1 FCA-15-14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FAMILY COURT APPEAL NO. 15/ 2014
WITH
FAMILY COURT APPEAL NO. 16/ 2014
Nilay s/o Sudhakarrao Chouthaiwale,
Aged about : 33 years,
Occupation : Service, Resident of 75,
Kurve Nagar, Nagpur 440 025. ..... APPELLANT
...V E R S U S...
Shivangi Nilay Chouthaiwale,
Aged about : 30 years,
Occupation : Household,
Resident of C/o Vasantrao Deshmukh,
Plot No.50, Maharshi Developers,
Vidya Vihar Colony, Pratap Nagar,
Nagpur. ... RESPONDENT
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Mrs. P. M. Chandekar, Advocate for the appellant.
Shri Abhijit Khare, Advocate for the respondent.
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CORAM:-
SMT. VASANTI A NAIK &
ARUN D. UPADHYE, JJ.
DATED :-
18/07/2017.
ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.) By these family court appeals, the appellant-Husband challenges the common judgment of the Family Court, dated 31.07.2003 allowing the petition filed by the respondent-Wife for restitution of conjugal rights and dismissing the petition filed by the appellant-Husband for judicial separation under Section 10 of the Hindu Marriage Act.
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2 FCA-15-14.odt Few facts giving rise to the family court appeals are stated thus:-
The appellant-Husband and the respondent-Wife were married at Nagpur on 26.11.1993 according to Hindu rites and custom. Ku.Gauri and Ku.Vaikhari are born from the wedlock. After the marriage, the husband and the wife resided together in the house owned by the father of the husband, along with the parents of the husband and his brothers. It is the case of the husband in the petition filed by him for judicial separation that since the inception of the marriage, the wife was behaving indifferently with the husband and her in-laws. It is pleaded that the wife never respected the elders and did not perform her household duties. It is pleaded that the wife used to abuse the family members and always pressurized the husband to reside separately from his parents and brothers. It is pleaded that though the wife was in service for a period of three months after the solemnization of the marriage, she resigned from the job as a qualified stenographer though the husband did not wish that she should leave the job as she would have been occupied if she continued serving as a stenographer. It is pleaded that the husband believed that one day or the other, the wife would mend her ways, however the wife did not change her ways. After one year from the marriage, the husband secured a job at Indore and the wife stayed at Nagpur as she was pregnant at the relevant time. It is pleaded that when after the delivery, the wife was about to go to ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 3 FCA-15-14.odt Indore to reside with the husband, he requested the wife to fetch her parents to Indore to look after the small child. It is pleaded that the parties resided together at Indore from March-1995 to March-1997 and during this period also there was no change in the behaviour of the wife. The second daughter, Vaikhari was born at Indore. It is pleaded that when the husband's parents came to see the child at Indore in June-1995, the wife behaved badly with them. It is pleaded that in January-1997, the wife's father came to Indore and assaulted the husband for no reason. It is pleaded that at Indore, when the husband was sitting in a room, the wife picked up quarrel with the landlady and with a view to avoid further problems, the husband looked out for another house on rent. It is pleaded that in June-1997, the wife left for Nagpur and started residing with her parents. It is pleaded that since the wife had left Indore, the husband also had to leave his job and search for a new job at Nagpur which fetched him the income of only Rs.5,000/- per month when he was earning Rs.17,000/- per month at Indore. It is pleaded that after returning to Nagpur, the husband and the wife started residing in the house of the father of the husband. It is pleaded that the wife used to beat her daughters without any rhyme or reason. It is submitted that due to the constant fights in the house, the parents of the husband started residing at Nanded with the brother of the husband. It is pleaded that when Mahalaxmi Pooja was to be performed at the house of the cousin of the husband at Yavatmal, the ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 4 FCA-15-14.odt wife did not permit him to go to Yavatmal. It is pleaded that during Navratri when the husband's mother served food to all the members, the wife threw the plates in which the food was served. It is pleaded that in view of the aforesaid incidents, the husband started searching for a separate residence at Nagpur. It is pleaded that the wife tried to prevent the husband from attending the engagement ceremony of the brother of the husband. It is pleaded that when the husband did not accede to her demand of not attending the engagement ceremony, the wife became furious and started beating her daughters. It is pleaded that the wife also threatened the husband that she would commit suicide if the husband does not accede to her demands. It is pleaded that when the brother of the husband got married in June-1998, the wife did not attend the marriage and did not cooperate with the husband in any manner. It is pleaded that the wife used to cut the telephone wires and on one occasion, she threw the receiver of the telephone. It is pleaded that when on 15.07.1998, the wife's father had