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Mrs. Hemali Bindesh Kelaiya Residing at C/o Mr. Suman Shah 101 Ratna Sindhu 90 Versova in! Road" #ear H$%C Ban!" &ndheri '() Mum*ai+,00 0-. Vs.

.... Mrs. &nita &. &gar7al &dvo5ate 4or the &//ellant Mr. Sam8i 2ose/h along 7ith Mr. Suresh Ba*u i/* Mr. R.B. 6adav and &sso5iates 4or the Res/ondent ....

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CORAM : SMT.V.K.TAHILRAMANI AND V.L. ACHLIYA, JJ. RESERVIED ON : NOVEMBER 1 , 2013 DECLARED ON : JANUARY 21, 201!

JUDGMENT: "PER SMT. V.K.TAHILRAMANI,J.# :

Mr. Bindesh 2ayantilal Kelaiya Residing at B/103" 1st 4loor" Royal &55ord" 6ogi #agar" Borivali '()" Mum*ai+,00 091

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] ] ] ] ] ]..&//ellant '0ri. 1etitioner )

] ] ] ]..Res/ondent '0ri. Res/ondent)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 136 OF 2013

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9he a//ellant+7i4e has 4iled this a//eal against the

8udgment and order dated :.:.301. /assed *y the %amily Court

300; 7as 4iled *y the a//ellant *e4ore the %amily Court 5laiming de5ree o4 divor5e on the ground o4 5ruelty and on the

ground that the res/ondent is su44ering 4rom mental disorder.

Se5tion 1.'1)'iii) o4 the Hindu Marriage &5t" 19--.

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9hus" the /etition 7as 4iled under Se5tion 1.'1)'i+a) and <n the said

/etition" she has also /rayed 4or grant o4 a55ommodation and

/etition.

the res/ondent too! /la5e on 3:.1.3000 at Mum*ai.

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9he 5ase o4 the a//ellant is that her marriage 7ith &4ter

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marriage" she started 5oha*iting 7ith the res/ondent. $uring their 5oha*itation" she noti5ed that the res/ondent is su44ering 4rom mental si5!ness. He used to have re5urrent atta5!s o4

mental disorder/illness due to 7hi5h" he *e5ame violent and he gave a*uses and assaulted her" thus" 5ausing her mental and /hysi5al 5ruelty. &55ording to the a//ellant" the res/ondent

gave her a*uses and assaulted her on 3:.1.3000 at the time o4

4or return o4 her =stridhan> as /er the list atta5hed to the

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#o. -" Mum*ai in 1etition #o. &+1;3 o4 300;. 1etition &+1;3 o4

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their honeymoon" in %e*ruary" 300. 7hen they had gone to South <ndia" on 3?.10.300." in &ugust" 300," in 2anuary" 300:" Se/tem*er" 300:" 3..,.300? and on -.-.300?. &55ording to

the a//ellant" on 3..,.300?" the res/ondent gave a*uses and *eat her mer5ilessly. $ue to 4ear" she 7as 5om/elled to leave the matrimonial house.

9here4ore" sin5e 3..,.300?" she is

5ame to her /arents house.

/ulling her in /resen5e o4 her 4ather and her *rother and he

to res5ue the a//ellant 4rom the 5lut5hes o4 the res/ondent. &t

assaulted her 4ather and *rother.

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res/ondent had /ur5hased a ne7 4lat and the a//ellant had 5ontri*uted Rs.3"00"000/+ 4or /ur5hasing the 4lat. She also

s/ent amount 4or de5orating the 4lat" there4ore" she has 5laimed a55ommodation. &55ording to the a//ellant" her

*elongings as /er the list atta5hed to the /etition" 7ere in the 5ustody o4 the res/ondent" hen5e" she had 5laimed 4or return

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that time" the res/ondent gave a*uses in 4ilthy language and

9he

4urther 5ase o4 the a//ellant is that the

7as s5reaming at her. 9he a//ellant>s 4ather and *rother tried

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staying at her /arents> house.

0n -.-.300? the res/ondent

He 5aught her hand and 7as

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o4 her =stridhan>.

&s 4ar as this as/e5t is 5on5erned" it may *e

stated at this stage that *e4ore the %amily Court at the time o4 arguments" the learned advo5ate 4or the a//ellant su*mitted that the a//ellant has re5eived all her =stridhan /ro/erty> as

/er the list and there is no =stridhan /ro/erty> remaining in the 5ustody o4 the res/ondent.

<n vie7 o4 these 4a5ts" it is not

9he res/ondent had 5ontested the /etition *y 4iling

admitted that the a//ellant 7as staying at her /arent>s home

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her eviden5e *y 4iling a44idavit *y 7ay o4 e@amination+in+5hie4. She has also addu5ed eviden5e o4 $r. Kaustu* MaAumdar 1(+3 and the eviden5e o4 her em/loyer Ra8esh Bhatalia 1(+.. 9herea4ter" she has 5losed her eviden5e. <n order to re*ut the 5laim o4 the a//ellant" the res/ondent+hus*and has addu5ed his eviden5e *y 4iling his a44idavit *y 7ay o4 e@amination+in+ 5hie4 and therea4ter" he has 5losed his eviden5e.

