Gujarat High Court
Surya Veersinh Bhular vs Rupalee Do Rashmikant C Patel on 24 September, 2014
Bench: M.R. Shah, K.J.Thaker
C/FA/2964/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2964 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE K.J.THAKER sd/
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A Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair copy of the NO
judgment ?
4. Whether this case involves a substantial question of law as to NO
the interpretation of the constitution of India, 1950 or any
order made thereunder ?
5. Whether it is to be circulated to the civil judge ? NO
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SURYA VEERSINH BHULAR....Appellant(s)
Versus
RUPALEE DO RASHMIKANT C PATEL....Defendant(s)
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Appearance:
MR MURALIN DEVNANI, ADVOCATE for the Appellant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 24/09/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Judge, Family Court No.3, Ahmedabad dated 31.1.2014 passed in Family Suit No.77 of 2007, by which, the learned Judge has dismissed the said suit and has refused to pass decree of dissolution of marriage between the parties, the appellant herein original applicant - petitioner has preferred present First Appeal.
Page 1 of 15 C/FA/2964/2014 CAV JUDGMENT2.0. That the marriage between the appellant herein - original petitioner was solemnized on 3.11.1995. That the appellant herein original petitioner in the year 2007 instituted Family Suit No. 77 of 2007 against the respondent wife in the Family Court, Ahmedabad for decree of divorce / dissolution of marriage under Section 13 of the Hindu Marriage Act on the ground of cruelty by the respondent wife. It was the case on behalf of the appellant that the marriage between the appellant herein - husband petitioner and respondentwife was solemnized on 3.11.1995 according to Hindu rites and rituals. That after the marriage, appellant husband petitioner and the respondentwife started living together in joint family of the appellant petitioner. However, within short period, the petitioner found that nature of the respondentwife is very rigid, aggressive and obstinate. The appellant herein husband petitioner tolerated misconduct and misbehaviour of the respondent wife considering the fact that the respondent was disturbed because of torture meted out to her by her first husband and her parents, however, the respondent took disadvantage of the love and affection of the appellant herein - husband petitioner. The respondent also misbehaved with the family members of the appellant husband and the respondent revert back to her original rude and cruel nature. That the respondent was living as guest in the house and she was not sharing household work with other family members and she woke up late in the morning. That the respondent was throwing precious items, furniture, crockery etc. and the appellant was also insulted and humiliated in presence of his friends, neighbours and his businessman. That the respondent also made filthy allegations against the appellant herein petitioner. That the prestige and reputation of the appellant herein petitioner and his family members was ruined because of the misconducts of the respondent. That the respondent often raised hands on the appellant herein petitioner without any reasons and even beaten the appellant herein petitioner Page 2 of 15 C/FA/2964/2014 CAV JUDGMENT with hand and kicks and also by throwing metal idol and caused serious injuries on head. The appellant herein petitioner came to know that the respondent was suffering from schizophrenia prior to his marriage and the respondent used to loss control over her mind and she used to become victim of madness, and therefore, the first husband of the respondent took divorce from the respondent within short period. After coming to the knowledge of the said fact, the appellant herein petitioner started to give treatment to the respondent of psychiatric, however the respondent was not serious about it and she herself stopped to take medicines. The respondent got angry to extreme level on small issue and tried to kill the appellant herein petitioner by firing bullet from the revolver during their stay together as husband and wife, however fortunately, on taking safety measure bullet was struck on the ceiling and he was saved. The respondent often complained to the appellant herein petitioner that she found loneliness as he was coming late in the house because of his engagement in the business. The respondent insisted to join business of the appellant herein petitioner. The appellant herein petitioner, therefore, started new I.T Business with a view to see that the respondent may come out from her mental distress and her nature may be improved, however all hopes of the appellant herein petitioner wen in vain. The respondent took wrong steps in the business and also misbehaved with the customers and the appellant herein petitioner suffered huge loss in his business. The appellant herein petitioner was insulted in presence of his customers, friends and partners at the business place. The appellant herein petitioner was also abused and defamed in presence of third parties by the respondent by saying that he is unable to give physical satisfaction to her and he is also not fit to become father. That on insistence of the respondent, the appellant herein petitioner separated from his joint family and the appellant herein petitioner and the respondent started living separate Page 3 of 15 C/FA/2964/2014 CAV JUDGMENT from his joint family, however the behaviour of the respondent was not improved and she was living like guest in the guest house and even avoid to offer tea or breakfast, when the friends of the appellant herein petitioner came to their house and the appellant herein petitioner was also insulted in presence of their friends. That they went to live in vacant flat of petitioner's relative, but