Danesh Madhukarrao Pahade vs Smita Danesh Pahade, Nagpur
2022 Latest Caselaw 501 Bom

                                                                     FCA.95.2014judge.odt
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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR.

                 FAMILY COURT APPEAL NO. 95 OF 2014

Danesh Madhukarrao Pahade,
Aged about 43 years,
Occ. : Service,
R/o. Vidya Vihar Hostel,
Rana Pratap Nagar, Nagpur.                                              .....APPELLANT

                                         ..VERSUS..

Smita Danesh Pahade,
Aged about 42 years,
Occ. : Service,
R/o. House of Shri Chopde
Guruji, Opposite House of
Gomase, Near Vitthal Tukhmini
Temple, Takli, Nagpur.                                               ....RESPONDENT
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Mrs. Padma M. Chandekar, Advocate for appellant
Mr U. M. Aurangabadkar, Advocate for respondent
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                CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.
                DATE ON WHICH ARGUMENTS WERE HEARD : 10.12.2021
                DATE ON WHICH JUDGMENT IS PRONOUNCED :14.01.2022


J U D G M E N T (Per : G. A. SANAP, J.)

In this appeal, filed under Section 19 of the Family Courts Act, 1984, challenge is to the judgment and decree dated 07.11.2008, passed by the learned Judge of the Family Court No.2, Nagpur, whereby the learned Judge of the Family Court dismissed the petition, filed by the appellant against the respondent for divorce on the grounds of cruelty, desertion and mental disorder FCA.95.2014judge.odt

due to schizophrenia as provided under Section 13(1)(i-a)(i-b) and

(iii) respectively of the Hindu Marriage Act, 1955.

2] The facts leading to this appeal are as follows:

The marriage between the appellant and respondent took place on 04.02.1991. After marriage, the respondent came to reside at the house of the appellant. The couple was blessed with a daughter by name Swaroopa on 06.08.1992. It is the case of the appellant that since beginning the respondent never acted or behaved normally. The respondent displayed the significant traits of mental imbalance resulting into unpleasant instances of violent nature. The respondent used to continuously quarrel with the appellant and his family members. The conduct and behaviour of the respondent disturbed the peaceful atmosphere in the family of the appellant. It is the case of the appellant that gradually the respondent agreed that she was suffering from mental illness. She was initially treated by their family Doctor Mr. Kishor Gojalwar. On the advice of the family doctor she was treated by psychiatrist Dr. Sudhir Bhave. Dr. Sudhir Bhave opined that the respondent was suffering from depression. He prescribed the medicines. The respondent took medicines for some time, but later on declined to go to the Dr. Bhave and stopped taking medicines.

3] On 18.06.1994, the respondent was taken to Dr. Bhave FCA.95.2014judge.odt

and treated by him. Dr. Bhave on examination opined that the respondent was suffering from Schizophrenia. Doctor prescribed the medicines. There was no improvement in the behavior of the respondent. She suffered repeated attacks and became violent. On one such occasion the respondent had slapped their daughter Swaroopa. The daughter Swaroopa became unconscious. There was bleeding from her mouth. The respondent used to mis-behave and mentally torture the appellant. She used to pull his hair and collar. She used to pick quarrel with all family members. The conduct and behavior of the respondent gradually became violent. She had been to the office of the appellant. She mis-behaved with him. She created a scene. She dragged the appellant out of his office. There was no improvement in her conduct and behavior. On one occasion, they had been to Aurangabad to attend the naming ceremony of son of Rohini Pahade. The respondent created a scene at Aurangabad, as well. She quarreled with the appellant and went into the bedroom and locked the door from inside. The appellant realizing the seriousness banged the door and hardly could get entry into the room. He was shocked to see that respondent was eating "Good Night Mosquito Mat". The conduct of the respondent displayed suicidal tendency as a result of mental sickness.

4] In the year 1995, the respondent went to the house of her parents and was residing there. The daughter was staying with the appellant. According to the appellant, the respondent behaved FCA.95.2014judge.odt

in cruel manner with him and his family members. According to the appellant, the respondent deserted him for a period of more than two years without any reasonable cause before filling the petition. The respondent is suffering from incurable mental illness. It is the case of the appellant that, it is not possible for him to continue his future married life with the respondent. On the above grounds, he prayed for divorce.

