Mansi Mohan Chandarkar vs Mohan Vishnu Chandarkar
2016 Latest Caselaw 3790 Bom

                                        1 FCA 137 2007




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
              CIVIL APPELLATE JURISDICTION




                                                         
              FAMILY COURT APPEAL NO.137 OF 2007




                                                        
    Mansi Mohan Chandarkar,
    nee Rajashree Rajaram
    Manve of Mumbai, Hindu,
    Indian Inhabitant, aged 30 years,




                                               
    Occupation : Service,
    residing at C/o. Rajaram      
    Manve, Philips Misquitta Chawl,
    S. V. Road, Opp. Ganesh Mandir,
    Near Khira Nagar,
                                 
    Santacruz (W), Mumbai - 54.                      ....Appellant
                                                    (Original Respondent)

                 V/s
        
     



    Mohan Vishnu Chandarkar
    of Mumbai, Hindu, Indian,
    inhabitant; aged 32 years,
    Occupation : Service,





    residing at 306/48,
    Tenement Bldg. Dayaldas
    Marg, Vileparle (East),
    Mumbai - 57.                                    ...  Respondent
                                                    (Original appellant)





    Mr. D. C. Pathak, Advocate for the appellant.

    Mr. Vaibhav M. Parashurami and Mr. Vikrant V. Parashurami,
    Advocates for the respondent.




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                                             2 FCA 137 2007

                                     CORAM: A.S. OKA &
                                            C. V. BHADANG JJ.
                                     RESERVED ON : 21st January, 2016.




                                                                                     
                                     PRONOUNCED ON : 13 th July, 2016.




                                                             
    JUDGMENT (Per C. V. BHADANG, J):

(Signed judgment is pronounced by A.S. Oka, J. as per clause (i) of Rule 1 of Chapter XI of Bombay High Court Appellate Side Rules as C.V. Bhadang, J. is sitting at Panaji.)

By this appeal the appellant/wife is challenging the

judgment and order dated 23/5/2007 passed by the Family

Court at Mumbai in Petition No. A-1711/2003. By the

impugned judgment, the Family Court has allowed the

petition filed by the respondent/husband, thereby dissolving

the marriage between the parties on the ground of cruelty

under section 13(1) (i a) of the Hindu Marriage Act 1955 (Act

for short) with some other reliefs.

2. The brief facts necessary for the disposal of the

appeal may be stated thus:

That the parties got married on 5/12/2001

whereupon the appellant went to reside at the matrimonial

house which consisted of the respondent, his parents, a

married brother by name Anil, a married sister by name

Akshata and an unmarried brother by name Bharat, who is

3 FCA 137 2007

since dead. The appellant since prior to the marriage was

working as a teacher and continued to work even after the

marriage.

3. According to the respondent, within 15 days of the

marriage, the appellant started insisting to live separate and

her general behaviour gave rise to a suspicion about her

mental health. She was behaving arrogantly and insulting

the family members of the respondent and was creating

scene. On many occasions, the appellant left the matrimonial

home with bag and baggage and at the intervention and

insistence of the respondent had returned to the matrimonial

home. This conduct of the appellant was brought to the

notice of her parents and brother, who although admitted

that the appellant suffered from intermittent attacks,

attributed the same to "black magic played by her enemies."

