Telangana High Court
Sri Bommi Narasimha Sankeerth Reddy vs Smt. Neelima Vanguru on 19 August, 2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
F.C.A.Nos.60 and 62 OF 2021
Mr.J.Prabhakar, learned Senior Counsel representing Ms.V.Preethi Reddy, learned
counsel for the appellant.
Mr.S.Ravi, learned Senior Counsel representing Mr.Dharmesh K.Jaiswal, learned
counsel for the respondent.
COMMON JUDGMENT:
(Per Hon’ble. Justice Moushumi Bhattacharya)
1. The Family Court Appeals arise out of an impugned Common
Order dated 28.01.2021 passed by the learned XV Additional District
and Sessions Judge-cum-II Additional Family Judge, Ranga Reddy
District at Kukatpally. The impugned Common Order was passed in
the two Family Court Original Petitions (F.C.O.P.Nos.1139 and 1252 of
2017) by the respondent wife and the appellant husband, respectively.
2. The respondent/wife filed F.C.O.P.No.1139 of 2017 on
29.05.2017 seeking restitution of conjugal rights. The
appellant/husband thereafter filed F.C.O.P.No.1252 of 2017 on
31.05.2017 seeking divorce on the ground of cruelty.
3. By the impugned Common Order, the learned Family Court
allowed the respondent’s F.C.O.P. by granting a decree for restitution
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of conjugal rights and dismissed the appellant’s F.C.O.P. for divorce,
with costs. The appellant was directed to comply with the order dated
06.03.2020 passed by the Trial Court and as confirmed by the High
Court on 02.12.2020 with regard to payment of interim maintenance of
Rs.2 lakhs to the two children of the parties from 29.03.2018 –
04.12.2018 and from 05.02.2018 at the rate of Rs.3,12,500/- per
month until further orders.
4. The appellant/husband has filed the present two Family Court
Appeals challenging the dismissal of the appellant’s F.C.O.P for
dissolution of marriage and against the grant of restitution of conjugal
rights in favour of the respondent/wife.
5. The brief facts leading to the filing of the instant Family Court
Appeals are as follows:
6. The parties married as per Hindu rites and customs on at
Hyderabad 03.08.2008. A son and a daughter were born to the parties
on 29.09.2012 and 19.08.2015, respectively. Thereafter, disputes
arose between the parties leading to the respondent/wife filing a
F.C.O.P. for restitution of conjugal rights, followed by the
appellant/husband filing a F.C.O.P for divorce. The appellant
examined himself as P.W.1 and marked Exs.P.1 to P.35 to establish
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‘cruelty’ as a ground for divorce. The respondent was examined as
R.W.1, along with the appellant’s maternal uncle as R.W.2 and the
respondent’s father as R.W.3. The respondent marked Exs.R.1 to
R.18. Ex.X.1 was marked through the evidence of R.W.2.
7. In the meantime, the appellant challenged the interim
maintenance amount granted by the Trial Court in I.A.No.358 of 2018
in FCOP.No.1252 of 2017 by filing CRP.No.738 of 2020. The
respondent/wife also filed CRP.No.739 of 2020 for enhancement of
interim maintenance for the minor children. The High Court vide
Common Order dated 02.12.2020 refused to interfere with the interim
maintenance granted by the Trial Court and dismissed both the Civil
Revision Petitions. The order records that the petitioner/husband is
willing to join the respondent/wife and that efforts are being made to
settle the matter.
8. The Trial Court considered the evidence adduced by both the
parties and examined the allegations and counter-allegations at a
minute level. The Trial Court framed individual issues in the two
F.C.O.Ps., namely, whether the respondent/wife is entitled to
restitution of conjugal rights and whether the marriage between the
appellant/husband and the respondent/wife ought to be dissolved by
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granting a decree of divorce on the ground of cruelty. The Trial Court
also framed an additional issue i.e., whether the appellant/husband is
entitled to a decree of divorce on the ground of desertion.