arranged a trip to Mahur and they had requested the husband to accompany them, since the husband could not accompany in view of his service, the wife became furious and threw the receiver of the telephone in a rage and when the mother of the husband tried to advice the wife, the wife threatened the husband that she would set herself on fire. It is pleaded that after the said threat, the wife set herself on fire but the husband immediately extinguished the same. It is pleaded that at 3 ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 5 FCA-15-14.odt O'clock at night on 15.07.1998, the wife started beating the husband as well as her daughters after a fight with him. It is pleaded that on 16.07.1998, the wife again tried to set herself on fire by lighting a matchstick but, the husband prevented her from burning. It is pleaded that the husband had contacted the Corporator and his neighbour Mrs.Dani, who reported the matter in regard to the wife setting herself on fire to the police. It is pleaded that after recording the statements of both the husband and the wife, the parties returned to the matrimonial home but the wife declined to cook for the husband and hence the husband was required to take his meals outside. It is pleaded that the wife became angry after returning to the house and threw a cup of milk and broke the cup which was sought to be offered to both the girls. The husband pleaded that the behaviour of the wife was abnormal and therefore, the husband took the wife to Dr.Avinash Joshi, a Psychiatrist and Dr.Nandita Sanyal but, the wife refused to take the medicines after a few days. The husband pleaded that it was not possible for him to reside with the wife under one roof in the aforesaid circumstances and hence he was entitled to a decree of judicial separation.
The wife filed the written statement and admitted the factum of marriage and the birth of the girls, viz. Ku.Gauri and Ku.Vaikhari. The wife denied all the adverse allegations levelled against her. The wife pleaded in the specific pleadings that within a couple of months of her pregnancy, she had suffered from Blood ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 6 FCA-15-14.odt Pressure problem and other physical ailments. It is pleaded that though the wife did not wish to eat much due to nausea, the husband and his family members used to force her to have more food. It is pleaded that the husband brought the parents of the wife to the matrimonial home only to show them that the wife was not eating enough food. It is pleaded that the husband and his brother abused the wife and her parents and asked her parents to leave the matrimonial home. It is pleaded that the wife became aware after the solemnization of the marriage that the mother and the brother of the husband did not allow her to do the household work and she was not permitted to cook in the kitchen. It is pleaded by the wife that she was asked to sit in the hall and the brother of the husband would arrange the bed and the mat of the husband and the wife before they went to bed. The wife pleaded that when she was asked to prepare some snacks for the family members in January-1994, the gas cylinder was empty and after she filled kerosene in the stove and started preparing the snacks, the husband and his brothers closed all the doors and windows and curtains of the four rooms and started staring at her, as a result of which she was frightened and came to the main hall. It is pleaded that the husband did not clarify as to why they closed the doors and windows of the house and started staring at her while she was preparing the snacks. It is pleaded that the husband never took pains for the wife or the daughters. It is pleaded that the wife was disturbed because of the ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 7 FCA-15-14.odt behaviour of the husband and his family members. It is pleaded that when the husband used to return to the matrimonial home late at night after his job, the wife used to entertain him without any complaint. It is pleaded that though she did not wish that the parties should have a second child as she was not fully fit, the husband thrust the second pregnancy on the wife against medical advise. It is pleaded that after the second pregnancy, the wife suffered from post pregnancy trauma that is known as postpartum psychosis. It is pleaded that the said phenomenon is not uncommon in women who undergo the pregnancy and the delivery as also hysterectomy and the said phenomenon is not serious. It is pleaded that the wife could have recovered within a short time had the husband and his family members taken care of her and had not subjected her to any trauma. It is pleaded that the husband did not care of the mental and physical condition of the wife. It is pleaded that post hysterectomy operation, the husband abused the wife and stated that she was useless. The wife pleaded that the husband was indifferent and negligent towards the wife and after the parties started residing separately, the wife was not permitted to meet her daughters. It is pleaded that the husband and his family members drove away the wife from the matrimonial home and did not allow her to return to the matrimonial home and meet her daughters. The wife sought for the dismissal of the petition filed by the husband for judicial separation. On similar pleadings, the wife prayed for a decree of restitution of conjugal ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 8 FCA-15-14.odt rights. The claim of the wife was denied by the husband.
