Karnataka High Court
Shivaji S/O Bhutali Kharat vs Smt. Preeti W/O Shivaji Kharat on 16 January, 2012
Bench: N.Kumar, B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 16r11 I)AY OF' JANUARY 2012
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE B.SREENJVASE GOWDA
M.F.A. NO.32528/2011 (FC)
C /W
MFA 32527/2011 (FC)
MFA NO. 32528
BETWEEN:
Shivaji
S/o Bhutali Kharat,
Age: 39 years,
Occupation: Service,
R/o Army Quarters No.1,
Ashram Raod,
Opp: S.S. Bank.
Bijapur. .... APPELLANT
(By Sri: Ashok S. Kinagi Advocate.)
AN I)
Smt. Preeti
W/o Shivaji Kharat,
Age: 29 years,
Occu: Household Work,
R/o C/o V.L.Gadade,
Dange Residence.
Plot No. 46.
Sho house sneligi,
Near Satvam Super Market,
Solapur. M.S.. ... RESPONDENT
THIS M.F.A. IS FILED U/S 19(1) OF FC ACT
AGAINST THE JUDGEMENT AND DECREE DATED:
9-1 1-2011 PASSED IN M.C.NO.108/2010 ON THE FILE
OF THE JUDGE, FAMILY COURT AT BIJAPUR,
WHEREIN DISMISSING THE PETITION FILED U/S
13(1) (ia) (III) OF HINDU MARRIAGE ACT.
CJW MFA 32527/2011 (FC)
Shivaj i
S/o Bhutali Kharat,
Age: 39 years,
Occupation: Service,
R/o Army Quarters No.1,
Ashram Raod,
Opp: S.S. Bank,
Bijapur. .... APPELLANT
(By Sri: Ashok S. Kinagi Advocate.)
AND
Smt Preeti
.
W/o Shivaji Kharat.
Age: 29 years,
Occu: Household Work,
R/o C/o V.L.Gadade,
Dange Residence,
Plot No. 46,
Sho house sneligi,
Near Satyam Super Market,
Solapur. M.S.. ... RESPONDENT
3
THIS M.F.A. IS FILED U/S 19(1) OF FC ACT
AGAINST THE JUDGEMENT AND DECREE DATED:
9-11-2011 PASSED IN G.W. NO.2/2011 ON THE FILE
OF THE JUDGE. FAMILY COURT AT BIJAPUR,
WHEREIN DISMISSING THE PETITION FILED U/S 6 OF
THE HINDU MINORITY AND THE GUARDTASHIP ACT.
These appeal are coming on for Admission this
day. N.KUMAR J., delivered the following
JUDGMENT
MFA No. 32528/2011 Is filed by the respondent challenging the order of dismissal of petition for divorce on the ground that his wife is suffering from mental disorder.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original petition.
3. PetItioner Shivaji married the respondent Preeti on 16-11-1997 at Naraslmha Devasthan Bijapur as per Hindu customs. Till 2009 December they led happy LZ 4 martial life. Petitioner is working at Army in Belgaum. They lived together for 07 years at Belgaum. Two children were born to them namely Bharat and Bhakti. Case of the petitioner is that the respondent is having schizophrenia which is the mental disorder. This aspect was suppressed at the time of marriage. Respondent has became psychic and is always murmuring. Without any reasons she used to quarrel with the petitioner. She was behaving abnormally. Petitioner with great difficult led martial life with her at Belgaum. Most of the time she was not knowing what she was doing. She had tried to commit suicide 2-3 times by consuming sleeping pills at Belgaum. Looking to the career of children he led miserable life with the respondent. He is having agricultural land at RaJnal village in l3iJapur. His mother was staying at Bijapur. Hence to avoid complications and looking to the condition of the respondent he brought the respondent and the children to Bijapur and left them with his mother. He was visiting Bijapur on every Saturday and was returning to Belgaum on V I .
