Dnyaneshwar Sheshrao Patange vs Swati Dnyaneshwar Patange
2017 Latest Caselaw 7171 Bom

                                                                        FCA No. 4/2008
                                               1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                             FAMILY COURT APPEAL NO. 4 OF 2008

Dnyaneshwar s/o. Sheshrao Patange,
Age 30 years, Occu. Private Service,
R/o. 483, Shradha Colony, infront of
Dhoot Hospital, Mhada, Aurangabad.                           ....Appellant.
                                                             (Ori. Petitioner)

                  Versus


Sow. Swati w/o. Dnyaneshwar Patange,
Age 22 years, Occu. Nil,
R/o. C/o. Balwantrao Kishanrao Chavan,
Dist. Yawatmal, R/o. Wanegaon,
Tq. Umarkhed, Dist. Yawatmal.                                ....Respondent.
                                                             (Ori. Respondent)


Mr. P.P. Mandlik, Advocate h/f. Mr. P.V. Mandlik, Senior Counsel for
appellant.
                                   CORAM       :   T.V. NALAWADE AND
                                                   S.M. GAVHANE, JJ.

                                   DATED   :       September 14, 2017.


JUDGMENT : [PER T.V. NALAWADE, J.]

.                 The appeal is filed against judgment and decree of Hindu

Marriage Petition No. A-334/2004 which was pending in the Family

Court, Aurangabad. The petition filed by the petitioner/husband

under the provisions of section 13 (1) (i-a) and (iii) of Hindu

Marriage Act, 1955 (hereinafter referred to as 'the Act' for short) for

relief of dissolution of marriage is dismissed. Notice of the present

proceeding was duly served for final hearing on respondent/wife, but

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nobody has turned up for respondent/wife. The learned counsel for

appellant is heard.

2) Before considering the rival contentions, the evidence

given and the reasoning given by the Trial Court for dismissal of the

petition, it is necessary to mention that after filing of the present

proceeding, in Regular Civil Suit No. 46/2012 which was filed in the

Court of Civil Judge, Junior Division, Kalamnuri for relief of partition

and separate possession of the ancestral property by a daughter of

respondent/wife, compromise has taken place and in the

compromise dated 3.7.2012 present petitioner has agreed to

maintain and take care of respondent and daughter and some

portion of the ancestral property is also given to the daughter by

present petitioner. No separate agreement was there for giving

maintenance amount and due to the contents of the compromise

document, it can be said that the parties were to resume

cohabitation and respondent was to cohabit with the present

petitioner. The learned counsel for present appellant submitted that

in accordance with the said compromise, the wife had returned to

the matrimonial house, but there was short stay, of hardly one

month and she again returned back to the house of her parents.

These circumstances, the development which took place after filing

of the appeal are relevant in view of the provisions of the Act. The

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Court is expected to get satisfied that the rival contentions and the

evidence do not disclose that there will be inconvenience to one side,

there was condonation of the alleged ground or there is collusion.

The Court is expected to keep in mind that dissolution of marriage is

a matter of great import and last expedient of law. Further, there is

always discretion of the Court in granting or refusing such relief

claimed under the Act.

3) The learned counsel for appellant submitted that though

there was subsequent development as mentioned above, the

contentions made by the petitioner in divorce proceeding need to be

considered and this Court is expected to decide as to whether the

judgment delivered by the Family Court is sustainable in law. He

submitted that alternate relief as provided under section 13-A of

the Act can also be given in such cases. Due to these

submissions, this Court is discussing the rival contentions, the

evidence given before the Trial Court and the reasoning given by the

Trial Court.

4) The divorce proceeding was filed under two grounds viz.

cruelty and incurable unsoundness of mind or mental disorder as

described in aforesaid provision. The submissions made and the rival

contentions show that the husband wanted to prove that due to the

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aforesaid mental state of wife, there was cruelty, both physical and

mental to the husband.

5) The marriage took place on 9.5.2004 and there was

cohabitation of few months. The main contentions of the husband

are as under :-

(i) On 14.5.2004 the wife was not feeling well and

so, she was taken to Nanded Mental Health Care Center by

her father and she was indoor patient in that hospital from

14.5.2004 to 28.5.2004. Due to this circumstance, the

husband first time learnt that the respondent/wife has been

suffering from mental disorder since long and this fact was

suppressed from him.

(ii) Due to the circumstance that the wife was

suffering from mental disorder and she was required to be

admitted in hospital for treatment, the husband received

shock and it was mental torture, cruelty to him.

(iii) Even after the discharge from aforesaid hospital

of Nanded, the wife was not sent to the matrimonial house

for one and half months by the father by informing that she

was still ill and she was not in a position to join the

company of husband.

(iv) In August 2004, the wife returned to the

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matrimonial house for cohabitation, but within one week of

the cohabitation, the husband realized that the wife was

not knowing cooking and she was not knowing even usual

domestic work. Due to these circumstances the husband

could not enjoy matrimonial life and he also suffered

mental cruelty.

(v) Due to the subsequent conduct mentioned

above, the father of wife had again taken her for further

treatment.

(vi) In the moth of October 2004 the

husband/appellant himself took the wife to Shanti Nursing

Home of Aurangabad due to her mental illness and she was

indoor patient in that hospital from 21.10.2004 to

9.11.2004. During that treatment, doctor formed opinion

that the respondent/wife was suffering from schizophrenia.

6) It is the case of husband that the cause of action for

filing the petition took place on 14.5.2004 when the wife was

required to be taken to Nanded for giving treatment on mental

illness. He contended that there was no collusion between the

parties and he is entitled to get the decree of divorce on aforesaid

two grounds.

