Gajenera Namdeo Mohite vs Asmita Gajendra Mohite
2017 Latest Caselaw 6951 Bom

                                      1              FCA 7 & 8 of 2013

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                      Family Court Appeal No.7       of 2013
                                     With
                      Civil Application No.3167     of 2015
                                      And
                      Family Court Appeal No.8       of 2013
                                     With
                      Civil Application No.7159     of 2013


     Gajendra s/o Namdeo Mohite,
     Age 33 years, Occu: Private Service,
     R/o Flat No.R-304, Gate No.4,
     "Roseland Residency",
     Near Kunal Icon, Pimple Soudagar,
     Pune, Taluka and District Pune.                  ..    Appellant.

             Versus

     Asmita w/o Gajendra Mohite,
     Age 30 years, Occu: Not known,
     R/o. At present C/o Prabhakar Wagh,
     "Shivneri", Satyam Nagar, N-5,
     CIDCO, Aurangabad,
     Taluka and District Aurangabad.                  .. Respondent.

                                      ----

     Shri. R.S. Deshmukh, Advocate, for appellant.

     Shri. R.V. Gore, Advocate, for respondent.

                                      ----

                               Coram: T.V. NALAWADE &
                                      S.M. GAVHANE, JJ.

                               Date   : 8 SEPTEMBER 2017




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                                        2             FCA 7 & 8 of 2013

     JUDGMENT (Per T.V. Nalawade, J.):

1) Both the appeals are filed by the husband.

Family Court Appeal No.7/2013 is filed against the

decision given by the Family Court Judge, Aurangabad in

Petition bearing No. A-233/2011 which was filed by the

husband for dissolution of the marriage under the

provision of section 13(1)(iii) of the Hindu Marriage Act,

1955. The petition is dismissed by the trial Court. Family

Court Appeal No.8/2013 is filed against the decision given

in Petition bearing No. A-449/2011 by the same learned

Judge in favour of the wife by which a decree of restitution

of conjugal right is given under section 9 of the Hindu

Marriage Act, 1955. The trial Court has decided both the

petitions by common judgment. Both the sides are heard.

2) The marriage between the parties took place on

25-6-2007. They have one son who was born on 12-7-2009.

The petition for divorce was filed by the husband on 18-7-

2011 and the wife filed the proceeding under section 9 of

the Act on 30-12-2011.

                                            3              FCA 7 & 8 of 2013

     3)               The      husband   is    employed        in    a    software

company from Pune and he is B.E., M.B.A. The wife is

B.Sc. (Computer) and M.C.A. It was arranged marriage.

At the time of marriage the wife was also working in one

software company from Aurangabad. She started

cohabiting with the husband in Aurangabad in a house

where the husband and his mother were living. The

husband used to come to Aurangabad on Saturday and

Sunday. It appears that for some time before filing of the

proceedings they had cohabited at Pune.

4) For making out the ground of mental disorder,

the husband had made following contentions:

(i) The wife was not doing any household work and her conduct was showing inconsistency;

(ii) she preferred to have lonely life and she was not mixing up with relatives and others. They had tried to convince her to keep social contacts but she avoided to do it;

(iii) she had developed forgetfulness and on one occasion in October 2008 when she went to beauty parlour due to insistence of mother-in-law, she left two gold rings in the beauty parlour and

4 FCA 7 & 8 of 2013

after returning home the mother-in-law guessed that probably she had left the rings in the beauty parlour and the rings were found there. In similar manner she used to bring bag of flour belonging to others from the flour mill in stead of bringing own bag. Similarly she was not able to remember the roads from Aurangabad to Pune and she was not able to quote or remember songs of movie which was seen by her in theatre;

(iv) in the night time she used to talk with herself and many times she used to talk with presumption that son Anish was sitting by her side when he actually was not by her side;

(v) in March 2008 when a sister of the wife namely Vaishali had come to the house of the husband for staying there for few days with her 2 year old son, the wife had not opened the door even when the door bell was kept ringing by the sister for some time. When door was opened by the mother-in-law and she questioned the wife as to why she had not opened the door, she started quarreling with the mother-in-law and even rushed at her. When Vaishali tried to intervene she was also insulted by the wife. On the next day when husband of Vaishali learnt about the incident and asked the wife, the respondent to say sorry she refused to say sorry;