now the respondent is in occupation of the said flat and refused to vacate the said flat and as a result, the appellant herein petitioner was put into great difficulty. The respondent used to come at petitioner's business place and the respondent not only abused but also assaulted two to three times with knife in presence of staff members and customers and the staff members and others intervened into quarrel and they were also abused by the respondent. That the respondent even tried to set fire on the appellant herein petitioner with lighter and the appellant herein petitioner was seriously burned and he took treatment for a long period. That the respondent also voluntarily left her matrimonial home and went to live in a vacant flat of her parents and she lived there alone fro three months. The respondent often quarreled with her parental relatives, when she used to go to her parental home. The respondent also quarreled with the appellant herein petitioner on the point that their flat was very small, uncomfortable and having no sufficient facilities. That the respondent quarreled with the appellant herein petitioner because of her mental disorder and suspicious nature and threatened to commit suicide and driven the appellant herein petitioner out from the house before about five years. That subsequently, appellant herein petitioner went to bring his cloths, credit card etc., but respondent quarreled with him and driven him out from the home without taking any items from the house and thereby the appellant herein petitioner was deserted by the respondent since last five years. That two to three times drafts for divorce by mutual consent were prepared on intervention of their Page 4 of 15 C/FA/2964/2014 CAV JUDGMENT mediators and the respondent was also ready to hand over the properties of the appellant herein petitioner but the respondent refused to sign on the said divorce papers with a view to get more disadvantage from the appellant herein petitioner. That it has become impossible and dangerous for the appellant herein petitioner to live with the respondent considering the mental condition and misconduct of the respondent. Making above allegations, the appellant instituted Hindu Marriage Petition for decree of divorce.
2.1. The respondent appeared and contested the aforesaid Hindu marriage Petition by filing reply at Exh.18. The respondent denied all the allegations and averments made against her by the appellant herein petitioner and had contended that the petitioner had filed false and frivolous petition. The respondent contended that they came into contact with each other through their common friend Mrs. Avinash Chauhan @ Nashi Chauhan in May 1995. It was submitted that the it was the appellant herein petitioner who made proposal for marriage within three days of their introduction. That the petitioner was very influenced by her and the petitioner gradually started taking her care and their friendship resulted into love and their marriage was solemnized on 3.11.1995 according to Hindu rites and rituals. That Kanyadan of the respondent was also given by said Mrs. Nashi Chauhan. That the father of the petitioner viz. Shir Mukundan was the Principal Secretary to the Government of Gujarat at the relevant point of time. That the respondent started living in joint family of the appellant herein petitioner and her mother in law viz. Ritu Mukundan and her brother in law viz. Ventatesh Mukundan and Dilesh Bhullar were residing with them. The respondent also contended that there were quarrels and disputes since she started residing with the appellant herein petitioner in his joint family and she made all efforts to resolve the same. That she Page 5 of 15 C/FA/2964/2014 CAV JUDGMENT looked after whole joint family for about two months in December, 1995, when her mother in law went to Chandigadh as the father of her mother in law was ill because of heart attack. The respondent also contended that she attended Army Court at Amristar and took active participation in exonerating petitioner's maternal uncle from disciplinary actions in his service in Army. The respondent also contended that her younger brother in law Venktesh Mukundan was only six years old, when she married with the petitioner and she took all care of minor Venktesh just like his mother. The respondent also contended that she shouldered all responsibilities of her matrimonial home and tried to bring peace in the joint family of the petitioner. That the respondent lived in the joint family of the petitioner upto December 1997 at Shahibaug and thereafter they resided separately from the joint family of the petitioner for about six months at Bimanagar. The respondent was contended that her brother in law Dilesh Bhullar sustained grievous injuries in one scuffle and he was hospitalized for about one and half months, and therefore, she again started residing in joint family of the petitioner and during the said period, she managed all affairs of joint house. That she also took care of the parents of her mother in law as if they were her parent, when they came at Ahmedabad with a view to settled at Ahmedabad forever and resided with her in their joint family. The respondent was also contended that she was physically and mentally harassed as she was not given birth to any child. The respondent also contended that she was also insulted in presence of reputed persons of the society by finding her faults. The respondent was also submitted that the petitioner is also addicted by alcohol and drugs and the petitioner is living life as per his own whims and she was completely neglected by the petitioner. It was also contended that she was insulted by the petitioner, when she complained about situation of house and requested to assist her. The respondent was contended that it was the habit of the Page 6 of 15 C/FA/2964/2014 CAV JUDGMENT petitioner to commit mistakes again and again and then to beg pardon by writing letters.
