Karnataka High Court
Gayathri Bai B N vs Dashrath Singh R on 10 February, 2023
Author: G.Narendar
Bench: G.Narendar
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MFA No. 875 of 2020
C/W MFA No. 847 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE G.NARENDAR
AND
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 875 OF 2020 (FC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 847 OF 2020(FC)
IN MFA NO.875/2020
Digitally signed BETWEEN:
by T S
NAGARATHNA
GAYATHRI BAI B N
Location: High
Court of AGED 40 YEARS
Karnataka W/O DASHARATH SINGH R
D/O NARAYAN SINGH
R/AT NO.111/1, FIRST FLOOR,
5TH CROSS, MARUTHI BUILDING
DESHABANDHUNAGAR
DODDABOMMASANDRA
BANGALORE - 97.
...APPELLANT
(BY SRI. KARUMBAIAH T.A, ADVOCATE)
AND:
DASHRATH SINGH R
AGED ABOUT 48 YEARS
S/O RAM SINGH R K
R/AT NO 66, SRI RAMA NILAYAM
4TH CROSS, BASAVANAGUDI
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MFA No. 875 of 2020
C/W MFA No. 847 of 2020
SHIMOGGA - 577 201.
...RESPONDENT
(NOTICE TO RESPONDENT HELD SUFFICIENT
V/O DATED 21.04.2022)
THIS MFA IS FILED UNDER 19(1) OF FAMILY COURTS
ACT, AGAINST THE JUDGMENT AND DECREE DATED
14.10.2019, PASSED IN M.C.NO.3356/2013, ON THE FILE OF
THE VI ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU, ALLOWING THE PETITION FILED U/S 13(1)(III)
(A) AND (B) HINDU MARRIAGE ACT AND TO DISMISS THE
SAID PETITION.
IN MFA NO.847/2020
BETWEEN:
GAYATHRI BAI B N
AGED 40 YEARS,
W/O DASHARATH SINGH R,
D/O NARAYAN SINGH,
R/AT NO.111/1, FIRST FLOOR,
5TH CROSS, MARUTHI BUILDING,
DESHABANDHUNAGAR,
DODDABOMMASANDRA,
BANGALORE - 97.
...APPELLANT
(BY SRI. KARUMBAIAH T.A, ADVOCATE)
AND:
DASHRATH SINGH R
AGED 48 YEARS,
S/O RAM SINGH R.K.,
R/AT NO.66, SRI RAMA NILAYAM,
4TH CROSS, BASAVANAGUDI,
SHIMOGA - 577 201.
...RESPONDENT
(NOTICE TO RESPONDENT HELD SUFFICIENT
V/O DATED 21.04.2022)
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MFA No. 875 of 2020
C/W MFA No. 847 of 2020
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED
14.10.2019 PASSED IN M.C.NO. 3812/2013 ON THE FILE OF
THE VI ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU, DISMISSING THE PETITION FILED UNDER
SECTION 9 OF THE HINDU MARRIAGE ACT AND TO ALLOW THE
SAID PETITION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, C.M.JOSHI J., DELIVERED THE
FOLLOWING:
JUDGMENT
MFA No.875/2020 and MFA No.847/2020 are filed by the appellant-wife against her husband/respondent aggrieved by the common judgment dated 14-10-2019 passed by the learned VI Additional Principal Judge, Family Court, Bangalore, in MC No.3356/2013 which was filed for the divorce by the respondent-husband and MC No. 3812/2013 which was filed by the appellant herein seeking a decree for restitution of conjugal rights respectively.
2. The parties would be referred to as per their ranks before the Family Court in MC No.3356/2013 for the sake of convenience.
3. The facts leading to filing of these appeals are below: -4- MFA No. 875 of 2020 C/W MFA No. 847 of 2020
Petitioner-husband filed MC No.3356/2013 under Sections 13(1)(iii) (ia) and (ib) of the Hindu Marriage Act, for a decree of the divorce, dissolving the marriage solemnized between the petitioner-husband and respondent-wife on 25-5-2003 at Vinayaka Kalyana Mantap, Byatarayanapura, Yelahanka, Bengaluru, on the ground of cruelty.
4. It was contended that the petitioner-husband and the respondent-wife are legally wedded couple and their marriage was solemnized on 25-5-2003 at Vinayaka Kalyana Mantapa, Byatarayanapura, Yalahanka, Bengaluru, as per Hindu rites and customs. The said marriage was an arranged marriage and the respondent-wife was coming from poor family and they were not in a position to incur the marriage expenses and as such, major portion of the marriage expenses were incurred by the petitioner-husband's family. Through the said wedlock, two children, namely, female child Harshitha and male child Chandan were born to them and presently the daughter is in the custody of the petitioner-husband and the son is in the custody of the respondent-wife.