On the aforesaid pleadings of the parties, the Family Court framed the issues and on an appreciation of the evidence on record, the Family Court allowed the petition filed by the wife for restitution of conjugal rights and dismissed the petition filed by the husband for judicial separation. The common judgment of the Family Court is challenged by the husband in the two appeals. One of the appeals is filed by the husband against the part of the judgment that grants a decree of restitution of conjugal rights in favour of the wife. The second appeal is filed by the husband against the part of the judgment by which the petition filed by the husband for a decree of judicial separation is dismissed.
Mrs.Chandekar, the learned counsel for the husband, submitted that the Family Court was not justified in allowing the petition filed by the wife and dismissing the petition filed by the husband. It is submitted that though it was not the case of the husband that the wife was incurably of unsound mind and was suffering from mental disorder, the Family Court framed the issue in that regard at the eleventh hour while rendering the judgment. It is stated that the issue in regard to the wife being of unsound mind and suffering from mental disorder should not have been framed by the Family Court. It is stated that according to the case of the husband, the behaviour of the wife was erratic and in view of the erratic behaviour, she committed several acts, ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 9 FCA-15-14.odt inflicting cruelty on the husband. It is stated that after framing the issue viz. 'whether the wife had treated the husband with cruelty?', the Family Court should not have proceeded to frame an issue, viz. 'whether the husband proved that the wife was of incurably unsound mind and was suffering from mental disorder?', when such was not the case of the husband. It is submitted that in the absence of any evidence in that regard, the Family Court erroneously held by referring to the provisions of Section 23 of the Hindu Marriage Act that the husband and his family members closed the doors and the windows of the house while the wife was trying to prepare snacks on a stove that was filled with kerosene and were staring at her as a result of which she got frightened and ran away. It is submitted that though the wife had pleaded such a case, the evidence of the wife is silent in this regard. It is submitted that in the absence of any evidence in this regard, the Family Court could not have relied on the bare pleadings of the wife to hold that the act on the part of the husband of closing the doors and windows of the house when the wife was cooking on the stove filled with kerosene and staring at her showed that the husband was at fault and therefore, he was not entitled to a decree of judicial separation. It is submitted that the Family Court erroneously held that the specific instances pointed out by the husband to prove that the wife had treated him with cruelty were not so serious and were referable to the normal wear and tear in every matrimony. It is submitted that the act on the part of the wife of throwing the plates ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 10 FCA-15-14.odt filled with food, destroying the receiver and the telephone line, beating the girls without any rhyme or reason after getting angry with the husband, setting herself on fire with a view to teach a lesson to the husband, threatening the husband that she would commit suicide if he would not accede to her demands, beating the husband and the daughters on a couple of occasions without any just or reasonable excuse would not be the incidents that could be termed as the acts of normal wear and tear in a matrimony. It is submitted that since the husband had proved the facts pleaded by him against the wife, the Family Court ought to have held that the wife had treated the husband with cruelty and that such incidents did not refer to the normal wear and tear in the household. It is submitted that the Family Court erroneously held that the wife was suffering from a disorder relating to her pregnancy and delivery and therefore it was for the husband to take care of the wife. It is stated that the husband had taken good care of the wife during her pregnancy and after her delivery and had also taken her to a couple of doctors but the wife had stopped taking medicines within a week and, therefore the husband was helpless. It is submitted that the parties are residing separately for a period of nearly twenty years and it is not possible for them to reside under one roof. It is submitted that though the husband, his parents and his brothers were residing in a joint family at Nagpur, the wife always desired to live in a nuclear family and though the husband acceded to the demand of the ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 11 FCA-15-14.odt wife and started residing with her in a rented premises, the wife did not change her ways. It is submitted that since the findings of the Family Court are based on 'no evidence', specially on the issue no.4, it would be necessary to set aside the findings recorded by the Family Court and grant a decree of judicial separation in favour of the husband after reversing the decree for restitution of conjugal rights.
