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Subscriber : Symbiosis Law School

MANU/AP/0437/2002

Equivalent Citation: 2002(3)ALD640, 2002(2)ALT16, I(2003)DMC109

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

CMA No. 150 of 2000

Decided On: 31.01.2002

Appellants: Hema Reddy


Vs.
Respondent: Rakesh Reddy

Judges/Coram:
R.M. Bapat and Dalava Subrahmanyam, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: V.L.N.G.K. Murthy, Adv. for M. Ravindranath Reddy, Adv.

For Respondents/Defendant: Vilas V. Afzulpurkar, Adv.

Subject: Family

Subject: Law of Evidence

Acts/Rules/Orders:

 Hindu Marriage Act, 1955 - Section 10,


 Hindu Marriage Act, 1955 - Section 13,
 Hindu Marriage Act, 1955 - Section 13(1)(a),
 Hindu Marriage Act, 1955 - Section 13(1)(i-a),
 Hindu Marriage Act, 1955 - Section 13(1)(ia),
 Hindu Marriage Act, 1955 - Section 13(1)(ib),
 Hindu Marriage Act, 1955 - Section 13(1)(iii);
 Indian Evidence Act, 1872 - Section 3;
 Indian Penal Code 1860, (IPC) - Section 304-B

Cases Referred:

 Nayal Kishore Somani v. Poonam Somani, AIR 1999 AP 1;


 Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, (1998) 1 SCC 105;
 Sheldon v. Sheldon, (1966) 2 All ER 257 (259);
 Chiranjeevi v. Lavanya @ Sujatha, 1999 (2) ALD 508;
 V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710; Trivedi v. Trivedi, 1993 (3) Scale 541;
 K. Lalithikumari v. K. Rama Prasada Rao, 1992 (1) ALT 631;
 K. Radha Raju v. K. Seetharama Raju, 2001 (6) ALD 460

Disposition:
Appeal Allowed

Citing Reference:

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Chanderkala Trivedi (Smt) vs. Dr. S.P. Trivedi MANU/SC/0563/1993 Mentioned
Chiranjeevi vs. Lavanya @ Sujatha MANU/AP/0243/1999 Discussed
K. Lalithikumari v. K. Rama Prasada Rao Discussed
K. Radha Raju vs. K. Seetharama Raju MANU/AP/0682/2001 Affirmed
Naval Kishore Somani vs. Poonam Somani MANU/AP/0700/1998 Discussed
Sheldon v. Sheldon Mentioned
Shobha Rani v. Madhukar Reddi Mentioned
Shobha Rani vs. Madhukar Reddi MANU/SC/0419/1987 Discussed
V. Bhagat vs. Mrs. D. Bhagat MANU/SC/0155/1994 Discussed
Discussed

Mentioned

CaseNote:

Family - divorce - Sections 13 (1) (a), 13 (1) (ib) and 13 (1) (iii) of Hindu Marriage Act,
1955 - husband alleged that wife was suffering from psychological depression - sought
divorce on that ground - divorce decreed by Trial Court - Act does not contemplate
psychological depression as ground for divorce - Trial Court's decree set aside.

JUDGMENT

R.M. Bapat, J.

