Bombay Hc Divorce Schizophrenic

8/13/2019 Bombay Hc Divorce Schizophrenic

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HighCour

t 1 fca.136.13.sxwjdk IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 136 OF 2013

Mrs. Hemali Bindesh Kelaiya ]Residing at C/o Mr. Suman Shah ]101 Ratna Sindhu ]90 Versova in! Road" ]#ear H$%C Ban!" &ndheri '() ]Mum*ai+,00 0- ]..&ellant

'ri. etitioner )

Vs.

Mr. Bindesh 2ayantilal Kelaiya ]Residing at B/103" 1st 4loor" ]Royal &55ord" 6ogi #agar" ]Borivali '()" Mum*ai+,00 091 ]..Resondent

'ri. Resondent)

....Mrs. &nita &. &gar7al &dvo5ate 4or the &ellantMr. Sam8i 2oseh along 7ith Mr. Suresh Ba*u i/* Mr. R.B. 6adavand &sso5iates 4or the Resondent

....

CORAM : SMT.V.K.TAHILRAMANI AND V.L. ACHLIYA, JJ.

RESERVIED ON : NOVEMBER 1, 2013

DECLARED ON : JANUARY 21, 201!

JUDGMENT: "PER SMT. V.K.TAHILRAMANI,J.# :

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t 2 fca.136.13.sxw1 he aellant+7i4e has 4iled this aeal against the8udgment and order dated :.:.301 assed *y the %amily Court#o. -" Mum*ai in etition #o. &+1;3 o4 300;. etition &+1;3 o4

300; 7as 4iled *y the aellant *e4ore the %amily Court

5laiming de5ree o4 divor5e on the ground o4 5ruelty and on the

ground that the resondent is su44ering 4rom mental disorder.

hus" the etition 7as 4iled under Se5tion 1'1)'i+a) and

Se5tion 1'1)'iii) o4 the Hindu Marriage &5t" 19--.


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t 3 fca.136.13.sxwtheir honeymoon" in %e*ruary" 300 7hen they had gone toSouth


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HighCour

t 4 fca.136.13.sxwo4 her =stridhan>. &s 4ar as this ase5t is 5on5erned" it may *estated at this stage that *e4ore the %amily Court at the time o4arguments" the learned advo5ate 4or the aellant su*mitted

that the aellant has re5eived all her =stridhan roerty> as

er the list and there is no =stridhan roerty> remaining in the

5ustody o4 the resondent.


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t 7 fca.136.13.sxwhand" s5reamed at her and had given a*uses and assaulted *yhand to her *rother and 4ather. he resondent has denied allthe a*ove allegations and the haening o4 alleged in5ident.

he resondent has 5ross+e@amined the aellant in order to

dis5redit her statements made in e@amination+in+5hie4. he

aellant has admitted in uneEuivo5al 7ords that she has not

4iled any 5omlaint *e4ore the oli5e and she has also not

made any 5omlaint *e4ore her arents regarding the alleged

5ruelty 5aused to her *y the resondent.


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HighCour

t 8 fca.136.13.sxwarents have 4iled any 5riminal 5omlaint against theresondent nor have her arents *een e@amined to suorther 5ase. Her eviden5e 4urther sho7s that on -.-.300?" the

resondent had given a*uses in 4ilthy language and assaulted

her 4ather and *rother *ut they have also not 4iled any

5omlaint against the resondent. Her eviden5e 4urther sho7s

that her 4ather and *rother 7ere assaulted *ut still they have

not 4iled any 5omlaint against the resondent. he

aellant>s 4ather and *rother are natural eye 7itnesses and

vi5tims o4 alleged a*uses and assault on them *y the

resondent. here4ore" it is in5um*ent on the aellant to

addu5e eviden5e o4 her 4ather and *rother to suort and to

5orro*orate her eviden5e. &dmittedly" the aellant has not

addu5ed eviden5e o4 her 4ather or *rother. She has 7ithheld

the *est 7itnesses 7hi5h are easily availa*le to her. She has

also not given any roer e@lanation 4or not addu5ing

eviden5e o4 the *est 7itnesses i.e. her 4ather and *rother.

here4ore" in this situation" adverse in4eren5e 5an *e dra7n

against the aellant 4or non+e@amination o4 su5h material

7itnesses. here4ore" in su5h situation" it 5reates dou*t a*out

the truth4ulness o4 the eviden5e o4 the aellant.