Shri Khare, the learned counsel for the wife has supported the Judgment of the Family Court and submitted that in the circumstances of the case, the Family Court has rightly granted a decree of restitution of conjugal rights and rejected the prayer of the husband for a decree for judicial separation. It is submitted that the evidence on record would clearly show that the wife was suffering from some psychological problem arising from pregnancy and delivery. It is stated that the psychological problems arose after the family planning operation was performed on the wife. It is submitted that the erratic behaviour of the wife could have been cured and if the wife was treated by competent doctors, she would have recovered. It is submitted that instead of taking care of the wife, the husband ill-treated the wife and sent her to her parental home. It is submitted that the wife always wanted to reside with the husband under one roof and therefore, she had filed the petition for a decree of restitution of conjugal rights. It is stated that the evidence tendered by the wife and the doctor examined on her behalf would clearly show that the wife was suffering from a ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 12 FCA-15-14.odt psychological problem that had resulted from the delivery and the hysterectomy operation. It is submitted that it is apparent from the evidence of Dr. Shirpurkar who is examined on behalf of the wife that the wife could have recovered shortly, had the husband and his family members taken care of the wife. It is submitted that the wife was not suffering from any gynecological disorder but had some psychological problem which was a temporary phase. It is submitted that in the circumstances of the case, the Family Court rightly held that the husband had failed to prove that the wife had treated him with cruelty and the wife had proved that the husband had deserted her without just and reasonable excuse. The learned counsel sought for the dismissal of the appeals.
On hearing the learned counsel for the parties and on a perusal of the original record and proceedings, it appears that the following points arise for determination in these Family Court Appeals:-
1. Whether the husband has proved that the wife had treated him with cruelty ?
2. Whether the husband is entitled to a decree of judicial separation ?
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3. Whether the husband had withdrawn from the society of the wife without any just and reasonable excuse ?
4. Whether the wife was entitled to a decree of restitution of conjugal rights ?
In support of the case pleaded by the husband, the husband examined himself. The husband reiterated the facts stated by him in the petition for judicial separation, in his examination-in-chief. The husband was cross-examined on behalf of the wife. The husband admitted that the wife had secured M.Com Degree and she was a qualified Stenographer. The husband admitted that the parties were residing together in the joint family comprising of his parents, his two brothers and the husband and the wife. The husband admitted that the matrimonial house comprises of four rooms and there was a separate accommodation for the husband and the wife. The husband admitted that he went to Indore for the job prospects but he denied that the parents of the husband resided with him at Indore for about one and half month. The husband admitted that the second delivery was a caesarean. The husband admitted that he had taken the wife to Dr.Bhattacharya and though the doctor had prescribed medicines for 15 days, the wife stopped taking the medicines after four days. It is stated that though the wife was feeling better after taking the medicines and ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 14 FCA-15-14.odt the husband tried to convince the wife that she would be normal if she consumes the medicines, the wife did not take the medicines after four days. The husband denied that he had not given proper treatment to the wife after she suffered from the psychological problem. The husband admitted that at the time of tendering the evidence, he was residing with his family members i.e. his parents and brothers. The husband denied that he had not brought medicines for the wife as prescribed by the doctor. The husband denied that he felt that the wife was unfit for performing her marital obligations and therefore his behaviour with the wife was changed. The husband had denied that he did not have love and affection for the wife. The husband denied that he had falsely deposed that the wife threw the dishes filled with food during the Navratri Festival. The husband denied that his case that the wife threw the clothes outside the cubboard and that she destroyed the telephone wires and receiver was false. The husband denied that he was deposing falsely that the wife threatened that she would commit suicide by setting herself on fire. The husband denied that he tried to make out a false case against the wife.