5] The respondent filed written statement and opposed the claim. The respondent denied the material allegations made by the appellant. According to the respondent, she was ill-treated and tortured at her matrimonial home by the appellant and his family members. The respondent was driven out of the house in the year 1994 by the appellant and his family members. She was residing at her parents house. The respondent has been doing service. According to the respondent, the appellant took the undue advantage of the situation and obtained custody of the daughter. Since the respondent was doing job she was constrained to keep the daughter in the custody of her mother-in-law. When she was denied the access to meet the daughter, she had filed the petition. The said petition was dismissed. She has been ready and willing to reside and cohabit with the appellant. After 1994, the appellant and respondent had mutually agreed that though they would reside separately and the respondent would not be denied an access to the minor daughter. In the month of February 2005, the appellant and FCA.95.2014judge.odt

respondent sorted out their minor disputes and started cohabiting with each other. As agreed, for a period of two years they resided together. The respondent has specifically denied that two years preceding the date of the filing of the petition there was no co- habitation between them. The respondent has been ready and willing to reside with the appellant and lead the family life. The grounds according to the respondent pleaded by the appellant are false and frivolous. There is no substance in the petition.

6] In the family Court the appellant and respondent adduced oral as well as documentary evidence. The learned Judge on consideration of the evidence came to the conclusion that no case was made out on the grounds pleaded in the petition by the appellant for granting the decree of divorce and dismissed the petition. Being aggrieved by this judgment and decree, the appellant has come before this Court.

7] We have heard the learned Advocate for the appellant and the learned Advocate for the respondent. We have perused the record and proceedings. In view of the fact and circumstances following points fall for our determination-

i] Whether the appellant proves that the respondent behaved in cruel manner with him and deserted him without any reasonable cause ?

ii] Whether the appellant proves that the respondent is suffering FCA.95.2014judge.odt

from incurable mental illness and therefore, it is not possible for the appellant to cohabit with the respondent ?

iii] Whether the judgment and decree passed by the learned Judge of the Family Court is sustainable ?

8] The learned Advocate Mrs Padma Chandekar, for the appellant submitted that the oral and documentary evidence adduced by the appellant is cogent, reliable and as such sufficient to accept his case. In the submission of the learned Advocate the evidence of the appellant on material point has gone unchallenged in cross examination and therefore, the same ought to have been accepted by the learned Judge. The learned Advocate by drawing our attention to the evidence of the appellant and respondent submitted that the respondent has admitted that she was treated by psychiatrist Dr. Bhave. The oral evidence has been fully corroborated by the medical certificates and other record. The learned Advocate submitted that there is no iota of evidence to establish that in view of the settlement the appellant and respondent resided together for a period of two years from year 2005. The learned Advocate submitted that even if it is assumed that they resided together for some time, the same would not amount the condonation of the act of desertion and cruelty. In support of this submission, the learned Advocate has relied upon the decisions in the cases of Uttara Praveen Thool .v/s. Praveen Bhanudas Thool 1,

1 2014 (2) Mh.L.J. 321 FCA.95.2014judge.odt

and Smt. Santana Banerjee .v/s. Sachindra Nath Banerjee 2. In these decisions it is held that in order to constitute the condonation in terms of Section 23 (1) (b) of the Hindu Marriage Act, 1955 there must be forgiveness and restoration and the said act must be bilateral act of both the parties and not the unilateral act of one of the parties. It is held that mere cohabitation on some occasions, in an attempt to repair the relationship, will not constitute condonation of cruelty. The learned Advocate submitted that the conduct of the respondent is not consistent with her statement that she has been ready to cohabit and reside with the appellant. She did not file petition for restitution of conjugal rights for 14 years. The learned Advocate submitted that the acts of the respondent brought on record constitute cruelty and desertion. The cumulative effect of the act indicates that the marriage between the parties has been irretrievably broken and therefore, the appellant is entitled to get decree of divorce. In order to seek support to this submission, the learned Advocate has placed heavy reliance on the decisions in the case of D. Manga @ Mangamma .v/s. D. Venkata Raman3 and Rajan Vasant Revankar .v/s. Shoba Rajan Ravenkar4.

9] The learned Advocate further submitted that the medical evidence is sufficient to prove that the respondent was suffering from incurable disease of Schizophrenia. In the submission of

2 AIR 1990 Calcutta 367 3 I (2000)DMC 663 4 AIR 1995 Bombay 246 FCA.95.2014judge.odt

learned Advocate for the appellant, the three grounds pleaded in the case for divorce have been proved and therefore, the appeal deserves to be allowed.