5
Monday. The respondent never adjusted with his mother. She was torturing his mother. She gave mental and physical harassment to her. Petitioner has more love and affections towards the respondent. He had taken the respondent to Balawant Institute of Neurosurgery and Intensive Trauma Care, Solapur for treatment of schizophrenia disease and spent huge money. She has not changed her attitude. During December 2009 his mother had been to Mount Abu. At that time the respondent called her mother and went to Solapur without Informing them and by locking the house. When they enquired they came to know this fact. The respondent when contacted on phone she refused to return to his house stating that she wants to take further treatment at Solapur. Petitioner many times visited Solapur to call the respondent which she refused. Till May 2010 everythIng was normal. Mother of the petitioner has got his daughter Bhakti admitted to Vishwabharatl Public School at Bijapur. On 25-05-2010 the parents and the brothers of respondent 6 came to Bijapur and picked up quarrels with him and his mother. They lodged a false complaint to the Superintendent of Police, Bijapur on 26-05-20 10 alleging that the respondent was harassed and was tried to kill by the petitioner and his mother. The Superintendent of Police Bijapur on 03-06-20 10 called both the parties and enquired the matter. He gave three months times to reconcile the matter. On 26-08-20 10 the petitioner approached the Superintendent of Police Bijapur and the attempts to seek the presence of respondent were made, but the respondent did not turn up. The respondent due to the mental disorder is unfit to lead the martial life and respondent without the consent of the petitioner has undergone Tubectomy at Solapur. This has caused mental harassment to the petitioner as he wants to have one more son. The respondent since her childhood suffering from schizophrenia which cannot be cured. Petitioner In view of torture given is unable to lead the martial life with the 7 respondent and hence he filed a petition for dissolution of marriage by decree of divorce.
4. After service of notice respondent ified her objections. She admitted the marriage, birth of children, but denied all other allegations. it Is specific case of the respondent that petitioner and his mother have been giving physical and mental harassment to her. She became weak and she could not stay at Bijapur. She was not given any treatment at Bijapur. Hence her parents took her to Solapur for providing treatment to her. She is not suffering from any mental disorder. Due to the constant ilitreatment given to her, she had called her parents to Bijapur on 25-05-20 10 and asked them to take her to Solapur for treatment. However the mother of the petitioner had dragged her and torn her clothes and due to same, a complaint was lodged before the police. Police directed the petitioner to take her to Belgaum for cohabitation, for which petitioner refused and instead he filed divorce petition. Petitioner has got 8 illicit relationship with a lady at Belgaum and therefore. he wants to get rid of respondent. Respondent is not suffering from mental disorders since her childhood. She is healthy. Petitioner has neglected the maintenance of the respondent and his daughter Bhakti who is staying with the respondent and they are now under the care of her parents. She has filed petition seeking maintenance at Solapur Court. Therefore, this petition is filed as a counter blast.
5. On the aforesaid pleadings, the Family Court has framed the following points:
1. Whether the petitioner proves that the respondent has been suffering continuously from the mental disorder of such a kind and to such an extent that he cannot reasonably be expected to live with the respondent?
2. Whether the petitioner proves that. the respondent has subjected him to cruelty as alleged? 9
3. Whether the petitioner is entitled to a decree of divorce as prayed?
4. What order or decree?
6. The petitioner in order to substantiate his case examined himself as PW 1 and examined 03 witnesses as PW 2 to 4 and produced 04 documents which were marked Ex. P-i to P-4. Respondent was examined as RW 1 and she also produced 02 documents as Ex.R- 1 and R-2.
7. The trial court on consideration of the aforesaid oral and documentary evidence on record came to conclusion that except Ex.P-2 petitioner has not produced any document to show that the respondent Is suffering from schizophrenia. He has not examined the doctor who had treated the respondent to substantiate the fact. Ex.P-2 as such does not mention that the respondent Is suffering from schizophrenia. Therefore In the absence of any acceptable evidence that the respondent is suffering from schizophrenia It cannot be V 10 said that she is suffering from mental disorder. On the contrary she was In the witness box. She has deposed. She has been cross examined. The trial court as observing demeanor when she was in the witness box. Court below did not find any strange in her behaviour and her behaviour as normal as it could be. In those circumstances it has recorded categorical findings that the petitioner failed to make out his case that the respondent is suffering from mental disorder. In so far as the contention that her acts constitute cruelty is concerned, it is held the claim of the petitioner that respondent is quarrelling with the petitioner and assaulting, abusing and she was throwing utensils etc have made in the form of allegations and same are not substantiated by placing cogent evidence before the court. It also noticed that both petitioner and respondent have led martial life happily at Belgaum for 07 years and it Is only when she shifted to Bijapur and he started living separately and he is compelled to live with his mother. Trouble appears to have been there. 11 Therefore, the trouble is between two women, not between him and the respondent. Therefore, a ground of divorce Is made out.