The husband examined Dr. Joshi, the Psychiatrist as his witness. Dr. Joshi stated in his evidence that he had given the prescription for the wife at Exh.57. The doctor stated in his evidence that he had diagnosed in the document at Exh.39 that the wife was suspecting and was behaving violently. The doctor stated that he had ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 15 FCA-15-14.odt prescribed medicines for the wife and after 10/06/1999, i.e. within four days, the wife has stopped taking the medicines. The doctor stated that it was difficult to state the reason, as to why the wife suffered from the psychological problem. The psychiatrist was cross-examined on behalf of the wife. The doctor admitted in his cross-examination that he used to maintain the register for appointment purpose but he was not able to produce any register at the time of tendering the evidence as the same would be in the possession of the receptionist. The doctor admitted that in his prescription, the details of the problem suffered by the wife were not mentioned. The doctor admitted that it is not mentioned in the prescription as to who brought the patient to him. The doctor admitted that the psychological problem suffered by the wife could be because of inherent biochemical changes in the brain. The doctor admitted that there was a possibility that such type of psychological problem would occur after the delivery i.e. within a span of one month from the delivery. The doctor admitted that such problem could arise even after normal delivery or caesarean and family planning operation has no relevance with the illness. The doctor admitted that by and large a patient like the wife, could have recovered within a span of six months. The doctor admitted that after 06/07/1998, he never examined the wife and he did not have any record in regard to further examination.
Apart from the doctor, the husband examined Smt.Sulabha Dani, who was the corporator and also a neighbour of the ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 16 FCA-15-14.odt husband and the wife. Smt.Sulabha Dani stated in her evidence that once the wife had left both the daughters in the house without locking the door. Smt.Sulabha Dani stated in her evidence that when she went to the house of the husband on 16/07/1998, she saw that all the household items were thrown here and there and the wife had tried to set herself on fire in the kitchen and a part of the clothes of the wife were burnt. Smt.Sulabha Dani further stated that the police took the husband, wife, Smt.Sulabha and other members of the family to the police station where there was a compromise between the parties and the wife again returned to the house but on the same night, the brother of the wife took her to her parental home and the wife did not return to the matrimonial home thereafter. In her cross-examination, Smt.Sulabha Dani admitted that sometime after the marriage, the parties were residing at Indore. Smt.Sulabha admitted that being a corporator, she could have had an access to the police. Smt.Sulabha however denied the suggestion that she had not personally witnessed the incident of the wife setting herself on fire in the kitchen. Smt. Sulabha also denied the suggestion that it was on the say of the husband that she had called the police. Smt.Sulabha denied the suggestion that after the second delivery, the wife was suffering from psychological problem. She however admitted that she did not know about the personal life of the husband and the wife. Smt.Sulabha denied that being the neighbour of the husband and his family ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 17 FCA-15-14.odt members, she was deposing falsely on the say of the husband.
The brother of the husband was also examined on behalf of the husband. Ajay, the brother of the husband stated in his evidence that the wife was behaving erratically and wanted to reside separately from the joint family. Ajay stated that when his mother had gone to Indore during the second pregnancy of the wife for helping the wife, the wife drove his mother away from her house at Indore and hence, his mother had left the house of the husband at Indore within 2-3 days. Ajay stated that his parents were always harassed by the wife and therefore in 1997 he took his parents with him to Nanded. Ajay stated in his evidence that on 25/01/1998 on the occasion of his engagement, the wife assaulted and gave beating to the daughters in his presence only to ensure that the husband did not attend the engagement ceremony. It is stated that the wife used to threaten that she would commit suicide. Ajay stated in his evidence that the wife did not allow her daughters to attend his marriage and the wife also did not attend his marriage. It is stated that since the behaviour of the wife was erratic, he had started residing in a rented house in Surve Nagar. Ajay denied the suggestion that the husband went to Indore because the job at Indore was more lucrative. Ajay denied that he had falsely stated that in the month of March, 1996, the wife cancelled the reservation for the travel of his parents to Indore and took her parents to Indore. Ajay denied the suggestion that he was deposing falsely as the husband was ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 18 FCA-15-14.odt his brother.
