by the appellant is a concocted story to detach the relationship under the colour of alleged cruelty, prayed for dismissal of the petition.
9. Before the Family Court, appellant herein was examined as PW-1 and on his behalf, PWs.2 to 4 were examined and documentary evidence under Exs.A-1 to A- 18 were marked. Respondent herein was examined as RW-1 and on her behalf, RWs.2 to 5 were examined and documentary evidence under Exs.B-1 to B-13 and X-1 to X-16 were marked, apart from marking Ex.C-1, letter of D.E.O., Sangareddy.
10. The Family Court, while appreciating the oral and documentary evidence on record, has recorded a finding that the appellant/petitioner has not established that respondent has caused cruelty. The Court has found that except making bald allegations, no material is placed before it to prove the allegation of cruelty. Coming to the 2nd ground raised by the appellant, namely, non- resumption of cohabitation for one year from the date of granting decree for judicial separation, the Family Court found that satisfactory evidence was not adduced by the appellant to show that he made efforts to cohabit with the respondent and also did not make any effort for his transfer from Hyderabad to Chennai as per the observations made in the earlier order passed in FCOP.No.214 of 2008. While observing that the appellant herein was trying to take advantage of his own wrong, the Family Court has recorded a finding that he is not entitled for decree of divorce on the ground of non-resumption of cohabitation.
11. Heard the petitioner Sri A.Venkata Ramanaiah, who appeared in person, and the learned counsel Sri P.Ganga Rami Reddy, appearing for respondent.
12. In this appeal, it is contended by the appellant, who has appeared in person that, in view of the fact that the earlier judgment granting decree of judicial separation has become final and as there was no resumption of cohabitation between him and the respondent for one year after passing of such decree, he is entitled for grant of divorce in view of the provisions under Section 13(1-A) of the Hindu Marriage Act, 1955. It is submitted that, though, earlier also in FCOP.No.214 of 2008, he has prayed for decree for dissolution of marriage on the ground of cruelty, the Court below, instead of granting decree for dissolution of marriage, has ordered for judicial separation for a period of two years, hoping that there could be reconciliation between the appellant and respondent. It is submitted that inspite of best efforts made by the appellant, there is no cohabitation for a period of one year, as such, he is entitled for decree of divorce. It is submitted that even assuming that no effort was made by him for cohabitation, same cannot be construed as a wrong within the meaning of Section 23(1) of the Hindu Marriage Act, 1955, so as to deny the relief of decree of divorce by dissolving the marriage. In support of his contentions, the appellant has relied on the judgments in N.Varalakshmi Vs. N.V.Hanumantha
[1]
Rao , Sumitra Manna Vs. Gobinda Chandra Manna
[2]
, M.Aruna Kumari Vs. A.V.Janardhana Rao
[3]
,
[4]
Kumud Wadhwa Vs. Mahender Kumar Wadhwa , Jethabhai Ratanshi Lodaya Vs. Manabai Jethabhai
[5] [6]
Lodaya , Dharmendra Kumar Vs. Usha Kumar and
[7]
in Smt. Saroj Rani Vs. Sudarshan Kumar Chadha .
13. On the other hand, it is contended by Sri P.Ganga Rami Reddy, learned counsel appearing for respondent that, though, in earlier FCOP.No.214 of 2008, the Family Court has granted decree for judicial separation for a period of two years with the hope that parties may unite by reconciliation and may lead happy marital life, but inspite of the same, no efforts were made by the appellant for reconciliation. It is further submitted that as the respondent is working as Teacher in Nellore District, she also made attempts for inter-district transfer to get her services transferred to Hyderabad, but only due to non- cooperation of the appellant, she was not transferred, and on the other hand, the appellant did not make any effort for transferring his services to Hyderabad from Chennai, which is the nearest place to the work place of respondent. In that view of the matter, the appellant cannot seek for dissolution of marriage, as an advantage of his own lapses, on the ground that there is no resumption of cohabitation for a period of one year after granting decree for judicial separation. The learned counsel, in support of his arguments, has placed reliance on the judgment in Hirachand Srinivas Managaonkar
[8]
Vs. Sunanda .
14. Having heard both sides, we have carefully perused the material on record and the judgment, dated 08.11.2013 in O.P.No.20 of 2011, and the earlier common order, dated 05.01.2009, passed by the trial Court in FCOP.Nos.210 and 214 of 2008.