9. After considering the evidence, the Trial Court came to the
findings as enumerated below:
(i) The petitioner/husband failed to prove that he was
subjected to harassment and cruelty during the
Christmas holiday trip in December 2008 and the
Cincinnati trip in May 2010;
(ii) The parents of the petitioner, especially his mother,
resided in the USA with the petitioner and the
respondent for several months, thereby affecting the
privacy of the petitioner and the respondent;
(iii) The love and affection between the petitioner and the
respondent were affected by the frequent visits of the
petitioner’s mother to the matrimonial home in the USA;
(iv) The petitioner’s mother played a primary role in the
petitioner’s allegations against the respondent;
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(v) The petitioner could not prove any act of physical
cruelty inflicted by the respondent through medical
reports or other documentary evidence;
(vi) The petitioner could not prove any instance of
inappropriate behaviour on the part of the respondent
towards the petitioner’s mother during the respondent’s
pregnancy;
(vii) The petitioner and the respondent shared a cordial
relationship and mutual affection;
(viii) The messages and e-mails exchanged between the
petitioner and the respondent reveal that they were in
constant touch after their marriage;
(ix) There is no genuine dispute between the parties for
dissolution of marriage; or any extraordinary
circumstances warranting grant of divorce based on the
petitioner’s pleadings;
(x) The petitioner made allegations against the respondent
and the respondent’s father of ‘financial cruelty’ but did
not plead the quantum of money which was allegedly
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transferred from the petitioner’s personal account to the
respondent’s father;
(xi) The main grievance of the petitioner is that the
respondent along with their two children relocated to
India from the USA on 04.10.2015 in a pre-planned
manner;
(xii) It is clear that the petitioner attempted to secure a job in
Hyderabad after the respondent’s return from the USA in
2015. Hence, it cannot be said that the parties did not
arrive at a mutual understanding to relocate to India;
(xiii) The records show that the petitioner did not provide any
maintenance to the respondent from October, 2015 until
the order of interim maintenance passed by the Trial
Court, which was confirmed by the High Court on
02.12.2020;
(xiv) It cannot be said that the respondent voluntarily left the
company of the petitioner in 2015 which would amount
to desertion;
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(xv) The petitioner’s case for dissolution of marriage is diluted
by the fact of the petitioner taking the respondent and
their children for a holiday to Kerala. The petitioner and
the respondent had conjugal life in Hyderabad between
October, 2015 and as late as in January, 2017 when the
parties met in Hyderabad on several occasions;
(xvi) The willingness on the part of the petitioner to join the
respondent and settle the disputes between them would
be evident from the representation made on behalf of the
petitioner on 09.09.2020 which was recorded in the
order of the High Court dated 09.09.2020 passed in
CRP.Nos.739 and 783 of 2020;
(xvii) The petitioner paid only half of the interim maintenance
amount as directed by the Family Court inspite of
confirmation of the same by the High Court. Arrears of
maintenance till December, 2020 amounting to
Rs.45,96,041/- are due from the petitioner;
10. The Trial Court thus arrived at numerous findings from the
evidence before it. A substantial part of the evidence is extracted in
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the impugned order. The Trial Court concludes from the pleadings
and the evidence, including the admissions on the part of the
appellant, that there was no cruelty on the part of the respondent.
The Trial Court further concluded that the allegations are not
sufficient for obtaining a decree of divorce even if the allegations
levelled by the appellant are taken into consideration. Crucially, the
Trial Court concludes that the appellant did not approach the Court
with clean hands and that the alleged cruel acts were condoned by the
appellant including the admitted cohabitation with the respondent
subsequent to filing of the FCOP.
11. The Trial Court proceeded to direct the appellant to join the
marital life with the respondent since they had already settled in
Hyderabad pursuant to an understanding between the parties in
2015. FCOP.No.1252 of 2017 filed by the appellant for grant of
divorce was accordingly dismissed with costs. FCOP.No.1139 of 2017,
filed by the respondent/wife for restitution of conjugal rights was
allowed directing the appellant to join the marital life with the
respondent.
12. Now, to the present Appeals.
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13. Although the appellant raised several grounds in FCOP No.1252
of 2017 for grant of divorce and in the Memorandum of Grounds in the
present Appeals, the following grounds were argued in the Appeals by
learned Senior Counsel.
(a) Financial Cruelty and Desertion.
(b) The disturbance created by the respondent's father in the
house of Dr.Aruna (the appellant's aunt).
(c) The respondent counsel examining the appellant's uncle
as RW.2 amounts to cruelty.
(d) Filing of partition Suit amounts to cruelty.
(e) The Trial Court automatically decreed the Respondent's
FCOP for Restitution of Conjugal Rights upon dismissal
of the Appellant’s FCOP.
