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GUJARAT HIGH COURT
Biren Vaishnav and Nisha M. Thakore, JJ.
Savanbhai Shaileshbhai Rav – Appellant
versus
Hiral d/o Bharatbhai Nathalal
Brahmbhatt – Defendant
R/First Appeal No.1134 of 2019
Decided on 7.2.2024
Counsel for the Parties:
For the Appellant No.1:Mr. Hriday Buch, Advocate for Jigneshkumar M. Nayak (8558), Advocate
For the Defendant No.1:Mr. Alak A. Pandya (7164), Advocate
IMPORTANT POINT
Divorce – A marriage which is broken down beyond salvation, should be given a decent quietus.
Headnote:
Hindu Marriage Act, 1955 – Section 13(1) – Divorce – Cruelty by wife – Medical prescriptions and connected evidence indicate that medical condition of respondent-wife was such compounded with fact that she refused to enter into any physical relationship – Admittedly being separated from matrimonial home for over 12 years now, is itself a sufficient ground that marriage should be held to be broken down and irreparable – There was no reason why decree of divorce could not have been granted particularly when wife is no longer in a position to honour commitment of conjugal relationship with husband – Decree of divorce granted – Permanent alimony of Rs.5 lakhs granted. (Paras 8 and 9)
Result: Appeal allowed.
JUDGMENT (CAV)
Biren Vaishnav, J.—This First Appeal has been filed by the appellant, who was the original plaintiff of Family Suit No. 1013 of 2012. The Family Suit was filed by the appellant-plaintiff – husband against the respondent- defendant wife to get a decree of divorce under the provisions of Sec.13 (1) of the Hindu Marriage Act, 1955.
2. The short facts leading to filing of the suit by the appellant was that the appellant and the respondent got married on 27.02.2009. That the appellant possesses a degree of M.D.in Medicine whereas the respondent –defendant is a doctor in Ayurveda.
2.1 The case of the appellant before the Family Court was that the respondent was suffering from mental illness like Schizophrenia prior to her marriage which was concealed by her parents. That she believed in Brahmakumaris and therefore had no interest in matrimonial life and therefore refused to enter into any conjugal relationship and that in the event the appellant – plaintiff enters into any conjugal relationship, she threatened to commit suicide.
2.2 Evidence was led by the parties before the Family Court and on the discussion of evidence raised by the plaintiff and as the defendant had not examined herself, the Trial Court by its order dismissed the suit of the appellant and refused to grant divorce. The appellant –plaintiff therefore is in appeal.
3. Mr. Hriday Buch, learned counsel appearing for the appellant would take us through the relevant portions of the judgement under challenge and submit that the finding of the Trial Court that the evidence of the appellant could not have been branded as being an improvisation or that it suffered from additions and material contradictions is contrary to the evidence on record.
3.1 Taking the Court through the evidence on record as discussed by the Trial Court, Mr.Buch, learned counsel, would submit that it was an admitted fact that the appellant did not know of the mental illness of the respondent and it was only when he came across a photocopy of the file of the medical records that he was made aware of the fact that the respondent – wife was suffering from Schizophrenia.
3.2 Mr. Buch, learned counsel, would take us through relevant pleadings i.e. the plaint before the Trial Court and the evidence of the appellant to submit that it was the specific case of the appellant before the Trial Court that he was not in a position to enjoy conjugal relationships with his wife as she professed to be from Brahmakumaris, that she threatened to commit suicide in case of any forced physical relationship, and therefore, there was evidence apparent on record that there was cruelty, and therefore, the Trial Court committed serious error in not granting the benefit of separation under Sec.13(1) of the Hindu Marriage Act.
3.3 Mr. Buch, learned counsel, would rely on the evidence of the doctors, who have been examined on record, namely, Dr. Lakshman Shankarlal Dutt, at Exh.46, Dr. Mahesh Chudgar at Exh.48 and Dr. Rajesh Maniyar at Exh.53, who have unequivocally certified that the respondent was undergoing treatment and medical papers indicated that the gravity of the disease was such that living together was not possible. He would submit that one bald statement in cross-examination which indicated that he had not made any attempts to call the wife back from her maternal home in 2011 was taken as out of context as the appellant not being ready and willing to perform his rights, and therefore, the Trial Court committed serious error when there was evidence on record to prove cruelty and the decree, therefore, ought to have been passed.
3.4 Mr. Buch, learned counsel, would further submit that in absence of any evidence led by the defendant denying what was on record, a mere case of cross-examination of doctors would not disprove the case of the appellant.
4. Mr. Alak Pandya, learned counsel appearing for the respondent – wife, would support the decree and order of the Trial Court. He too would extensively read the