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t 9 fca.136.13.sxw9 &55ording to the aellant" the resondent gave hera*uses and assaulted her on various o55asions i.e. on

3:.1.3000 at the time o4 honeymoon" in %e*ruary" 300 in

South


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t 11 fca.136.13.sxware vague in nature. hus" 7e 4ind no 5reden5e 5an *e givento them.11 &55ording to the aellant" in &ugust" 300, the

resondent had *eaten her so mer5ilessly that she 5ould not

*ear the ains and 7ent to her arents house. &gain the

reason 4or *eating her u" has not *een stated nor has she

stated 7hat 7ere the in8uries sustained *y her. #o medi5al

5erti4i5ate has *een rodu5ed *y her to su*stantiate her 5laim.

She has stated that she dis5losed to her 4ather and her *rother

a*out the in5idents *ut they have not *een e@amined to

suort and 5orro*orate her 5ase. (e have already dis5ussed

a*ove a*out the in5idents 7hi5h a55ording to the aellant"

o55urred in 2anuary" 300: and on -.-.300?. Hen5e" 7e 7ill not

reiterate here our dis5ussion in relation to those in5idents.

13


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HighCour

t 13 fca.136.13.sxweriod 7here the relationshi has deteriorated to su5h ane@tent that *e5ause o4 the a5ts and *ehaviour o4 a souse" the7ronged arty 4ound it e@tremely di44i5ult to live 7ith the other

arty any longer. Mere trivial irritations" Euarrels" normal 7ear

and tear o4 the married li4e 7hi5h haens in day+to+day li4e"

7ould not *e adeEuate 4or grant o4 divor5e on the ground o4

mental 5ruelty. he Euestion 7hether the a5t o4 5ruelty

5omlained o4" really amounts to 5ruelty" has to *e determined

4rom 7hole 4a5ts and the matrimonial relations *et7een the

arties. &s to 7hat 5onstitutes the reEuired mental 5ruelty 4or

uroses o4 the said rovision" 7ill not deend uon the

numeri5al 5ount o4 su5h in5idents or only on the 5ontinuous

5ourse o4 su5h 5ondu5t *ut really go *y the intensity" gravity

and stigmati5 ima5t o4 it 7hen meted out even on5e and the

deleterious e44e5t o4 it on the mental attitude" ne5essary 4or

maintaining a 5ondu5ive matrimonial home.

1


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HighCour

t 14 fca.136.13.sxwstated *y the aellant e@5et the in5ident in the month o4Setem*er" 300:" are vague in nature. #o details have *een4urnished *y the aellants in rese5t thereo4. &s 4ar as the

in5ident relating to Setem*er" 300: is 5on5erned" it aears

that anger o4 the resondent 7as dire5tly to7ards his 4ather as

he had had heated arguments 7ith his 4ather 8ust 4e7 minutes

rior to the in5ident. &s stated earlier" the marriage li4e should

*e revie7ed as a 7hole and 4e7 isolated instan5es over a

eriod o4 years 7ill not amount to 5ruelty. &s 4ar as the

in5ident relating to 2anuary" 300: and -.-.300? are 5on5erned"

the *est 7itnesses i.e. 4ather and *rother o4 the aellant have

not *een e@amined to su*stantiate the 5laim o4 the aellant.


