Rajendra S/O Sahebrao Sanap vs Sau. Leena Rajendra Sanap
2021 Latest Caselaw 1406 Bom

                                        1                             FCA 11.16



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          NAGPUR BENCH : NAGPUR

               FAMILY COURT APPEAL NO.11 OF 2016


  Rajendra s/o Sahebrao Sanap,
  Aged about 40 years,
  Occupation-Service,
  R/o. Dahane Nagar,
  Near Yoshada Nagar,
  Amravati.                                     ..              Appellant


                               .. Versus ..

  Sou. Leena Rajendra Sanap,
  Aged about 35 years,
  Occupation-Household,
  R/o. C/o. Vishwanath Ghule,
  Shiv Parvati Villa, Near Shanti
  Niketan School, New Tapadiya
  Nagar, Akola, Dist. Akola.                    ..              Respondent


                        ..........
  Shri A.D. Girdekar, Advocate for Appellant,
  None for Respondent though served.
                        ..........


                               CORAM : A.S. CHANDURKAR AND
                                       N.B. SURYAWANSHI, JJ.

DATED : 21.01.2021.

JUDGMENT [PER : N.B. SURYAWANSHI, J.]

1. This appeal filed by the appellant-husband under Section

19 of the Family Courts Act, 1984 challenges the judgment of the

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Family Court, Amravati dismissing the Petition No. A-319/2009 filed

by the appellant-husband seeking divorce.

2. Facts, in brief, leading to this appeal are as follows :

Appellant-husband filed Petition No. A-319/2009 under

Section 13 (1) (i-a) (iii) of the Hindu Marriage Act, 1955 inter alia

contending that his marriage with wife Leena was solemnized on

29.04.1997 at Amravati as per Hindu Rights and Customs. Out of

the wedlock, sons Rahul, aged 12 years and Dewashish, aged 4½

years were born. The marriage expenses were borne by the husband.

Since wife came for cohabitation at the husband's house, her

behaviour was whimsical, she used to quarrel, give abuses, she was

not doing the household work and used to give cruel treatment to

the family members of the husband, which was causing constant

mental harassment to the husband and his family members. The

wife had deprived the husband from mental and physical happiness.

The husband informed about the behaviour of the wife to her parents

and at that time he came to know from them that since prior to the

marriage she was suffering from psychological ailment and

sometimes her mental balance used to be disturbed. However, this

fact was suppressed from him and his family members by the wife's

parents. The parents of the wife tried to pacify and convince the

3 FCA 11.16

husband. Elder persons from both the families decided to give

medical treatment to the wife. The husband accepted the said

decision considering the future of their married life and of the

children. The wife was sent to her maternal home and was given

treatment of Dr. Pramod Thakare, Psychiatrist, Akola. However,

there was no change in the behaviour of the wife, on the contrary,

her mental ailment worsened. The wife used to talk irrelevant

things, bring outside garbage in the house, she used to refuse to

serve food to the husband and children and used to quarrel with

them. The husband therefore took her for treatment to Psychiatrist

Dr. Shrikant Deshmukh. However, in spite of the treatment, the

whimsicalness of the wife increased. She used to throw away the

medicines prescribed by the Doctor. He further averred that

cohabitation with the wife became dangerous and difficult for him as

she was physically and mentally unable to cohabit with him. Because

of all these circumstances, the husband called younger brother of the

wife at Amravati and along with him reached the wife at her paternal

home in the month of August-2009 prior to the 'Rakhi Pournima' and

since then the wife was staying at her parents house. On the basis of

these pleadings, the husband prayed for decree of divorce.

3. The wife appeared and resisted the claim of the husband

by filing written statement. Except the marriage and birth of two

4 FCA 11.16

sons, she denied all the allegations of the husband. According to her,

the husband wanted to perform second marriage. He always used to

abuse, beat her and used to pass bad comments against her. The

husband used to come home in drunken condition from his duty and

due to instigation of his mother used to mercilessly beat her. Twice

he tried to strangulate her. Due to the beating she suffered cut injury

to her ear and she was required to take Doctor's treatment. Since

then she developed a hearing problem. On 5.8.2009, at the time of

'Rakhi Pournima', husband had mercilessly beaten her and pressed

her neck, at that time, father-in-law rescued her from the husband.