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7) The wife filed reply and denied that she was indoor

patient in hospital from Nanded for receiving treatment for mental

illness. However, she admitted that she had received treatment of

Dr. Dagade. She admitted that during her cohabitation she was

taken to Nanded atleast for two times and she had received medical

treatment in Nanded. She also admitted that in Aurangabad in

Shanti Nursing Home she received treatment, but she denied that

she is suffering from incurable unsoundness of mind. She then made

allegation that husband has demanded dowry from her and on that

count, there was illtreatment to her. She contended that husband

has made false allegations to get relief of divorce. During pendency

of the petition, the wife gave birth to a girl child and the paternity is

not denied by the husband.

8) The rival contentions show that there was cohabitation of

6-7 months and during the cohabitation, the treatment of

psychiatrists was given atleast on three occasions to the wife. Issues

were framed on the ground of cruelty and mental disorder viz.

schizophrenia. As cruelty has relation to mental disorder, it was

necessary for husband to prove the mental disorder as mentioned in

clause (iii) of provision of section 13 (1) of the Act. The relevant

provision runs as under :-

"13. Divorce.- (1) Any marriage solemnized, whether

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before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree on the ground that the other party-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) 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 incurable of unsound mind, or has been 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 includes schizophrenia;

            (b)      ............."



9)                Dr. Dagade is examined by the husband. His evidence

shows that respondent/wife was under his treatment from 14.5.2004

to 27.5.2004. The wife was taken to doctor by her father and the

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history was given by the father. The relevant record is proved as

Exh. 47 to 52. The evidence was recorded on 6.12.2005 and the

evidence shows that till that date the respondent/wife was under his

treatment. The final opinion given by the doctor is that the wife is

suffering from bipolar mood disorder-manic episode, psychiatric

illness. He gave evidence that the disease is treatable, but it may or

may not relapsed. The doctor has given abnormal symptoms/state.

He gave evidence on the steps to be take to minimize relapse. He

did not give definite opinion and he deposed that the disease may or

may not be life long. He gave some symptoms of mental disorder

that due to mental condition, there is possibility of suicidal tendency

and some times the patient can become violent and harm others. He

has deposed that due to such abnormal state of mind, there may or

may not be disturbance in sexual life of the spouse. However, he has

said in the evidence that in the present matter he did not notice

such symptoms. It is suggested to him during cross examination

that psychological tests need to be taken in such cases to give

definite opinion. He submitted that as a routine such tests are taken,

but even when there are no such tests he can form opinion. The

record is consistent with aforesaid oral evidence.

10) Dr. Vinay Barhale of Aurangabad has given evidence for

husband which is of similar nature. The wife was admitted in his

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hospital from 21.10.2004 till 9.11.2004. The record like discharge

card prepared by him is proved as Exh. 102. His evidence shows

that history was given by the father, a relative from parents side and

it shows that the wife was suffering from schizophrenia from about

four years, the period which started prior to the marriage. His

evidence came to be recorded on 16.2.2007. He has given evidence

that the patient was non cooperative, there were complaints of

disturbance in memory, weakness of memory, unnecessarily

laughing and crying and there were complaints of hearing voices in

ear, hallucination. His opinion regarding the possibility of danger or

inconvenience to other spouse is not definite and he has deposed

that partner of such patient may or may not suffer harassment.

However, he gave positive evidence that the illness suffered is

treatable, but not curable. In cross examination, it is suggested to

him that the disease is curable. But, he did not admit that

suggestion. However, he admitted that 1/3rd patient of such mental

state remain completely normal, 1/3rd get impaired in functioning

and remaining 1/3rd do not remain normal. No separate certificate

was issued by the doctor and in discharge card, it is mentioned that

the schizophrenia is undifferentiated. Thus, there was no certificate

to the effect that it is incurable unsoundness of mind. There were

two different opinions of two psychiatrists as above and the Trial

Court has considered the evidence and has held that it cannot be

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said that it is incurable unsoundness of mind. It is already observed

that no certificate was issued by the second doctor to the effect that

it is incurable unsoundness of mind. In clause (iii) of aforesaid

section, there are two portions. The first part involves incurable

unsoundness of mind and the second part contains mental disorder

of the kind mentioned in the remaining provision. Though the

husband could have brought the case in second part in view of the

aforesaid evidence given by the doctor, the subsequent development

has taken away that right from the husband. Due to the compromise

decree, it can be said that the husband has admitted that he can

lead life with the wife and he also admits that there was resumption

of cohabitation during the pendency of the present matter.

11) Both the sides have given other oral evidence, but there

is word against word. From the pleading which is already quoted, it

can be said that the husband has not mentioned specific instances of

abnormal behaviour of the wife though he has vaguely contended

that she was suffering from mental illness. This circumstance also

needs to be kept in mind while ascertaining as to whether it cannot

be reasonably accepted from the husband to cohabit with the wife

due to her mental condition. Thus, due to compromise decree,

nothing is left with the husband now. This Court holds that more

discussion of the matter is not necessary in the present matter.

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12) The learned counsel for husband placed reliance on the

observations made by the Apex Court in the cases reported as AIR

2008 (SC) 3093 [Satish Sitole Vs. Ganga] and 2012 (1) ALL

M.R. 473 [Pankaj Mahajan Vs. Dimple @ Kajal]. There cannot

be dispute over the ratios of the two cases cited supra. The facts and

circumstances of each and every case are always different. In the

present matter, the relevant facts are already quoted and the

reasons for which the decree cannot be given are also quoted. This

Court holds that it is not possible to interfere in the decision given by

the Trial Court, particularly due to subsequent development like

compromise decree containing undertaking given by the husband. In

the result, the appeal stands dismissed.

       [S.M. GAVHANE, J.]               [T.V. NALAWADE, J.]




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