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HighCour

t 15 fca.136.13.sxwmatrimonial home stating that she 7ould 5ome *a5! 7ithin tendays to the matrimonial home. She stated that she had to goto her arents house 4or the urose o4 ta@ a55ounting o4 her

4ather>s *usiness. herea4ter" he 5alled her 4or 5oha*itation *ut

she did not 5ome as stated *y her and on -.-.300? he 7as

5alled *y the aellant>s 4ather to their home. &55ordingly" he

7ent to the house o4 the aellant>s 4ather in an auto+ri5!sha7

to *ring her *a5! 4or 5oha*itation *ut the aellant did not

5ome 7ith him and at that time" the aellant>s *rother and

4ather assaulted him and drove him a7ay. he aellant has

not 5hallenged the a*ove eviden5e o4 the resondent during

the 5ross+e@amination that he had not treated her 7ith 5ruelty

and he had not given a*uses and assaulted her" there4ore" the

a*ove eviden5e o4 the resondent" remains un5hallenged.

here4ore" on this ie5e o4 eviden5e" it 5an sa4ely *e held that

the aellant le4t the matrimonial home on 3.,.300? o4 her

o7n a55ord stating that she 7ould 5ome *a5! 7ithin ten days

4or 5oha*itation.


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t 16 fca.136.13.sxw1,


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t 17 fca.136.13.sxw5oies o4 medi5al aers o4 the resondent.


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HighCour

t 18 fca.136.13.sxwU. Sree Vs. Srinivasi (2003) DMC 91 (S.C.)thatFSe5ondary eviden5e relating to 5ontents o4 ado5ument is inadmissi*le until non rodu5tion o4

original is a55ounted 4or" so 4ar as to *ring it 7ithin

one or other 5ases rovided 4or under Se5tion :- o4

the *le &e@ Court in

the a*ove authority" in our oinion" the aellant has 4ailed to

rove the medi5al aers rodu5ed at G@h. 3;. here4ore" the

medi5al aers rodu5ed at G@h. 3; 5annot *e read in eviden5e

against the resondent.

1? he resondent has se5i4i5ally stated in his eviden5e

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t 19 fca.136.13.sxwthat due to ro8e5t 7or! and 5ontinuous 7or! ressure he 7asnot getting roer slee" and there4ore" he used to ta!emedi5ines. $r. MaAumdar has stated in his eviden5e that the

resondent used to ta!e ta*lets as er his res5rition. He has

also stated in his 5ross+e@amination that the resondent

aroa5hed B.&.R.C. hosital ersonally due to 7or! ressure

and sleelessness. He has stated in his eviden5e that he has

res5ri*ed Frini5almlus and CF to the resondent. (+3

$r. MaAumdar has 4urther admitted in his 5ross+e@amination

that the a*ove ta*lets redu5e stress and ena*le roer slee.

he resondent has ta!en medi5al treatment 4or that urose.

$r. MaAumdar has admitted in his 5ross+e@amination in ara 1

that he has not res5ri*ed any medi5ines to the resondent

*et7een 2une" 300? to Setem*er" 300?. He has 4urther

admitted in the same aragrah that as er his advi5e the

resondent stoed ta!ing medi5ines during the a*ove eriod.


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HighCour

t 20 fca.136.13.sxw1; he resondent has stated in his eviden5e that he7as 7or!ing in B.&.R.C. i.e. #u5lear o7er Cororation s 7itness (+3 $r. MaAumdar has also not stated

in his eviden5e that the resondent 7as hositaliAed 4or some

eriod o4 time 4or his alleged mental disorder and ele5tri5 sho5!

treatment 7as given to him. s *ehaviour 7as not so

violent or aggressive so as to give him ele5tri5 sho5!

treatment. $r. MaAumdar has admitted that on 3.,.199; the

resondent aroa5hed B.&.R.C. hosital due to 7or! stress

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t 22 fca.136.13.sxw30 Mrs. &gar7al" the learned 5ounsel 4or the aellanthas la5ed relian5e uon the de5ision o4 the Sureme Court inthe 5ase o4 Vinita Saxena Vs. Pankaj Pandit,reorted inAIR

200 S.C. 12. Mrs. &gar7al ointed out that in the said

5ase" the hus*and 7as su44ering 4rom mental disorder.