The husband on false pretext without informing her used to take her

to the Psychiatrist and used to force her to take medicines. She was

not suffering from any ailment and she was mentally and physically

fit. She was mother of two sons and she was taking proper care of

them, however, as the husband wanted to perform another marriage,

with a view to get rid of her, he was trying to brand her as a mental

case. She further contended that the younger son Dewashish was

staying with her and she was taking proper care of him. The elder

son Rahul was staying with the husband and the husband was

depriving Rahul from mother's love. She further averred that both

the sons need love and affection of both the parents, considering

their future, she was ready to go to the husband. When she was

5 FCA 11.16

forced to go with her brother to the parents house, at that time the

husband told her that within 15 days he would go and bring her

back. She therefore prayed that the appeal filed by the husband

may be dismissed.

4. The husband filed his affidavit in lieu of evidence in

verbatim reproducing the contents of his petition. He produced the

case papers, prescriptions of Dr. Shrikant Deshmukh and Dr. Pramod

Thakare and one bill of medicines on record at Exh.31 to 34. In

cross-examination, the husband admitted that his marriage with the

wife was settled after they saw each other. His brother was married

with the sister of the wife and their marriage was also arranged

marriage. He denied that because of his slap, the wife suffered

injury to her ear. He admitted that most of the people take

treatment of Psychiatrist if they have any psychological problem. He

admitted that the younger son was with the respondent and elder

son was with him. He further admitted that on 5.8.2009 he asked

the wife's brother to take her to the parents house.

5. Father of the husband namely Sahebrao was examined by

the appellant as PW-2. He also reiterated the contentions of the

husband in his affidavit of evidence. In cross-examination, he

6 FCA 11.16

admitted that his younger son was married with the real sister of the

respondent and their marriage was performed after eight to ten

months of the marriage of the husband and the wife. He also

admitted that the wife was staying at her maternal home from

5.8.2009. He admitted that they never gave complaint about the

behaviour of the wife in the Police Station. He denied the suggestion

that the wife was not suffering from any mental ailment.

6. Pramod, younger brother of appellant, was examined as

PW-3 by the husband. He stated in his evidence that the husband

was his elder brother. He was staying at Pulgaon since last 12 to 13

years. He married with Nitu, younger sister of the wife. Their

marriage was a love marriage which was registered. He stated that

since his marriage he was not staying at Amravati, but he used to

visit Amravati.

7. The wife filed her evidence-affidavit reiterating her

contentions in the written statement. In cross-examination, she

admitted that she never approached Police Station complaining

about ill-treatment given by the husband and his family members.

She admitted that she took treatment of Psychiatrist Dr. Pramod

Thakare and Dr. Shrikant Deshmukh. She denied that she used to

7 FCA 11.16

bring outside garbage in the home, she was not cooking food and she

used to quarrel with the family members of the husband and that she

was suffering from mental ailment. She denied that since she did

not take medicines regularly, her mental condition worsened and,

therefore, she was taken to Dr. Deshmukh.

8. The learned Family Court, after considering the evidence

on record, dismissed the petition filed by the husband, the said

decision is impugned in the present appeal.

9. Heard the learned Advocate for the appellant. He

submitted that the appellant had proved that the respondent was

suffering from serious mental ailment in the form of schizophrenia by

leading cogent evidence and the learned Family Court erred in

dismissing the petition filed by the husband. By pointing out the

admissions given by the respondent during cross-examination, he

submitted that the respondent has admitted that she was taking

treatment of the psychiatrist for schizophrenia, considering the same,

the learned Family Court ought to have granted decree of divorce in

favour of the appellant. The respondent, though served, has not filed

appearance.