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4. It is further stated by the petitioner that
1. The appellant herein is the wife. The the respondent was always feeling
respondent herein is the husband. The depressed in home sick. She became
husband-respondent herein filed OP No. pregnant in the month of February, 1995.
340 of 1996 in the Family Court at She went to her parents house to get
Secmiderabad for divorce under Section herself examined by the Doctor. She went
13(1)(a), 13(1)(ib) and 13(1)(iii) of the to stay with her parents in the last week of
Hindu Marriage Act. The learned Judge, February, 1995 and she joined back the
Family Court, Secunderabad heard the petitioner only in the month of April, 1995.
matter on merits and was pleased to allow Even after her return, her behaviour did
the petition and the marriage between the not change. She was continuously in acute
appellant herein and the respondent herein depression. She was advised that she
solemnised on 11-12-1994 was dissolved should not take any medicine, as she was
by a decree of divorce. Aggrieved by the pregnant. But she used to consult her
aforesaid order of the Family Court, the family Doctor at Hyderabad and
wife-appellant herein has filed the present Psychiatrist. Thus, it is stated by the
appeal. petitioner that the respondent had acute
mental depression since her mother's
death. The mother of the respondent died
2. The averments made in the original
3 to 4 years prior to her marriage. The
petition can briefly be narrated as follows:
Psychiatrist treated the respondent since
The parties herein are referred to as
then. Hence, it was contended by the
"petitioner and respondent" as arrayed in
petitioner that his consent for the marriage
the original petition. The husband-
was obtained by the respondent and her
petitioner stated in his petition that he is
parents fraudulently.
the son of Col and Mrs. T.R. Reddy, He is
M.Sc with Horticulture. He is working with
M/s, Harrison Malayalam Kerala. The 5. It is the further case of the petitioner
respondent is the daughter of Sri B.N, that the respondent used to cut off herself
Reddy, who is the former Member of from normal activities in the household
Parliament. The marriage between the duties as a housewife. She used to
petitioner and the respondent was continue her cold demeanour and retired to
solemnised on 11-12-1994 at her room. Under these circumstances, the
Secunderabad. It was an arranged cohabitation with the respondent was
marriage. The petitioner and his parents becoming more and more impossible.
believed that the respondent would be a
proper match to the petitioner. After the 6. It is the further case of the petitioner
marriage on the first day itself the that at the instance of the petitioner, the
petitioner was alarmed to find certain sister of the respondent came to stay with
unnatural behaviour in the respondent. The them at Kerala. She stayed for about 20
respondent was in the habit of scratching days i.e., till 16-5-1995. Still things did not
her hands and head now and then in a improve. The sister of the respondent
very irritating manner. She used to drop planned to return to Hyderabad. When the
her head while sitting in the company of respondent and the petitioner went to see
elders. Though the petitioner noticed the off her sister at the Cochin Air Port, the
said fact during first two days of the respondent broke down at the Air Port
marriage, the petitioner thought may be itself and started crying. She insisted that
these are the mannerism of the she wants to accompany her sister to
respondent. Hyderabad on the same day itself.
Unfortunately the flight was late and the
3. The respondent joined the petitioner in tickets were available and therefore the
Kerala on 13-1-1995. The father of the respondent went along with her sister to
respondent Sri B.N. Reddy came to drop Hyderabad in the month of May, 1995.
the respondent at Kerala. During her stay
in the matrimonial house, the respondent 7. It is the further case of the petitioner
used to go into bouts of absolute silence. that the respondent was hospitalised in
She never discussed the household Swapna Nursing Home at Hyderabad. She
activities. was advised to take complete rest. The
petitioner requested the respondent to stay

