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BOMBAY HIGH COURT
T.V. Nalawade and S.M. Gavhane, JJ.
Rakesh —Appellant
versus
Sow. Vaishali —Respondent
Family Court Appeal No.8 of 2011 with Family Court Appeal No.15 of 2012
Decided on 13.10.2017
Counsel for the Parties:
For the Appellant:Mr. V.J. Dixit, Senior Counsel i/b. Mr. L.V. Sangeet, Advocate
For the Respondent:Mr. N.S. Ghanekar, Advocate
IMPORTANT POINT
Mental illness of spouse is a strong and legal ground for divorce.
Headnote:Divorce—Mental illness of wife—Decree for restitution of conjugal rights—If husband fails to make out case of mental illness as mentioned in Section 13 (1)(iii) of Act, Court can infer that husband has no desire to resume cohabitation and he has deserted wife—Illness is described as Schizophrenia and evidence shows that illness can be kept under control by medicines—However, evidence like description of symptoms given in discharge card shows that during attack, wife shows irritability, disruptive behaviour and also hostility—Due to independent evidence of doctor who has given treatment to wife, there is no reason to disbelieve husband on his case that he cannot reasonably be expected to live with wife—Trial Court has committed error in dismissing petition filed by husband and allowing petition filed by wife—Marriage between petitioner and respondent dissolved on grounds mentioned in Sections 13(1)(ia) and 13(1)(iii) of Act—Petition filed by wife under provisions of Section 9 of Act for restitution of conjugal rights stands dismissed. [Hindu Marriage Act, 1955—Sections 9 and 13 (1)(ia) (iii)] (Paras 15, 25, 35, 37 and 38)
Result: Appeals allowed.
T.V. Nalawade, J.—Appeal No. 8/2011 is filed against judgment and decree of petition No. A-342/2006, which was pending in Family Court, Aurangabad and which was filed by wife under section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) for decree of restitution of conjugal rights. The Family Court has given such decree in favour of wife. Appeal No. 15/2012 is filed against the judgment and decree of Petition No. A-66/2009 (HMP No. 72/2005), which was pending in the same Court, but which was filed by the husband for dissolution of marriage under the provisions of sections 13 (1)(ia) (iii) of the Act. The Family Court has dismissed the petition filed by the husband. The husband has challenged the decision given in both the proceedings against him. The Family Court decided both the matters together by common judgment and as they involve connected issues, this Court is deciding the two appeals together. Both the sides are heard.
2) The relevant incidents with dates for the present purpose are as under:—
(i) 6.5.2001 - Date of marriage and after that cohabitation of wife in the house of husband at Amravati.
(ii) 9.1.2002 - A daughter was born in Aurangabad out of the aforesaid wedlock and after that, resumption of cohabitation at Amravati.
(iii) Nov. 2004 - Parties started living separate.
(iv) 13.5.2005 - The husband filed petition for divorce which was originally given number 72/2005 in Amravati Court.
(v) 20.10.2006- The wife filed proceeding under section 9 of the Act.
3) It is the contention of the husband that after one month of the marriage, on 16.6.2001 when his relatives were celebrating his birthday at Amravati, the wife had attack of mental illness. It is his contention that he was virtually shocked and surprised due to the misbehaviour of the wife during that attack and he made inquiry about it with the parents of wife. It is his contention that the parents gave evasive explanation. It is his contention that after inquiry he realized that she was suffering from mental illness from prior to marriage and she was receiving treatment from one Dr. Barhale of Aurangabad.
4) The husband has contended that after 4-5 months of the marriage when he was proceeding to one hospital, for check up and treatment to the wife as she was pregnant and when they were on the scooty, the wife tried to step down from the scooty by saying that she wanted to commit suicide. It is his case that she started shouting and making loud noise and he somehow controlled her and took her back to home. It is the case of husband that after that day, the wife had many attacks of mental illness and she was not remembering anything done by her during attacks and she was also not caring about whatever she had done during those attacks. It is the case of husband that some times she was inflicting injuries to herself by using razor and he realized that she was suffering continuously from mental disorder. It is the case of husband that due to such illness of the wife, he cannot be expected to live with her.
5) It is the case of husband that he had requested the parents of the wife to do something, but his efforts were in vain. It is his case that he then took the wife to Gowardhan Hospital of Dr. Laxmikant Rathi, who is psychiatrist for giving treatment. It is his contention that he found that the illness is not curable.
6) It is the case of husband that after 7-9 months of the marriage, the wife tried to jump in to the well to commit the suicide when she was under such attack. It is his case that on one day, during such attack, the wife virtually dashed the daughter on the floor and in that incident the daughter received injury to eye and daughter was sick for about two months after this incident.
7) It is the case of husband that due to aforesaid conduct of the wife, he went in to depression and the conduct of the wife amounted to cruelty. It is contended that on 19.11.2004 he left home in the depression and due to that, h