15. Earlier, appellant herein has filed FCOP.No.214 of 2008 on the file of Family Court, Nellore, seeking dissolution of marriage by granting decree of divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955. At the same time, respondent has also filed FCOP.No.210 of 2008 under Section 9 of the Hindu Marriage Act, seeking restitution of conjugal rights. Both the applications came to be disposed of by common order dated 05.01.2009 by the Family Court, Nellore, dismissing the application filed by the respondent and granting decree of judicial separation for two years, while rejecting the relief for grant of divorce in FCOP.No.214 of 2008 filed by the appellant.
16. Section 10 of the Hindu Marriage Act, 1955 enables either of the parties to the marriage to seek judicial separation. Such a relief can be sought for on any of the grounds specified in Sub-section (1) of Section 13 and in the case of wife also, on any of the grounds specified in Sub-section (2) of Section 13. Under Section 10(2) of the Act, where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application of either party and on being satisfied with the truthfulness of the statements made in such petition, rescind the decree, if it considers it just and reasonable to do so. If we take the meaning of “judicial separation” as given in New Oxford Dictionary of English, it is defined as an arrangement, by which, the husband or wife remain married but live apart, following a Court order. It is clear from the provision under Section 10 of the Act that if the husband files an application for judicial separation, he has to prove the grounds specified in sub-section (1) of Section 13, so as to obtain the decree for judicial separation and once the decree for judicial separation is granted, the marital tie between the parties will continue to operate, but at the same time, it will no longer be obligatory for the parties to cohabit with the other, and on the application by either of the parties, such decree of judicial separation can be rescinded if the Court considers it just and reasonable to do so. It is clear from the provision that a further chance is given before grant of relief under Section 13, so as to enable the parties for reconciliation by themselves or to seek to rescind the decree of judicial separation in case of cohabitation between them within the period of one year from the date of granting judicial separation.
17. In the case on hand, it is to be noticed that the Family Court, earlier in FCOP.No.214 of 2008, has granted decree for judicial separation by order dated 05.01.2009, while dismissing the application filed by the respondent in FCOP.No.210 of 2008, for restitution of conjugal rights. Though, the respondent has carried the matter in appeal against the order in FCOP.No.210 of 2008 before this Court in FCA.No.100 of 2009, the same was dismissed by a Division Bench of this Court by order dated 15.04.2013. It is also not in dispute that against the decree for judicial separation granted by the Family Court, no appeal is filed before this Court and the said decree has become final. In such factual scenario, the question which falls for consideration is whether the appellant is entitled for grant of decree of divorce on the ground that there is no resumption of cohabitation for one year from the date of granting decree for judicial separation. The further question which is to be considered by this Court is, whether the allegation of the respondent that no efforts were made from the side of the appellant to cohabit with her, can be construed as a “wrong” within the meaning of Section 23 of the Hindu Marriage Act, 1955, so as to deny the relief of decree for divorce.
18. Coming to the judgments relied on by the appellant, a Division Bench of this Court in N.Varalakshmi’s case (1 supra), while interpreting the resumption of cohabitation with reference to judicial separation under the provisions of the Hindu Marriage Act, has opined that within the meaning of sub-section (1-A) of Section 13 of the Hindu Marriage Act, resumption of cohabitation between the parties after decree for judicial separation has been passed, is resumption of cohabitation by meeting of minds, by volition of both the parties or by reconciliation, and that resumption of cohabitation within the meaning of Section 13(1-A) is not a unilateral attempt made by one of the spouses against the will of the other to resume cohabitation. In the said judgment, it is further observed that when a decree for judicial separation is obtained by the husband, he is entitled to live separately from wife. In Sumitra Manna’s case (2 supra), a learned Single Judge of Calcutta High Court has held that once there is a decree for judicial separation at the instance of wife, husband is no longer under an obligation to cohabit with wife. It is further held that failure to do so would constitute no “wrong” within the meaning of Section 23(1)(a) of the Hindu Marriage Act, to disentitle him for a decree of divorce. In the said judgment, the learned Single Judge has held;
“I have no doubt that a meaningful and a purposive approach to the provisions of S.10(2) would at once make it clear as to why the petitioner only has been mentioned as the party freed from the obligation to cohabit. As is well known, any subsequent cohabitation between the parties might go a long way to cut at the very root of a decree for judicial separation and, as the later part of S.10(2) itself indicates, might be a ground to persuade the court to rescind the decree on an application by any party thereto. The earlier part of S.10(2) by providing that “it shall no longer be obligatory for the petitioner to cohabit with the respondent”, only makes it expressly clear that the petitioner, who has obtained a decree for judicial separation, may be after a strenuous and protracted litigation, can conserve the decree after turning down all approaches or overtures of the respondent towards reconciliation and cohabitation and proceed for a decree for divorce after the statutory period. The provisions have got nothing to do with the obligation of the respondent to cohabit with the petitioner and, as already stated, even de-hors the provisions of S.10(2), both the spouses are relieved from any obligation to cohabit with each other on the passing of a decree for judicial separation.”
