sufficient. The degree of mental disorder of the spouse must
be proved to be such that petitioning spouse cannot
reasonably be expected to live with the other. The Supreme
Court in the case of Ram Narain Gupta Vs. Rameshwari Gupta;
reported in AIR 1988 S.C. 2260, has held that the degree of
mental disorder must be proved. It should be such that the
petitioning spouse cannot reasonably be expected to live with
the other. The context in which the ideas of unsoundness of
"mind" and "mental disorder" occur in the section as grounds
for dissolution of a marriage, require the assessment of the
degree of the "mental disorder". Its degree must be such that
the spouse seeking relief cannot reasonably be expected to live
with the other. All mental abnormalities are not recognized as
grounds for grant of decree. If the mere existence of any
degree of mental abnormality could justify dissolution of a
marriage, few marriages would, indeed, survive in law. But the
personality disintegration that characterizes this illness may be
of varying degrees. Not all schizophrenics are characterized by
the same intensity of the disease. The mere branding of a
person as schizophrenic therefore, will not suffice. For the
purpose of Section 13(1)(iii) "schizophrenia" is what
schizophrenia does. According to clause (iii), two elements are
necessary to get a decree. The party concerned must be of
unsound mind or intermittently suffering from schizophrenia or
mental disorder. At the same time that disease must be of
such a kind and of such an extent that the other party cannot
reasonably be expected to live with him. So only one element
of that clause is insufficient to grant a decree."
23 As stated earlier, the respondent has denied that he
was suffering from any such mental illness and according to
him, he was taking medication as he was suffering from stress
and sleeplessness. The respondent has been cross-examined
at length. This averment of the respondent that he did not
suffer from "paranoid schizophrenia" has not been dislodged in
the cross-examination. The respondent has also stated that he
had not given any mental or physical cruelty to the appellant
by giving her abuses and beating. No dent has been created in
this averment in the cross-examination. In view of the above
discussion, in our opinion, the appellant failed to prove that the
respondent-husband treated her with cruelty and her husband
i.e. the respondent is suffering from any mental disorder of
such nature that she cannot be reasonably expected to live
with him. In our view, the evidence of the respondent shows
that there was minor wear and tear of their married life. It is a
settled law that a decree of divorce cannot be granted on
minor wear and tear of married life. Therefore, the appellant is
not entitled to get the decree of divorce on the ground of
cruelty and mental disorder of the respondent as per Section
13(1)(i-a) and 13(1)(iii) of the Hindu Marriage Act, 1955.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 136 OF 2013
Mrs. Hemali Bindesh Kelaiya ]
Vs.
Mr. Bindesh Jayantilal Kelaiya ]
CORAM : SMT.V.K.TAHILRAMANI AND
V.L. ACHLIYA, JJ.
DECLARED ON : JANUARY 21, 2014
Citation; 2015(4) ALLMR313
1 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 under Section 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.
2 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 cohabitation, 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.
3 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'.
4 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 parent's home
since 23.4.2007. The rest of the allegations are denied by him.
5 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-inchief
and thereafter, he has closed his evidence.
6 We have heard the learned counsel for the appellantwife
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
mental disorder of such a kind and to such an extent
that the appellant cannot reasonably be expected to
live with the respondent ?
(3) Whether the appellant is entitled to a
decree of divorce under Section 13(1)(i-a) and 13(1)
(iii) of the Hindu Marriage Act, 1955?
(4) Whether the appellant is entitled for
residential accommodation from the respondent ?
The first three issues are interconnected, therefore, it
is necessary to decide them together in order to avoid
repetition of evidence.
7 It is an admitted fact that both the appellant and the
respondent were married to each other on 26.1.2000 at
Mumbai as per Hindu Vedic Rites. They are living separately
from 23.4.2007. The appellant has stated that the respondent
is suffering from mental disorder and he had not disclosed it to
her before their marriage. Due to mental disorder, the
respondent became violent and aggressive and he caused her
mental and physical cruelty by giving abuses and beating her.
On 26.1.2000 when they both had gone for honeymoon, he
beat her and he also beat her in the month of February, 2003
when they both had gone to South India and in August, 2004.
The respondent had beaten her mercilessly in January, 2006.
The respondent had given abuses and assaulted her in the
presence of her parents in September, 2006. On 11.2.2007 he
had assaulted her. On 23.4.2007 he had beaten her
mercilessly and compelled her to leave the matrimonial house
and since then she is staying with her parents. On 5.5.2007
the respondent had come to her parents house, pulled her
hand, screamed at her and had given abuses and assaulted by
hand to her brother and father. The respondent has denied all
the above allegations and the happening of alleged incident.