(f) The learned Family Court Judge was disqualified from
passing the impugned Common Order after conducting
the Reconciliation proceedings between the parties.
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14. We propose to discuss and give our findings on the individual
grounds argued by learned Senior Counsel appearing for the parties
on each of these issues.
(a) Financial Cruelty and Desertion
15. The appellant claims that the respondent withdrew the money
from their joint bank account, took jewellery and documents from the
locker, and left the USA to return to India with the children on
04.10.2015. This allegation has been denied by the respondent/wife
on the ground that the parties mutually agreed to relocate to
Hyderabad, India.
16. The appellant’s examination as PW.1 and the relevant evidence
are on record. The appellant did not furnish any details as to the
quantum of money transferred from the joint account or even the
quantum of money which exclusively belonged to the appellant. The
appellant has also not given any evidence as to the specific jewellery
items and documents which were allegedly taken by the respondent
when she relocated to Hyderabad, India. The lack of particulars is
relevant since the appellant admits that USD 8500 was given by the
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respondent’s father at the time of the parties’ engagement in April,
2008.
17. The lack of precision with regard to the exclusive ownership of
the money which was allegedly taken out by the respondent dilutes, if
not demolishes, the case of the appellant. There is no pleading
whatsoever to show how much money was transferred by the
respondent from the joint account to the respondent’s account. Vague
pleadings in this respect are not sufficient to make out a case of
‘financial cruelty’ as argued by the appellant.
18. Hence, a mere allegation of financial cruelty on the part of the
respondent does not satisfy the requirement of section 13(1)(ia) of The
Hindu Marriage Act, 1955 (‘the 1955 Act’) which contemplates the
respondent spouse treating the petitioner with cruelty. The cruelty
pleaded must be supported by evidence which is singularly lacking in
this case.
19. The appellant filed the FCOP.No.1252 of 2017 on 31.05.2017
pleading that the respondent had deserted the appellant from
04.10.2015. Although the appellant’s FCOP for grant of divorce was
based on cruelty and desertion, we find that the appellant has not
made out any case for desertion within the statutory requirement of
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section 13(1)(ib) of the 1955 Act which requires the petitioner to be
deserted for a continuous period of not less than two years
immediately preceding the presentation of the petition.
(b) The Disturbance created by the Respondent’s father in the house of
Dr.Aruna (the appellant’s aunt) and a phone call between the
Respondent’s representative and the Appellant’s father as Evidence of
Cruelty.
20. First and foremost, it should be mentioned that the appellant
did not plead this ground in the Memorandum of Grounds to the
present Appeals. The allegation is that the respondent’s father went to
the house of the appellant’s maternal aunt – Dr.Aruna – and caused a
commotion. The pleading in this regard in the evidence affidavit filed
by the appellant as PW.1 is vague and without any particulars. There
is no evidence in the form of audio or video recordings or any
complaint made by Dr.Aruna against the respondent’s father after the
alleged incident. In fact, the appellant admitted to the fact of
Dr.Aruna not making any complaint to any authority after the incident
or filing of any third party affidavit in the matter. Dr.Aruna did not
give any evidence in support of the allegations made by the appellant
in his cross-examination on 19.12.2020. The appellant also conceded
that there was no need to examine Dr.Aruna with regard to the
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incident. Further, the CD marked as Ex.P35 shows a CCTV footage of
a few people walking through the main gate of an unknown place and
one person holding a phone in his hand as well as the telephonic
conversation between this person and a female voice. No transcripts
of the recording were marked in the evidence. The contents of the two
clips available in the CD were also not pleaded by the appellant in his
pleadings or in his evidence. The appellant did not file the electronic
evidence along with the required certificate under section 65B of The
Indian Evidence Act, 1872. Moreover, the respondent’s father, RW.3
denied the said allegation in his chief affidavit and also denied any
suggestion that Dr.Aruna filed any complaint against him. The
submissions made by learned Senior Counsel appearing for the
appellant in this regard are not backed by any evidence.
21. The absence of any evidence with regard to the alleged
disturbance created by the respondent’s father including any
complaint filed by the appellant’s aunt (Dr.Aruna) with regard to the
alleged incident is sufficient for rejecting this ground. In any event, an
act on the part of the respondent’s father, even if taken to be true,
cannot be transmitted to the respondent as cruel conduct on the part
of the latter.