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HighCour

t 23 fca.136.13.sxwFaranoid s5hiAohreniaF that divor5e 7as granted *ut it 7asmainly on a55ount o4 the 4a5t that the hus*and 7as not a*le tohave se@ual relationshi 7ith the 7i4e 7hi5h resulted in non+

5onsummation o4 marriage" 7hi5h a55ording to the Sureme

Court" 5onstitutes mental 5ruelty and is a good ground to grant

divor5e and divor5e 7as granted. #o dou*t" the hus*and 7as

su44ering 4rom Faranoid s5hiAohreniaF" *ut the Sureme

Court has o*served that under Se5tion 1'1)'i+a) Fmental

disorderF as a ground o4 divor5e is only 7here it is o4 su5h a

!ind and degree that the aellant 7i4e 5annot reasona*ly *e

e@e5ted to live 7ith the resondent+hus*and. s

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t 24 fca.136.13.sxwmental illness 7hi5h in5ludes s5hiAohrenia under Se5tion1'1)'iii) o4 the &5t.


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t 25 fca.136.13.sxw*e roved to *e su5h that etitioning souse 5annotreasona*ly *e e@e5ted to live 7ith the other. he SuremeCourt in the 5ase o4 Ra! "arain #$%ta Vs. Ra!es&'ari #$%taI

reorted in AIR 19 S.C. 220 has held that the degree o4

mental disorder must *e roved.


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t 26 fca.136.13.sxwne5essary to get a de5ree. he arty 5on5erned must *e o4unsound mind or intermittently su44ering 4rom s5hiAohrenia ormental disorder. &t the same time that disease must *e o4

su5h a !ind and o4 su5h an e@tent that the other arty 5annot

reasona*ly *e e@e5ted to live 7ith him. So only one element

o4 that 5lause is insu44i5ient to grant a de5ree.F

3 &s stated earlier" the resondent has denied that he

7as su44ering 4rom any su5h mental illness and a55ording to

him" he 7as ta!ing medi5ation as he 7as su44ering 4rom stress

and sleelessness. he resondent has *een 5ross+e@amined

at length. his averment o4 the resondent that he did not

su44er 4rom Faranoid s5hiAohreniaF has not *een dislodged in

the 5ross+e@amination. he resondent has also stated that he

had not given any mental or hysi5al 5ruelty to the aellant

*y giving her a*uses and *eating. #o dent has *een 5reated in

this averment in the 5ross+e@amination.


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t 27 fca.136.13.sxw7ith him.


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t 28 fca.136.13.sxwtye o4 5ogent or do5umentary eviden5e to rove that she hassent Rs. ,"00"000/+ to Rs. -"00"000/+ 4or 4urnishing andde5orating the 4lat. hus" 7e 4ind that the eviden5e o4 the

aellant is dou*t4ul and not trust7orthy and in our vie7" the

aellant has 4ailed to rove that she had 5ontri*uted any

amount at the time o4 ur5hasing o4 the 4lat. he resondent

has se5i4i5ally stated in his eviden5e that he has ur5hased

the 4lat *y ta!ing loan and his arents also 5ontri*uted to7ards

the same. his eviden5e o4 the resondent has not at all *een

5hallenged during his 5ross+e@amination. he aellant has

not rodu5ed any ur5hase deed or share 5erti4i5ate to rove

her 8oint o7nershi over the disuted 4lat. here4ore" the

eviden5e o4 the resondent that he is o7ner o4 the 4lat"

aears to *e trust7orthy and *elieva*le.


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HighCour

t 29 fca.136.13.sxware o4 the oinion that the aellant 4ailed to rove her 5ase.here is no merit in the aeal. he aeal is" there4ore"dismissed.

" V.L. ACHLIYA, J. # "SMT. V.K.TAHILRAMANI, J.#

kandarkar

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Bombay Hc Divorce Schizophrenic