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sin5e 3..,.300?. 9he rest o4 the allegations are denied *y him.

<n order to /rove her 5ase" the a//ellant has addu5ed

his (ritten Statement.

He admitted the marriage.

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ne5essary 4or us to go into the issue o4 return o4 =stridhan>.

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(e have heard the learned 5ounsel 4or the a//ellant+

have 5are4ully 5onsidered their oral eviden5e as 7ell as the do5umentary eviden5e led *y *oth the /arties. 7hi5h 7e are 5alled u/on to de5ide" areC '1) 9he issues

the res/ondent treated the a//ellant 7ith 5ruelty D '3) (hether the a//ellant has /roved that the

has *een su44ering 5ontinuously or intermittently 4rom

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mental disorder o4 su5h a !ind and to su5h an e@tent that the a//ellant 5annot reasona*ly *e e@/e5ted to live 7ith the res/ondent D '.) (hether the a//ellant is entitled to a

de5ree o4 divor5e under Se5tion 1.'1)'i+a) and 1.'1) 'iii) o4 the Hindu Marriage &5t" 19--D ',) (hether the a//ellant is entitled 4or

residential a55ommodation 4rom the res/ondent D

9he 4irst three issues are inter5onne5ted" there4ore" it

res/ondent has *een in5ura*ly o4 unsound mind and

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(hether a4ter solemniAation o4 marriage"

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7i4e and the learned 5ounsel 4or the res/ondent+hus*and. (e

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is ne5essary to de5ide them together in order to avoid re/etition o4 eviden5e.

<t is an admitted 4a5t that *oth the a//ellant and the

res/ondent 7ere married to ea5h other on 3:.1.3000 at

Mum*ai as /er Hindu Vedi5 Rites. 9hey are living se/arately

is su44ering 4rom mental disorder and he had not dis5losed it to her *e4ore their marriage. $ue to mental disorder" the

mental and /hysi5al 5ruelty *y giving a*uses and *eating her.

*eat her and he also *eat her in the month o4 %e*ruary" 300. 7hen they *oth had gone to South <ndia and in &ugust" 300,.

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9he res/ondent had *eaten her mer5ilessly in 2anuary" 300:. 9he res/ondent had given a*uses and assaulted her in the /resen5e o4 her /arents in Se/tem*er" 300:. 0n 11.3.300? he had assaulted her. 0n 3..,.300? he had *eaten her

mer5ilessly and 5om/elled her to leave the matrimonial house and sin5e then she is staying 7ith her /arents. 0n -.-.300? the res/ondent had 5ome to her /arents house" /ulled her

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0n 3:.1.3000 7hen they *oth had gone 4or honeymoon" he

res/ondent *e5ame violent and aggressive and he 5aused her

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4rom 3..,.300?. 9he a//ellant has stated that the res/ondent

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hand" s5reamed at her and had given a*uses and assaulted *y hand to her *rother and 4ather. 9he res/ondent has denied all

9he res/ondent has 5ross+e@amined the a//ellant in order to dis5redit her statements made in e@amination+in+5hie4.

a//ellant has admitted in uneEuivo5al 7ords that she has not

made any 5om/laint *e4ore her /arents regarding the alleged 5ruelty 5aused to her *y the res/ondent. <4 the hus*and

a*uses

and

assaulting

5aused mental and /hysi5al 5ruelty to the 7i4e *y giving her mer5ilessly" then in normal

*e4ore the /oli5e against the hus*and either *y the vi5tim or *y her relatives. &dmittedly" in /resent 5ase" neither the

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a//ellant nor her *rother or /arents have 4iled any 5riminal 5om/laint against the res/ondent regarding 5ausing her mental and /hysi5al 5ruelty.

res/ondent had a*used and assaulted her in 2anuary" 300: in /resen5e o4 her /arents *ut neither the a//ellant nor her

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5ir5umstan5es" it is e@/e5ted that a 5om/laint 7ill *e 4iled

9he a//ellant has stated in her eviden5e that the

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4iled any 5om/laint *e4ore the /oli5e and she has also not

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the a*ove allegations and the ha//ening o4 alleged in5ident.

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/arents

have

4iled

any

5riminal

5om/laint

against

the

res/ondent nor have her /arents *een e@amined to su//ort her 5ase. Her eviden5e 4urther sho7s that on -.-.300?" the

res/ondent had given a*uses in 4ilthy language and assaulted

her 4ather and *rother *ut they have also not 4iled any 5om/laint against the res/ondent. Her eviden5e 4urther sho7s

not

4iled

any

5om/laint

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against the

that her 4ather and *rother 7ere assaulted *ut still they have res/ondent. 9he

a//ellant>s 4ather and *rother are natural eye 7itnesses and

res/ondent.

9here4ore" it is in5um*ent on the a//ellant to

5orro*orate her eviden5e.