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22. The phone conversation between the respondent’s representative
and the appellant’s father does not merit any consideration. The
appellant contends that the respondent’s representative used insulting
words against the appellant’s parents. We fail to see the relevance of
this argument since the conversation does not involve either the
respondent or the appellant and is between third parties.
(c) The Respondent’s counsel examining the Appellant’s uncle as RW.2
amounts to cruelty.
23. The respondent’s counsel examined RW.2 who is the maternal
uncle of the appellant, as, in his presence, the father of the respondent
, gave an amount of Rs.1 crore to the appellant through his mother for
the purpose of purchasing a house in the USA.
24. The appellant did not raise this ground before the Trial Court or
in the present Appeals. Learned Senior Counsel appearing for the
appellant has made oral submissions in this regard. In this context, it
is relevant to state that a party can bring any witness to give evidence
or to produce any documents, without applying for summons under
Order XVI Rule 1A of The Code of Civil Procedure, 1908 (‘CPC‘).
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(d) Filing of Partition Suit Amounts to Cruelty
25. The appellant filed I.A.No.1 of 2024 in FCA.No.62 of 2021 under
Order XLI Rule 27 of the CPC for receiving additional documents i.e.,
the plaint, written statements, affidavits, interlocutory applications
and orders in respect of a suit for partition (O.S.No.61 of 2020) filed by
the two minor children represented by the respondent. The Suit was
filed against the appellant and his family members.
26. Learned Senior Counsel appearing for the appellant argues that
filing of the partition suit impleading the extended family members of
the appellant amounts to cruelty. However, this ground does not form
part of the Memorandum of Grounds in the present Appeals.
27. Learned Senior Counsel appearing for the respondent has
argued that the minor children were constrained to file the Suit as the
appellant failed to pay the interim maintenance as directed by the
Family Court in I.A.No.358 of 2018 in FCOP.No.1252 of 2017.
28. We find from the plaint filed in the suit for partition that the
appellant and his family members were attempting to sell the family
properties contrary to the interest of the minor children which would
be substantiated from their affidavits stating that the properties were
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indeed put up for sale. Ex.R1 is an interim order passed in the
partition suit which records that the appellant and his family members
were ready to deposit Rs.1 crore for alienating the properties. The
intention to alienate the properties was also admitted by the appellant
in the affidavit annexed to I.A.No.1 of 2024 filed before this Court. The
interim order passed in the partition suit on 14.10.2020 is a consent
order wherein counsel for the appellant’s mother and brother stated
that his clients would maintain status quo in respect of the properties.
This interim order was marked by the respondent as Ex.R1 before the
Trial Court. However, the most relevant point is that the appellant
failed to take this as a ground in the instant Appeals even though the
appellant seeks to rely on the same as an act of cruelty.
29. Order XLI Rule 27(1) of the CPC entitles a party to an appeal to
produce additional evidence subject to satisfaction of the three
conditions under Order XLI Rule 27(1)(a), (aa) and (b). The appellant
has not made out any of the grounds under these three conditions for
bringing the documents relating to the partition suit on record in the
present Appeals. Order XLI Rule 27 of the CPC is an exception
enabling the Appellate Court to take additional evidence as opposed to
the general principle that the Appellate Court should not travel beyond
the Trial Court records. The discretion of the Appellate Court is
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circumscribed by the three conditions where a document may be
allowed to be produced where it is found necessary to obtain such
evidence for enabling the Court to pronounce judgment. A party who
had ample opportunity to produce the evidence in the Trial Court but
failed to do so, or elected not to do so, cannot have it admitted in the
appeal: Union of India Vs. Ibrahim Uddin 1.
30. Therefore, filing of the partition suit does not amount to an act
of cruelty. Crucially, the said ground does not form part of the
Memorandum of Grounds in the present Appeals.
31. The plaint filed by the minor children of the parties in the
partition suit (O.S.No.61 of 2020), written statement of the defendant
Nos.1 and 3 in the said suit, a Memo filed on behalf of the defendant
No.2 adopting the written statement of the defendant Nos.1 and 3 were
all prior to the impugned common order dated 28.01.2021 which
forms the subject matter of the present Appeals. Therefore, the
appellant chose not to file these documents before the Trial Court and
has not shown any substantial cause for not doing so. The appellant
has also not raised the filing of the partition suit as a ground in the
Memorandum of Grounds in the two Appeals.