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along with her parents but the respondent story of mental disorder with ulterior
refused. The respondent used to ridicule motive. The petitioner is interested in
the petitioner on his meagre salary and getting married with another girl, who is a
used to call upon him to work with her close relative of the petitioner and
father. therefore the present petition has been
filed. Therefore, it was prayed by the
8. It is the further case of the petitioner respondent that the petitioner filed by the
that the respondent's doctor disclosed that petitioner be dismissed with costs.
the respondent had abnormal uterus and
therefore she was advised to undergo for 12. Parties to the petition were allowed to
abortion. Accordingly she was abortioned. lead evidence. The petitioner examined
Thus, the respondent was suffering from himself as PW1 and the respondent
acute depression. The respondent was examined herself as RW1. No other
suffering with bio-chemistry problem. witnesses were examined by them to prove
their respective contentions.
9. It is the further case of the petitioner
that the respondent tried to commit suicide 13. On the strength of the pleadings, the
by going to the waterfall in a car. When the learned Judge, Family Court,
petitioner came to know about the said fact Secunderabad, framed the following issues
through the servants, he immediately :
rushed to the waterfall and saved her. The
petitioner had taken the respondent to (1) Whether the respondent has treated
Kovalam Beach. Even at Kovalam Beach, the petitioner with cruelty and deserted
the respondent walked towards the water him for a continuous period of not less
in a danger rocky area where already a than two years immediately preceding the
danger sign was put up. The life-guard was presentation of the petition?
already whistling to her to come back. The
petitioner some how managed to stop the
(2) Whether the respondent has been
respondent and brought her to the hotel.
suffering continuously or intermittently
from mental disorder of such a nature that
10. It is the further case of the petitioner the petitioner cannot live with her?
that he was shocked with the behaviour of
the respondent; the petitioner decided to
(3) Whether the petitioner is entitled for
go to Hyderabad and accordingly the
dissolution of the marriage on the grounds
respondent was taken to Hyderabad.
stated in the petition?
During the journey, the respondent stated
that she is not in a position to lead marital
life with him at Kerala. Thus, it is stated by 14. The learned Counsel Mr. V.L.N.G.K.
the petitioner that the respondent is Murthy appearing on behalf of the wife-
suffering from mental depression and appellant herein submitted at the Bar that
acute depression of state of mind; as such though the petitioner pleaded that his
the petitioner cannot live with the consent to the marriage was obtained by
respondent. With these averments, it was fraud, no issue was framed to that effect.
prayed by the petitioner that his marriage Moreover, the petitioner did not lead any
with the respondent be dissolved by a evidence to show that his consent to the
decree of divorce. marriage was obtained by fraud. The
learned Counsel further submitted that, as
a matter of fact, though the pleading of
11. The respondent-wife was served with
fraud is pleaded in the petition, no such
summons. On appearance she filed her
evidence was led and therefore it is not
counter. The contents of the petition filed
necessary for us to discuss the said issue.
by the petitioner have been denied by the
respondent. It is not necessary to narrate
what she stated in the counter filed by her. 15. The only main point arises for our
But suffice it to say that the contents were consideration whether the petitioner has
denied by the respondent. She further been able to prove that the respondent has
stated that she is not suffering from any been suffering continuously or
mental disorder. She was feeling lonely at intermittently from mental disorder of such
Kerala. The petitioner has developed a

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a nature that the petitioner cannot live dashed at many places and ultimately she
with her? went to a waterfall with an intention to
commit suicide. The petitioner came home
16. The learned Counsel for the husband- for lunch. When he noticed the absence of
petitioner submitted at the Bar that looking the respondent, he made enquiries with his
to the pleadings and also looking to the domestic servants. On their information he
evidence relied on behalf of the petitioner, went towards waterfall on a bicycle and
it has been the specific case of the saw that the respondent was entering into
petitioner that the respondent was the water for committing suicide. The
suffering from mental depression. It has petitioner went there and saved her. This
not been his case that the respondent was oral evidence was given by the petitioner.
suffering continuously or intermittently He has not given any corroborative
from mental disorder. The learned Counsel evidence. At least he could have examined
for the wife-respondent further submitted his servants to prove the fact that the
at the Bar that the pleadings and the respondent had left the house and went
evidence relied by the petitioner is no towards waterfall. Therefore, this instance,
ground to grant a decree of divorce. The which is quoted by the petitioner in his
learned Judge erroneously decreed the evidence, has to be viewed with a caution.
petition granting divorce.
20. One more instance the petitioner has
17. By looking to the evidence of the given regarding the attempt made by the
petitioner, it appears that the petitioner respondent in committing suicide when he
has led the evidence to prove the fact that had taken her to Kovalam Beach for a
the respondent was suffering from mental change. The petitioner has stated in his
depression. The petitioner has led his own evidence that the respondent went towards
evidence. The petitioner has quoted one a danger area. The life-guard, who was
instance wherein he stated that the present at the sea-shore, whistled in order
respondent did not co-operate with him in to stop the respondent from going towards
the matrimonial house. The respondent the danger area of the sea, a rocky place.
comes from an affluent family. All the It has been the contention and evidence of
things were provided by the petitioner in the petitioner that the respondent went
the matrimonial house. There were two towards the danger area with an intention
servants for cooking and doing other to commit suicide. On this aspect also the
household work. Out of them, one servant petitioner has given in his own interested
was Telugu speaking person. The petitioner evidence. He did not examine the
used to come home for lunch at about 1-00 lifeguard, who was present at the sea-
or 1-30 p.m., and he used to return home shore. Therefore, we are of the considered
at 6-00 or 6-30 p.m. Therefore, it cannot view that the evidence led by the
be said that the respondent was left all petitioner, which is an interested
alone in the matrimonial house. statement, is not sufficient to prove the
fact that the respondent had developed the
tendency to commit suicide.
18. It appears from the record that the
respondent had lost her mother 3 to 4
years prior to the marriage and she was in 21. Whatever the instances have been
mental depression. Secondly the quoted by the petitioner alleged to have
respondent had to undergo abortion and occurred within a period of seven years of
therefore she again went in depression. the marriage. If at all, the attempt, as
Thus, these may be the two more causes alleged by the petitioner, could have been
as to why the respondent suffered successful, the petitioner would have been
depression. liable for prosecution for an offence
punishable under Section 304-B IPC. The
petitioner is an educated man having Post-
19. The petitioner has stated in his
graduate qualification. He did not inform
evidence that lie has given two instances
the police regarding the attempts of suicide
to prove that the respondent had
made by the respondent. Therefore, we
developed a tendency to commit suicide.
are of the considered view that the
One instance he has given in his evidence
evidence led by the petitioner on this
is that the respondent in his absence took
aspect is tainted with doubt.
the car on non-motorable roads and