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addu5e eviden5e o4 her 4ather and *rother to su//ort and to &dmittedly" the a//ellant has not

addu5ed eviden5e o4 her 4ather or *rother. She has 7ithheld

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the *est 7itnesses 7hi5h are easily availa*le to her. She has also not given any /ro/er e@/lanation 4or not addu5ing eviden5e o4 the *est 7itnesses i.e. her 4ather and *rother. 9here4ore" in this situation" adverse in4eren5e 5an *e dra7n against the a//ellant 4or non+e@amination o4 su5h material 7itnesses. 9here4ore" in su5h situation" it 5reates dou*t a*out the truth4ulness o4 the eviden5e o4 the a//ellant.

vi5tims o4 alleged a*uses and assault on them *y the

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&55ording to the a//ellant" the res/ondent gave her

3:.1.3000 at the time o4 honeymoon" in %e*ruary" 300. in South <ndia" on 3?.3.300." in &ugust" 300," in 2anuary" 300:" in

Se/tem*er" 300:" on 3..,.300? and on -.-.300?. &s 4ar as the

5on5erned" a55ording to the a//ellant" they o55urred in /resen5e o4 her 4ather and *rother" ho7ever" *oth o4 them

su//ort and 5orro*orate the eviden5e o4 the a//ellant.

have not *een e@amined in relation to these in5idents to 0n

assaulted her 4ather and her *rother. <t is not her 5ase that she 7as assaulted on that day. 6et she has not e@amined her

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4ather and her *rother.

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-.-.300?" it is the 5ase o4 the a//ellant that the res/ondent

e@amined the *est 7itnesses 7ho 7ere easily availa*le to her. 9his raises dou*t a*out the vera5ity o4 her eviden5e.

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&s 4ar as the in5ident dated 3:.1.3000 is 5on5erned"

a55ording to the a//ellant" it o55urred on their honeymoon 7hen they had gone 4or honeymoon 4or 1- days through

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in5idents

relating

to

2anuary"

300:

<t is not !no7n 7hy she has not

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a*uses and assaulted her on various o55asions i.e. on

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/a5!age tour.

9here 7ere ; to 10 5ou/les in the tour.

&//ellant as!ed the res/ondent 7hy they 5ould not en8oy li!e other 5ou/les. (hereu/on" he *e5ame 4urious and started

*ehaving in a rude manner and started saying *ad 7ords. 9he a//ellant has not stated e@a5tly in 7hat manner

res/ondent *ehaved" 7hi5h a55ording to her" 7as rude

the res/ondent. 9hus" these allegations are 4ound to *e very vague and they 7ould not *e o4 mu5h hel/ to the a//ellant.

%e*ruary" 300." they had gone to South <ndia 4or t7o 7ee!s.

res/ondent used to argue 7ith her on small issues and used to *eat her. 9he a//ellant has not stated on 7hat issues or things

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the res/ondent used to argue 7ith her a*out or *eat her. She has not stated that any in8ury 7as 5aused to her. #o details have *een 4urnished *y the a//ellant" 7hi5h ma!es her 5ase unrelia*le. 9he a//ellant has stated that on 3?.10.300." the res/ondent a*used her and stated *ad 7ords to her 7hen her mother had e@/ired. &gain no details have *een stated *y the a//ellant so as to ma!e her 5ase *elieva*le. Her allegations

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She has stated that on almost every day o4 their stay" the

9herea4ter" a55ording to the a//ellant" in the month o4

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*ehaviour. She has not stated 7hat 7ere the 7ords stated *y

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are vague in nature. 9hus" 7e 4ind no 5reden5e 5an *e given to them.

11

&55ording to the a//ellant" in &ugust" 300, the

res/ondent had *eaten her so mer5ilessly that she 5ould not *ear the /ains and 7ent to her /arents house. &gain the

stated 7hat 7ere the in8uries sustained *y her.

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reason 4or *eating her u/" has not *een stated nor has she #o medi5al

5erti4i5ate has *een /rodu5ed *y her to su*stantiate her 5laim.

a*out the in5idents *ut they have not *een e@amined to

a*ove a*out the in5idents 7hi5h a55ording to the a//ellant" o55urred in 2anuary" 300: and on -.-.300?. Hen5e" 7e 7ill not

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reiterate here our dis5ussion in relation to those in5idents.

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month o4 Se/tem*er" 300: she had served F5hole and *readF to the res/ondent. 9he res/ondent *ehaved in an ill+mannered 7ay. He had had arguments 7ith his 4ather 4e7 minutes *e4ore the dinner. 9he res/ondent then thre7 the /late o4 4ood and

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su//ort and 5orro*orate her 5ase. (e have already dis5ussed

<t is 4urther the 5ase o4 the a//ellant that in the

She has stated that she dis5losed to her 4ather and her *rother

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s/oiled the hall. He also thre7 the a//ellant>s 4ood in the dust *in and shouted at every*ody. &s 4ar as this in5ident is

7as angry 7ith his o7n 4ather and not the a//ellant and the in5ident o55urred as the res/ondent

had had an argument

7ith his 4ather 8ust a 4e7 minutes *e4ore" it is 4urther the 5ase

res/ondent /ressed the ne5! o4 his o7n mother.