1 (2012) 8 SCC 148
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32. Moreover, the present Appeals were dismissed on 22.09.2022
and conditionally restored on 02.11.2023 despite which the appellant
chose not to raise this ground as cruelty. As stated above, there is
sufficient evidence on record to corroborate the apprehension on the
part of the appellant and his family members trying to alienate the
properties which forms the subject matter of the partition Suit.
33. The affidavit in the petition for amendment of plaint and for
injunction and impleadment were also available much prior to the
dismissal of the appellant’s FCOP. The appellant has not shown any
bona fides in terms of diligence as required in Order XLI Rule 27(1)(aa)
of the CPC, that is exercise of due diligence for production of
additional evidence, if the evidence was not produced at the time of
passing of the decree. Even otherwise, the orders which the appellant
now seeks to bring on record in the partition suit were not challenged
by the appellant and no counter was filed by the appellant to the IAs
filed by the minor children. The other documents in the partition suit
including the docket orders passed therein all suffer from the same
infirmity in terms of the requirement under Order XLI Rule 27 of the
CPC.
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34. The registered Sale Deed sought to be brought on record in
I.A.No.2 of 2024 is a Sale Deed by which the respondent purchased a
flat by obtaining bank loans and hand loan from her father. The
appellant seeks to receive this document to show financial capacity of
the respondent. However, the said justification does not fall within the
three conditions of the Order XLI Rule 27 of the CPC. I.A.Nos.1 and 2
of 2024 are accordingly dismissed.
35. I.A.No.1 of 2025 filed by the appellant for seeking leave to raise
additional Grounds of Appeal is dismissed for the same reason. The
grounds have been raised in the Appeals for the first time without
satisfying the conditions in Order XLI Rule 27 of the CPC.
(e) The Trial Court automatically decreed the Respondent’s FCOP for
Restitution of Conjugal Rights upon dismissal of the Appellant’s FCOP.
36. We have our reservations in accepting the arguments made by
learned Senior Counsel for the appellant in this regard. The
appellant’s case before the Trial Court was of a series of events
amounting to cruelty by transferring amounts from the Joint Bank
Account and locker before relocating to India. The relevant pleadings
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of the parties in the respondent’s FCOP show that the appellant was
also attempting to relocate and settle down in India.
37. A perusal of the cross-examination of the appellant (PW.1)
shows that the appellant admitted that he intended to relocate and
planned to live with the respondent and their children in Hyderabad,
India. The cross-examination of the appellant admitting to
reconciliation with his family is contrary to the appellant’s subsequent
act of filing the FCOP for divorce. The submission made by counsel
appearing for the appellant, as recorded in the order dated 14.10.2020
in O.S.No.61 of 2020, shows that the appellant and the respondent
were living together as a family. As stated above, the order dated
09.09.2020 of the learned Single Judge of this Court further records
that the appellant was willing to join the respondent. The docket
proceeding of the Trial Court dated 15.09.2020 also records the
representation of counsel appearing for the appellant that the
appellant is willing to compromise the FCOPs and join the respondent.
38. Hence, there is no basis in the appellant’s contention that the
respondent’s petition for Restitution of Conjugal Rights was automatic
or was ordered without any justifiable reasons.
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(f) The learned Family Court Judge was disqualified from passing the
impugned Common Order after having conducted the Reconciliation
proceedings between the parties.
39. No such ground was raised before the Trial Court including a
request being made to the learned Judge for recusing from hearing of
the petitions. The ground now being taken by the appellant is hence
not only inordinately-belated but also unfair to the respondent. It may
once again be repeated that the order dated 09.09.2020 of the learned
Single Judge of this Court in the Civil Revision Petitions filed by the
appellant and the respondent records that the appellant is willing to
join the respondent and is making efforts to permanently settle the
dispute. The Civil Revision Petitions were adjourned on that ground,
that is, for enabling the parties to enter into a Compromise and file a
Memo. On 14.09.2020, a Memo was filed before the Trial Court
representing that the parties were intending to compromise which was
also recorded in the proceeding sheet dated 14.09.2020.
40. The Trial Court conducted Reconciliation proceedings which was
closed on 01.12.2020 as the appellant stated that he was going back
to the USA and would return to Hyderabad in December, 2020. The
appellant further filed his evidence affidavit on 16.12.2020 requesting
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the trial to proceed but did not raise any objection therein with regard
to the Presiding Officer conducting the trial and passing the impugned
common order. Moreover, the appellant actively participated in the
reconciliation proceedings conducted by the learned Family Court
Judge.