The respondent has cross-examined the appellant in order to
discredit her statements made in examination-in-chief. The
appellant has admitted in unequivocal words that she has not
filed any complaint before the police and she has also not
made any complaint before her parents regarding the alleged
cruelty caused to her by the respondent. If the husband
caused mental and physical cruelty to the wife by giving
abuses and assaulting her mercilessly, then in normal
circumstances, it is expected that a complaint will be filed
before the police against the husband either by the victim or by
her relatives. Admittedly, in present case, neither the
appellant nor her brother or parents have filed any criminal
complaint against the respondent regarding causing her
mental and physical cruelty.
8 The appellant has stated in her evidence that the
respondent had abused and assaulted her in January, 2006 in
presence of her parents but neither the appellant nor her
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parents have filed any criminal complaint against the
respondent nor have her parents been examined to support
her case. Her evidence further shows that on 5.5.2007, the
respondent had given abuses in filthy language and assaulted
her father and brother but they have also not filed any
complaint against the respondent. Her evidence further shows
that her father and brother were assaulted but still they have
not filed any complaint against the respondent. The
appellant's father and brother are natural eye witnesses and
victims of alleged abuses and assault on them by the
respondent. Therefore, it is incumbent on the appellant to
adduce evidence of her father and brother to support and to
corroborate her evidence. Admittedly, the appellant has not
adduced evidence of her father or brother. She has withheld
the best witnesses which are easily available to her. She has
also not given any proper explanation for not adducing
evidence of the best witnesses i.e. her father and brother.
Therefore, in this situation, adverse inference can be drawn
against the appellant for non-examination of such material
witnesses. Therefore, in such situation, it creates doubt about
the truthfulness of the evidence of the appellant.
9 According to the appellant, the respondent gave her
abuses and assaulted her on various occasions i.e. on
26.1.2000 at the time of honeymoon, in February, 2003 in
South India, on 27.2.2003, in August, 2004, in January, 2006, in
September, 2006, on 23.4.2007 and on 5.5.2007. As far as the
incidents relating to January, 2006 and 5.5.2007 are
concerned, according to the appellant, they occurred in
presence of her father and brother, however, both of them
have not been examined in relation to these incidents to
support and corroborate the evidence of the appellant. On
5.5.2007, it is the case of the appellant that the respondent
assaulted her father and her brother. It is not her case that she
was assaulted on that day. Yet she has not examined her
father and her brother. It is not known why she has not
examined the best witnesses who were easily available to her.
This raises doubt about the veracity of her evidence.
10 As far as the incident dated 26.1.2000 is concerned,
according to the appellant, it occurred on their honeymoon
when they had gone for honeymoon for 15 days through
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package tour. There were 8 to 10 couples in the tour.
Appellant asked the respondent why they could not enjoy like
other couples. Whereupon, he became furious and started
behaving in a rude manner and started saying bad words. The
appellant has not stated exactly in what manner the
respondent behaved, which according to her, was rude
behaviour. She has not stated what were the words stated by
the respondent. Thus, these allegations are found to be very
vague and they would not be of much help to the appellant.
Thereafter, according to the appellant, in the month of
February, 2003, they had gone to South India for two weeks.
She has stated that on almost every day of their stay, the
respondent used to argue with her on small issues and used to
beat her. The appellant has not stated on what issues or things
the respondent used to argue with her about or beat her. She
has not stated that any injury was caused to her. No details
have been furnished by the appellant, which makes her case
unreliable. The appellant has stated that on 27.10.2003, the
respondent abused her and stated bad words to her when her
mother had expired. Again no details have been stated by the
appellant so as to make her case believable. Her allegations
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are vague in nature. Thus, we find no credence can be given
to them.
11 According to the appellant, in August, 2004 the
respondent had beaten her so mercilessly that she could not
bear the pains and went to her parents house. Again the
reason for beating her up, has not been stated nor has she
stated what were the injuries sustained by her. No medical
certificate has been produced by her to substantiate her claim.
She has stated that she disclosed to her father and her brother
about the incidents but they have not been examined to
support and corroborate her case. We have already discussed
above about the incidents which according to the appellant,
occurred in January, 2006 and on 5.5.2007. Hence, we will not
reiterate here our discussion in relation to those incidents.