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o4 the a//ellant that she 7as sla//ed *y the res/ondent and 9he

res/ondent then as!ed his 4ather to 5lean the room and 7ent

-.-.300? 7hi5h 7e have already dealt 7ith" this is the only

a//ellant. 9his in5ident o55urred as the res/ondent had had a 4ight 7ith his 4ather and had nothing to do 7ith the a//ellant.

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9he res/ondent did not e@/ress his anger only to7ards the a//ellant *ut during this in5ident he e@/ressed his anger to7ards all the mem*ers o4 his 4amily. %rom this in5ident" it 5annot *e said that the res/ondent treated the a//ellant 7ith 5ruelty. Married li4e should *e revie7ed as a 7hole and 4e7

isolated instan5es over a /eriod o4 years 7ill not amount to 5ruelty. 9he ill+5ondu5t must *e /ersistent 4or a 4airly lengthy

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in5ident a*out 7hi5h ne5essary details have *een given *y the

to slee/. Besides the in5idents relating to 2anuary" 300: and

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5on5erned" assuming it is true" it is seen that the res/ondent

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/eriod 7here the relationshi/ has deteriorated to su5h an e@tent that *e5ause o4 the a5ts and *ehaviour o4 a s/ouse" the

/arty any longer. Mere trivial irritations" Euarrels" normal 7ear

and tear o4 the married li4e 7hi5h ha//ens in day+to+day li4e" 7ould not *e adeEuate 4or grant o4 divor5e on the ground o4

5om/lained o4" really amounts to 5ruelty" has to *e determined 4rom 7hole 4a5ts and the matrimonial relations *et7een the

/ur/oses o4 the said /rovision" 7ill not de/end u/on the

5ourse o4 su5h 5ondu5t *ut really go *y the intensity" gravity and stigmati5 im/a5t o4 it 7hen meted out even on5e and the

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deleterious e44e5t o4 it on the mental attitude" ne5essary 4or maintaining a 5ondu5ive matrimonial home.

1.

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numeri5al 5ount o4 su5h in5idents or only on the 5ontinuous

<n

relation

H
to the

/arties. &s to 7hat 5onstitutes the reEuired mental 5ruelty 4or

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allegations

mental 5ruelty.

9he Euestion 7hether the a5t o4

regarding the 5ruelty *y the res/ondent" it is 7ell settled la7 that *urden o4 /roving 5ruelty lies heavily u/on the /erson 7ho ma!es the allegations. <n the /resent 5ase" all the in5idents

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7ronged /arty 4ound it e@tremely di44i5ult to live 7ith the other

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stated *y the a//ellant e@5e/t the in5ident in the month o4 Se/tem*er" 300:" are vague in nature. #o details have *een

in5ident relating to Se/tem*er" 300: is 5on5erned" it a//ears that anger o4 the res/ondent 7as dire5tly to7ards his 4ather as

he had had heated arguments 7ith his 4ather 8ust 4e7 minutes

*e revie7ed as a 7hole and 4e7 isolated instan5es over a /eriod o4 years 7ill not amount to 5ruelty. &s 4ar as the

the *est 7itnesses i.e. 4ather and *rother o4 the a//ellant have

<t is /ertinent to note that the res/ondent has denied all these allegations. 9he res/ondent has *een 5ross+e@amined. 9he

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res/ondent has s/e5i4i5ally /leaded and stated in his eviden5e that he had not given mental and /hysi5al 5ruelty to the a//ellant *y giving her a*uses and *eating. He has denied all the alleged in5idents o4 5ruelty to the a//ellant *y him. He has not at all *een dislodged in his 5ross+e@amination. <t is to *e noted that the res/ondent has s/e5i4i5ally stated in his eviden5e that on 3..,.300?" the a//ellant hersel4 le4t the

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not *een e@amined to su*stantiate the 5laim o4 the a//ellant.

in5ident relating to 2anuary" 300: and -.-.300? are 5on5erned"

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/rior to the in5ident. &s stated earlier" the marriage li4e should

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4urnished *y the a//ellants in res/e5t thereo4. &s 4ar as the

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matrimonial home stating that she 7ould 5ome *a5! 7ithin ten days to the matrimonial home. She stated that she had to go

4ather>s *usiness. 9herea4ter" he 5alled her 4or 5oha*itation *ut

she did not 5ome as stated *y her and on -.-.300? he 7as 5alled *y the a//ellant>s 4ather to their home. &55ordingly" he

to *ring her *a5! 4or 5oha*itation *ut the a//ellant did not 5ome 7ith him and at that time" the a//ellant>s *rother and

not 5hallenged the a*ove eviden5e o4 the res/ondent during

and he had not given a*uses and assaulted her" there4ore" the a*ove eviden5e o4 the res/ondent" remains un5hallenged.

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9here4ore" on this /ie5e o4 eviden5e" it 5an sa4ely *e held that the a//ellant le4t the matrimonial home on 3..,.300? o4 her o7n a55ord stating that she 7ould 5ome *a5! 7ithin ten days 4or 5oha*itation. <t is /ertinent to note that the a//ellant has also admitted in her 5ross+e@amination that the res/ondent made attem/ts to *ring her *a5! 4or 5oha*itation *ut she did not 5ome *a5! to the matrimonial home.