41. Section 9 of The Family Courts Act, 1984 contemplates a duty
on the Family Court to make an effort for settlement. It is also to be
noted that the learned Family Court Judge kept the reconciliation
proceedings in a sealed cover and copies were furnished to the parties
after a month of passing of the impugned order. The
appellant/husband failed to raise this issue at the relevant point of
time and cannot be permitted now to raise the same in the present
Appeals after having participated in the reconciliation proceedings as
well as the trial.
42. Moti Ram (dead) Through LRS Vs. Ashok Kumar 2, was concerned
with the confidentiality expected in mediation proceedings and the
limited nature of the report sent by the mediator to the Court. The
said judgment has no application to the allegation made by the
2 (2011) 1 SCC 466
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appellant with regard to the disqualification of the learned Family
Court Judge in passing the impugned order.
43. The appellant’s contention with regard to the disqualification/
incompetence of the learned Family Court Judge is accordingly
rejected.
Conclusion
44. We find from the evidence on record that the respondent/wife
always expressed an interest for protecting the marriage and her
family despite the fact that the appellant failed to maintain the
respondent and their children from 2015 – 2021. The appellant
remained a defaulter inspite of several orders including of the High
Court. There are several admitted instances of the appellant
celebrating family life with the minor children including as late as in
October/November, 2024. The appellant has also shown several
instances of willingness to join the respondent and their family and
live in Hyderabad, India. The appellant has lived with the respondent
whenever the appellant came down to Hyderabad from the USA. On
the other hand, the appellant has failed to substantiate the grounds
for divorce on the ground of cruelty or otherwise.
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45. There is no evidence to show that the respondent treated the
appellant with cruelty, either mental, physical, financial or otherwise.
It is settled that the Court must find extraordinary circumstances
warranting dissolution of marriage between the parties. The
appellant’s condonation of the alleged acts of cruelty by living with the
respondent as a family several times after filing of the divorce petition
falls within the bar under section 23(1)(b) of the 1995 Act. Section
23(1)(b) of the 1955 Act contemplates condonation of the acts
complained of when the ground of the petition for divorce is cruelty.
46. We thus agree with the conclusion of the Trial Court of the
absence of any extraordinary features in the appellant’s FCOP for
grant of divorce on the ground of cruelty. We also find that the
appellant was unable to produce evidence of any incident/s or show
any such conduct on the part of the respondent which would amount
to a finding of cruel treatment meted out by the respondent to the
appellant. In Dr.N.G.Dastane Vs. Mrs.S.Dastane 3, the Supreme Court
considered condonation of cruelty under section 23(1)(b) of the 1955
Act and noted that condonation was implicit in the act of cohabitation.
Dr.N.G.Dastane (supra) also held that an act of cruelty does not mean
3 (1975) 2 SCC 326
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a single isolated act but a series of acts spread over a time.
Irretrievable breakdown of marriage, as contended on behalf of the
appellant, is not by itself a ground and it is necessary to scrutinize the
evidence on record to determine whether the ground of cruelty is made
out for granting the relief: V.Bhagat Vs. D.Bhagat 4.
47. The fact of condonation of cruelty was noted by the Supreme
Court in R.Balasubramanian Vs. Vijayalakshmi Balasubramanian 5
where the parties had celebrated their tenth wedding anniversary and
had also lived together. The Supreme Court accordingly found that
the husband had condoned the cruelty on the part of the wife. As
stated in the foregoing paragraphs, the appellant not only met the
respondent several times in Hyderabad in January, 2017 and had also
gone as a family for a vacation to Kerala, among other incidents of
condonation.
48. Moreover, allegations of cruelty must form part of the pleadings
with corroborating material. The Supreme Court noted that this
requirement in Neelam Kumar Vs. Dayarani 6 where the appellant did
not examine any doctor or produce any medical record in connection
4 (1994) 1 SCC 337
5 (1999) 7 SCC 311
6 (2010) 13 SCC 298
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with undergoing medical treatment in a hospital for the injuries
caused in an accident.
49. The cases cited on behalf of the appellant do not support the
grounds for assailing the impugned common order or the ground for
divorce.
