The burden of proving cruelty lies with the party making the allegations, and the degree of mental disorder must be proved to warrant a divorce under Section 13(1)(iii) of the Hindu Marriage Act, 1955.

V.K. Tahilramani, J.

The appellant-wife has filed this appeal against the judgment and order dated 6.6.2013 passed by the Family Court No. 5, Mumbai in Petition No. A-182 of 2008. Petition A-182 of 2008 was filed by the appellant before the Family Court claiming decree of divorce on the ground of cruelty and on the ground that the respondent is suffering from mental disorder, Thus, the petition was filed u/s 13(1)(i-a) and Section 13(1)(iii) of the Hindu Marriage Act, 1955. In the said petition, she has also prayed for grant of accommodation and for return of her 'Stridhan' as per the list attached to the petition. The case of the appellant is that her marriage with the respondent took place on 26.1.2000 at Mumbai. After marriage, she started cohabiting with the respondent. During their co-habitation, she noticed that the respondent is suffering from mental sickness. He used to have recurrent attacks of mental disorder/illness due to which, he became violent and he gave abuses and assaulted her, thus, causing her mental and physical cruelty. According to the appellant, the respondent gave her abuses and assaulted her on 26.1.2000 at the time of their honeymoon, in February, 2003 when they had gone to South India, on 27.10.2003, in August, 2004, in January, 2006, September, 2006, 23.4.2007 and on 5.5.2007. According to the appellant, on 23.4.2007, the respondent gave abuses and beat her mercilessly. Due to fear, she was compelled to leave the matrimonial house. Therefore, since 23.4.2007, she is staying at her parents' house. On 5.5.2007 the respondent came to her parents' house. He caught her hand and was pulling her in presence of her father and her brother and he was screaming at her. The appellant's father and brother tried to rescue the appellant from the clutches of the respondent. At that time, the respondent gave abuses in filthy language and assaulted her father and brother.

2. The further case of the appellant is that the respondent had purchased a new flat and the appellant had contributed Rs. 2,00,000 for purchasing the flat. She also spent amount for decorating the flat, therefore, she has claimed accommodation. According to the appellant, her belongings as per the list attached to the petition, were in the custody of the respondent, hence, she had claimed for return of her 'Stridhan'. As far as this aspect is concerned, it may be stated at this stage that before the Family Court at the time of arguments, the learned Advocate for the appellant submitted that the appellant has received all her 'Stridhan property' as per the list and there is no 'Stridhan property' remaining in the custody of the respondent. In view of these facts, it is not necessary for us to go into the issue of return of 'Stridhan'.

3. The respondent had contested the petition by filing his written statement. He admitted the marriage. He also admitted that the appellant was staying at her parents' home since 23.4.2007. The rest of the allegations are denied by him.

4. In order to prove her case, the appellant has adduced her evidence by filing affidavit by way of examination-in-chief. She has also adduced evidence of Dr. Kaustub Mazumdar PW-2 and the evidence of her employer Rajesh Ghatalia PW-3. Thereafter, she has closed her evidence. In order to rebut the claim of the appellant, the respondent-husband has adduced his evidence by filing his affidavit by way of examination-in-chief and, thereafter, he has closed his evidence.

5. We have heard the learned Counsel for the appellant-wife and the learned Counsel for the respondent-husband. We have carefully considered their oral evidence as well as the documentary evidence led by both the parties. The issues which we are called upon to decide, are:

(1) Whether after solemnization of marriage, the respondent treated the appellant with cruelty?

(2) Whether the appellant has proved that the respondent has been incurably of unsound mind and has been suffering continuously or intermittently from menta