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5. It was contended that after the marriage, the respondent-wife came to the matrimonial house and on the 4th day of the marriage, the respondent-wife demanded to give the entire salary of the petitioner-husband to her and on refusal, respondent- wife became wild and she had broken the mirror glass and refused to sleep with the petitioner-husband. It was contended that the petitioner-husband tried to talk to the respondent-wife, she behaved rudely and after about one week of stay in the matrimonial house, she refused to stay and she packed her bags and went to her parental house. When the petitioner-husband questioned the same, she told that she is not willing to stay anymore in the matrimonial house and further demanded the petitioner to arrange for a separate house. At the intervention of the well wishers, the differences were set right and certain conditions were imposed.
6. It was contended that, later the petitioner-husband came to know that respondent-wife is consuming certain tablets regularly and on further enquiry, respondent-wife was hesitant to answer the same and thereafter, it was told that they are vitamin tablets and petitioner believed the same and kept quite. It was alleged that the respondent-wife is in the -6- MFA No. 875 of 2020 C/W MFA No. 847 of 2020 habit of lying to petitioner and giving contradictory statements and lame excuses and was avoiding the petitioner and her behaviour was abnormal in those days without any proper reasons she used to pick up quarrels with the petitioner and his parents and while quarreling, she used to throw the house hold articles, utensils and was shouting. On further enquiry, the petitioner-husband came to know that the respondent-wife is suffering from certain disease. However, after two months of the marriage, respondent-wife become pregnant and she was sent to her parents house and at that time, the respondent-wife attempted to abort the child without the knowledge of the petitioner. It was contended that during the 5th month of pregnancy, respondent-wife went to her parents house for the delivery. It was contended that the first marriage anniversary was celebrated in the parents house of respondent-wife and the petitioner went to her parental house on 25-5-2004 and the respondent again, behaved abnormally during night and she used to cry for some time and she used to laugh for some time and talking loudly and speaking absurdly. It was contended that the brother of the respondent-wife had taken the respondent to NIMHANS then the petitioner came to know that -7- MFA No. 875 of 2020 C/W MFA No. 847 of 2020 the respondent is suffering from 'paranoid schizophrenia' which is an incurable disease. On further enquiry, the petitioner came to know from the parents of respondent-wife she is suffering from the said disease from her childhood and her parents have suppressed the said fact and got married her to the petitioner. Later, she was shifted from NIMHANS to Spadana Hospital, Vijayanagar, Bangalore, for regular and follow-up treatment and in the month of September 2004 respondent was brought to the matrimonial house and she was consuming tablets every day and after few days, once again, she behaved abnormally and started residing aloof and used to sit idle and never used to do any work. It was contended that the petitioner was working as a worker in the provisions stores and used to go in the early morning and the respondent-wife never used to get up early and cook breakfast etc., and she was not respecting his parents.
7. It was further contended that in the month of October 2004 when the petitioner went to the work and when his parents went to a function, respondent-wife left six months old baby in the house and left the matrimonial house and she has called the petitioner through phone and stated that she is -8- MFA No. 875 of 2020 C/W MFA No. 847 of 2020 going to her parents house and despite the request made by the petitioner to stay back, she refused and went to her parental house. Therafter, a Panchayat was organised in this regard and the matter was pacified whereby respondent-wife agreed to rejoin the petitioner for the sake of daughter. It was contended that the petitioner convinced the respondent and brought her to the matrimonial house and when his parents were suffering from ailments, respondent-wife never looked after them. It was contended that when the petitioner questioned the same, respondent-wife threatened that she will lodge a false case against the petitioner and his family members and threatened to commit the suicide by writing a letter in the name of petitioner and his family members. Though all these harassment meted out to the petitioner at the hands of the respondent, he kept quite considering the future of the child. Thereafter, respondent-wife never bothered to live with the petitioner. It was contended that on many occasions she used to pick up quarrels with the petitioner and his parents and left the matrimonial house without informing that where she is going and when the petitioner narrated the harassment and torture meted out by him at the hands of the respondent to -9- MFA No. 875 of 2020 C/W MFA No. 847 of 2020 the parents of the respondent-wife and asked her parents to advise their daughter, her parents stated that they have got married the respondent with the petitioner and their duty is over and they washed off their hands.
