The Division Bench of the Bombay High Court consisting of Justices A. S. Chandurkar and G. A. Sanap while hearing a family court appeal opined that the incidents cited by the appellant were not so serious to convert them into a ground of divorce as cruelty, as they could be said to be mere normal wear and tear of the married life.
Facts
After marriage between the appellant and respondent, the respondent came to reside at the house of the appellant. The couple was blessed with a daughter. It is the case of the appellant that since beginning the respondent never acted or behaved normally. The respondent displayed the significant traits of mental imbalance resulting into unpleasant instances of violent nature. On the advice of the family doctor, she was treated by a psychiatrist who opined that the respondent was suffering from depression. He prescribed the medicines. The respondent took medicines for some time, but later declined to go to the psychiatrist and stopped taking medicines. Later when the respondent was taken to the psychiatrist, he opined that the respondent was suffering from Schizophrenia. Doctor prescribed the medicines. There was no improvement in the behaviour of the respondent. She suffered repeated attacks and became violent. She hit their daughter, who became unconscious, and blood came out of her mouth. She also abused the appellant now and then. According to the appellant, the respondent deserted him for a period of more than two years without any reasonable cause before filling the petition. The respondent is suffering from incurable mental illness. It is the case of the appellant that, it is not possible for him to continue his future married life with the respondent. On the above grounds, he prayed for divorce.
Procedural History
The respondent filed written statement and opposed the claim. The respondent denied the material allegations made by the appellant. According to the respondent, she was ill-treated and tortured at her matrimonial home by the appellant and his family members. Later, the appellant and respondent sorted out their minor disputes and started cohabiting with each other. As agreed, for a period of two years they resided together. The respondent has specifically denied that two years preceding the date of the filing of the petition there was no cohabitation between them. The respondent has been ready and willing to reside with the appellant and lead the family life. The grounds according to the respondent pleaded by the appellant are false and frivolous. In the family Court, the learned Judge on consideration of the evidence concluded that no case was made out on the grounds pleaded in the petition by the appellant for granting the decree of divorce and dismissed the petition. Being aggrieved by this judgment and decree, the appellant has come before this Court.
Contentions Made
Appellant: The oral and documentary evidence adduced by the appellant was cogent, reliable and as such sufficient to accept his case. It was submitted that the respondent has admitted that she was treated by psychiatrist. There was no iota of evidence to establish that in view of the settlement the appellant and respondent resided together for a period of two years from year 2005. Even if it were to be assumed that they resided together for some time, the same would not amount the condonation of the act of desertion and cruelty. Reliance was placed on Uttara Praveen Thool vs Praveen Bhanudas Thool, Smt. Santana Banerjee vs Sachindra Nath Banerjee, Manga @ Mangamma vs D. Venkata Raman and Rajan Vasant Revankar vs Shoba Rajan Ravenkar. The medical evidence was sufficient to prove that the respondent was suffering from incurable disease of Schizophrenia. The three grounds pleaded in the case for divorce had been proved and therefore, the appeal deserved to be allowed.
Respondent: The grounds pleaded by the appellant for seeking decree of divorce have not been proved. The ground of desertion cannot be accepted because the petition was filed within a period of two years from the date of establishing the co-habitation, in the year 2005 by the appellant and respondent. In terms of mutual settlement between the parties they resided together and cohabited for two years in the year 2005 and therefore, the said act would constitute the condonation of the grounds of cruelty and desertion. The said medical evidence was of no use, in as much as the same was for the period prior to 1999. Considering the seriousness of allegations made by the appellant he ought to have examined his family members. The appellant failed to prove the grounds of cruelty, desertion and the ground of mental disorder due to schizophrenia. Reliance was placed on Ram Narain Gupta vs Smt. Rameshwari Gupta, Naveen Kohli vs Neelu Kohli and Kollam Chandra Sekhar vs Kollam Padma Latha.
Observations of the Court and Judgment
The Bench, while dismissing the Family Court Appeal, observed the following:
“It goes without saying that after condoning the so-called act of cruelty the appellant and the respondent resided together and cohabited. In our view, therefore, as far as the ground of cruelty is concerned, the case would be squarely covered by the provisions of Section 23 and 23(1)(b) of the Hindu Marriage Act, 1955. In view of the above, it would therefore follow that even the act of desertion was also condoned.
It is pertinent to mention that the daughter was not examined as a witness to substantiate the first incident of slapping. Similarly, no document is produced on record to corroborate this fact. As far as the incident at Aurangabad is concerned, the appellant has not examined Rohini. Even if the evidence is considered in totality, it is not possible to reach a conclusion that the behaviour of the respondent was such that it would not have been possible for the appellant to cohabit with the respondent. The incidents in our opinion were not so serious to convert them into a ground of divorce as cruelty.
In our view, the ground of desertion cannot be accepted, firstly, for want of cause of action and secondly, for want of concrete and cogent evidence.
If the respondent had been suffering from the schizophrenia of high degree, then she would not have been continued by a company as an employee. Perusal of the evidence of the appellant on this point would show that he has not seriously disputed this fact.
He has admitted that for the sake of child they had mutually decided to resume cohabitation. He has further admitted that in the year 2004, the respondent was not taking any medical treatment. He has further admitted that during cohabitation he never took the respondent to the psychiatrist in the year 2004, as it was not necessary. In our view, the admissions given by the appellant in his cross examination would speak volumes about the real situation. In the backdrop of the evidence on record, this ground also cannot be accepted.
On a fresh appreciation and analysis of the material, we are of the opinion that there is no reason to interfere with the well-reasoned judgment and decree passed by the family Court.”
Case Name: Danesh Madhukarrao Pahade vs Smita Danesh Pahade
Citation: FAMILY COURT APPEAL NO. 95 OF 2014
Bench: Justice A. S. Chandurkar, Justice G. A. Sanap
Decided on:14th January 2022
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