The wife entered into the witness box and stated that the husband was behaving badly with her. The wife stated in her evidence that after her second delivery, she suffered from some psychological problem. She stated that the doctor always told her that she did not suffer from any weakness. The wife stated that she had looked after both the daughters but since the environment in the house was not good she always used to get irritated. The wife stated in her examination-in-chief that she was taken to Dr.Bhattacharya and Dr.Joshi by the husband. The wife stated that though she was taking the medicines of Dr.Joshi for 10 days, there was no change in her behaviour and therefore, on the say of Dr. Bhattacharya, she stopped taking the medicines. The wife stated that though she was taken to the counsellor who advised her to change her behaviour, there was no change in her behaviour. The wife stated that the parents of the husband used to harass and dominate her. The wife admitted that the husband had once agreed to go along with her family members to Mahur but at the last moment, he did not turn up and therefore, there was an altercation between the husband and the wife. The wife stated that the police took the husband, the wife and some other family members to the police station. The wife admitted that her brother came to the matrimonial house to take her to her parental house and since then she is residing with her parents and away from the matrimonial home. The wife stated ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 19 FCA-15-14.odt that though she requested the husband for cohabitation, the husband did not accede to her requests. The wife stated that it was not proper on the part of the husband to state that the wife was not doing the household work and was beating the daughters without any rhyme or reason. In her cross-examination the wife admitted that after the marriage, she quarrelled with her in-laws and also her husband. The wife admitted that there were 3 rooms in the matrimonial house and the matrimonial house was much bigger than her parental house. The wife had admitted that after the marriage, she had a separate room. The wife denied that there was no privacy. The wife admitted that when she used to return to the matrimonial home, she used to get bored as the mother of the husband used to cook the food for the entire family. The wife denied that the parents of the husband started residing with the brother of the husband at Nanded because of the harassment by the wife. The wife admitted that the husband used to take her for outing on every Sunday when they were residing at Indore. The wife however denied that the husband used to take care of her and his family even after working hours. The wife admitted that her father was residing with her at Indore. The wife admitted that if something happened against her wishes, she used to get irritated and used to abuse. The wife however denied that she used to get irritated every now and then. The wife admitted that if a mother hits her children without any rhyme or reason, it would tantamount to cruelty. The wife admitted that she was ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 20 FCA-15-14.odt taken to Dr.Joshi by the husband and he prescribed medicines for her. The wife admitted that she had not followed the treatment given by Dr.Joshi as Dr.Bhattacharya had told her not to take any further medicines from Dr.Joshi. The wife denied the suggestion that when she had got irritated, she threw the receiver of the phone and also threw the cooked food and assaulted the children because of the quarrel between the husband and the wife. The wife also denied the suggestion that she had set herself on fire. The wife admitted that Smt.Sulabha and the police had come to her residence and that she went to her parental home along with her brother. The wife admitted that she did not attend the marriage of the real brother of the husband though the marriage was performed in the house of the maternal aunt of the husband. The wife denied the suggestion that the marriage of Ajay, the brother of the husband was performed in the house of the husband's maternal aunt because of the quarrelsome nature of the wife.
The wife examined Dr.Manik Shirpurkar as her witness. The doctor stated in her evidence that the mother of the wife had brought her to her clinic after the wife had separated from the husband. The doctor stated that some investigations pertaining to hormonal imbalance were made and it was found that the wife was not suffering from gynaecological disorder, but was suffering from some psychological problem. The doctor stated that when a patient undergoes a caesarean operation within a short span as well as tubectomy, it is ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 21 FCA-15-14.odt possible that the patient would suffer from a psychological problem. In the cross-examination, the doctor admitted that the details of the investigation report were not available with her. The doctor stated that she was not aware whether her husband had drafted the written statement filed by the wife or not. When the signature of the husband on the written statement was shown to the doctor, the doctor admitted that it was her husband's signature. The doctor admitted that before approaching her, the wife had taken the treatment of a psychiatrist.