8 FCA 11.16

10. After hearing the submissions of the learned Advocate for

the appellant, following points arise for determination :

(i) Whether the appellant is entitled for decree of divorce.?

(ii) Whether the impugned judgment of the Family Court needs to be interfered with.?

11. Heard the learned Advocate for the appellant at length.

We have perused the original record including the notes of evidence.

For appreciating the submissions of the appellant, it is necessary to

consider the relevant provision.

13. Divorce :- Any marriage solemnized, whether 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 of divorce on the ground that the other party -

                 (i)           ..........
                 (i-a)      has, after the solemnization of                  the

marriage, treated the petitioner with cruelty; or (i-b) ..........

                 (ii)          ..........
                 (iii)      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 petitioner cannot reasonably be expected to live with the respondent.

Explanation :- In this clause -

(a) the expression "mental disorder" means mental

9 FCA 11.16

illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes 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.

12. It was for the appellant to prove that the respondent had

been incurably of unsound mind, or had been suffering continuously

or intermittently from mental disorder of such a kind and to such an

extent that the appellant could not reasonably be expected to live

with the respondent. The appellant was under obligation to prove

that the respondent was suffering from schizophrenia and that the

behaviour of the respondent was aggressive or seriously irresponsible

and the respondent had been suffering continuously or intermittently

from mental disorder of such a kind and to such an extent that the

appellant could not reasonably be expected to live with the

respondent.

13. To prove his case the appellant has produced on record

the medical documents in the form of case papers, prescription of

medicines and one bill of medicine at Exh.31 to 34, however, those

10 FCA 11.16

according to us, are not sufficient to prove the allegations of the

appellant that the respondent was suffering from schizophrenia. The

case paper of Dr. Shrikant Deshmukh (Exh.31) nowhere indicates

that the respondent was suffering from schizophrenia. By pointing

out the words "Schizo" in the column of 'Pharmaco-Therapy', the

learned Advocate for the appellant submitted that this is the clinical

diagnosis of the Doctor that the respondent was suffering from

schizophrenia, we are unable to agree with him. The appellant, for

the reasons best known to him, has failed to examine Doctors i.e. Dr.

Shrikant Deshmukh as well as Dr. Pramod Thakare to support his

case that the respondent was suffering from schizophrenia. The

documents at Exh.32 to 34 also do not indicate that the respondent

was suffering from schizophrenia. When the appellant was alleging

that the respondent was suffering from schizophrenia, higher degree

of proof was required to prove the said allegation. The explanation

to Section 13 indicates the degree of disorder that is required to be

proved.

14. On careful scrutiny of evidence on record, we are of the

considered opinion that the appellant has miserably failed to prove

that the respondent was suffering from schizophrenia or any kind of

mental disorder or psychological state of mind, which was not

capable of being cured and that it was dangerous for him to stay with

11 FCA 11.16

her.

15. The learned Family Court, after observing the demeanor

of the respondent during trial, has concluded that the appellant has

failed to point out during the cross-examination of the respondent

that she was either talking irrelevant things or that her behaviour

was ridiculous. The learned Family Court has rightly come to the

conclusion that the appellant has failed to prove the cruelty meted

out to him by the respondent. The learned Family Court was

justified in coming to the conclusion that the appellant has failed to

prove on record that due to the behaviour of the respondent, a

situation was created that it was impossible for the appellant to live

with the respondent. According to us, the learned Family Court has

properly appreciated the evidence and has recorded correct findings

and has rightly dismissed the petition of the appellant by a reasoned

order.

16. In the light of the above reasons, we answer the points

framed holding that the appellant is not entitled for decree of divorce

and the finding recorded by the learned Family Court is based on

material available on record and hence the same is acceptable. No

interference is called for in the impugned judgment of the learned

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Family Court.

17. For the aforestated reasons, we are of the considered view

that the appeal is without merit and it is liable to be dismissed and

the same is accordingly dismissed. The judgment of the Family Court

stands confirmed. The parties to bear their own costs.

(N.B. Suryawanshi, J.) (A.S. Chandurkar, J.) Gulande