                                       5             FCA 7 & 8 of 2013

          (vi)     she used to pick up quarrels with Kavita,

the wife of her brother-in-law and she used to unnecessarily say that Kavita was not pregnant but she was pretending to be pregnant;

(vii) on 9-4-2011 when the mental condition of the wife was found to be much disturbed the father of the wife and the husband decided to take her to psychiatrist Dr. Kale, she picked up quarrels by saying that she was not insane and near the dispensary of Dr. Kale she started shouting and saying that she was ready to go to Dr. Vaidya. After returning from there she took the key of the four wheeler by saying that she wanted to have outing and when the husband tried to prevent he she started running here and there;

(viii) on 11-4-2011 when husband came to Aurangabad by taking leave of 8 days and when he expressed that he was returning Pune she insisted that he should not return to Pune and she would not allow him to go to Pune. When the husband left home and when he was in the bus proceeding to Pune and when he contacted her by saying that he was proceeding to Pune she did not believe it and she made search for the husband in the house and the courtyard;

                                         6                FCA 7 & 8 of 2013

           (ix)      in June 2011 she tried to tutor her son not

to keep contact with her mother-in-law;

(x) she did not like to leave home and go for outing. To avoid public contact she refused to participate in Bhishi which was planned by some ladies at Pune.

5) It is the case of the husband that due to

aforesaid conduct of the wife he had taken the wife to Dr.

Kaile, Dr. Vaidya and Vishwa Multispeciality Clinic and the

experts have given opinion that she is suffering from

mental disorder and she is not able to perform

matrimonial obligations. It is his case that she is not able

to take care of her own issue also and there is danger to

the issue, the husband and other members of the family

of the husband from her. It is the case of the husband that

due to mental condition of the wife he cannot be expected

to live with her and so he is entitled to get divorce.

6) The wife has denied the aforesaid allegations

made against her. She has contended that only to get

divorce the husband has made false allegations. She has

7 FCA 7 & 8 of 2013

denied that she was taken to Dr. Kale, Dr. Vaidya and the

aforesaid Vishwa Multispeciality Clinic for treatment and

she has received treatment from those psychiatrists.

7) It is the case of the wife that the mother of the

husband is aged about 70 years and she has undergone

bypass operation of heart and she is not in a position to do

any household work. It is the contention of wife that she

was doing all the household work in the matrimonial

house and she was taking care of her issue. It is her case

that even when she was required to take care of the son

and she was required to do household work, on many

occasions her mother-in-law and sister-in-law picked up

quarrels and they used to make false allegations against

her. It is her contention that she is highly educated lady

and for some time she was in service also but only to take

care of the household work and the family she left the job.

It is her contention that she is ready to resume

cohabitation and only for getting divorce the husband has

made false allegations. By making such contentions she

had prayed for relief of decree of restitution of conjugal

rights.

                                       8              FCA 7 & 8 of 2013

     8)               Before the Family Court both the cases were

heard together and common evidence was given. The

issue of mental disorder was framed in divorce proceeding

and the issue of refusal to cohabit; neglect and withdrawal

from the society was framed in the proceeding filed for

restitution. Both the issues are answered against the

husband by the trial Court. The entire evidence given by

the husband is considered by the trial Court. The wife

examined herself to give evidence in rebuttal in divorce

proceeding and the manner in which she faced the cross

examination is considered by the learned trial Court

Judge. The evidence of two doctors examined by the

husband is not believed by the trial Court.

9) The divorce is claimed by the husband on the

ground given in section 13(1)(iii) of the Hindu Marriage

Act, 1955. The section runs as under :

13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

9 FCA 7 & 8 of 2013

(i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion ; or

(iii) has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation- In this clause-

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment; or ..... "

10) The aforesaid provision shows that there are

two separate grounds in the provision viz. (a) incurable

unsound mind; and, (b) respondent spouse has been

10 FCA 7 & 8 of 2013

suffering continuously or intermittently from mental

disorder and the disorder is of such kind and of such

extent that the petitioner cannot reasonably be expected

to live with the respondent.