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22. The respondent while giving evidence definition of "not proved". A fact is said to
rebutted the oral evidence led by the be "not proved" under Section 3 of the
petitioner. But it is stated by the Indian Evidence Act when it is neither
respondent that the petitioner was proved nor disproved. On the other hand, a
interested in getting married with another fact is said to be disproved when, after
girl, who was a close relative of the considering the matter before it, the Court
petitioner. The learned Counsel for the either believes that it does not exist or
petitioner submitted at the Bar that considers its non-existence so probable
making such allegation, which is false and that a prudent man ought, under the
not proved, itself is cruelty and therefore circumstances of the particular case, to act
the petitioner is entitled for a decree of upon the supposition that it does not
divorce. exists. The word "disproved" is akin
towards false, which is disproved is
23. After discussing the above evidence, normally said to be a false thing."
we have to decide as to whether the
grounds raised by the petitioner stand 26. If these definitions are taken into
proved. consideration, we can at the least say that
though the respondent pleaded and has
24. It has been the evidence of the given evidence that the petitioner is
petitioner throughout that the respondent interested in getting married with another
had psychological depression. The girl is not proved. It does not mean that it
depression by itself is no ground under the is a false allegation made against the
Hindu Law to grant a decree of divorce. petitioner herein, which may amount to
The petitioner has to prove by leading cruelty. Therefore, the said contention
medical evidence that psychological raised by the Counsel for the respondent
depression is synonymous to the mental has to be rejected.
disorder. Mental disorder is a ground under
Hindu Law to grant a decree of divorce. 27. As far as the cruelty aspect is
Admittedly the petitioner did not lead any concerned, the learned Counsel for the
oral as well as documentary evidence by wife-respondent relied upon a ruling
examining the Doctor. Therefore, we are of reported in Shobha Rani v. Madhukar
the considered view that the mental Reddi, MANU/SC/0419/1987 :
depression itself, if at all, the respondent is [1988]1SCR1010 . In paras 4 and 5 of the
suffering, cannot be a ground for divorce. judgment their Lordships were pleased to
Even the fact of mental depression is not hold as under:
proved by the petitioner by leading cogent
evidence. "4. Section 13(1)(i-a) uses the words
"treated the petitioner with cruelty". The
25. The learned Counsel Mr. Vilas V. word "cruelty" has not been defined. In
Afzulpurkar appearing for the husband- deed it could not have been defined. It has
petitioner submitted at the Bar that on a been used in relation to human conduct or
false ground itself that the petitioner is human behaviour. It is the conduct in
interested in getting married with some relation to or in respect of matrimonial
other girl amounts to cruelly. While duties and obligations. It is a course of
rebutting the aforesaid arguments, the conduct of one, which is adversely
learned Counsel for the wife-respondent affecting the other. The cruelty may be
relied upon a ruling reported in Naval mental or physical, intentional or
Kishore Somani v. Poonam unintentional. If it is physical the Court will
SomaniMANU/AP/0700/1998, in which the have no problem to determine. It is a
Division Bench of this Court was pleased to question of fact and degree. If it is mental
discuss "what is meant by "proved, not the problem presents difficulty. First, the
proved and disproved" as contemplated enquiry must begin as to the nature of the
under Section 3 of the Indian Evidence Act. cruel treatment. Second, the impact of
Section 3 of the Indian Evidence Act gives such treatment in the mind of the spouse.
definitions of various words and Whether it caused reasonable
expressions. The expression "proved" is apprehension that it would be harmful or
followed by the definition of the expression injurious to live with the other. Ultimately,
"disproved". This is followed by the it is a matter of inference to be drawn by

