Appeal against dismissal of divorce petition filed on grounds of cruelty and incurable unsoundness of mind. Appeal dismissed as subsequent compromise and resumption of cohabitation negate grounds for partition of marriage.
Appeal against the decree of dissolution of marriage dismissed.
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FCA No. 4/2008
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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.
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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.
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aforesaid mental state of wife, there was cruelty, both physical and mental to the husband.
(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.
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" 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) ............."
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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.
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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.
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[S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
3 issues framed by the court
Whether the High Court can interfere with the Family Court's dismissal of the divorce petition under section 13(1)(i-a) and (iii) of the Hindu Marriage Act amidst subsequent developments.
Whether the compromise decree and resumption of cohabitation negate the grounds of mutual consent or alter the circumstances warranting dissolution.
Whether the medical evidence definitely establishes incurable unsoundness of mind to satisfy section 13(1)(iii) of the Act.
Colour shows how this judgement treated each authority
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2 provisions across 1 enactments
Dnyaneshwar s/o. Sheshrao Patange
Sow. Swati w/o. Dnyaneshwar Patange
T.V. NALAWADE
S.M. GAVHANE
As recorded by the court registry
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