2024:APHC:33804

* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

+ C.M.A.NO: 407 of 2008

% 13.09.2024

Between:

Koppuravuri Srinivasa Rao

...APPELLANT
And

Koppuravuri Venkata Savithri Devi

...RESPONDENT(S)

Counsel for the Appellant: Smt. G.Jhansi

Counsel for the Respondent(S): …

< Gist :

> Head Note:

? Cases Referred:
1
2023 Livelaw (SC) 353
2
2024 SCC Online SC 68
3
(2007) 4 SCC 511
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APHC010323682008

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI [3470]
(Special Original Jurisdiction)

FRIDAY ,THE THIRTEENTH DAY OF SEPTEMBER

TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

CIVIL MISCELLANEOUS APPEAL NO: 407/2008

Between:

Koppuravuri Srinivasa Rao

...APPELLANT

AND

Koppuravuri Venkata Savithri Devi ...RESPONDENT

Counsel for the Appellant:

1. G JHANSI
Counsel for the Respondent:
1.

The Court made the following:

 3 2024:APHC:33804

HON’BLE SRI JUSTICE RAVI NATH TILHARI

AND
HON’BLE SRI JUSTICE NYAPATHY VIJAY

C.M.A.No.407 of 2008

JUDGMENT: (Per Hon’ble Sri Justice Nyapathy Vijay)

This Appeal is filed under Section 28 of the Hindu Marriage Act

questioning the judgment and decree dated 06.11.2007 passed in

HMOP.No.54 of 2005 on the file of Senior Civil Judge, Bhimavaram,

West Godavari District.

2. The brief facts are as under:

Appellant is the Petitioner. As per the petition, the marriage

between the Petitioner and Respondent was performed on 09.04.2000

as per Hindu Rites and Customs at Arya Vysya Kalyana Mandapam in

Akividu Village and Mandal, West Godavari District. After the

marriage, the Petitioner took the Respondent to Bhimavaram, where

they lived together. About three months after the marriage, the

Respondent became pregnant and parents of the Respondent took her

to their house. The Respondent thereafter gave birth to a baby boy.

Even after five months after the delivery, the Respondent did not join

the marital life with the Petitioner even though the Petitioner was

requesting the parents of the Respondent and Respondent for the

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same. After repeated requests, it was stated that a condition was put

that the Petitioner should take a separate residence and accordingly,

the Petitioner took a separate residence in Bhimavaram to live with the

Respondent. However, the Respondent used to neglect the Petitioner

and used to go to her parents house without informing the Petitioner.

On 20.02.2003, the Respondent without intimation to the Petitioner

went to her parents place taking all the gold ornaments. In spite of

repeated requests, the Respondent did not join the Petitioner. Hence,

the application was filed for a decree of divorce on the ground of

desertion under Section 13(1) (ib) of the Hindu Marriage Act, 1956.

3. The Respondent filed counter pointing out various incidents of

ill-treatment. However, it was admitted in para 6 of the counter that

the Petitioner came to the parents house of Respondent in May, 2002

and requested to send the Respondent and that he will take good care

of her. It was pleaded that even though the Petitioner took a separate

house, but failed to provide basic needs and used to take meals at his

parents’ house. It was stated that in July, 2002 the Petitioner abused

the Respondent and left her. With nowhere to go, the Respondent

called up her parents and even though the mother of the Respondent

pleaded with the Petitioner to lead a happy married life, the Petitioner

did not agree for the same and had abused the mother of the
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Respondent. It was further pleaded that the Petitioner demanded an

additional dowry of Rs.1 lakh. Hence, sought for dismissal of the

application.

4. In the course of trial, the Petitioner examined five witnesses and

marked Exs.A.1 and A.2 on his behalf. The Respondent got himself

examined as R.W.1 and also examined her mother as R.W.2. The trial

Court after hearing the respective parties, dismissed the O.P that no

grounds are made out for grant of divorce. Hence, the present appeal

is filed.

5. In this appeal, though notices were issued to Respondent, at the

time of filing of the appeal, the same was returned unserved with an

endorsement ‘door locked’. This Court on 08.07.2024 directed fresh

notice to the Respondent. On 12.08.2024, a memo with proof of

service was filed annexing the track consignment report and

submitting that the item was delivered to the addressee.

6. An affidavit was filed by the Petitioner on 19.08.2024 stating that

since 20.02.2003, the Petitioner and Respondent are living separately

and there is no communication between the parties. It was further

stated in the affidavit that there is no possibility of staying together.

The issue that falls for consideration in this appeal is, whether the

appellant is entitled for divorce?.