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taking into account the nature of the "17. Mental cruelty in Section 13(1)(ia) can
conduct and its effect on the complaining broadly be defined as that conduct which
spouse. There may, however, be cases inflicts upon the other party such mental
where the conduct complained of itself is pain and suffering as would make it not
bad enough and per se unlawful or illegal. possible for that party to live with the
Then the impact or the injurious effect on other. In other words, mental cruelty must
the other spouse need not be enquired into be of such a nature that the parties cannot
or considered. In such cases, the cruelty reasonably be expressed to live together.
will be established if the conduct itself is The situation must be such that the
proved or admitted. wronged party cannot reasonably be asked
to put up with such conduct and continue
5. It will be necessary to bear in mind that to live with the other party. It is not
there has been marked change in the life necessary to prove that the mental cruelty
around us. In matrimonial duties and is such as to cause injury to the health of
responsibilities in particular, we find a sea the petitioner. While arriving at such
change. They are of varying degrees from conclusion, regard must be had to the
house to house or person to person. social status, educational level of the
Therefore, when a spouse makes complaint parties, the society they move in, the
about the treatment of cruelty by the possibility or otherwise of the parties ever
partner in life or relations, the Court should living together in case they are already
not search for standard in life. A set of living apart and all other relevant facts and
facts stigmatised as cruelty in one case circumstances which it is neither possible
may not be so in another case. The cruelty nor desirable to set out exhaustively. What
alleged may largely depend upon the type is cruelty in one case may not amount to
of life the parties are accustomed to or cruelty in another case. It is a matter to be
their economic and social conditions. It determined in each case having regard to
may also depend upon their culture and the facts and circumstances of that case. If
human values to which they attach it is a case of accusations and allegations,
importance. We, the Judges and lawyers, regard must also be had to the context in
therefore, should not import our own which they were made."
notions of life. We may not go in parallel
with them. There may be a generation gap 29. As against the above rulings, the
between us and the parties. It would be learned Counsel for the petitioner relied
better if we keep aside our customs and upon a ruling reported in Chiranjeevi v.
manners. It would be also better if we less Lavanya @ Sujatha,
depend upon precedents. Because as Lord MANU/AP/0243/1999 : 1999(2)ALD508
Denning said in Sheldon v. Sheldon (1966) (DB). This is the judgment of the Division
2 All ER 257 (259) "the categories of Bench of this Court. Their Lordships were
cruelty are not closed". Each case may be pleased to hold at para 8 as under:
different. We deal with the conduct of
human beings who are not generally "8. For the proposition that when the wife
similar. Among the human beings there is ill-treats the husband, the husband is
no limit to the kind of conduct, which may entitled for divorce, the learned Counsel for
constitute cruelty. New type of cruelty may the appellant, relied upon the view taken in
crop up in any case depending upon the Shobha Rani v. Madhukar Reddi (1998) 1
human behaviour, capacity or incapability SCC 105, wherein it was held that the
to tolerate the conduct complained of. evidence of harassment or of intention to
Such is the wonderful/realm of cruelty." treat with cruelty is not essential to
establish cruelty and the Court would draw
28. The learned Counsel Mr. Murthy inference and decide on the basis of
further relied upon a ruling reported in V. preponderance of probabilities having
Bhagat v. Mrs. D. Bhagat, regard to the nature of conduct of the
MANU/SC/0155/1994 : AIR1994SC710 . In other spouse and its impact on the
para 17 of the judgment their Lordships complaining spouse in the context of their
were pleased to discuss as to what is standard of life. For the same proposition
meant by "mental cruelty" as defined the learned Counsel relied upon a decision
under Section 13(1)(ia) of Hindu Law. in Trivedi v. TrivediMANU/SC/0563/1993,
Their Lordships observed as under: wherein it was held as follows: "Whether

