IMPORTANT POINT
The court established that claims of cruelty and unsoundness of mind under the Hindu Marriage Act must be substantiated with credible evidence, and that epilepsy, in this case, did not constitute a ground for divorce.

JUDGMENT

Valmiki Sa Menezes, J.

By these Family Court Appeals, the appellant Harish @ Roshan Bhaskar Karnewar,the original petitioner FCA--19-2017-FINAL.doc in a petition for dissolution of marriage by decree of divorce bearing Petition No.A-562/2013, and respondent in Family Petition No.A-697/2013, assails common judgment dated 02/12/2016 passed by the Family Court at Nagpur. Petition No.A-697/2013 has been filed by petitioner's wife Ms. Leelavati @ Reena Karnewar for restitution of conjugal rights; Ms. Leelavati is the respondent in Family Petition No.A-697/2013. For the purpose of these appeals, the parties are being referred to by their original nomenclature "petitioner" (Husband - Harish) and respondent (Wife - Leelavati).

2. The petitioner instituted a plaint (Petition No.A- 562/2013) against the respondent under Section 13(1)(i-a) and under Section 13(1)(iii) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") to obtain a decree of divorce mainly on the ground that the respondent had threatened him to commit suicide and her behaviour was abnormal, leading to a break down in their marriage due to mental torture and cruelty suffered by the FCA--19-2017-FINAL.doc petitioner; the second ground raised by the petitioner in his pleadings contained in the plaint alleged that the respondent was suffering from fits of epilepsy which was an incurable disease leading to her being of unsound mind, and further, that mental disorder was of a kind that the petitioner could not be expected to live with the respondent.

3. The respondent filed a petition bearing No.A- 697/2013 under Section 9 of the Act for restitution of conjugal rights claiming that the allegations made by the petitioner of her suffering from an incurable mental disorder, by virtue of which, the petitioner could not live with the respondent, were false and made up, and in reality the respondent has been driven out of the petitioner's home on this excuse, even though the respondent desired to live together. She claimed maintenance at Rs.15,000/- p.m. for herself and Rs.5,000/- p.m. for her daughter, claiming that the petitioner was earning a gross salary of FCA--19-2017-FINAL.doc Rs.41,753/- p.m., as a Shunting Driver in Central Railways. The respondent has further pleaded that she was under treatment of a Neurologist since she lost consciousness twice ("Mirgi"), which was diagnosed as being a seizure, which was not an incurable mental disorder or disability which would incapacitate her.

4. In counter to the petition, the respondent has categorically denied both grounds pleaded by the petitioner, and has specifically pleaded that she had informed the petitioner about suffering from a seizure prior to their marriage, and after their marriage, during her pregnancy, she was diagnosed both, by a Neurologist and Radiologist of having suffered from a seizure with no mental disorder which caused incurable unsoundness of mind such that the petitioner would not be in a position to reside with the respondent.

5. The Trial Court, to avoid conflicting decisions in the two petitions, heard the matters together, in which FCA--19-2017-FINAL.doc common evidence was adduced by the parties. The issues, as framed by the Trial Court in the two petitions, based upon the pleadings of the parties, are as under

ISSUES

FINDINGS

<WXY>1) Does the petitioners prove that the No respondent has treated him with cruelty ?

2) Does the petitioner prove that the No respondent has been incurably of unsound mind or has been suffering from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent ?

3) Whether he is entitled to have a decree of No divorce ?

4) What order & decree ? As per final order.

Restitution Petition

1) Does the petitioner prove that the Yes respondent has withdrawn himself from her company without any sufficient reason or cause

2) Whether she is entitled to have a decree of Yes restitution of conjugal right ?