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7. Learned counsel for the appellant relied on two judgments of

Hon’ble Supreme Court i.e. Shri Rakesh Raman v. Smt. Kavita1 and

Prakash Chandra Joshi v. Kuntal Prakashchandra Joshi @ Kuntal

Visanji Shah2 2024 INSC 54 (neutral citation).

8. In Shri Rakesh Raman’s case, the Hon’ble Supreme Court

granted divorce on the ground that the married couple had stayed

together as couple only for a period of four years and lived separately

for 25 years. The only difference in the cited case and the present

case is that in the above cited case, there was no child born out of the

wedlock, but in the present case, the parties have a son. Paras 18

and 19 of the said judgment reads as under:

18. We have a married couple before us who have barely stayed

together as a couple for four years and who have now been living
separately for the last 25 years. There is no child out of the
wedlock. The matrimonial bond is completely broken and is
beyond repair. We have no doubt that this relationship must end
as its continuation is causing cruelty on both the sides. The long
separation and absence of cohabitation and the complete
breakdown of all meaningful bonds and the existing bitterness
between the two, has to be read as cruelty under Section 13(1)
(ia) of the 1955 Act. We therefore hold that in a given case, such
as the one at hand, where the marital relationship has broken
down irretrievably, where there is a long separation and absence
of cohabitation (as in the present case for the last 25 years), with

1
2023 Livelaw (SC) 353
2
2024 SCC Online SC 68
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multiple Court cases between the parties; then continuation of

such a ‘marriage’ would only mean giving sanction to cruelty
which each is inflicting on the other. We are also conscious of the
fact that a dissolution of this marriage would affect only the two
parties as there is no child out of the wedlock.

19. Under these circumstances, we uphold the Order of the Trial

Court, though for different grounds given by us in our order, and
we set aside the Order of the High Court and grant a decree of
divorce to the appellant/husband. Their marriage shall stand
dissolved.

9. In Prakash Chandra Joshi’s case, the Hon’ble Supreme Court

exercised power under Article 142(1) of the Constitution of India to

dissolve the marriage on the ground of irretrievable breakdown as the

parties are not in contact for almost 13 years. The Hon’ble Supreme

Court also noted the fact that Respondent/wife in the cited case was

not even responding to the summons issued by the Court and it is

apparent that she has no interest in continuing the relationship. Para

15 thereof reads as under:

15. Reverting back to the case in hand, to accord

satisfaction as to whether the present is a fit case for exercise of
power under Article 142 (1) of the Constitution of India to dissolve
the marriage on the ground of irretrievable breakdown, we see
that the parties are residing separately since February, 2011 and
there have been no contact whatsoever between them during this
long period of almost 13 years. The Respondent-wife is not even
responding to the summons issued by the courts. It seems she is
no longer interested in continuing the marital relations with the
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appellant. Therefore, we have no hesitation in holding that the

present is a case of irretrievable breakdown of marriage as there
is no possibility of the couple staying together.

10. In this case also, the parties are not staying together as evident

from the untraversed affidavit of the appellant from the year 2003.

Further, the Respondent is not even responding to the notices issued.

Therefore, this Court does not have any semblance of doubt that the

marriage between the parties is beyond rapprochement and the

appellant is entitled to divorce on account of long period of continuous

separation which is treated as a mental cruelty as per the judgment of

the Hon’ble Supreme Court in Samar Ghosh v. Jaya Ghosh3

11. The Civil Miscellaneous Appeal is therefore allowed and the

judgment and decree dated 06.11.2007 passed in HMOP.No.54 of

2005 is set aside. The Petitioner is granted divorce and the marriage

between the Petitioner and the Respondent is dissolved.

12. As the appellant is working as a Clerk in a Nutrine Agency, the

appellant shall deposit an amount of Rs.5,00,000/- (Rupees five lakhs)

to the Respondent/wife as permanent alimony. The amount of

Rs.5,00,000/- shall be deposited in the name of Respondent within a

period of eight weeks from today with the Registry of this Court. The

decree of divorce shall be effective only from the date of such deposit.

3
(2007) 4 SCC 511
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13. In the event of such deposit, the State Legal Services Authority

shall reach out to the Respondent and after verifying the credentials of

the Respondent/wife, shall disburse the amount without further

reference to this Court. No order as to costs. As a sequel, the

miscellaneous petitions, if any, shall stand closed.

____________________
RAVI NATH TILHARI, J

__________________
NYAPATHY VIJAY, J

Date: 13.09.2024
Note: L.R. copy be marked.
Note: Mark Copy to
State Legal Services Authority
KLP