4. On 15/2/2002, the appellant picked up quarrel

with the respondent on flimsy ground, when he had inquired

about her health. She became violent and assaulted the

respondent and attempted to leave the matrimonial home in

4 FCA 137 2007

the middle of the night at 2 a.m. along with her clothes and

jewelery. She, however, could not go out, as the main gate of

the building was locked and hence she returned. Sometime in

August 2002, the appellant got another attack and started

abusing the respondent and his family members and also

physically assaulted him. It was contended that the

respondent was unable to control or bear the appellant's

violent behaviour. She was also threatening the respondent

that she would commit suicide thereby bringing the

respondent and his family members in deep trouble. The

respondent claimed that the appellant was performing "black

magic and always used to read books on the same". She was

also accusing the respondent of having extra marital

relations. On 9/8/2002 the appellant picked up quarrel with

the respondent's mother, packed her belongings and started

leaving the house. The respondent intervened and stopped

her and called her parents and the entire situation was

explained to them. It was contended that the parents of the

appellant, as also her brother Sameer, tried to convince the

appellant, however, she was in no mood to listen and became

aggressive and violent whereupon the brother of the

5 FCA 137 2007

appellant slapped her and she was taken to her matrimonial

house. After a week she was brought back to the

matrimonial house by her brother with the assurance that

she would behave herself and that she was willing to give

this in writing. Sometime in the month of August/September

2002, the appellant was got examined by Dr. Manoj

Bhatawadekar, a psychiatric and by Ms. Minal Sule, a clinical

psychologist, whichig showed the aberration in the

personality of the appellant, including distortion and

impulsiveness due to disorganization of thought process.

However, the appellant did not cooperate in the treatment, as

a result of which, there was escalation in the abnormal

behaviour.

5. On 2/10/2002, the appellant was tested positive

for pregnancy. However, inspite of being happy about the

same she abused everybody in the family for flimsy reason.

This was informed to the family members of the appellant,

who took her away with her belongings. On 19/10/2002, the

appellant's father came to the respondent's house with a lady

inspector who forced the respondent to take back the

6 FCA 137 2007

appellant for cohabitation. However, on learning of the

behaviour of the appellant the lady inspector also expressed

that she could not render any help and it was decided that

the parties would meet in Community meeting where they

met on 21/10/2002, where it was decided in the presence of

the respectable Community members that the respondent

should be treated first and thereafter sent back for

cohabitation. After a week thereof, ig the respondent learnt

that the appellant had filed a complaint against him and his

family members, whereupon the respondent was called to

Village Parle Police Station, where he was forced to take the

appellant back, when the appellant promised that she would

behave normally. However, the appellant continued with her

erratic behaviour. On 18/3/2003, the appellant went to her

parents house for delivery and delivered a girl child on

25/5/2003. There were some N.C reports filed by the

respondent about the threats and the false criminal

complaint lodged by the appellant. On 19/7/2003, the

respondent sent a communication to the appellant through

his advocate suggesting a divorce by mutual consent, which

was not replied to. It appears that some time on or about

7 FCA 137 2007

25/7/2003, the respondent filed petition No.A/1235/2007

against the appellant for dissolution of marriage which was

subsequently withdrawn, leave to file a petition afresh.

6. The respondent contended that after the filing of

the aforesaid petition the appellant along with 10 to 12 ladies

"forceably reached the appellant with the child" at his house

on 12/8/2003. The appellant picked up ig quarrel with the

respondent's parents and assaulted them physically which

was reported to the police. Similar allegations were made

about the incident dated 24/10/2003 wherein it was alleged

that the appellant had picked up a quarrel with the

respondent's mother and threatened to commit suicide. Thus

the appellant had treated the respondent with cruelty of such

a nature in which the respondent cannot be reasonably

expected to live with the appellant.

7. In such circumstances the respondent filed a

petition for dissolution of marriage under section 13 1 (i a)

and or section 13 1 (iii) of the Act .

8 FCA 137 2007

8. The appellant contested the petition. It was denied

that she ever insisted for residing separately or that she

misbehaved or behaved in a disrespectful manner with the

respondent or his family members. On the contrary it was

contended that immediately after the marriage the mother of

the respondent started taunting the appellant saying that

the appellant's father had not paid enough dowry in the

marriage. It was contended that the respondent was an

alcoholic and was also addicted to gambling and failed to

mend his ways, inspite of persuasion by the appellant. All

the allegations about the various incidents as alleged by the

respondent have been denied. It was contented that some

time in March 2003 the appellant shifted to her parent's

house as she was pregnant. She delivered a girl child on

25/5/2003, however the respondent did not come to see the

appellant and the child and was not willing to take them to

the matrimonial home. A letter was addressed by her father

requesting the respondent to take her back. A complaint of

harassment by the respondent and his family members was

lodged to the police station on 21/10/2002. It was contended

that with the intervention of the police, the appellant was

9 FCA 137 2007

taken back on 1/8/2003. She claimed that during August-

September 2002, the respondent and his family members

obtained medical certificates from one Dr. Bhatawadekar and

Dr. Minal Sule. It was contented that Minal Sule is an interior

decorator and not a qualified practitioner while Dr.