12 It is further the case of the appellant that in the
month of September, 2006 she had served "chole and bread"
to the respondent. The respondent behaved in an ill-mannered
way. He had had arguments with his father few minutes before
the dinner. The respondent then threw the plate of food and
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spoiled the hall. He also threw the appellant's food in the dust
bin and shouted at everybody. As far as this incident is
concerned, assuming it is true, it is seen that the respondent
was angry with his own father and not the appellant and the
incident occurred as the respondent had had an argument
with his father just a few minutes before, it is further the case
of the appellant that she was slapped by the respondent and
respondent pressed the neck of his own mother. The
respondent then asked his father to clean the room and went
to sleep. Besides the incidents relating to January, 2006 and
5.5.2007 which we have already dealt with, this is the only
incident about which necessary details have been given by the
appellant. This incident occurred as the respondent had had a
fight with his father and had nothing to do with the appellant.
The respondent did not express his anger only towards the
appellant but during this incident he expressed his anger
towards all the members of his family. From this incident, it
cannot be said that the respondent treated the appellant with
cruelty. Married life should be reviewed as a whole and few
isolated instances over a period of years will not amount to
cruelty. The ill-conduct must be persistent for a fairly lengthy
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period where the relationship has deteriorated to such an
extent that because of the acts and behaviour of a spouse, the
wronged party found it extremely difficult to live with the other
party any longer. Mere trivial irritations, quarrels, normal wear
and tear of the married life which happens in day-to-day life,
would not be adequate for grant of divorce on the ground of
mental cruelty. The question whether the act of cruelty
complained of, really amounts to cruelty, has to be determined
from whole facts and the matrimonial relations between the
parties. As to what constitutes the required mental cruelty for
purposes of the said provision, will not depend upon the
numerical count of such incidents or only on the continuous
course of such conduct but really go by the intensity, gravity
and stigmatic impact of it when meted out even once and the
deleterious effect of it on the mental attitude, necessary for
maintaining a conducive matrimonial home.
13 In relation to the allegations of the appellant
regarding the cruelty by the respondent, it is well settled law
that burden of proving cruelty lies heavily upon the person who
makes the allegations. In the present case, all the incidents
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stated by the appellant except the incident in the month of
September, 2006, are vague in nature. No details have been
furnished by the appellants in respect thereof. As far as the
incident relating to September, 2006 is concerned, it appears
that anger of the respondent was directly towards his father as
he had had heated arguments with his father just few minutes
prior to the incident. As stated earlier, the marriage life should
be reviewed as a whole and few isolated instances over a
period of years will not amount to cruelty. As far as the
incident relating to January, 2006 and 5.5.2007 are concerned,
the best witnesses i.e. father and brother of the appellant have
not been examined to substantiate the claim of the appellant.
It is pertinent to note that the respondent has denied all these
allegations. The respondent has been cross-examined. The
respondent has specifically pleaded and stated in his evidence
that he had not given mental and physical cruelty to the
appellant by giving her abuses and beating. He has denied all
the alleged incidents of cruelty to the appellant by him. He has
not at all been dislodged in his cross-examination. It is to be
noted that the respondent has specifically stated in his
evidence that on 23.4.2007, the appellant herself left the
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matrimonial home stating that she would come back within ten
days to the matrimonial home. She stated that she had to go
to her parents house for the purpose of tax accounting of her
father's business. Thereafter, he called her for cohabitation but
she did not come as stated by her and on 5.5.2007 he was
called by the appellant's father to their home. Accordingly, he
went to the house of the appellant's father in an auto-rickshaw
to bring her back for cohabitation but the appellant did not
come with him and at that time, the appellant's brother and
father assaulted him and drove him away. The appellant has
not challenged the above evidence of the respondent during
the cross-examination that he had not treated her with cruelty
and he had not given abuses and assaulted her, therefore, the
above evidence of the respondent, remains unchallenged.
Therefore, on this piece of evidence, it can safely be held that
the appellant left the matrimonial home on 23.4.2007 of her
own accord stating that she would come back within ten days
for cohabitation. It is pertinent to note that the appellant has
also admitted in her cross-examination that the respondent
made attempts to bring her back for cohabitation but she did
not come back to the matrimonial home.
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14 In order to prove the cruelty, the appellant has also
examined PW-3 Rajesh Ghatalia who was her employer. This
witness has admitted that he has not personally seen the
violent behaviour of the respondent towards the appellant. He
has clearly stated in his cross-examination that he has not
witnessed any such incidents. Therefore, it is not necessary to
rely on the hearsay evidence of PW-3 Rajesh Ghatalia when
eye witnesses are available.