2.2. The respondent also denied that she has misbehaved with the petitioner in presence of their guests and submitted that , in fact, she has shouldered all responsibilities of their joint family as she lived and brought up in joint family of her parents. The respondent also contended that in fact, the petitioner is habitual to live life in adultery and for wine and women and to come late in the evening and to awake late in the morning. The respondent also contended that she was treated as maid servant of the house and she was not given love and affection by the petitioner. The respondent also contended that she took much care and caution of her joint family and the same is very clear from the letter written by the petitioner himself and all the allegations made against her that she has not attended household work and fulfilled her matrimonial obligations are completely false.
2.3. The respondent also denied that she was suffering from any mental disease and acted as mentally disordered person at any point of time and contended that it was the petitioner who has bad habits to consuming alcohol and spent money for women and wine and he had taken treatment of psychiatric.
2.4. The respondent also denied that she misbehaved and insulted the petitioner at their matrimonial home in presence of neighbors or at the business place in presence of businessmen, staff members and customers and also contended that in fact, life style of the petitioner is abusive and she was insulted by the petitioner and she made all efforts to see that the petitioner may leave his bad habits. The respondent also denied that she had ever beaten the petitioner or Page 7 of 15 C/FA/2964/2014 CAV JUDGMENT thrown any metal idols and caused injuries and also contended that the petitioner shall prove such allegations by strict proof.
2.5. The respondent also denied that she is suffering from any mental disease and also contended that she is ready for medical examination by any independent doctor. The respondent also contended that, in fact, the petitioner is suffering from mental disease and he also taken medical treatment for it. The respondent also denied that her first marriage was broken because of her mental disorder and / or disease and also contended that she was beaten by her first husband and therefore, within 10 days, she returned to her parental home and thereafter took divorce. The respondent also denied that she ever made an attempt to kill the petitioner by firing bullet from revolver as alleged by the petitioner.
2.6. The respondent also denied that she has insisted to live separately from joint family of the petitioner and also contended that her mother in law forced them to live separately from joint family of the petitioner with a view to see that she may look after the grandparents of the petitioner, who were living in the same apartment. The respondent also contended that the petitioner himself voluntarily left their matrimonial home and went to live with other woman as the petitioner has habit to spend money for his bad habits and the petitioner has not take care to maintain her and deserted her. The respondent also contended that the petitioner took away all his belongings such as revolver, golf kit, cloths etc. in her absence. The respondent also specifically denied that she made any assaults to kill the petitioner and caused injury. The respondent also contended that even after the desertion, she was threatened by the petitioner and she was forced to give divorce to him and drafts for divorce by mutual consent were Page 8 of 15 C/FA/2964/2014 CAV JUDGMENT prepared but she never signed such drafts as she has love and affection for the petitioner.
2.7. That the learned Family Court framed the following issues at Exh. 24.
1. Whether the petitioner proves that the respondent, after the solemnization of the marriage, has treated the petitioner with cruelty as alleged in the petition?
2. Whether the petitioner proves that the respondent deserted the petitioner for a continuous period of not less than two years immediately preceding from the date of the presentation of this petition without any cause and without consent ?
3. Whether the petitioner proves that the respondent is suffering from mental disorder/schizophrenia and the disease is of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent as alleged in the petition?