Bhatawadekar only gave medicines for headache and

insomnia and there was no diagnosis of any mental illness. It

was also contended that the fact that the appellant was

employed as a teacher from July 1999 to April 2002 would

show that her mental condition was normal.

9. It was contended that on 24/10/2003 the family

members of the respondent locked her in the bathroom and

lodged a false complaint that she was attempting to commit

suicide. When the police arrived the appellant was in a shock

being scared of her life and initially was not willing to open

the door. When she got confirmation that the police had

arrived, she narrated the entire incident of her being locked

in the bathroom. All other adverse allegations made have

been denied.

10 FCA 137 2007

10. On the basis of the rival pleadings the Family Court

raised in all six issues. The respondent examined himself

(PW1) and his sister Akshata Ganpat Bharati (PW2), while

the appellant examined herself (RW1) and her brother

Kaushik Rajaram Manve (RW2.). The parties also produced

certain documents.

11. The Family Court answered the issues no.1 and 3

in the affirmative thereby holding that the respondent had

proved that he was treated by the appellant with cruelty and

he was entitled for a decree of divorce. On the question of

custody of the minor daughter Drushti, the Family Court held

against the respondent. It however found that the appellant

was entitled to a maintenance of Rs.1000/- per month for

herself and her daughter. In such circumstances the petition

came to be partly allowed, thereby dissolving the marriage

between the parties on the ground of cruelty under Clause (i

a) of sub section 1 of section 13 of the Act and granting

certain other reliefs including maintenance subject to

visitation rights to the respondent, so far as the minor

daughter is concerned. Feeling aggrieved the appellant/wife

11 FCA 137 2007

is before this Court.

12. We have heard Shri Pathak, the learned counsel

for the appellant and Shri Parashurami, the learned counsel

for the respondent. With the assistance of the learned

counsel for the parties we have perused the record and gone

through the impugned judgment and evidence led.

13.

It is submitted by the learned counsel for the

appellant that there is no independent witness examined by

the respondent except his sister. It is submitted that the

respondent had earlier filed a petition for dissolution of

marriage being Marriage Petition No.A 1235/2003 which was

withdrawn without seeking liberty to file a petition afresh.

Thus the respondent cannot file a second petition on a similar

ground. It is contended that the allegations about alleged

cruelty prior to 2003 will have to be ignored as on withdrawal

of the earlier petition the respondent cannot justifiably place

reliance on the same. He submitted that the Family Court

erred in coming to the conclusion that the respondent has

proved the ground of cruelty. He therefore submits that the

12 FCA 137 2007

appeal be allowed.

14. On the contrary the learned counsel for the

respondent has supported the impugned judgment. It is

submitted that the respondent has sufficiently proved the

ground of cruelty, on the basis of the evidence led and the

family Court after appreciating the evidence has rightly come

to the conclusion that the ground of cruelty is proved and as

such no interference is called for.

15. We have considered the rival circumstances and

the submission made. At the out set it is necessary to

mention that although the appellant had sought dissolution of

marriage under section 13 (1) (ia) and section 13 (1) (iii) of

the Act, the Family Court has allowed the petition only on the

ground of cruelty i.e. under section 13 (1) (ia) of the Act.

Thus, the learned Judge of the Family Court has not accepted

the case of the respondent that the appellant has been

incurably of unsound mind or has been suffering continuously

or intermittently from mental disorder of such a kind and to

such an extent that the appellant cannot reasonably be

13 FCA 137 2007

expected to live with the respondent.