I n M.Aruna Kumari’s case (3 supra), the Hon’ble Supreme Court has confirmed the granting of decree of divorce, where there is no resumption of cohabitation between the parties for a period of one year from the date of decree of judicial separation. I n Kumud Wadhwa’s case (4 supra), a Division Bench of Punjab and Haryana High Court has held that if there is no cohabitation for a period of one year or more after the decree of judicial separation, husband is entitled to a decree of divorce. In Jethabhai Ratanshi Lodaya’s case (5 supra), a Division Bench of Bombay High Court has held in paragraphs 114, 115 and 116, as under :
“114. Now, as held by us, if there was no obligation on the appellant to make any efforts to resume cohabitation with the respondent, then the finding by the learned Judge of the City Civil Court, as confirmed by the Single Judge of this Court, that the appellant by reason of his failure to take steps to bring about a reconciliation with his wife was taking advantage of his own wrong is clearly erroneous and cannot be sustained.
115. It is to be noticed that there was no dispute whatsoever that after the decree for judicial separation dated the 6th of November 1963 there had been, in the words of Sec.13(1A) itself no resumption of cohabitation as between the parties for the requisite period. The condition prescribed by Section 13(1A), is, therefore, satisfied and the appellant was clearly entitled to a decree for divorce.
116. It is also to be noticed that no other “wrong” was attributed to the appellant, other than his so-called obligation to obtain a reconciliation.”
In the judgment of Hon’ble Supreme Court in Dharmendra Kumar’s case (6 supra), it is held that in order to be a “wrong” within the meaning of Section 23(1) (a) of the Hindu Marriage Act, the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. Similar findings are recorded by the Hon’ble Supreme Court in Smt.Saroj Rani’s case (7 supra), to the effect that to construe “wrong” under Section 23(1)(a), it must be something more than mere disinclination.
19. Though, the learned counsel for respondent has opposed the claim of appellant for grant of divorce on the ground that there was no effort from the side of appellant for resumption of cohabitation after the decree for judicial separation was granted by the Family Court on 05.01.2009, at the same time, respondent has not disputed in the counter filed before the Family Court or by the learned counsel appearing for respondent before this Court that there was no resumption of cohabitation for a period of one year after the decree of judicial separation, but he pleads that there was no effort from the side of appellant for cohabitation, which is a “wrong” on the part of appellant within the meaning of Section 23(1)(a) of the Hindu Marriage Act to refuse the relief of decree of divorce, and in support of his contention, he has relied on the judgment of Hon’ble Supreme Court in Hirachand Srinivas Managaonkar’s case (8 supra). As the sole defence of respondent is based on the said judgment, we have carefully perused the same. In the said judgment, the only point was whether the husband, who has filed a petition seeking dissolution of marriage by decree of divorce under Section 13(1-A) of the Hindu Marriage Act, can be declined the relief on the ground that he has failed to pay maintenance to the wife and children, disobeying the order of the Court. In the aforesaid judgment, there was also an allegation that the husband was living in adultery and was continuing to lead adulterous life even after decree of divorce, which was construed as “wrong” under Section 23(1)(a) of the Act. In that context, the Hon’ble Supreme Court has held that such conduct of the husband is a “continuous wrong” and does not get wiped out by mere grant of decree for judicial separation. It was further observed that inspite of granting decree of judicial separation, the husband did not comply with the conditions of decree with regard to payment of maintenance to wife, and in that context, it was held that he has committed “wrong” within the meaning of Section 23 of the Hindu Marriage Act.
20. Coming to the facts of the case on hand, there is no such allegation of violation of any of the conditions of decree for judicial separation. In fact, the application filed by the respondent/wife for restitution of conjugal rights was rejected by the trial Court and the decree for judicial separation was granted in the application filed by the appellant for grant of divorce. There is also no dispute that the appellant/husband is paying maintenance amount to the child, as ordered by the Family Court.