8. It was further contended that the petitioner had also taken his wife -respondent to Sridhar Nursing Home and Malnad Deaddiction Centre at Shimoga, wherein she was treated by Dr. K.R. Sridhar and Dr. Pavithra who are famous psychiatrists. It was contended that in June 2012, when the respondent was in her parents house then also she was admitted to Spandana Nursing Home, Bengaluru, for three days for the above said disease. His hopes of leading a happy marital life with the respondent went in vain. The respondent was very adamant and was not at all cooperating with the petitioner or his family members and she used to pick up quarrels and behave in a rude way. It was contended that, lastly, in the month of October 2012, respondent has deserted the petitioner by taking the male child with her and went to her parents' house and started residing there. The respondent is not capable of leading normal life with the petitioner, because of her incurable disease and it was impossible and difficult for the
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 petitioner to live together in future. Thus, contending so, the petitioner-husband has approached the Family Court with a prayer for a decree of divorce on the ground of cruelty.
9. On service of notice by the Family Court, respondent- wife appeared before the Family Court through her counsel and filed her objections in detail to the said petition denying all the averments of the petition, except the admitted facts.
10. It was admitted that the marriage between the petitioner and the respondent had taken place on 25-5-2003 at Vinayaka Kalyana Mantapa, Yelahanka, Bengaluru. However, it was contended that at the time of celebrating the naming ceremony of the child in her parents' house, petitioner and his family members were present and thereafter, respondent went to the matrimonial house and she was doing household work properly and looking after the child and also the petitioner and his family members with all love and affection. It was contended that, due to some misunderstanding between the respondent and eldest sister of the petitioner, there arose some differences in the family of the petitioner. Therefore, the petitioner and his parents have sent the respondent to her
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 parents house and after that there was a panchayat held by the uncle of the respondent-wife and the petitioner and his parents. The matter was compromised and respondent was left in the matrimonial house.
11. It was stated that after seven years of the first child, the respondent again became pregnant and at the time of delivery, the mother- in- law of the respondent / mother of the petitioner was not feeling well and the parents of the respondent came to the house of the petitioner to look after the respondent and also the petitioner and his family members. The respondent gave birth to a male child on 12.12.2011 and after the birth of the second child, the parents of the respondent stayed there for few days and later, she returned to her parents' house. After finishing the summer holidays the petitioner came to the house of the parents of the respondent and took the respondent and his children to the matrimonial home. Again, after four months of stay, there was a misunderstanding, the first sister of the petitioner had beaten the respondent forcibly and forced the respondent to go out of the matrimonial house. Due to the same, the father- in- law of the respondent has advised the respondent to stay in her
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 parents house for some time and also told that he will advice the sister of the petitioner properly in this regard and after solving the same, he will bring her back and father of the petitioner has taken the respondent and her second child to her parental home and left them over there. At that time, the first child of the respondent namely, Harshitha was going to school and more over, the father of the petitioner told that Harshitha is studying in the school at Shimoga and her studies should not be disturbed and hence she has not been taken along with the respondent. It was contended that, the respondent has been calling the petitioner over phone and requesting the petitioner and his parents to take back the respondent and her second child to the matrimonial house but the petitioner and his parents have been postponing to take back the respondent and her second child to the matrimonial house by one pretext or the other.
12. In May 2013, the petitioner and his parents came to the house of the parents of the respondent and they have informed the respondent and her parents that they will take the decision in the matter within one month. But they have never taken any decision in the matter nor taken the respondent and
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 her second child to the matrimonial house and ultimately, the present petition has been filed. It was contended that the respondent had consulted a family counseling centre i.e., Mahila Dakshata Samiti at Vidyaranyapura, Bengaluru, for which, the said counseling center have also sent a letter to the petitioner on 19.08.2013 and the same was acknowledged by the mother of the petitioner on 22.8.2013. But the petitioner has not appeared before the said counseling centre. After receipt of the above said letter by Mahila Dakshata Samithi, the petitioner has filed the petition against her before the court seeking decree of divorce. Therefore she contended that the allegations made against her are false and prayed to dismiss the petition.
13. So far as petition in M.C. No.3812/2013 which is filed by the respondent-wife under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights is concerned, similar contentions were raised by the respondent-wife.
In addition to the contentions taken up by her in MC No.3356/2013, respondent-wife had contended that, at the time of the marriage, the marriage expenses were borne by
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 brother of the respondent and he has taken hand loan for performing the marriage and also given 10 grams of gold ring, 14 grams of gold chain and one Titan watch and one suit to the petitioner-husband.