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the 5ross+e@amination that he had not treated her 7ith 5ruelty

4ather assaulted him and drove him a7ay. 9he a//ellant has

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7ent to the house o4 the a//ellant>s 4ather in an auto+ri5!sha7

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to her /arents house 4or the /ur/ose o4 ta@ a55ounting o4 her

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1,

<n order to /rove the 5ruelty" the a//ellant has also

7itness has admitted that he has not /ersonally seen the

violent *ehaviour o4 the res/ondent to7ards the a//ellant. He has 5learly stated in his 5ross+e@amination that he has not

rely on the hearsay eviden5e o4 1(+. Ra8esh Bhatalia 7hen eye 7itnesses are availa*le.

1-

9he a//ellant is also see!ing divor5e on the ground o4 <n order to /rove that the

res/ondent is su44ering 4rom mental illness" the a//ellant has e@amined 1(+3 $r. MaAumdar. $r. MaAumdar has stated in his

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eviden5e that he is 7or!ing as 1sy5hiatrist in B.&.R.C. 'Bha*ha &tomi5 Resear5h Centre). 9he res/ondent is also 7or!ing in

the said Resear5h Centre. $r. MaAumdar !ne7 the res/ondent as they 7ere *oth 7or!ing in one and same <nstitution. He has stated that the res/ondent 7as ta!ing treatment 4rom him. 9he res/ondent had 5ome to his de/artment 7ith sym/toms o4 F/aranoid s5hiAo/hreniaF. 9he $o5tor has /rodu5ed @ero@

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mental illness o4 the res/ondent.

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7itnessed any su5h in5idents.

9here4ore" it is not ne5essary to

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e@amined 1(+. Ra8esh Bhatalia 7ho 7as her em/loyer. 9his

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5o/ies o4 medi5al /a/ers o4 the res/ondent. <t is /ertinent to note that the a//ellant has not /rodu5ed the original medi5al /a/ers o4 the res/ondent. 1(+3 $r. MaAumdar has admitted that the originals o4 medi5al /a/ers o4 the res/ondent are 7ith B.&.R.C. ho7ever" they 7ere not /rodu5ed *e4ore the Court and only @ero@ 5o/ies o4 the medi5al /a/ers 7ere /rodu5ed. 9hus"

is 7ell settled that the *urden o4 /roving a 4a5t lies heavily u/on the /erson 7ho ma!es the allegations. 9he a//ellant has

5ontents o4 the @ero@ 5o/ies.

not 5om/lied 7ith the legal reEuirements to /rove

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/a/ers

the medi5al /a/ers have not *een /roved a55ording to la7. <t

9here4ore" the medi5al /a/ers

&dmittedly"

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'G@h. 3;) 5annot *e read in eviden5e against the res/ondent. the medi5al /rodu5ed *y 1(+3 $r.

MaAumdar are not /rimary eviden5e *ut those are se5ondary

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eviden5e. &dmittedly" the a//ellant has not ta!en /ermission 4rom the Court *e4ore leading su5h se5ondary eviden5e. 9he a//ellant 7as reEuired to 5om/ly 7ith Se5tion :- o4 the <ndian Gviden5e &5t *e4ore leading se5ondary eviden5e 7hi5h has not *een done *y the a//ellant.

1:

9he Hon>*le &/e@ Court has o*served in the 5ase o4

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U. Sree Vs. Srinivasi (2003) DMC 91 (S.C.) thatC

FSe5ondary eviden5e relating to 5ontents

original is a55ounted 4or" so 4ar as to *ring it 7ithin the <ndian Gviden5e &5t.F

one or other 5ases /rovided 4or under Se5tion :- o4

&dmittedly" the medi5al /a/ers are not the original or 5erti4ied 5o/ies issued *y the B.&.R.C.

/ages 1 to -3 are not in the hand7riting o4 1(+3 $r.

given the /ro/er e@/lanation 4or non+/rodu5tion o4 the original medi5al /a/ers. 9he mandatory essential reEuirements o4

Se5tion :- o4 the <ndian Gviden5e &5t" have not *een 5om/lied 7ith *y the a//ellant. 9here4ore" in this situation and

5onsidering the a*ove o*servation o4 the Hon>*le &/e@ Court in

om

the a*ove authority" in our o/inion" the a//ellant has 4ailed to /rove the medi5al /a/ers /rodu5ed at G@h. 3;. 9here4ore" the medi5al /a/ers /rodu5ed at G@h. 3; 5annot *e read in eviden5e against the res/ondent.

1?