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the allegation of the husband that she was This is the judgment of the Division Bench
in the habit of associating with young boys of this Court. In para 19 of the judgment,
and the findings recorded by the three the Division Bench of this Court held as
Courts are correct or not but what is under:
certain is that it is obvious that the
marriage of the two cannot in any "It is also relevant to note one of the
circumstances be continued any further. important changes brought about by
The marriage appears to be practically reason of the amendments under the
dead as from cruelty alleged by the Marriage Laws (Amendment) Act (68 of
husband it has turned out to be at least 1976). By virtue of the said Amendment
intimacy of the husband with a lady doctor Act, Clause (ia) has been added to Sub-
and unbecoming conduct of a Hindu wife." section (1) of Section 13 of the Hindu
Marriage Act, 1955 under which "cruelty"
The learned Counsel also relied upon has been made one of the grounds for
another decision of the Supreme Court in obtaining divorce. However, under Section
V. Bhagat v. D. Bhagat, 13(1)(ia) cruelty simplicitor is made a
MANU/SC/0155/1994 : AIR1994SC710 , ground to seek a decree of divorce and it is
wherein it was observed thus: not necessary to establish that the other
party has treated the petitioner with such
".....In other words, mental cruelty must cruelty as to cause a reasonable
be of such a nature that the parties cannot apprehension in the mind of the petitioner
reasonably be expected to live together. that it will be harmful or injurious for the
The situation must be such that the petitioner to live with the other party. Prior
wronged party cannot reasonably be asked to Amendment Act, 1976 when cruelty was
to put up with such conduct and continue a ground only to seek judicial separation
to live with the other party. It is not under Section 10 of the Act it is obligatory
necessary to prove that the mental cruelty on the part of the petitioner to prove that
is such as to cause injury to the health of the mental cruelty is such as to cause
the petitioner. While arriving at such injury to the health of the petitioner. Now
conclusions regard must be had to the the said requirement is not existing under
social status, educational level of the Section 13(1)(ia)."
parties, the society they move in, the
possibility or otherwise of the parties ever 31. Considering the above rulings and also
living together in case they are already applying the said rulings to the present set
living apart and all other relevant facts and of facts, this Court is of the considered
circumstances which it is neither possible view that as far as the cruelty aspect is
nor desirable to set out exhaustively." concerned, it can only be said that the
respondent was not able to prove that she
The learned Counsel further relied upon a was treated with cruelty. It does not mean
Division Bench decision of this Court in K. that she had raised any false contentions.
Lalithikumari v. K. Rama Prasada Rao 1992
(1) ALT 631, wherein it was observed that 32. We have already discussed in the
there are any number of instances wherein foregoing paragraphs of the judgment that
wife humiliated and insulted husband and as far as the aspect of the respondent
treated him most cruelty and wife suffering from mental disorder, which is a
behaving with her husband in a most ground for divorce, has not been proved by
inhuman way abusing him on every the petitioner at all. In fact, the mental
occasion and humiliating and harassing disorder has to be proved by leading
him in numerous ways and in such medical evidence. It does not mean that
extreme cases granting of relief of divorce we are proposed to lay down with the
by trial Court on the ground of cruelty is mental disorder cannot be proved by any
justified when the husband seeks relief of other type of evidence. In the present
divorce on the ground of cruelty by wife," case, the petitioner has led his own
evidence only which is not at all
30. The learned Counsel further relied corroborated by another evidence.
upon a ruling reported in K. Radha Raju v. Therefore, we are of the considered view
K. Seetharama Raju, that the decree of divorce granted by the
MANU/AP/0682/2001 : 2001(6)ALD460 .

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Family Court, Secunderabad is erroneous
and therefore it is set aside.

33. Thus, the CMA., stands allowed. Under


the circumstances discussed above, there
will be no order as to costs.

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Ltd.

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