15 The appellant is also seeking divorce on the ground of
mental illness of the respondent. In order to prove that the
respondent is suffering from mental illness, the appellant has
examined PW-2 Dr. Mazumdar. Dr. Mazumdar has stated in his
evidence that he is working as Psychiatrist in B.A.R.C. (Bhabha
Atomic Research Centre). The respondent is also working in
the said Research Centre. Dr. Mazumdar knew the respondent
as they were both working in one and same Institution. He has
stated that the respondent was taking treatment from him.
The respondent had come to his department with symptoms of
"paranoid schizophrenia". The Doctor has produced xerox
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copies of medical papers of the respondent. It is pertinent to
note that the appellant has not produced the original medical
papers of the respondent. PW-2 Dr. Mazumdar has admitted
that the originals of medical papers of the respondent are with
B.A.R.C. however, they were not produced before the Court and
only xerox copies of the medical papers were produced. Thus,
the medical papers have not been proved according to law. It
is well settled that the burden of proving a fact lies heavily
upon the person who makes the allegations. The appellant has
not complied with the legal requirements to prove the
contents of the xerox copies. Therefore, the medical papers
(Exh. 28) cannot be read in evidence against the respondent.
Admittedly, the medical papers produced by PW-2 Dr.
Mazumdar are not primary evidence but those are secondary
evidence. Admittedly, the appellant has not taken permission
from the Court before leading such secondary evidence. The
appellant was required to comply with Section 65 of the Indian
Evidence Act before leading secondary evidence which has not
been done by the appellant.
16 The Hon'ble Apex Court has observed in the case of
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U. Sree Vs. Srinivasi (2003) DMC 91 (S.C.) that:
"Secondary evidence relating to contents of a
document is inadmissible until non production of
original is accounted for, so far as to bring it within
one or other cases provided for under Section 65 of
the Indian Evidence Act."
Admittedly, the medical papers are not the original or
certified copies issued by the B.A.R.C. The medical papers,
pages 1 to 52 are not in the handwriting of PW-2 Dr.
Mazumdar. He is not the author of the documents. He has not
given the proper explanation for non-production of the original
medical papers. The mandatory essential requirements of
Section 65 of the Indian Evidence Act, have not been complied
with by the appellant. Therefore, in this situation and
considering the above observation of the Hon'ble Apex Court in
the above authority, in our opinion, the appellant has failed to
prove the medical papers produced at Exh. 28. Therefore, the
medical papers produced at Exh. 28 cannot be read in evidence
against the respondent.
17 The respondent has specifically stated in his evidence
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that due to project work and continuous work pressure he was
not getting proper sleep, and therefore, he used to take
medicines. Dr. Mazumdar has stated in his evidence that the
respondent used to take tablets as per his prescription. He has
also stated in his cross-examination that the respondent
approached B.A.R.C. hospital personally due to work pressure
and sleeplessness. He has stated in his evidence that he has
prescribed "Trinicalmplus and CPZ" to the respondent. PW-2
Dr. Mazumdar has further admitted in his cross-examination
that the above tablets reduce stress and enable proper sleep.
The respondent has taken medical treatment for that purpose.
Dr. Mazumdar has admitted in his cross-examination in para 13
that he has not prescribed any medicines to the respondent
between June, 2007 to September, 2007. He has further
admitted in the same paragraph that as per his advice the
respondent stopped taking medicines during the above period.
In view of the above discussion, in our opinion, the evidence of
PW-2 Dr. Mazumdar does not prove that the respondent is
suffering from mental disorder to such an extent that it was
difficult for the appellant to live with the respondent.
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18 The respondent has stated in his evidence that he
was working in B.A.R.C. i.e. Nuclear Power Corporation India
Ltd. He had been promoted. He also worked as the Secretary
of the society from 2002 to 2007. He is still performing his
official work and he is not suffering from any mental disorder.
Hence, on this basis, it can safely be held that he is not
suffering from any mental disorder to such an extent as to
make it difficult to live with him.
19 The appellant has not stated in her evidence that the
respondent was hospitalized for some period of time or
repeated electric shock treatment was given to the respondent.