10] The learned Advocate Shri U. M. Aurangabadkar for the respondent submitted that in this case the grounds pleaded by the appellant for seeking decree of divorce have not been proved. The learned Advocate submitted that the ground of desertion cannot be accepted because the petition was filed within a period of two years from the date of establishing the co-habitation, in the year 2005 by the appellant and respondent. The learned Advocate further submitted that in terms of mutual settlement between the parties they resided together and cohabited for two years in the year 2005 and therefore, the said act would constitute the condonation of the grounds of cruelty and desertion. The learned Advocate submitted that the evidence of the respondent on the factum of her sound state of mind has been corroborated by the independent witness. The learned Advocate took us through the medical evidence and submitted that the said evidence is of no use, in as much as the same was for the period prior to 1999. The learned Advocate submitted that the appellant has not examined his daughter to support the ground of cruelty and desertion and also the ground of incurable disease of schizophrenia by examining Dr. Bhave. The learned Advocate taking us through the evidence of the respondent and the witness examined by her submitted that the same is sufficient to FCA.95.2014judge.odt

accept the case of the respondent that since beginning till date she has been doing service. The learned Advocate submitted that considering the seriousness of allegations made by the appellant he ought to have examined his family members. The learned Advocate submitted that in this case, the appellant has failed to prove the grounds of cruelty, desertion and the ground of mental disorder due to schizophrenia. In order to substantiate this submission the learned Advocate has relied upon decisions in the case of Ram Narain Gupta .v/s. Smt. Rameshwari Gupta5, Naveen Kohli .v/s. Neelu Kohli6 and Kollam Chandra Sekhar .v/s. Kollam Padma Latha7.

11] In the case of Ram Narain (supra) it is held that mere branding of spouse as schizophrenic is not sufficient. The degree of mental disorder of the spouse must be proved to be such that petitioning spouse cannot reasonably be expected to live with the other. In the case of Navin Kohli (supra) it is held that in order to constitute the cruelty, the conduct complained of should be grave and weighty. The conduct should be such that no reasonable person would tolerate it. The same cannot bring within its ambit the ordinary wear and tear of married life. In the case of Kollam Chandra (supra) it is held that in order to accept the ground under Section 13(1)(iii) of the Hindu Marriage Act, 1955 the illness must

5AIR 1988 SC 2260 6AIR 2006 SC 1675 (1) 72013 AIR SCW 5559 FCA.95.2014judge.odt

be proved to be of incurable nature. If there is evidence in the form of medical report to indicate that symptoms of psychotic illness was not present, but the patient has responded well to the treatment, the same could not be made the ground for divorce.

12] In order to appreciate the rival submissions, we have minutely perused the oral and documentary evidence adduced by the parties. The appellant has examined himself as a sole witness. The respondent has examined herself in support of her defence. She has also examined one independent witness. As far as the ground of cruelty and desertion is concerned, it is the case of the respondent that in the year 2005 they had settled the dispute and started residing together and cohabited for two years from February 2005. On the basis of this contention, a case is sought to be made by the respondent that the appellant had condoned the act of cruelty and therefore, in view of the provisions of Section 23 (1)(b) of the Hindu Marriage Act, 1955 the appellant was not entitled for decree on the ground of cruelty. As far as the ground of desertion is concerned, it is the case of the respondent that the appellant has filed this petition on the ground of desertion within a period of two years after the resumption of cohabitation by them bilaterally. The parties have adduced the evidence on this point. In the cross examination, the appellant in para No. 16 of his evidence has admitted that in the year 2004 he and respondent mutually decided to resume cohabitation and resided together for about 4-5 months FCA.95.2014judge.odt

at his house. He has further admitted that before filing the petition, he had not filed any proceedings against the respondent for resumption of cohabitation. On this point, it is the case of the respondent that in view of the mutual settlement between them they started residing together in February 2005 and lived together for a period of about two years. It is her case that the appellant is playing in the hands of his mother and filed the petition for divorce without any cause of action. As far as this evidence is concerned, she was subjected to cross examination. She has admitted that the statement about the resumption of cohabitation is correct but they continuously stayed together only for six months. It is not suggested to the respondent that they resumed cohabitation in the year 2004 and not in the month of February 2005. In para 16 of his cross examination, appellant has not stated specific month of resumption of cohabitation in the year 2004. On the contrary, the respondent was specific about the month. On the basis of this evidence two facts emerge. First that the appellant and the respondent bilaterally decided to reside together and cohabit and second that it is not the case of the appellant that this decision was the unilateral act of the respondent. It therefore goes without saying that after condoning the so called act of cruelty the appellant and the respondent resided together and cohabited. In our view, therefore, as far as the ground of cruelty is concerned, the case would be squarely covered by the provisions of Section 23 and 23(1)(b) of the Hindu Marriage Act, 1955. In view of this position FCA.95.2014judge.odt

the law laid down on this point in the case of Uttara (supra) would not support the case of the appellant. In the facts and circumstance it supports the case of the respondent.