21. After perusing the aforesaid judgment of the Hon’ble Supreme Court, we are convinced that having regard to the facts of the case on hand, the said judgment would not render any assistance in support of the case of respondent for opposing the relief of decree of divorce sought by the appellant. As much as the decree of judicial separation granted in favour of the appellant in FCOP.No.214 of 2008 for a period of two years has become final and admittedly, there was no cohabitation for a period of one year or thereafter, between the appellant and respondent, and in the absence of any other allegation or conduct amounting to a “wrong” within the meaning of Section 23(1)(a) of the Hindu Marriage Act, we are of the view that mere disinclination or not taking steps either for his transfer from Hyderabad to Chennai or not making further effort to cooperate with the respondent for her transfer from Nellore to Hyderabad, cannot be construed as a “wrong” at all. In that view of the matter, in view of the provisions under Section 10(2) r/w. 13(1-A) of the Hindu Marriage Act, we are convinced that it is a clear case where there is no cohabitation within a period of one year from the date of decree of judicial separation, as such, the appellant is entitled for dissolution of marriage by way of decree of divorce. The judgments relied on by the learned counsel for appellant, which are referred to above, make it very clear that whether any attempts are made by any of the spouses for cohabitation would be immaterial in the absence of any evidence to show that there was cohabitation. We are also conscious of the fact that cohabitation does not necessarily mean only sexual intercourse between wife and husband, but as per Mulla’s Hindu Law, “cohabitation” means living together as husband and wife. It consists of the husband acting as a husband towards the wife and the wife acting as a wife towards the husband, the wife rendering housewifely duties to the husband and the husband supporting his wife as a husband should. Cohabitation does not necessarily depend on whether there is sexual intercourse between husband and wife. If there is sexual intercourse, it is very strong evidence – it may be conclusive evidence – that they are cohabiting, but it does not follow that because they do not have sexual intercourse, they are not cohabiting. Even by stretching the definition of ‘cohabitation’ as referred above, we are of the firm view that there is no cohabitation at all between the parties for a period of one year or more after grant of decree of judicial separation by the Family Court in FCOP.No.214 of 2008. As it is not in dispute that for the last several years, parties are living apart, and having regard to the disputes between them, there is no hope of any reconciliation also. In that view of the matter, we are of the view that the reasoning of the Court below that there were no efforts from the side of appellant for cohabitation, by itself, is immaterial to negate the relief of decree of divorce as sought by the appellant.
22. For the aforesaid reasons, the appeal in F.C.A.No.417 of 2013 is allowed and the order and decree dated 08.11.2013, passed by the Family Court, Nellore, in FCOP.No.20 of 2011, is set aside. Consequently, FCOP.No.20 of 2011 stands allowed by dissolving the marriage between the petitioner and respondent, and accordingly, the appellant/petitioner is entitled for the decree of divorce.
23. So far as F.C.A.No.45 of 2009 is concerned, it is filed against the order, dated 05.01.2009, passed by the Family Court, Nellore in FCOP.No.296 of 2008 filed by the minor daughter of the appellant through her mother, claiming monthly maintenance of Rs.8,000/- to meet the basic necessities of the minor child. Alleging that the appellant was drawing an amount of Rs.25,000/- per month as salary, a maintenance amount of Rs.8,000/- per month was sought, but the same was defended by the appellant herein, disputing his salary and it is alleged that he was getting a net salary of Rs.14,720/- per month and he has to maintain his parents and discharge the loans like LIC premiums etc. It was also contended by the appellant that his wife i.e. the mother of the child was also earning an amount of Rs.11,000/- by working as a Teacher. But the lower Court, while appreciating the oral and documentary evidence on record, has ordered maintenance amount of Rs.2,500/- per month to the minor child of appellant.
24. Having regard to the evidence on record, it is clear that father and mother of the child are employees and mother was getting salary of Rs.11,000/- per month and appellant was getting a gross salary of Rs.18,000/- per month. Therefore, we are of the view that the maintenance amount of Rs.2,500/- ordered by the Court below to the child is just and reasonable and such amount is needed to meet the educational needs and other living expenses of the child, apart from the motherly care taken by the respondent. In that view of the matter, we do not find any merit in F.C.A.No.45 of 2009 and the same is accordingly dismissed.
25. For the aforesaid reasons, F.C.A.No.417 of 2013 is allowed and consequently, FCOP.No.20 of 2011 stands allowed dissolving the marriage between appellant and respondent, and the appellant is entitled for decree of divorce, and F.C.A.No.45 of 2009 is dismissed. No order as to costs.
Miscellaneous applications pending, if any, shall stand closed.
17th April 2014 R. SUBHASH REDDY, J N.B:
L.R.Copy be marked. (b/o) ajr
[1] AIR 1978 AP 6
[2] AIR 1988 CAL 192
[3] (2002) 10 SCC 478
[4] AIR 1998 P&H 65
[5] AIR 1975 BOM 88 (1)
[6] AIR 1977 SC 2218
[7] (1984) 4 SCC 90
[8] AIR 2001 SC 1285 A. SHANKAR NARAYANA, J