It is apparent on a reading of the evidence tendered by the parties that the husband has successfully proved that the wife was behaving erratically since the inception of the marriage. The husband has proved by examining himself, his brother Ajay as also his neighbour Smt.Sulabha that the wife had treated him with cruelty. The husband had clearly stated in his evidence and also in his pleadings that the wife had thrown the dishes filled with food on Navratri after losing her temper. The husband stated in his evidence that the wife used to beat the daughters mercilessly when she was angry with the husband. The husband has pleaded and also stated in his evidence that the wife used to threaten him that she would commit suicide if he did not accede to her demands. The husband has stated in his evidence that right from the inception of the marriage, the wife desired to live in a nuclear family though the husband was residing in the joint family with his parents and his brother. The husband has pleaded and also stated in his ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 22 FCA-15-14.odt evidence that due to the harassment by the wife, his parents started residing with his brother Ajay at Nanded. The husband has pleaded and stated in his evidence that when his mother had been to Indore during the pregnancy of the wife to help her, the wife asked the mother to leave the house at Indore and the mother of the husband had to leave Indore within 2 - 3 days of her arrival. The husband has stated in his evidence and also proved by the admission of the wife in her cross- examination that she did not attend the engagement ceremony of the real brother of the husband and also did not attend his marriage. The husband has proved that the wife had cut the telephone connection and threw the receiver after getting wild with the husband. The husband has clearly proved that as the wife was suffering from psychological problem, the husband had taken her to psychiatrist Dr.Joshi and also to Dr. Bhattacharya. It is clearly proved by the husband by tendering his evidence and also on the basis of the admission of the wife that though Dr.Joshi had prescribed medicines, so that the psychological problem of the wife could be cured within a reasonable time, the wife stopped taking medicines after four days though they were prescribed for 10 days. The wife has admitted in her cross-examination that she had not taken the medicines as prescribed by the Psychiatrist Dr.Joshi for long. The wife however blamed Dr.Bhattacharya for her failure to take the medicines as prescribed. It is the case of the wife that on the say of Dr.Bhattacharya, she had stopped taking medicines of Dr.Joshi. The ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 23 FCA-15-14.odt evidence on record would show that the husband had tried his level best that the wife should take the medicines and not behave erratically and harass the husband and his family members. The evidence on record would show that the wife did not mend her ways and also did not consume the medicines, as prescribed by Psychiatrist Dr.Joshi. The husband has not only tendered the evidence of his brother in support of his case but has also examined the Psychiatrist who has stated in his evidence that the wife was suffering from psychological problem that was curable but the wife refused to take medicines and did not approach him when she was called on second occasion. Dr.Joshi had clearly stated in his evidence that the wife did not take the medicines that were prescribed for her. Though the wife has also examined Dr.Shirpurkar who has stated that she had treated the wife after the wife left the matrimonial home, Dr.Shirpurkar admitted in her cross- examination that her husband, who is an Advocate had signed the written statement filed by the wife. From the cross-examination of Dr.Shirpurkar, it was sought to be pointed out by the husband that Dr.Shirpurkar was an interested witness and the said witness had tendered evidence in support of the wife merely because her husband was dealing with the case of the wife in the Family Court. The evidence of the husband, his brother Ajay as well as Smt.Sulabha Dani, Corporator clearly proves that the wife had treated the husband with cruelty. Smt.Sulabha had stated in her evidence that when she went to ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 24 FCA-15-14.odt the matrimonial house on 16/07/1998, the wife had set herself on fire in the kitchen and some of the clothes of the wife were burnt. The witness supported the evidence tendered by the husband that due to the said incident that occurred on 16/07/1998, Smt. Sulabha had called the police and taken the family members of the husband to the police station where the matter was sought to be compromised, between the parties. After the wife returned to the matrimonial home, from the police station, the wife did not cook the food for the husband and the daughters. The brother of the wife then came to the matrimonial home and took the wife to her parental home. It is apparent from the evidence of the husband and Smt.Sulabha, who appears to be the neighbour of the husband that the wife had not only threatened the husband that she would commit suicide but she had also set herself on fire after threatening