11) From the wording of the aforesaid provision it

can be said that the mental condition like incurable

unsound mind mentioned in the first part or the mental

disorder mentioned in the second part needs to be proved

by expert evidence and that evidence needs to satisfy the

Court that such mental condition exists. From the wording

of the provision it can be said that the second part of the

provision has wide scope. For this part, it is not necessary

that mental disorder is incurable. However, the mental

disorder must be of such kind and extent that the Court

needs to be satisfied that it is not advisable to ask the

petitioner to live with the respondent. The scope shows

that there is no limit to the kind of mental disorder as no

specific kind is mentioned. However, the term "has been

suffering" shows that the period of illness must not be too

short or the petition should not be based on one or two

instances showing such mental disorder. The term

11 FCA 7 & 8 of 2013

"intermittently" cannot be misread in this provision to

infer that the mental illness returns after the treatment

within few days. The term "extent" is also important and

on that also the Court needs to be satisfied to come to the

conclusion that the petitioner cannot be reasonably

expected to live with the husband. Thus the relief is

discretionary and while using discretion, the Court is

expected to keep in mind the aforesaid things.

12) The burden to prove mental disorder mentioned

as second part of the aforesaid provision or the burden to

prove incurable unsound mind lies on the party who seeks

to use the ground. As expert like psychiatrist is available,

the Court is expected to consider the opinion given by the

said expert on the mental condition.

13) Psychiatrist is an expert but in view of provision

of section 45 of the Evidence Act, it is up to the Court to

either rely on the opinion or to refuse to do so. Further, he

being a witness, his credibility can be impeached like the

credibility of any other witnesses and his veracity can be

tested as provided in section 146 and other provisions of

12 FCA 7 & 8 of 2013

Evidence Act. As psychiatrist is expected to give evidence

on the basis of the examination of the patient done by him,

the symptoms noted by him, the treatment and the follow

up treatment given by him and the record created by him

needs to be considered both for corroboration and

contradiction purpose. In such a case the evidence of

other witnesses or the circumstances which relates to the

behaviour of the respondent can be considered by the

Court as that can help strengthening the opinion or create

probability that the opinion has no justification and it is

weak.

14) The aforesaid principles with regard to the

provision need to be kept in mind while appreciating the

evidence given by the two doctors and other witnesses in

the present matter. It also needs to be kept in mind that

the trial Court is in a better position to appreciate the oral

evidence of the witness. It is already observed that both

the husband and the wife are highly educated persons and

after marriage they got one issue within one and half

years of the marriage and the issue is living with the wife.

This circumstance also needs to be kept in mind.

                                          13             FCA 7 & 8 of 2013

     15)              The manner in which the mental disorder needs

to be proved requires the consideration of the expert

evidence first. Dr. Kale is a psychiatrist from Aurangabad.

He has deposed that the respondent was brought to him

for treatment on 31-3-2011 first time by her husband. He

has mentioned the complaints in respect of behaviour like

(i) being withdrawn, (ii) at times getting irritated and

hostile; and (iii) showing abnormal behaviour in the form

of suspiciousness about family members and not taking

care of the child. Dr. Kale (PW 4) has deposed that when

he started making inquiry, the wife became angry and she

refused to cooperate and answer the questions. He has

deposed that she had staring looks, she also avoided eye

to eye contact and on that basis he had made diagnosis of

psychosis and had prescribed medicines. He has deposed

that he reexamined her on 7-4-2012 and noticed that

there was marginal improvement but there were

symptoms of psychosis. He has deposed that he re-

examined her on 16-4-2012 and 19-4-2012 also and he

advised to increase the duration of the prescribed

treatment. According to him, she needs regular treatment.

In his evidence only one document is proved at Exhibit 56.

                                           14              FCA 7 & 8 of 2013

     16)              It is already mentioned that the respondent-

wife has denied that she had taken treatment of Dr. Kale.

The document at Exhibit 56 is dated 31-3-2011 and some

subsequent dates are mentioned of follow up treatment

like 7-4-2012, 16-4-2012 and 19-4-2012. It is already

observed that since 18-6-2011 the wife has been living

with her parents and this fact is admitted. It is also

admitted by the husband that after 18-6-2011 there was

no occasion for him to take the wife to any doctor. In spite

of that Exhibit 56 shows that in the year 2012 on three

occasions it is shown that the wife was taken to this

doctor. The evidence of the husband was recorded in the

Family Court before examination of the doctor and it can

be said that during cross-examination when it was

suggested to the doctor that in the year 2012 the wife had

never come to him, he admitted it and he tried to give

excuse that entries of 2012 were wrongly made by him.