13] In view of the above, it would therefore follow that even the act of desertion was also condoned. As per Section 13(1)(i-b) of the Hindu Marriage Act, 1955, the desertion must be for a continuous period of not less than two years immediately proceeding the presentation of the petition. On the point of settlement and the resultant cohabitation the evidence of the respondent is more specific. She has stated that they resumed cohabitation in February 2005. Even if it is held that the cohabitation was not for a period of two years and was for a period of six months, as admitted by the respondent, in her cross examination, in our considered view on the ground of desertion the petition would be without cause of action. From the date of resumption of cohabitation in February 2005 the period of their stay together would be till the end of July 2005. The petition was filed on 06.03.2007. Even on rough calculation of the period it would show that the period of two years after separation would have ended by the end of July 2007. It, therefore, goes without saying that this petition was filed within a period less than two years would not vest any cause of action in favour of the appellant on the ground of desertion. In our view, as far as the, ground of cruelty or desertion are concerned on the above technical grounds the FCA.95.2014judge.odt

petitioner would not be entitled to seek divorce.

14] Even if it is assumed for the sake of argument that the technical ground as stated above does not stand in the way of the appellant, in our opinion, on merits also the grounds of cruelty and desertion cannot be said to be proved. As far as the ground of cruelty is concerned the appellant has relied upon two main incidents. The first incident is about slapping Swaroopa so hard that she became unconscious and there was a bleeding from her mouth and erratic and irrational behaviour of the respondent towards the appellant and his family members. The second ground is that at Aurangabad at the residence of Rohini, the respondent created a scene and after closing the door of the room ate "Good Night Mosquito Mat". The learned Judge of the Family Court found that these incidents could be said to be mere normal wear and tear of the married life. It is pertinent to mention at this stage that the daughter Swaroopa has been residing with the appellant. She has became major. She was not examined as a witness to substantiate the first incident of slapping. Similarly, no document is produced on record to corroborate this fact. As far as the incident at Aurangabad is concerned, the appellant has not examined Rohini. Rohini would have been the best witness to testify on this aspect. It is not the case of the appellant that this incident was reported to the Police. In our view even if the evidence is considered in totality it is not possible to reach a conclusion that the behavior of the FCA.95.2014judge.odt

respondent was such that it would not have been possible for the appellant to cohabit with the respondent. The incidents in our opinion were not so serious to convert them into a ground of divorce as cruelty.

15] As far as the ground of desertion is concerned, the evidence on record is not sufficient to accept the same. It is pertinent to note that in the year 1997, the respondent had filed a petition for custody of daughter Swaroopa. The copy of the judgment in the said proceedings is on record. Similarly, the evidence of the appellant and respondent recorded in the said proceedings has been produced on record. Exh. 22 is the deposition of the respondent. Perusal of this deposition would show that though the appellant and respondent started residing separately from August 1997 there was no serious dispute between them. It has come on record in Exh. 22 that the appellant and his family members used to come to the house of the parents of the respondent and stay together. The evidence of the appellant is not sufficient to accept the ground of desertion. At this stage, it would be necessary to state that in the year 2005 the appellant and respondent settled their dispute and started residing together. Therefore, in this case, the factum of separation as mandated by law is missing.

16] The second important aspect is animus deserendi. There FCA.95.2014judge.odt

must be concrete evidence to establish that marriage is broken irretrievably and the parties have no desire to reside together and cohabit. The respondent in her evidence at Exh. 30 has categorically stated that she was driven out of the house by the appellant and his family members. She has stated that she is ready and willing to reside with the appellant. While answering one question in the cross examination she has stated that she did not issue a legal notice or file petition for restitution of conjugal rights because she was hopeful that petitioner would call her back, as the dispute between them was routine process. On the ground of desertion there is evidence of appellant only. In order to corroborate his evidence on the material aspects he could have examined his family members. There is no plausible explanation for not examining the family member as a witness in this case. It is pertinent to note that since the daughter has attained majority she would have vouched about the conduct of the appellant as well as the conduct of the respondent. Therefore, in our view, the ground of desertion cannot be accepted, firstly, for want of cause of action and secondly, for want of concrete and cogent evidence.