4. Whether the petitioner is entitled to get a decree of dissolution of marriage on any of the above grounds, if yes, on which grounds?
5. Whether the respondent is entitled to permanent alimony as per Section 25 of the Hindu Marriage Act? If yes, what amount?
6. What order and decree?
2.8. That the appellanthusband filed his affidavit of examination in chief at Exh.26. He was cross examined by the learned advocate for the respondent wife at length. The appellant also cross examined his witness viz. Kaijad Kersi Mistry, who filed his affidavit of cross examination in chief at Exh.35. He was also cross examined by the learned advocate for the respondent wife.
Page 9 of 15 C/FA/2964/2014 CAV JUDGMENT2.9. That the respondent wife submitted her affidavit of examination in chief at Exh.42. She was also cross examined by the learned advocate for the appellant at length. That on appreciation of the evidence, the learned Judge has held all the issues in negative and has held that the appellant husband has failed to prove that the respondent wife, after solemnization of the marriage, has treated the petitioner / appellant with cruelty; that the appellant has failed to prove that the respondent wife has deserted the appellant for continuous period of not less than two years immediately preceding from the date of presentation of the petition without any cause and that the appellant husband has failed to prove by leading documentary evidence / evidence that the respondent wife was suffering from mental disorder / schizophrenia and the disease of such kind and to such extent that the petitioner husband cannot reasonably expected to live with the respondent. Consequently, the learned Judge has observed and held that appellant husband has not entitled to get decree of dissolution of marriage on the ground alleged by the husband and has consequently dismissed the aforesaid Hindu Marriage Petition.
2.10. Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Family Court, Ahmedabad dismissing the Hindu Marriage Petition and refusing to pass decree of dissolution of marriage under Section 13 of the Hindu Marriage Act, the appellant husband has preferred present First Appeal.
3.0. Shri Murli Devnani, learned advocate for the appellant has vehemently submitted that the learned Family Court has materially erred in rejecting the petition and refusing to pass decree of dissolution of marriage.
Page 10 of 15 C/FA/2964/2014 CAV JUDGMENT3.1. It is further submitted by Shri Murli Devnani, learned advocate for the appellant that the learned Judge has materially erred in not properly appreciating the evidence on record while considering the issue of cruelty by the respondent wife.
3.2. It is further submitted by Shri Murli Devnani, learned advocate for the appellant that the learned Judge has materially erred in holding that the petitioner husband has failed to prove that after solemnizing of the marriage, the respondent has treated the appellant husband with cruelty, though the ample evidence on record showing acts of cruelty meted out to the appellant husband.
3.3. It is further submitted by Shri Murli Devnani, learned advocate for the appellant that the learned Judge has materially erred in holding that the respondent wife has deserted the appellant husband for continuous period of not less than two years immediately preceding from the date of presentation of the petition.
3.4. It is further submitted by Shri Murli Devnani, learned advocate for the appellant that as the petitioner husband and the wife are staying separately and respondent wife has deserted the appellant husband for continuous period of not less than two years immediately preceding from the date of presentation of the petition, the learned Judge ought to have passed the decree of dissolution of marriage between the appellant and respondent.
3.5. It is further submitted by Shri Murli Devnani, learned advocate for the appellant that the learned Judge has materially erred in not believing the case of the appellant husband that the respondent wife is suffering from mental disorder / schizophrenia to such an extent that Page 11 of 15 C/FA/2964/2014 CAV JUDGMENT appellant husband cannot be reasonably expected to live with respondent wife.
3.6. It is further submitted by Shri Murli Devnani, learned advocate for the appellant that in any case when the marriage between the appellant and the respondent has come to retrievable breakdown and therefore, the appellant is entitled to decree of dissolution of marriage as only course available with both the parties is to be decree of divorce only.
3.7. Making above submissions and relying upon the decision of the Hon'ble Supreme Court in the case of Vishwanath S/o Sitaram Agrawal vs. Sau. Sarla Vishwanath Agrawal reported in AIR 2012 SC 2586, it is requested to admit / allow the present appeal.