The appellant's witness PW-2 Dr. Mazumdar has also not stated
in his evidence that the respondent was hospitalized for some
period of time for his alleged mental disorder and electric shock
treatment was given to him. In fact, Dr. Mazumdar has stated
that if the patient is violent and aggressive, they gave electric
shock. This shows that the respondent's behaviour was not so
violent or aggressive so as to give him electric shock
treatment. Dr. Mazumdar has admitted that on 2.4.1998 the
respondent approached B.A.R.C. hospital due to work stress
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and sleeplessness. He prescribed "Trinicalmplus and CPZ" on
2.4.1998 to the respondent. Dr. Mazumdar has further
admitted that these tablets were prescribed to reduce stress to
enable proper sleep to the respondent. Dr. Mazumdar has
stated that from December, 2004 onwards, he had prescribed
"Olanex tablets of 2.5 mg." to the respondent. Dr. Mazumdar
has admitted that he had not prescribed any medicines to the
respondent between the period from June, 2006 to September,
2007. He has admitted that that as per his advice, the
respondent stopped taking medicines during this period. It
has come in the evidence of Dr. Mazumdar that "Olanex"
tablets are available in 2.5 mg., 5 mg., 7.5 mg., and 10 mg.
Thus, this shows that lowest possible dosage was being given
to the respondent. PW-2 Dr. Mazumdar who is the appellant's
witness, has also stated about the promotion of the respondent
from "B" Grade to "C" Grade. He has also stated that he was
aware that the respondent was the Secretary of the society of
his building Royal Accord. This shows that the respondent was
not suffering from such a disorder that the appellant cannot
reasonably be expected to live with him.
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20 Mrs. Agarwal, the learned counsel for the appellant
has placed reliance upon the decision of the Supreme Court in
the case of Vinita Saxena Vs. Pankaj Pandit, reported in AIR
2006 S.C. 1662. Mrs. Agarwal pointed out that in the said
case, the husband was suffering from mental disorder. It was a
case of "paranoid schizophrenia" which is similar to the illness
of the present respondent. She pointed out that in the said
case, it was held that the wife was entitled to a decree of
divorce. We have carefully gone through the said decision. In
the said decision, it is noticed that the husband was suffering
from mental disorder and was not able to have sexual
relationship with wife, due to which, the marriage was not
consummated. The Supreme Court in the said decision held
that this fact by itself construes "mental cruelty" and is a good
ground for grant of divorce. Moreover, in the said case, the
husband attempted to commit suicide and was a case of
"paranoid schizophrenia". The parties were living separately
and had not seen each other since last 13 years. Considering
humane aspect, the Supreme Court held that the wife was
entitled to a decree of divorce. Thus, it is seen that it was not
only on the ground that the husband was suffering from
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"paranoid schizophrenia" that divorce was granted but it was
mainly on account of the fact that the husband was not able to
have sexual relationship with the wife which resulted in nonconsummation
of marriage, which according to the Supreme
Court, constitutes mental cruelty and is a good ground to grant
divorce and divorce was granted. No doubt, the husband was
suffering from "paranoid schizophrenia", but the Supreme
Court has observed that under Section 13(1)(i-a) "mental
disorder" as a ground of divorce is only where it is of such a
kind and degree that the appellant wife cannot reasonably be
expected to live with the respondent-husband. In the present
case, it is seen that the respondent was working in a
responsible post in B.A.R.C. He had been promoted. He was
working as Secretary of his society for a number of years
during the period that the appellant was married to him. From
these facts, it is seen that the husband i.e. respondent was
able to live a normal life.
21 The legal question that arises for our consideration
is whether the marriage between the parties can be dissolved
by granting a decree of divorce on the basis of one spouse's
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mental illness which includes schizophrenia under Section
13(1)(iii) of the Act. In the English case of Whysall Vs. Shysall;
(1959) 3 ALL ER 389, it was held that a spouse is incurably of
unsound mind if he or she is of such mental incapacity as to
make normal married life impossible and there is no prospect
of any improvement in mental health, which would make this
possible in future. Mental disorder of the husband even if
proved, cannot, by itself, warrant a decree of divorce and it
must be further proved that it is of such a nature as the wife
could not be expected to live with the husband. Inability to
manage his or her affairs is an essential attribute of an
incurably unsound mind. The facts pleaded and the evidence
placed on record produced by the appellant in this case, does
not establish such inability as a ground on which dissolution of
marriage was sought for by her before the trial Court. It is
thus, clear that the respondent, even if he did suffer from
schizophrenia, it was not to such an extent as to make living
together impossible.