17) Dr. Kale (PW 4) gave oral evidence mainly on

Exhibit 56 which is described as OPD paper. Medical

Practitioner is expected to maintain OPD register but such

register was not brought by him. In the cross examination

15 FCA 7 & 8 of 2013

Dr. Kale admitted that on 19-4-2011 the husband had

come to him and on the basis of the information supplied

by the husband he had prepared Exhibit 56. On this paper

even address of the wife is not mentioned but mobile

number of the husband is mentioned. Thus when the case

paper ought to have been prepared on the first visit i.e.

in March 2011 the doctor says that it was prepared on

19-4-2011 (in the examination-in-chief it is stated as 19-4-

2012) and that was prepared for the husband and it was

handed over to the husband. These circumstances have

created serious doubt about the evidence given by Dr.

Kale and these circumstances are considered by the trial

Court against the witness.

18) Dr. Amit Tak (PW 5) is examined by the

husband as another psychiatrist. He has given evidence on

the basis of few prescriptions, the receipts of the payment

made to Vishwa Multispeciality Clinic Pune. The

prescriptions are proved at Exhibit 60 dated 8-6-2011, at

Exhibit 61 dated 30-5-2011 and one certificate is proved

in his evidence at Exhibit 62. Two receipts of payment are

also exhibited showing that on 28-6-2011 payment of

16 FCA 7 & 8 of 2013

Rs.400 was made and on 4-7-2011 payment of Rs.500 was

made. Here only it needs to be mentioned that the

husband has admitted that since 18-6-2011 the wife is

living separate from him. But Exhibit 64 shows that the

receipt was issued on 4-7-2011. There is no paper of

diagnosis like prescription dated 4-7-2011. Similarly the

receipt at Exhibit 63 is dated 28-6-2011 when the wife

was living with her parents and the husband admits that

he had no occasion to take the wife to any doctor after 18-

6-2011.

19) The certificate at Exhibit 62 is shown to be

issued on 4-6-2011. But there is no record like case paper

showing that on 4-6-2011 the wife was taken to the

aforesaid clinic. No case paper at all is produced with

regard to the prescriptions which are given exhibits in the

evidence of the doctor. The doctor has tried to say that he

had examined the wife and then he had prescribed the

medicines. Like in the case of Dr. Kale, in the present

matter also there is clear probability that it is the husband

at whose instance the doctor created this record and

probably behind the back of the wife. This doctor had also

17 FCA 7 & 8 of 2013

not brought the original record from any hospital or the

aforesaid institution. The evidence of this doctor shows

that the certificate at Exhibit 62 relating to mental

condition was issued by him on the request made by the

husband and the husband had not given any reason for

obtaining said certificate. Though some prescriptions are

produced, there is no record to show that said medicines

were purchased by using the prescriptions. These

circumstances have created serious doubt about the

evidence of Dr. Amit Tak. By discussing these

circumstances, the trial Court has refused to place

reliance on the evidence of this doctor and the aforesaid

record.

20) The evidence of the aforesaid two doctors does

not show that they had formed opinion that the

unsoundness of the mind is incurable. Due to absence of

original record and anything showing that the wife had

really visited the clinic or the hospital of the aforesaid two

doctors it is not possible to believe that the wife had taken

the treatment from these two doctors. There is clear

probability that it is the husband at whose instance the

18 FCA 7 & 8 of 2013

record is created. It was created within 3 to 4 months

starting from March 2011. The evidence of Dr. Tak does

not show that it was informed to him that the patient was

already under the treatment of Dr. Kale. This

circumstance also shows that the husband created said

record for its use in the proceeding like divorce. The

Family Court has considered one more circumstance in

this regard. In paragraph 8 of the petition the husband

has mentioned that when he had taken the wife to the

dispensary of Dr. Kale, the wife had refused to get

examined from Dr. Kale and she had insisted that she

should be taken to Dr. Vaidya and accordingly she was

taken to Dr. Vaidya. In the pleadings it is not specifically

mentioned that Dr. Kale had examined the wife and he had

given treatment to the wife. This circumstance also cannot

be ignored. Dr. Vaidya is not examined when it is

mentioned in the pleadings that the treatment of Dr.