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9he res/ondent has s/e5i4i5ally stated in his eviden5e

MaAumdar. He is not the author o4 the do5uments. He has not

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9he medi5al /a/ers"

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do5ument is inadmissi*le until non /rodu5tion o4

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that due to /ro8e5t 7or! and 5ontinuous 7or! /ressure he 7as not getting /ro/er slee/" and there4ore" he used to ta!e medi5ines. $r. MaAumdar has stated in his eviden5e that the

res/ondent used to ta!e ta*lets as /er his /res5ri/tion. He has also stated in his 5ross+e@amination that the res/ondent a//roa5hed B.&.R.C. hos/ital /ersonally due to 7or! /ressure

/res5ri*ed F9rini5alm/lus and C1HF to the res/ondent.

ig h

and slee/lessness. He has stated in his eviden5e that he has 1(+3

$r. MaAumdar has 4urther admitted in his 5ross+e@amination

9he res/ondent has ta!en medi5al treatment 4or that /ur/ose.

that he has not /res5ri*ed any medi5ines to the res/ondent *et7een 2une" 300? to Se/tem*er" 300?. He has 4urther

om

admitted in the same /aragra/h that as /er his advi5e the res/ondent sto//ed ta!ing medi5ines during the a*ove /eriod. <n vie7 o4 the a*ove dis5ussion" in our o/inion" the eviden5e o4 1(+3 $r. MaAumdar does not /rove that the res/ondent is su44ering 4rom mental disorder to su5h an e@tent that it 7as di44i5ult 4or the a//ellant to live 7ith the res/ondent.

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$r. MaAumdar has admitted in his 5ross+e@amination in /ara 1.

that the a*ove ta*lets redu5e stress and ena*le /ro/er slee/.

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1;

9he res/ondent has stated in his eviden5e that he

7as 7or!ing in B.&.R.C. i.e. #u5lear 1o7er Cor/oration <ndia

o4 the so5iety 4rom 3003 to 300?.

He is still /er4orming his

o44i5ial 7or! and he is not su44ering 4rom any mental disorder. Hen5e" on this *asis" it 5an sa4ely *e held that he is not

ma!e it di44i5ult to live 7ith him.

res/ondent 7as hos/italiAed 4or some /eriod o4 time or

9he a//ellant>s 7itness 1(+3 $r. MaAumdar has also not stated in his eviden5e that the res/ondent 7as hos/italiAed 4or some

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/eriod o4 time 4or his alleged mental disorder and ele5tri5 sho5! treatment 7as given to him. <n 4a5t" $r. MaAumdar has stated that i4 the /atient is violent and aggressive" they gave ele5tri5 sho5!. 9his sho7s that the res/ondent>s *ehaviour 7as not so violent or aggressive so as to give him ele5tri5 sho5! treatment. $r. MaAumdar has admitted that on 3.,.199; the res/ondent a//roa5hed B.&.R.C. hos/ital due to 7or! stress

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re/eated ele5tri5 sho5! treatment 7as given to the res/ondent.

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9he a//ellant has not stated in her eviden5e that the

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su44ering 4rom any mental disorder to su5h an e@tent as to

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td. He had *een /romoted. He also 7or!ed as the Se5retary

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and slee/lessness. He /res5ri*ed F9rini5alm/lus and C1HF on 3.,.199; to the res/ondent. $r. MaAumdar has 4urther

ena*le /ro/er slee/ to the res/ondent.

stated that 4rom $e5em*er" 300, on7ards" he had /res5ri*ed

F0lane@ ta*lets o4 3.- mg.F to the res/ondent. $r. MaAumdar

res/ondent *et7een the /eriod 4rom 2une" 300: to Se/tem*er" 300?. He has admitted that that as /er his advi5e" the

has 5ome in the eviden5e o4 $r. MaAumdar that F0lane@F

9hus" this sho7s that lo7est /ossi*le dosage 7as *eing given to the res/ondent. 1(+3 $r. MaAumdar 7ho is the a//ellant>s

om

7itness" has also stated a*out the /romotion o4 the res/ondent 4rom FBF Brade to FCF Brade. He has also stated that he 7as

a7are that the res/ondent 7as the Se5retary o4 the so5iety o4 his *uilding Royal &55ord. 9his sho7s that the res/ondent 7as not su44ering 4rom su5h a disorder that the a//ellant 5annot reasona*ly *e e@/e5ted to live 7ith him.

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ta*lets are availa*le in 3.- mg." - mg." ?.- mg." and 10 mg.

res/ondent sto//ed ta!ing medi5ines during this /eriod.

ig h

has admitted that he had not /res5ri*ed any medi5ines to the

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admitted that these ta*lets 7ere /res5ri*ed to redu5e stress to

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30

Mrs. &gar7al" the learned 5ounsel 4or the a//ellant

has /la5ed relian5e u/on the de5ision o4 the Su/reme Court in the 5ase o4 Vinita Saxena Vs. Pankaj Pandit , re/orted in AIR

200

S.C. 1

2.

Mrs. &gar7al /ointed out that in the said

5ase" the hus*and 7as su44ering 4rom mental disorder. <t 7as a

5ase o4 F/aranoid s5hiAo/hreniaF 7hi5h is similar to the illness

5ase" it 7as held that the 7i4e 7as entitled to a de5ree o4 divor5e. (e have 5are4ully gone through the said de5ision. <n the said de5ision" it is noti5ed that the hus*and 7as su44ering 4rom mental disorder and 7as not a*le to have se@ual

5onsummated.

that this 4a5t *y itsel4 5onstrues Fmental 5rueltyF and is a good

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ground 4or grant o4 divor5e.