the husband on 16/07/1998. The husband has proved that the wife used to beat the daughters whenever she was angry with the husband and during Mahalaxmi Pooja, the wife did not permit the husband to go to Yavatmal where Mahalaxmi Pooja was performed in the house of the cousin of the husband. It is proved that the wife did not attend Ajay's marriage and that she had also not attended his engagement. The Family Court did not consider the evidence tendered by the husband and his witnesses in the right perspective. Though the wife had not stated in her evidence that while she was preparing snacks in the kitchen on a kerosene stove as the gas cylinder was empty, the ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 25 FCA-15-14.odt husband and all his family members closed the windows and doors and started staring at her, as a result of which the wife became frightened and ran away. The Family Court held that the act on the part of the husband and his family members was cruel. Though the wife had pleaded about this incident, no evidence is tendered by the wife, whatsoever, in respect of this incident. In the absence of any evidence about the said incident, the Family Court has erroneously observed, while answering point No.4 pertaining to the provisions of Section 23 of the Hindu Marriage Act that the husband was not entitled to a decree of judicial separation as he had committed a wrong by closing the doors and windows and staring at the wife. For holding that the husband was guilty of having committed a wrong, the Family Court has relied solely on the pleadings of the wife to hold that when she was preparing the snacks in the kitchen, the husband and his family members had closed the doors and windows of the house and had started staring at her. The Family Court has held that had such an incident really occurred, the husband would be guilty of having treated the wife with cruelty. The Family Court held in the absence of any evidence that the husband was taking advantage of his own wrong of frightening the wife by closing all the doors and windows of the house while she was cooking on a kerosene stove and she had to run out of the kitchen as she was extremely frightened. The Family Court has erroneously answered point No.4 relating to the provisions of Section 23 of the Act on the basis of ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 26 FCA-15-14.odt the incident, about which no evidence is tendered by the wife though the said incident is narrated in her written statement. The Family Court has further erroneously held that the husband had treated the wife with cruelty by driving her out of the matrimonial home without any fault on her part. The Family Court has wrongly held that the incidents alleged by the husband, even if proved would not amount to cruelty as they relate to small bickerings between the parties. In our view, the incidents narrated and proved by the husband are very serious and they cannot relate only to the normal wear and tear in a matrimony. In the circumstances of the case, the husband is entitled to a decree of judicial separation. We do not find any merit in the submission made on behalf of the wife that had the husband taken care of the wife, the wife would not have behaved erratically and she could have recovered after the treatment by the doctors. The wife was treated by psychiatrist Dr. Joshi to whom the wife went only on one occasion though he had called her for the follow-up. The wife had not taken the medicines prescribed by Dr.Joshi and hence, she could not have been cured. Had the husband not taken the wife to any doctor at all, the wife may have succeeded in proving that the husband has not taken care of her. The husband had taken the wife to two doctors but the wife had refused to take the medicines administered to her by the doctors and had continued to behave erratically and had given threats to the husband of committing suicide and involved herself in one such incident which was also ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:02:35 ::: 27 FCA-15-14.odt witnessed by Smt.Sulabha Dani, the neighbour of the husband and the wife. In the circumstances of the case, the Family Court was not justified in granting a decree of restitution of conjugal rights in favour of the wife. It was harmful for the husband to stay in the company of the wife, specially when the wife had tried to commit suicide by setting herself on fire and the matter was referred to the police. Though the husband had not pleaded that the wife was of incurably unsound mind, the Family Court wrongly framed the said issue and decided the same against the husband. The parties are residing separately for nearly 20 years. In the circumstances of the case, it would be necessary to reverse the Judgment passed by the Family Court and grant a decree of judicial separation in favour of husband and set aside the decree of restitution of conjugal rights granted in favour of the wife.
For the reasons aforesaid, the appeals are allowed. A decree of judicial separation under Section 10 of the Act is granted in the petition filed by the husband. The petition filed by the wife for restitution of conjugal rights stands dismissed. No costs.
JUDGE JUDGE
Choulwar
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