Bombay High Court
Nilay Sudhakarrao Chouthaiwale vs Shivangi Nilay Chotiwale on 18 July, 2017
Bench: V.A. Naik
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.
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
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
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
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
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
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
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,
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
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
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
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 ?
13 FCA-15-14.odt
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