4.0. Heard Shri Murli Devnani, learned advocate for the appellant at length. We have gone through the entire judgment and decree passed by the learned Family Court. We have also perused and gone through the relevant evidence on record from the Record and Proceedings received from the learned trial Court.
5.0. At the outset, it is required to be noted that the appellant husband instituted Hindu Marriage Petition for dissolution of marriage under Section 13 of the Hindu Marriage Act mainly on the ground of cruelty by the respondent to him and also on the ground that respondentwife is suffering from mental disorder and / or schizophrenia to such an extent that appellant husband cannot be reasonably expected to live with respondent wife and also on the ground of desertion by the respondent - wife for continuance period of not less than two years.
Page 12 of 15 C/FA/2964/2014 CAV JUDGMENT5.1. On appreciation of evidence, the learned Judge has held all the issues in negative and against the husband. On appreciation of evidence, the learned trial Court has specifically observed and held that the appellanthusband has failed to prove that after solemnizing of marriage, respondent wife has treated the appellanthusband with cruelty. The findings recorded by the learned Judge is on appreciation of evidence. Learned advocate for the appellant has failed to satisfy the Court how the finding recorded by the learned Judge can be said to be perverse and / or contrary to the evidence on record. We have also scanned the entire evidence on record and after reappreciation of evidence on record, we are of the opinion that the learned Judge has not committed any error in holding the issue with respect to cruelty and even allegation of the appellanthusband that the respondent wife is suffering from mental disorder and / or schizophrenia in negative and against the husband. No documentary evidence has been produced by the appellant - husband to prove and / or substantiate the allegation that the respondentwife is suffering from mental disorder and / or schizophrenia and that too, to such an extent that appellant husband cannot be reasonably expected to live with respondent wife. Under the circumstances, the learned Judge has rightly held that the appellant husband has failed to substantiate and / or prove that the respondent wife is suffering from mental disorder and / or schizophrenia and that he has failed to prove that respondent wife has treated the appellant husband with cruelty as alleged.
6.0. Now, so far as contention on behalf of the appellant that as respondent wife has deserted the husband for continuous period of not less than two years immediately preceding from the date of presentation of the petition is concerned, there is specific finding on appreciation of evidence by the learned trial Court that in fact because of the conduct Page 13 of 15 C/FA/2964/2014 CAV JUDGMENT and / or misbehavior and ill treatment by the appellanthusband, respondent wife was required to stay separately. There is a specific finding recorded by the learned trial Court on appreciation of evidence that it cannot be said that the respondent wife has deserted the appellanthusband without reasonable cause.
7.0. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of Vishwanath s/o Sitaram Agrawal (supra) is concerned, on considering the aforesaid decision, we are of the opinion that on facts the said decision shall not be of any assistance to the appellant. In the case before the Hon'ble Supreme Court from the conduct of the wife and on appreciation of evidence it was held that there was a mental cruelty to the husband. In the case before the Hon'ble Supreme Court in the application for interim maintenance the wife made allegation against the husband that he is womaniser and drunkard and considering the evidence and other evidence of the witnesses it was held that aforesaid conduct on the part of the wife would amounting to mental cruelty. In the present case, as such, the appellant has failed to prove by leading the evidence that the respondentwife is suffering from mental disorder and / or schizophrenia and because of that she was misbehaving and / or ill treating the husband that there was cruelty meted out to the husband.
8.0. Now, so far as contention on behalf of the appellant that as the marriage has come to retrievable breakdown and therefore, to pass decree of dissolution of marriage is concerned, the aforesaid cannot be accepted. It is required to be noted that decree of dissolution of marriage is required to be passed only on the ground stated in Section 13 of the Hindu Marriage Act. The aforesaid ground does not fall within any of the ground mentioned in Section 13 of the Hindu Marriage Act. Under the Page 14 of 15 C/FA/2964/2014 CAV JUDGMENT circumstances, on the aforesaid ground, the decree for dissolution of marriage under Section 13 of the Act cannot be passed either by the learned Family Court and / or this Court.
9.0. In view of the above and for the reasons stated above, there is no substance in the present appeal and same deserve to be dismissed and is accordingly dismissed sd/ (M.R.SHAH, J.) sd/ (K.J.THAKER, J) Kaushik Page 15 of 15