16. There is no challenge to the refusal of grant of

divorce under section 13 (1)(iii) of the Act, by the

respondent. Thus, the only question is whether the

respondent has proved the ground of cruelty. It would be

significant to note that the very basis of the allegation that

the appellant was behaving in an erratic manner and was

getting up at the dead of the night, reading "tantric books"

and of attempting to leave the house with bag and baggage,

picking up quarrels and abusing the respondent and his

family members, were based on the ground that the

appellant was suffering from some sort of mental disorder

and a defect in the thought process and the personality. As

noticed earlier that aspect has not been accepted. Thus the

allegations of cruelty meted out to the respondent and his

family members by the appellant will have to be considered

in the backdrop of the conduct of any other normal spouse

who is not otherwise proved to be suffering from any mental

infirmity or disability. The material question in cases of the

present nature, is that whether the disputes and differences,

14 FCA 137 2007

as also the quarrels and bickerings, between the spouses and

their in laws are by way of the natural wear and tear of the

marriage or something more which would partake of the

nature of cruelty as contemplated under the provisions of the

Act. It is now well settled that the matrimonial cruelty, for

granting a decree of dissolution of marriage, is a cruelty of

such a degree and nature that the other spouse cannot be

reasonably expected to live with the erring spouse.

17. Coming back to the evidence led, while the

respondent had examined himself and his sister, the evidence

of the appellant consists of her own evidence and the

evidence of her brother. It can thus be seen that the

evidence led by both the parties is of related witnesses and

there is no independent evidence as such forthcoming. We

are conscious of the fact that, normally such quarrels and ill

treatment happens within the four corners of the matrimonial

home and the presence and/or availability of independent

witnesses cannot always be insisted upon. However, in the

present case, it would appear from the case made out in the

petition as also the evidence led by the respondent that the

15 FCA 137 2007

behaviour of the appellant in getting up in the middle of the

night and shouting in filthy language and going out of the

room, according to the respondent "not only caused a bad

impression in the minds of the neigbhours but has caused

tremendous mental harassment to the respondent and his

family members" (para 13 of the evidence of the

respondent). Even in para 18 of the evidence the respondent

claims that in the incident of 9/8/2002, the appellant had

become hysteric and had got out of control and had created

a rowdy, scene while leaving the house wherein the people

from the entire building had gathered. If that be so, the

availability of independent evidence and witnesses is not

ruled out in this case. However, the respondent has failed to

examine any of such independent witness, which may be

comprising of neighbours. It was for the respondent to prove

by acceptable evidence that indeed the behaviour of the

appellant was such, as amounting to cruelty in which the

respondent could not reasonably be expected to live with the

appellant and to continue with the matrimonial tie. That in

our considered opinion is lacking in this case.

16 FCA 137 2007

18. Even so far as the allegation about the appellant

reading some 'tantric books' or books on black magic is

concerned, during the course of the evidence on 19/9/2005,

the respondent had sought time to produce such books which

the appellant used to read. On the next date i.e. 20/1/2005

the respondent did produce two books on black magic (Exh.

48). However, in the second breathe, the respondent

admitted that these books do not belong to the appellant, but

she used to read "similar books which are now in her

custody". The respondent claims that he got the books

(Exh.48) from somebody else. It can thus be seen that no

reliance whatsoever can be placed on the evidence of the

respondent in this regard that the appellant used to read

some books on black magic. On the contrary, it would appear

that the respondent had gone to the extent of producing

some books from a third person, claiming that similar books

were read by the appellant, which cannot be accepted.

19. The respondent in para 22 of his cross examination

has stated that he had earlier filed petition No.A-1235/2003

only on the ground of unsoundness of mind of the appellant.

17 FCA 137 2007

He claims that the said petition was withdrawn as he wanted

to add the ground of cruelty also. It is obvious that the

respondent filed the earlier petition only on the ground of

unsoundness of mind, when the alleged acts of cruelty had

preceded the filing of the aforesaid petition. That petition was

also not amended to incorporate the ground of cruelty and on

the contrary the said petition was unilaterally withdrawn.

20.

The learned Judge of the Family Court while

considering issue no.1 had divided the period of married life

of the parties into three phases as under:

