1 Judgment Reserved on : 21.01.2026 Judgment Pronounced on : 07.04.2026 Judgment Uploaded on : 08.04.2026 APHC010372702007 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3568] TUESDAY,THE SEVENTH DAY OF APRIL TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE BATTU DEVANAND THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA FAMILY COURT APPEAL (FCA) NO: 130/2007 Between: 1. SRI ARAVALA SHANKUKHA RAO, S/O LAKSHMI NARAYANA EMPLOYEE R/O B&T RAILWAY QUARTERS, KANCHARAPALEM, VISAKHAPTNAM. ...APPELLANT AND 1. SMT ARAVALA RAYAMMA, W/o Shanmukha Rao Business R/o Narasannapeta, Naidupeta, Polaki Post ...RESPONDENT Appeal under section________ against orders IA NO: 2 OF 2007(FCAMP 25442 OF 2007 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased 2 IA NO: 3 OF 2007(FCAMP 37649 OF 2007 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased IA NO: 1 OF 2012(FCAMP 473 OF 2012 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased fixed at an early date of hearing in FCA.No. 130 of 2007 Counsel for the Appellant: 1. JAYANTI S C SEKHAR Counsel for the Respondent: 1. SMT. ARAVALA RAYAMMA The Court made the following: 3 THE HONOURABLE SRI JUSTICE BATTU DEVANAND & THE HONOURABLE SMT. JUSTICE KIRANMAYEE MANDAVA F.C.A.No. 130 of 2007 JUDGMENT: (Per Hon’ble Smt. Justice Kiranmayee Mandava) 1. This appeal is filed under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 11.01.2007 in O.P. No. 610 of 2002 on the file of the Family Court at Visakhapatnam. 2. The appellant and the respondent herein are referred to as they were arrayed in the O.P. Appellant herein is the petitioner in O.P. No.610 of 2002 filed against the respondent for divorce. 3. The petitioner/husband filed O.P. No.610 of 2002 against the respondent/wife under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, seeking dissolution of marriage on the grounds of cruelty and desertion. 4. Brief facts of the case are: The marriage between the petitioner and the respondent was solemnized on 11.06.1977 at Simhachalam, Visakhapatnam, as per Hindu religious rites and customs. After the marriage, they lived together for a few days. Thereafter, the 4 respondent’s brother took her to their native place, Narsannapeta, and she did not return to the matrimonial home. After persistent persuasion by the petitioner, she came back to Visakhapatnam and lived with him. However, she was again taken back by her parents on account of her illness, and thereafter she did not return to the matrimonial home despite the petitioner’s best efforts. The petitioner earlier filed O.P. No.240 of 1991 on the file of the Principal Subordinate Judge, Visakhapatnam, seeking divorce on the ground of desertion, which was dismissed. 5. The respondent is stated to have filed a maintenance case in M.C. No.7 of 1990 before the Judicial Magistrate of First Class, Narsannapeta and the matter was settled out of Court. Thereafter, the respondent came to Visakhapatnam and lived with the petitioner for a couple of months. In the year 2000, while the petitioner and the respondent were travelling on a two-wheeler, they met with an accident on 15.11.2000, and both were hospitalized. After discharge from the hospital, the respondent went back to her parents’ house and never returned. It is also stated that while the petitioner was also hospitalized, the respondent neither attended to him nor took care of him. 6. The further contention of the petitioner is that the respondent did not attend to him while he was hospitalized and she was continued to stay with her parents, 5 hence, he filed the present O.P, seeking dissolution of marriage on grounds of cruelty and desertion. 7. The respondent filed a counter in the O.P., stating the after the marriage they were living together happily however after two years of the marriage, the petitioner started harassing her both physically and mentally, forcing her to leave matrimonial home. The petitioner after persuasion by the respondent took her to the matrimonial home and again started abusing her without providing her food and other basic necessities. Thus the respondent was again sent back to her parental house. It is further contented that the respondent had also filed M.C.No.7/90 on the file of Judicial Magistrate of First Class, Narsipatnam, against the petitioner seeking maintenance. To avoid an order directing payment of maintenance, the petitioner took her back to the matrimonial home, and thus the said M.C. was dismissed. The respondent contends that despite this, the petitioner did not mend his behaviour. It is further stated that she met with an accident on 15.11.2000 and remained an inpatient in M/s. CDR Hospital for a few days, and that the petitioner did not care for her during her hospitalization. 8. Both the parties have led their evidence. PWs.1 & 2 were examined on petitioner’s side and Exs.A-1 to A-3 were marked. RWs.1 & 2 were examined on respondent’s side and Exs.B-1 to B-4 were marked. 6 9. The learned Family Court Judge, after considering the evidence and documents on record, observed that the ground on which the decree of dissolution was sought was not established. The learned Judge further observed that O.P. was filed for dissolution of marriage on the ground of cruelty and desertion, the fact that just before the filing of the O.P., both the petitioner and the respondent met with an accident, while they were going together on a two- wheeler. The said factum itself establishes that the parties were living together. 10. In light of the above, the learned Judge dismissed the O.P. Aggrieved by the said judgment and decree, the present Appeal has been filed. 