8. AggrIeved by the Judgement and decree of the Family court, the present appeal Is filed.
9. The learned counsel for the appellant assailing the Impugned judgement and decree contends that petitioner has taken care of the respondent under best manner possible and also got treatment to her ailment, still It could not be cured. She continued to suffer from schizophrenia and It Is not possible to live with her. The trial court has not properly appreciated the evidence on record and committed serious error In coming to conclusion that the case of mental disorder Is not proved and therefore, he submitted case of Interference Is made out.
10. Therefore. the point that arises for our consideration In this appeal Is;
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Whether case of mental disorder pleaded by the petitioner is made out and accordingly case for dissolution of marriage and passing of decree of divorce should be passed?
11. Evidence on record clearly establishes the marriage took place on 16-11-1997 as is clear from the averments made in the petition itself. Till May 2010 everything was normal i.e., for nearly 13 long years. Petitioner and respondent lived at Belgaum where petitioner is working for 07 years. Two children are born. The grievance is he wants to have third child and without his consent wife has undergone Tubectomy operation at Solapur. Thus, prevented having one more son. If his wife was really suffering from mental disease and duty casts upon husband to provide requisite treatment. He is not a man without means. He is working at Army camp. Probably the Government would have borne entire medical expenses. It is his case that he has taken care of her and she was taken to Balwant 13 Institute of Neurosurgery and Intensive Trauma Care, Solapur for the treatment of schizophrenia disease and has spent huge money. Absolutely nothing is produced on record to show that nature of treatment given, nature of medicine administered and the amount spent for treatment. Unfortunately though mental disorder is a very and serious disease, fortunately the medicine for the treatment does not cost much. His case is that he has spent huge money is false. As is clear from the petition averments and the evidence on record as long as when his wife was staying with him at Belgaum there was no problem. It is only when he shifted the respondent to Bijapur and made her live with her mother in law the trouble has started. There is no prohibition for the petitioner to keep his wife and children along with him at Belgaum. The reason appears to be as contended by respondent that petitioner is having illicit relationship with another lady at Belgaum. Therefore, he shifted his wife and children from Belgaum. His grievance is that wife and mother are 14 unable to get on. Reason is obvious. If he has forced his wife and children to live with his mother. Probably she feels her daughter in law and children are nuisance. Similarly wife and children who are supposed to live with the husband are forced to live with old lady they are also disheartened. The difference of opinion is appearing between mother in law and daughter in law. If really wife is worried, it Is because of the conduct of the petitioner and his mother. She has entered the witness box. She has given evidence in the court. She has withstood the cross examination. The learned judge has recorded her demeanor and has rightly pointed out that she is normal. Her evidence shows she has became weak. She is not taken care of and on the contrary she is harassed. In those circumstances respondent is obliged to go to her parents and therefore, she Is at Solapur and where she is taking treatment. Under these circumstances It Is an attempt made to get rid of his wife who has given him two children. The learned Judge has carefully scrutinised the evidence of every witness 1---
4. 15 on record and has rightly come to the conclusion that the respondent is not suffering from any mental disorder much less schizophrenia and It is not demonstrated by the evidence on record that it is not possible to live with her. Mere mental disorder either intermittently or continuously unless it is such a nature which prevents spouses from living together is not a ground for divorce. No such case is made out. Therefore, the trial court was justified In dismissing the petition ified by the petitioner. No merits. Petition is dismissed.
12. The couple have two children I.e., son and daughter. Son Is with the grand mother (father's mother). The daughter is with the wife at Solapur. She is aged about 07 years. It Is for the custody of the daughter, father has filed the petition. The trial court on appreciation of entire evidence on record has rightly held in the interest of child as she Is in the custody of the mother continuously, it is better she continues in the custody of the mother. In the facts and background I( whatever we have stated above, no case of interference, with the well considered order is passed by the Family Court rejecting the request of father for custody of minor daughter is made out. No grounds dismissed.
13. Accordingly MFA No. 32527/2011 and MFA No. 3252/20l 1 are dismissed.
Sd! JUDGE *\4J.ç Sd/ JUDGE