22 Merely branding a spouse as a schizophrenic is not
sufficient. The degree of mental disorder of the spouse must
be proved to be such that petitioning spouse cannot
reasonably be expected to live with the other. The Supreme
Court in the case of Ram Narain Gupta Vs. Rameshwari Gupta;
reported in AIR 1988 S.C. 2260, has held that the degree of
mental disorder must be proved. It should be such that the
petitioning spouse cannot reasonably be expected to live with
the other. The context in which the ideas of unsoundness of
"mind" and "mental disorder" occur in the section as grounds
for dissolution of a marriage, require the assessment of the
degree of the "mental disorder". Its degree must be such that
the spouse seeking relief cannot reasonably be expected to live
with the other. All mental abnormalities are not recognized as
grounds for grant of decree. If the mere existence of any
degree of mental abnormality could justify dissolution of a
marriage, few marriages would, indeed, survive in law. But the
personality disintegration that characterizes this illness may be
of varying degrees. Not all schizophrenics are characterized by
the same intensity of the disease. The mere branding of a
person as schizophrenic therefore, will not suffice. For the
purpose of Section 13(1)(iii) "schizophrenia" is what
schizophrenia does. According to clause (iii), two elements are
necessary to get a decree. The party concerned must be of
unsound mind or intermittently suffering from schizophrenia or
mental disorder. At the same time that disease must be of
such a kind and of such an extent that the other party cannot
reasonably be expected to live with him. So only one element
of that clause is insufficient to grant a decree."
23 As stated earlier, the respondent has denied that he
was suffering from any such mental illness and according to
him, he was taking medication as he was suffering from stress
and sleeplessness. The respondent has been cross-examined
at length. This averment of the respondent that he did not
suffer from "paranoid schizophrenia" has not been dislodged in
the cross-examination. The respondent has also stated that he
had not given any mental or physical cruelty to the appellant
by giving her abuses and beating. No dent has been created in
this averment in the cross-examination. In view of the above
discussion, in our opinion, the appellant failed to prove that the
respondent-husband treated her with cruelty and her husband
i.e. the respondent is suffering from any mental disorder of
such nature that she cannot be reasonably expected to live
with him. In our view, the evidence of the respondent shows
that there was minor wear and tear of their married life. It is a
settled law that a decree of divorce cannot be granted on
minor wear and tear of married life. Therefore, the appellant is
not entitled to get the decree of divorce on the ground of
cruelty and mental disorder of the respondent as per Section
13(1)(i-a) and 13(1)(iii) of the Hindu Marriage Act, 1955.
24 The appellant has also claimed residential
accommodation on the ground that she had contributed
Rs.2,00,000/- at the time of purchasing a new flat. She has
also spent Rs.4,00,000/- to Rs.5,00,000/- for furnishing and
decorating the flat. The respondent has denied the above
allegations of the appellant. He has specifically pleaded and
stated in his evidence that he had repaid Rs.2,00,000/- to the
appellant by cheque. This averment of the respondent has
been admitted by the appellant in her cross-examination.
Paragraph 41 of of her cross-examination shows that the
respondent repaid Rs.2,00,000/- to her. As far as her averment
that she had spent Rs. 4,00,000/- to Rs.5,00,000/- on furnishing
and decorating the flat is concerned, she has not adduced any
type of cogent or documentary evidence to prove that she has
spent Rs. 4,00,000/- to Rs. 5,00,000/- for furnishing and
decorating the flat. Thus, we find that the evidence of the
appellant is doubtful and not trustworthy and in our view, the
appellant has failed to prove that she had contributed any
amount at the time of purchasing of the flat. The respondent
has specifically stated in his evidence that he has purchased
the flat by taking loan and his parents also contributed towards
the same. This evidence of the respondent has not at all been
challenged during his cross-examination. The appellant has
not produced any purchase deed or share certificate to prove
her joint ownership over the disputed flat. Therefore, the
evidence of the respondent that he is owner of the flat,
appears to be trustworthy and believable. In such
circumstances, we hold that the appellant failed to prove that
she has contributed Rs.2,00,000/- for purchasing new flat and
spent Rs. 4,00,000/- to Rs.5,00,000/- for furnishing and
decorating the flat. Therefore, she is not entitled for any
residential accommodation as prayed.
25 On going through the entire evidence on record, we
are of the opinion that the appellant failed to prove her case.
There is no merit in the appeal. The appeal is, therefore,
dismissed.
[ V.L. ACHLIYA, J. ] [SMT. V.K.TAHILRAMANI, J.]
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