14. It was contended that, petitioner-husband is running the Provision Stores at Shimoga. When the respondent -wife gave birth to a female child on 04.03.2004, petitioner-husband and his family members have also seen the child. On 25.05.2004 they celebrated marriage anniversary in her parents' house. Both of them have celebrated their marriage anniversary happily and petitioner-husband has taken her outside for shopping. At the time of celebrating the naming ceremony of the child in the house of the parents of the respondent-wife, the petitioner-husband and his family members were present. After that, she went to the matrimonial house and she was doing household work properly and looking after the child in a proper way. She contends that, due to some misunderstanding between the petitioner-husband and his eldest sister, some differences arose in the family of the husband and therefore, the parents of the petitioner-husband have sent the respondent-wife to her parents' house. She
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 contends that there was a panchayat and dispute was compromised. After seven years of the first child, the respondent-wife again became pregnant and at the time of delivery, her mother- in- law was not feeling well and hence the parents of the respondent-wife came to the house of the petitioner-husband to look after the respondent and also her mother-in-law. Second child was born on 12.12.2011 and thereafter, her parents stayed there for few more days. She has reiterated the contentions taken up by her in the objections statement filed to the divorce petition. It was contended that the petition filed by the petitioner-husband for a decree of divorce is baseless and the respondent-wife having no other way to counter the same, has filed the petition for restitution of the conjugal rights.
15. The petitioner-husband, in his objection statement in MC No.3812/2013, has reiterated the same contentions taken up by him in MC No.3356/2013. It was contended that the respondent-wife was coming from a poor family and they were not in a position to incur the marriage expenses and as such, the petitioner had also given 50 gms of gold chain, 6 gms of wedding ring, 35 gms of gold bangles and 3 silk sarees etc., to
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 the respondent-wife and they were all in the custody of the respondent-wife when she left the matrimonial home. The petitioner-husband has reiterated the contentions that the respondent-wife was suffering from paranoid schizophrenia and all the hospital records were kept with her and still they are in the custody of respondent-wife.
16. The above petitions, i.e. MC No.3356/2013 and MC No.3812/2013 were clubbed together and a common enquiry was held by the Family Court.
17. Petitioner-husband got himself examined as PW1 and one witness was examined as PW2 and Exhibits P1 to P13 were marked in evidence. Respondent-wife got herself examined as RW1 and exhibits R1 to 21 were marked in evidence.
18. After hearing the counsels appearing for both the parties, the following points were framed by the Family Court:
1. Whether the petitioner-husband in MC 3356/3018 proves that the respondent is suffering from incurable disease?
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MFA No. 875 of 2020C/W MFA No. 847 of 2020
2. Whether the petitioner wife in MC No.3812/2013 is entitled for restitution of conjugal rights?
3. What order?
19. Answering point No.1 in the affirmative and point No.2 in the negative, the Family Court, granted the decree of divorce as prayed in MC No.3356/2013 and dismissed MC No.3812/2013 rejecting the prayer for restitution of conjugal rights.
20. Aggrieved by the said common judgment, respondent-wife has approached this Court in these appeals.
21. The appellant-wife contends that the impugned judgment and decree is not sustainable in law and the Family Court has not appreciated the pleadings and material evidence available on record in a proper way. It is contended that the petition was filed by the husband primarily on the ground that the wife is suffering from mental illness of 'paranoid schizophrenia' and the Family Court ignored the fact that, if the respondent had such illness she could not have studied upto PUC and completed the said course and the said ailment could
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 not be a ground for granting a decree of divorce. It is contended that marriage between the parties took place on 25-5-2003 and they lived together till October 2012 and they had spent about 10 years of togetherness and in the wed lock and they are blessed with two children who were born six years apart. It is contended that all these years the petitioner- and respondent have lived together happily and there was no such complaint for ten years and it is not difference of opinion or allegation between the parties and on the other hand, after the birth of second child, the sister of petitioner-husband, namely, Meerabai and her husband Raghavendra started interfering with the matrimonial relationship of petitioner and respondent and with false allegations petition is filed. It is contended that, the Family Court based on the medical records passed the impugned order which is erroneous and therefore, it is liable to be set aside. It is submitted that, the Family Court branded the respondent as suffering from incurable disease with 'paranoid schizophrenia' and without exploring of possibilities of such patients leading a normal life with regular treatment and family support, has jumped to the conclusion that the decree of divorce has to be granted. It is contended that there was no
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 proper medical evidence against the respondent-wife to show that such ailments were amounting to irretrievable breakdown of matrimonial relationship. It is contended that the Family Court has not considered the alleged incurable disease and it has never took note of the fact that out of the wedlock two children were born and that the respondent-wife has studied upto PUC. It is contended that the learned Judge of the Family Court has not understood the case properly and has not applied his mind on the medical records and has not considered the contentions raised by the rival parties in proper way.