I. Between 5th December 2001 till September

2002,

II. Between 2nd October 2002 till 18th March 2003,

III. Between 18th March 2003 till 1st February 2004.

21. The learned Judge has thereafter went on appreciating

the evidence about the various incidents for the aforesaid

period. In so far as the first phase is concerned, the learned

Judge of the Family Court has noticed that during the

respondent's cross examination (the petitioner before the

18 FCA 137 2007

Family Court), the appellant's cross examiner had admitted

both the incidents that is dated 1.2.2002 and the one which

took place in the first week of August 2002. However, on

careful perusal of the cross examination, it does not appear

that these incidents as such, as claimed by the respondent

have been admitted. On the contrary, a suggestion is given in

para 10 that it was the respondent who assaulted the

appellant because of which the appellant attempted to leave

the house with bag and baggage. We find that the cross

examination will have to be read a whole. The Family Court

has thereafter considered the mental and physiological

symptoms of the appellant and has referred to the

prescriptions (Exh. 49) of Dr. Bhadwadekar and a report

(Exh.50) issued by Ms. M. Sule, a clinical psychologist. In so

far as the report Exhibit 50 is concerned the Family Court has

refused to go into the details, because it was highly technical

in nature. In so far as the prescriptions at Exh. 49 are

concerned, issued by Dr. Bhadawadekar, the Family Court has

found that the symptoms noticed were fearfulness,

irritability, low functional tolerance, incensory hearing and

disturbance affecting stability. It may be mentioned that

19 FCA 137 2007

while answering issue no.2 in the negative, (about the

appellant suffering from any mental disorder) the learned

Judge of the Family Court has observed that the psychiatrist

was not examined and no serious attempts were made to

prove this allegation. It has been held that there is no

sufficient evidence to hold that the appellant was suffering

from mental disorder, to such an extent that the respondent

could not have lived with her. It can thus be seen that once

the Family Court had found that in the absence of the

evidence of the psychiatrist, no reliance could be placed on

the allegations about the mental disorder, the same material

could not have been referred or relied upon, in order to find,

that the appellant had treated the respondent with cruelty.

The learned Judge of the Family Court while refusing to

accept the case of mental disorder, has observed that the

appellant should have got herself treated by a psychiatrist

and then approached the respondent for resumption of

cohabitation. It has also been found that instead of getting

herself treated, the appellant and her family members tried

to take help of the police machinery to force the respondent

to resume cohabitation. Then again, it has been observed

20 FCA 137 2007

that it was possible due to the disturbed emotional state that

she was throwing tantrums and that probably had provoked

the respondent (petitioner before the Family Court) and "he

too could have at times lost his temper". In our considered

view the said reasoning cannot be accepted once the very

basis for the erratic behaviour of the appellant is found to be

not substantiated. In the opinion of the Family Court the

attempt to approach the police instead of getting herself

treated was "equally illogical approach to the problem" which

according to the Family Court was an act of cruelty. This is

regarding the second phase. At the cost of repetition, we

may state, that the evidence and the case about mental

disorder and unsoundness of mind having been discarded,

the subsequent finding that instead of getting herself treated

having resort to police machinery and the foisting of the

appellant in the matrimonial home cannot be accepted.

22. In so far as the third phase is concerned, again the

Family Court has discussed about the attempt by the

appellant and her family members to resort to the police

machinery. Lastly in so far as the incident dated 24/10/2003

21 FCA 137 2007

is concerned in which the appellant was found locked in the

bath room, the Family Court observed that "this happened

probably because of mutual distrust and hatred and in the

heat of the moment but this could not be held as an act of

cruelty on the part of the respondent". Thus in so far as this

incident is concerned the Family Court is not with the

respondent. In para 26 of the judgment the Family Court

has found that the filing of the complaint under section 498

of I.P.C was " itself an act of cruelty and fortunately for the

respondent and his family members, the learned Metropolitan

Magistrate acquitted them". The learned Judge of the Family

Court has noticed that the Magistrate has not recorded a

finding that the complaint was false. However, according to

the family Court the filing of the complaint was wrong.

23. We are unable to subscribe to the reasoning as

aforesaid. As noticed earlier, in order to succeed in getting a

decree for dissolution of marriage the allegations about

cruelty have to be clearly made out and substantiated which

is not done in this case. For this reason the appeal is

allowed. The impugned judgment and decree granting

22 FCA 137 2007

dissolution of marriage is hereby set aside. The order of

permanent alimony granted under Section 25 of the Hindu

Marriage Act shall continue for a period of six months in

order to enable the appellant to take recourse to appropriate

remedy, if so advised.

In the circumstances there shall be no order as to

costs.

C. V. BHADANG, J.

                                   ig                     A. S. OKA, J.
                                 
        


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