17] The third ground is the incurable ailment of schizophrenia. The appellant in his evidence has deposed about the mental illness and imbalanced and irrational acts and behavior of the respondent in the fit of the illness. The respondent has denied this ground in toto. It would be appropriate to consider the evidence of FCA.95.2014judge.odt

the respondent and the witness examined by the respondent. The respondent has stated that since beginning she has been doing service at N.G.D.A. Pvt. Ltd. Titan Watch Showroom as a Customer Relations officer. It is the case of the respondent that if she had been suffering from illness of schizophrenia, as alleged, she would not have been able to concentrate on her job to do her service. In order to substantiate this fact the respondent has examined witness Mr Mahesh S/o. Imratlal Shiv, an Accountant, working in N.G.D.A. Pvt. Ltd. He has stated that the respondent has been working in company since last 15 years as a Customer Relations Officer. The respondent is required to handle the customers. On her conduct and behavior, he has deposed that in general the behavior of the respondent with the officers, colleagues and customer is very good. He has deposed that the respondent attended training programme once or twice in a year and she received various certificates in this regard. He has categorically deposed that respondent never quarreled with anybody, officer, colleagues or customers. This witness has been cross examined on behalf of the appellant. Perusal of his cross examination would show that no material has been elicited in his cross examination to discard his evidence on the point of employment of the respondent with the company, the nature of her work and her general behavior with the colleagues and customers. It is pertinent to note at this stage that if the respondent had been suffering from illness of schizophrenia, as stated by the appellant, she would not have been FCA.95.2014judge.odt

able to do the job. If the respondent had been suffering from the schizophrenia of high degree then she would not have been continued by the company as an employee. In our view, this important fact proved on the basis of the evidence of respondent and the independent witness has not been rebutted by the appellant.

18] Perusal of the evidence of the appellant on this point would show that he has not seriously disputed this fact. In his cross examination, he has admitted that the respondent is working with the Titan Showroom of N.G.D.A. Pvt. Ltd., Mount Road, Sadar, Nagpur since last 7-8 years. He has admitted that she has been working there since beginning. He has categorically admitted that there is no complaint of her employer against the respondent to him in respect of her behavior. In his cross examination, he has stated that he was not ready to resume cohabitation with the respondent though the respondent had expressed her willingness to resume the cohabitation for the sake of child. The evidence of the appellant on this point supports the stand of the respondent.

19] The other evidence on record do not support the contention of the appellant. According to the appellant, the respondent was treated for her ailment by psychiatrist Dr. Bhave. Dr. Bhave has not been examined in this case. As stated above, the petition was filed by the respondent in the Family Court in the year 1997 for custody of minor daughter Swaroopa. It was dismissed on FCA.95.2014judge.odt

20.06.2000. In the said petition, the appellant herein was the respondent. The appellant in the said proceedings had examined Dr. Bhave as a witness. In this proceedings, instead of examining Dr. Bhave he has produced on record, the certificate issued by Dr. Bhave on 27.02.1995 and deposition of Dr. Bhave at Exh. 24 and the other medical papers. Dr. Bhave was examined as witness on 22.08.1999. The petition was filed in the year 2007. Dr. Bhave has not been examined. No plausible explanation has been placed on record. In our view, relying upon the certificate at Exh. 23 and certified copy of the deposition of Dr. Bhave at Exh. 24 this ground cannot be accepted.

20] In this context, it would be appropriate to peruse the cross examination of the appellant. He has admitted that for the sake of child they had mutually decided to resume cohabitation. He has further admitted that in the year 2004, the respondent was not taking any medical treatment. He has further admitted that during cohabitation he never took the respondent to Dr. Bhave in the year 2004, as it was not necessary. In our view, the admissions given by the appellant in his cross examination would speak volumes about the real state of affairs. In the backdrop of the evidence on record, this ground also cannot be accepted. The learned Judge of the Family Court has recorded the reasons for disbelieving the case of the appellant. On a fresh appreciation and analysis of the material, we are of the opinion that there is no reason to interfere with the FCA.95.2014judge.odt

well reasoned judgment and decree passed by the family Court. In our view, therefore, the law laid down in the case of Ram Narain (supra), Navin Kohli (supra) and Kolam Chandra (supra) relied upon by the learned Advocate for the respondent squarely apply to the facts of this case. In view of the proved facts, the law laid down in the case of D. Manga (supra), Uttara (supra), Santana (supra) and Rajan (supra) relied upon by the learned Advocate for the appellant cannot be made applicable to the facts of this case. In view of this position, we conclude that there is no substance in the appeal. The appeal, therefore, deserves to be dismissed. Hence, following order-

ORDER 1] The Family Court Appeal stands dismissed.

2] In view of the facts and circumstance, the parties shall bear their own costs.

                                                        JUDGE                            JUDGE



                                Namrata




Signed By:NAMRATA YOGESH
DHARKAR
P. A.
High Court Nagpur
Signing Date:14.01.2022 18:23