50. Ravi Kumar Vs. Julmidevi 7 dealt with the power of the Appellate
Court as explained in Order XLI Rule 33 of The Code of Civil
Procedure, 1908. The Supreme Court held that the first appellate
Court can come to a finding different from the one which has been
arrived at by the Trial Court where appreciation of evidence by the
latter is not proper. In the present case, we do not find any grounds to
differ from the findings of the Trial Court. In Vishwanath Agrawal Vs.
Sarla Vishwanath Agrawal 8, the Supreme Court reiterated that every
finding must be supported by evidence and any inference stretched to
an unreasonable limit can be said to be perverse. It was also held that
family members, relatives, friends and neighbours are the most
natural witnesses in a matrimonial dispute. However, this ratio does
not apply to the present application. Further, in the facts of
Vishwanath Agrawal (supra), the Supreme Court specifically found
7 (2010) 4 SCC 476
8 (2012) 7 SCC 288
27
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FCA.Nos.60 and 62 of 2021
that the conduct of the wife amounted to mental cruelty towards the
husband.
51. In Vinod Kumar Subbiah Vs. Saraswathi Palaniappan 9 , the
Supreme Court came to a specific finding that the appellant had
proven instances of mental cruelty through evidence and documents.
52. In the present case, however, the appellant has failed to produce
any evidence of cruelty on the part of the respondent. The Supreme
Court in Suman Singh Vs. Sanjay Singh 10 relied on Samar Ghosh Vs.
Jaya Ghosh 11 and concluded that none of the grounds taken by the
respondent in his petition for proving mental cruelty for grant of
divorce against the appellant satisfied the test laid down in Samar
Ghosh. Sivasankaran Vs. Santhimeenal 12 involved specific instances
where the respondent sought to initiate disciplinary proceedings
against the appellant, making representations to the Director of
Collegiate Education and the Secretary, Department of Higher
Education (Tamil Nadu). The respondent had also filed multiple cases
in Courts against the appellant. The Supreme Court accordingly found
that the respondent’s continuous acts amounted to cruelty even if the
9 (2015) 8 SCC 336
10 (2017) 4 SCC 85
11 (2007) 4 SCC 511
12 (2022) 15 SCC 742
28
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FCA.Nos.60 and 62 of 2021
same had not arisen prior to the institution of the petition. We do not
find any such overt acts on the part of the respondent, including filing
criminal cases or otherwise against the appellant, which would
warrant a finding of cruelty. D. Narsimha @ Narsimlu Vs. Smt. D. Anita
@ Vaishnavi 13, a Division Bench decision of this Court, involved facts
where the respondent had filed seven proceedings against the
appellant including five Criminal Cases under section 498-A of The
Indian Penal Code, 1860 and under the provisions of The Dowry
Prohibition Act, 1961. All the cases filed against the appellant were
subsequently dismissed.
53. The facts in the present case are entirely different since the
respondent has not filed any criminal cases against the appellant at
any point of time except a case for maintenance.
54. After going through the material on record in both the Appeals,
we have no hesitation in concluding that both the Appeals must fail.
Our reasons for this conclusion have been elaborated in the foregoing
paragraphs. In essence, we do not find any evidence of cruelty on the
part of the respondent towards the appellant that would warrant a
decree of divorce on the grounds stated in the appellant’s divorce
13 2025 (2) ALT 378 (DB) (TS)
29
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FCA.Nos.60 and 62 of 2021
FCOP. The reasons and findings given by the Trial Court in the
impugned Common Order for allowing the respondent’s petition for
restitution of conjugal rights also do not merit interference. It is
evident that the appellant seeks to rely on evidence which was not
placed before the Trial Court even though the same was available with
the appellant prior to passing of the impugned Common Order. Several
issues argued by the appellant in the Appeals do not form the grounds
in the Memorandum of the Appeals. In any event, the additional
evidence, including the Partition Suit does not establish cruelty on the
part of the respondent for the reasons as discussed above. Both the
Appeals, hence, lack merit and should be dismissed.
55. F.C.A.No.60 and 62 of 2021 are accordingly dismissed.
I.A.Nos.1 and 2 of 2024 and I.A.No.1 of 2025 in F.C.A.No.62 of 2021
are also dismissed. All other connected applications are disposed of.
Interim orders, if any, are vacated. There shall be no order as to costs.
____________________________________
MOUSHUMI BHATTACHARYA, J
______________________________
B.R.MADHUSUDHAN RAO, J
Date: 19.08.2025
VA/BMS