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relationshi/ 7ith 7i4e" due to 7hi5h" the marriage 7as not 9he Su/reme Court in the said de5ision held

hus*and attem/ted to 5ommit sui5ide and 7as a 5ase o4 F/aranoid s5hiAo/hreniaF. 9he /arties 7ere living se/arately

and had not seen ea5h other sin5e last 1. years. Considering humane as/e5t" the Su/reme Court held that the 7i4e 7as entitled to a de5ree o4 divor5e. 9hus" it is seen that it 7as not only on the ground that the hus*and 7as su44ering 4rom
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o4 the /resent res/ondent.

She /ointed out that in the said

Moreover" in the said 5ase" the

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F/aranoid s5hiAo/hreniaF that divor5e 7as granted *ut it 7as mainly on a55ount o4 the 4a5t that the hus*and 7as not a*le to

5onsummation o4 marriage" 7hi5h a55ording to the Su/reme

Court" 5onstitutes mental 5ruelty and is a good ground to grant

divor5e and divor5e 7as granted. #o dou*t" the hus*and 7as

Court has o*served that under Se5tion 1.'1)'i+a) Fmental disorderF as a ground o4 divor5e is only 7here it is o4 su5h a

e@/e5ted to live 7ith the res/ondent+hus*and. <n the /resent

res/onsi*le /ost in B.&.R.C. He had *een /romoted. He 7as 7or!ing as Se5retary o4 his so5iety 4or a num*er o4 years

om

during the /eriod that the a//ellant 7as married to him. %rom these 4a5ts" it is seen that the hus*and i.e. res/ondent 7as a*le to live a normal li4e.

31

is 7hether the marriage *et7een the /arties 5an *e dissolved *y granting a de5ree o4 divor5e on the *asis o4 one s/ouse>s

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5ase" it is seen that the res/ondent 7as 7or!ing in a

9he legal Euestion that arises 4or our 5onsideration

!ind and degree that the a//ellant 7i4e 5annot reasona*ly *e

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su44ering 4rom F/aranoid s5hiAo/hreniaF" *ut the Su/reme

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have se@ual relationshi/ 7ith the 7i4e 7hi5h resulted in non+

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mental illness 7hi5h in5ludes s5hiAo/hrenia under Se5tion 1.'1)'iii) o4 the &5t. <n the Gnglish 5ase o4 (hysall Vs. ShysallI

'19-9) . &

GR .;9" it 7as held that a s/ouse is in5ura*ly o4

unsound mind i4 he or she is o4 su5h mental in5a/a5ity as to ma!e normal married li4e im/ossi*le and there is no /ros/e5t o4 any im/rovement in mental health" 7hi5h 7ould ma!e this

/roved" 5annot" *y itsel4" 7arrant a de5ree o4 divor5e and it must *e 4urther /roved that it is o4 su5h a nature as the 7i4e 5ould not *e e@/e5ted to live 7ith the hus*and.

ig h

/ossi*le in 4uture.

Mental disorder o4 the hus*and even i4

manage his or her a44airs is an essential attri*ute o4 an

/la5ed on re5ord /rodu5ed *y the a//ellant in this 5ase" does not esta*lish su5h ina*ility as a ground on 7hi5h dissolution o4

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marriage 7as sought 4or *y her *e4ore the trial Court.

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in5ura*ly unsound mind. 9he 4a5ts /leaded and the eviden5e

thus" 5lear that the res/ondent" even i4 he did su44er 4rom s5hiAo/hrenia" it 7as not to su5h an e@tent as to ma!e living together im/ossi*le.

33

Merely *randing a s/ouse as a s5hiAo/hreni5 is not

su44i5ient. 9he degree o4 mental disorder o4 the s/ouse must

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*e /roved to *e su5h

that /etitioning s/ouse 5annot

reasona*ly *e e@/e5ted to live 7ith the other. 9he Su/reme

re/orted in AIR 19(( S.C. 22 0) has held that the degree o4 mental disorder must *e /roved. <t should *e su5h that the

/etitioning s/ouse 5annot reasona*ly *e e@/e5ted to live 7ith

FmindF and Fmental disorderF o55ur in the se5tion as grounds 4or dissolution o4 a marriage" reEuire the assessment o4 the

the s/ouse see!ing relie4 5annot reasona*ly *e e@/e5ted to live

grounds 4or grant o4 de5ree.

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7ith the other. &ll mental a*normalities are not re5ogniAed as <4 the mere e@isten5e o4 any

degree o4 mental a*normality 5ould 8usti4y dissolution o4 a

om

marriage" 4e7 marriages 7ould" indeed" survive in la7. But the /ersonality disintegration that 5hara5teriAes this illness may *e o4 varying degrees. #ot all s5hiAo/hreni5s are 5hara5teriAed *y the same intensity o4 the disease. 9he mere *randing o4 a %or the is 7hat

/erson as s5hiAo/hreni5 there4ore" 7ill not su44i5e. /ur/ose o4 Se5tion 1.'1)'iii) Fs5hiAo/hreniaF

s5hiAo/hrenia does. &55ording to 5lause 'iii)" t7o elements are

degree o4 the Fmental disorderF. <ts degree must *e su5h that

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the other. 9he 5onte@t in 7hi5h the ideas o4 unsoundness o4

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Court in the 5ase o4 Ra! "arain #$%ta Vs. Ra!es&'ari #$%ta I

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ne5essary to get a de5ree.