Vaidya was given. Dr. Kale is examined when there is no

pleading that Dr. Kale had given treatment. There is a

mention of Vishwa Multispeciality Clinic in the pleadings

but the name of Dr. Tak (PW-5) is not mentioned in the

pleadings. This circumstance also cannot be ignored in

19 FCA 7 & 8 of 2013

view of the nature of evidence given by these two doctors.

This Court has no hesitation to hold that the trial Court

has not committed any error in refusing to place reliance

on the evidence given by these two doctors.

21) When there is no expert evidence for proving

incurable unsoundness of mind or mental disorder as

described in the aforesaid provision, the other evidence

cannot help the husband in any way to get divorce on the

ground mentioned in the aforesaid provision.

22) Even if the evidence given by the husband and

his witnesses is considered separately, that evidence has

not created any probability of incurable unsoundness of

mind and also mental disorder of the nature described in

the section. It can be said that the husband was living for

most of the time in Mumbai and Pune and occasionally he

visited Aurangabad when he used to stay with the wife.

They got one issue out of this wedlock and it can be said

that most of the allegations in respect of the behaviour of

the wife are on the basis of the incidents allegedly

disclosed to the husband by his relatives like mother. The

20 FCA 7 & 8 of 2013

allegation that she was preferring to live alone, she had

forgotten few articles, she did not remember the songs of

the movie which she had seen or some instances of

quarrels cannot create probability that they were treated

as symptoms of mental disorder and the husband had

taken them seriously. The main witness who could have

given evidence on the behaviour of the wife was the

mother of the husband but she is not examined by the

husband. Only the mother was having the company of the

wife for most of the time. Some witnesses like Shankar

Gavhane, husband of sister of the appellant, Kalpana Patil,

sister of the appellant are examined to prove the

contentions. Their names were not mentioned in the

pleadings but they are examined. Even in the affidavit

filed as examination-in-chief, exaggeration is done by

Shankar by saying that the wife was suffering from such

illness from her childhood. There was no possibility for

him to have personal knowledge about any incident and

his evidence shows that it is very vague and only one

incident in which the wife kept herself away from the

company is mentioned. Kalpana has given evidence on

one or two instances but they were of May 2010 and they

21 FCA 7 & 8 of 2013

were of the nature of usual grievances of ladies against

each other.

23) The trial Court has observed on the basis of the

oral evidence given by the wife that, there is nothing on

the basis of which even suspicion can be created about

mental fitness or the mental condition of the wife. It is

already observed that due to absence of convincing expert

evidence the divorce could not have been given by the

trial Court and so the other evidence need not be

discussed in detail.

24) When the husband has made the allegation or

the contention of the aforesaid nature against the wife, it

can be inferred that he has no intention to resume

cohabitation. It can be said that the husband has

withdrawn from the company of the wife and there is no

justifiable reason for the same. In view of these

circumstances, there was no other alternative before the

trial Court than to give decree of restitution of conjugal

right in favour of the wife. This Court sees no reason to

interfere in the decision given by the Family Court. In the

22 FCA 7 & 8 of 2013

result, both the appeals needs to be dismissed.

25) Civil application is filed by the wife for granting

interim maintenance in her favour. In the trial Court after

considering the financial condition and status of parties

interim maintenance at the rate of Rs.10,000/- per month

was granted which was not challenged by husband. So,

the interim maintenance at the same rate needs to be

granted. In the result, following order :-

     (i)     Both the appeals stand dismissed.

     (ii)    Civil Application No.3167 of 2015 filed in Family

Court Appeal No.7 of 2013 is allowed. The husband is

directed to pay interim maintenance of Rs.10,000/-

(Rupees Ten Thousand) per month to the wife. The

maintenance amount of Rs.10,000/- per month is to be

given to the wife from the date of filing of the application

till final disposal of the appeal. Civil Application No.7159

of 2013 in Family Court Appeal No.8 of 2013 is rejected.

            Sd/-                                         Sd/-
     (S.M. GAVHANE, J.)                         ( T.V. NALAWADE, J.)

     rsl