11. The learned counsel for the appellant argues that although the marriage between the appellant and the respondent was performed as long back in the year 1977, the respondent treated the petitioner with cruelty as she was always living separately with her parents. She did not make any efforts to continue marital relationship with the petitioner. The learned counsel argues that the respondent herein filed cases against him under Sec.498A IPC and cases for maintenance. It is contended that there was never any amicable relationships between the Appellant and the respondent, thus, it is contended that the marriage had irretrievably broken down, therefore the petitioner is entitled to a decree of dissolution of marriage. In support of his contention, the learned counsel for the appellant relies on the following judgments: 7 i. The decision of the Hon’ble Apex Court in the case of Rajib Kumar Roy Vs. Sushmita Saha1. ii. The decision of the Hon’ble Apex Court in the case of Shilpa Sailesh Vs. Varun Sreenivasan2. iii. The decision of the Hon’ble Apex Court in the case of Vikas Kanaujia Vs. Sarita3. iv. The decision of the High Court of Allahabad (D.B.) in the case of Charu Chug Alias Charu Arora Vs. Madhukar Chugh4. v. The decision of the High Court of Allahabad (Lucknow Bench) (D.B.) in the case of Apoorva Gupta @ Apoorva Kumar Gupta Vs. Vandana Gupta5. 13. Despite service of notice, no appearance has been entered on behalf of the respondent. 14. Considered the submissions. 15. The learned Judge while dismissing the application inferred that the petitioner and the respondent were living together based solely on the solitary observation namely, that they were travelling together on a scooter at the time of 1 (2023) 17 SC C 441 2 (2022) 15 SCC 754 3 (2025) 3 SCC 748 4 2024 LiveLaw (AB) 36 5 2024 10 ADJ 491 8 the accident. His reasoning entirely rests on the said inference. Except the said solitary fact there has been no evidence that they were living together continuously. Even as per the pleading of the respondent for some reason or the other, she was away from the matrimonial home. 16. In the light of the same, the respondent was never under an obligation to join the matrimonial home or live with the petitioner only after due permission of the petitioner nor does it require an invitation from the husband. The factum is that the respondent never filed for any restitution of conjugal rights. The factum that she had not led any evidence stating that she was interested in leading the matrimonial life. 17. Having regard to the same, the finding of the learned trial Judge that the parties were living together under one roof on the basis of a solitary incident of a motor accident, would not establish that they were living together in the absence of any other evidence showing that they were together. 18. From the evidence and averments of the respective parties, the petitioner and the respondent lived together for a short period in initial days of their marriage and according to the chief affidavit of the respondent they lived together from the year 1994 to 1998 at Visakhapatnam, and at Titlagar from May 1998 to August 2000. Thereafter the subject O.P. was filed. Due to the motor vehicle 9 accident referred supra the petitioner and the respondent were injured and hospitalized. From the evidence on record, it appears that the petitioner was hospitalized for almost six months for the injuries caused in the accident. Following discharge from the hospital, both of them were living separately. From the same, it can be gathered that the respondent was not keen on joining with the petitioner. And respondent did not bring on record any evidence either oral or documentary to substantiate her statement that she was living together with the petitioner before the petitioner’s transfer in 2000 from Titlagar to Visakhapatnam. The only oral evidence that was led in on behalf of the respondent was evidence of RW-1, who had stated in her chief affidavit that the petitioner and the respondent have lived together as wife and husband between August - 2000 to November - 2000, which is again a brief period. However in her cross examination, RW-1 had denied the contents of her evidence affidavit. Thus, in the absence of any other evidence on behalf of the respondent that she lived with the petitioner as his wife, the finding of the learned trial Judge that there was no desertion on the part of the respondent solely basing on an inference drawn out of the single incident of a motor accident that occurred on 15.11.2000, is perverse and unsustainable. Placing reliance on the judgment of the Hon’ble Apex Court in the cases referred supra, irrespective of the fact whether there was desertion on the part of the respondent or not having regard to the fact that the 10 parties to the lis were married as long back as 1977 and in the absence of any evidence that they were living together as wife and husband under one roof steadily, and in the absence of any attempt by the respondent to join the petitioner for restitution of her martial life, it can be construed that the marriage between them is irretrievably broken. . 19. In view of the foregoing, we are of the view that the judgment and decree of the Family Court in O.P. No.610 of 2002 requires to be set aside. 20. Accordingly, the Family Court Appeal is allowed. The order of the Family Court, Visakhapatnam in O.P. No.610 of 2002 is set aside. Consequently there shall be a decree for divorce. As a sequel, all pending miscellaneous applications shall stand closed. __________________________ JUSTICE BATTU DEVANAND ______________________________ JUSTICE KIRANMAYEE MANDAVA Date:07.04.2026 MVK 11 140 THE HONOURABLE SRI JUSTICE BATTU DEVANAND & THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA F.C.A. No.130 of 2007 Date:07.04.2026 MVK