9he /arty 5on5erned must *e o4

unsound mind or intermittently su44ering 4rom s5hiAo/hrenia or mental disorder. &t the same time that disease must *e o4

su5h a !ind and o4 su5h an e@tent that the other /arty 5annot

reasona*ly *e e@/e5ted to live 7ith him. So only one element o4 that 5lause is insu44i5ient to grant a de5ree.F

3.

&s stated earlier" the res/ondent has denied that he

7as su44ering 4rom any su5h mental illness and a55ording to

and slee/lessness. 9he res/ondent has *een 5ross+e@amined

su44er 4rom F/aranoid s5hiAo/hreniaF has not *een dislodged in the 5ross+e@amination. 9he res/ondent has also stated that he

om

had not given any mental or /hysi5al 5ruelty to the a//ellant *y giving her a*uses and *eating. #o dent has *een 5reated in this averment in the 5ross+e@amination. <n vie7 o4 the a*ove dis5ussion" in our o/inion" the a//ellant 4ailed to /rove that the res/ondent+hus*and treated her 7ith 5ruelty and her hus*and i.e. the res/ondent is su44ering 4rom any mental disorder o4 su5h nature that she 5annot *e reasona*ly e@/e5ted to live

ba y

at length.

9his averment o4 the res/ondent that he did not

him" he 7as ta!ing medi5ation as he 7as su44ering 4rom stress

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7ith him. <n our vie7" the eviden5e o4 the res/ondent sho7s that there 7as minor 7ear and tear o4 their married li4e. <t is a

minor 7ear and tear o4 married li4e. 9here4ore" the a//ellant is

not entitled to get the de5ree o4 divor5e on the ground o4 5ruelty and mental disorder o4 the res/ondent as /er Se5tion

3,

9he

a//ellant

ig h
has also

1.'1)'i+a) and 1.'1)'iii) o4 the Hindu Marriage &5t" 19--.

5laimed

Rs.3"00"000/+ at the time o4 /ur5hasing a ne7 4lat.

a55ommodation on the ground that she had 5ontri*uted She has

de5orating the 4lat.

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also s/ent Rs.,"00"000/+ to Rs.-"00"000/+

9he res/ondent has denied the a*ove

allegations o4 the a//ellant. He has s/e5i4i5ally /leaded and

om

stated in his eviden5e that he had re/aid Rs.3"00"000/+ to the a//ellant *y 5heEue. 9his averment o4 the res/ondent has

*een admitted *y the a//ellant in her 5ross+e@amination. 1aragra/h ,1 o4 o4 her 5ross+e@amination sho7s that the res/ondent re/aid Rs.3"00"000/+ to her. &s 4ar as her averment that she had s/ent Rs. ,"00"000/+ to Rs.-"00"000/+ on 4urnishing and de5orating the 4lat is 5on5erned" she has not addu5ed any

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ty/e o4 5ogent or do5umentary eviden5e to /rove that she has s/ent Rs. ,"00"000/+ to Rs. -"00"000/+ 4or 4urnishing and de5orating the 4lat. 9hus" 7e 4ind that the eviden5e o4 the

a//ellant is dou*t4ul and not trust7orthy and in our vie7" the a//ellant has 4ailed to /rove that she had 5ontri*uted any amount at the time o4 /ur5hasing o4 the 4lat. 9he res/ondent

the 4lat *y ta!ing loan and his /arents also 5ontri*uted to7ards the same. 9his eviden5e o4 the res/ondent has not at all *een

not /rodu5ed any /ur5hase deed or share 5erti4i5ate to /rove

eviden5e o4 the res/ondent that he is o7ner o4 the 4lat" a//ears to *e trust7orthy and *elieva*le. <n su5h

om

5ir5umstan5es" 7e hold that the a//ellant 4ailed to /rove that she has 5ontri*uted Rs.3"00"000/+ 4or /ur5hasing ne7 4lat and s/ent Rs. ,"00"000/+ to Rs.-"00"000/+ 4or 4urnishing and de5orating the 4lat. 9here4ore" she is not entitled 4or any

residential a55ommodation as /rayed.

3-

ba y

her 8oint o7nershi/ over the dis/uted 4lat.

5hallenged during his 5ross+e@amination.

ig h

has s/e5i4i5ally stated in his eviden5e that he has /ur5hased

0n going through the entire eviden5e on re5ord" 7e

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are o4 the o/inion that the a//ellant 4ailed to /rove her 5ase. 9here is no merit in the a//eal. dismissed. 9he a//eal is" there4ore"

" V.L. ACHLIYA, J. #

kandarkar

"SMT. V.K.TAHILRAMANI, J.#

om

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