22. The appellant-wife contends that if on plenty of occasions, the petitioner-husband has taken her to hospital and nursing home Shimoga, he has not produced any original documents and produced only those documents which are favourable for him. It is contended that, in spite of there being insufficient documents, the Family Court has granted the decree of divorce. It is also contended that, though the petitioner-husband contends that the respondent-wife was adamant and not co-operating with the petitioner or his family members and there used to be quarrels, including fist fights etc., there is no material evidence in this regard and no
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 complaint was lodged against anybody. But on the other hand, the misrepresentation of the sister of the petitioner-husband has poisoned the mind of the petitioner and therefore, though there were children born to the petitioner and respondent, the petitioner has left the respondent in her parental house and there are no reasons as to why her husband had not appeared before the counseling center. Therefore, it is contended that there were no efforts made either by the Family Court or by the petitioner-husband in preventing the breaking down of the marriage. It is further contended by the appellant-wife that, the Family Court had directed the petitioner to take the respondent back on 15-4-2014 and though such direction was issued by the Family Court, petitioner has not complied the said order. The appellant contends that the order sheet maintained by the Family Court tells in detail that, despite the appellant- herein was ready and willing to go with the petitioner, he had not cooperated for the same and had also violated the order passed by the Family Court.
23. It is contended that the Family Court found that the relationship of husband and wife is not strained and they are interested to reconcile and as such, a specific order was also
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 passed on 12.2.2015 directing the parties to live together and directed the petitioner to cooperate for the same. It is contended that in pursuance to the said order and when the respondent-appellant went to the house of the petitioner- husband, the sister of the petitioner created a mess and a criminal complaint was also filed against the respondent- appellant and her brother and other family members and it was registered in CC No.2819/2015 before the JMFC Court Shimoga, and it finally ended in an acquittal on 30-10-2019. It is contended that in the meanwhile, the petitioner-husband contended that he is not residing in the matrimonial house as it is owned by his father and his father had gifted the same to the sister of the petitioner i.e. Meerabai. On the other hand, he had deposed before the court that he is still living with his father and mother and as such, the alleged gift is only to avoid the claim by the children of the appellant. It is contended that the finding of the Family Court that there was no cohabitation between the petitioner and respondent is perverse, as the evidence of PW1 shows that they had lived together for about 15 days at Shimoga and also that during the span of 7 years, two children were born to the petitioner and the respondent.
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 Therefore, when there is cohabitation between the petitioner and respondent and two children were born over a span of 7 years, the contention of the husband that respondent-appellant is suffering from paranoid schizophrenia on that ground the decree of divorce has to be granted is contrary to the evidence on record and as such, the appeal be allowed.
24. The appellant also contends in MFA No.847/2020 that the finding of the Family Court that the petition filed by respondent-appellant for restitution of conjugal rights is liable to be dismissed is also erroneous, on the ground that, the grounds alleged for a decree of divorce being cruelty and that the appellant was suffering from 'paranoid schizophrenia' are not sufficient grounds, it should have resulted in granting decree for restitution of conjugal rights. Records reveal that no efforts were made by the petitioner to bring back the matrimonial life on tracks and that the finding given by the Family Court that there are no grounds for granting conjugal rights cannot be sustained. It is stated that the very order passed by the Family Court were not complied by the petitioner-husband and on this ground itself, the petitioner
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 should have been directed to take back the respondent-wife to the matrimonial home and lead a matrimonial life.
25. On issuance of notice in both these appeals, the husband/ respondent herein has not appeared before this Court to canvass his case. It is pertinent to note that several opportunities were granted and even then the respondent- husband has not appeared before this Court and therefore, service of notice to petitioner-husband is held sufficient vide order dated 21-4-2022.
26. The appeals were admitted and the Family Court records have been secured.
27. We have heard the learned counsel appearing for the appellant-wife in both these appeals and have also gone through the Family court records.
28. The learned counsel appearing for the appellant-wife has submitted that the petitioner-husband and respondent-wife cohabited and certain photographs along with children have been produced in support of the case for the perusal of the Court. He has also produced certain documents during
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 arguments to show that, now the appellant herein is working in an educational institution as a Teacher.
29. In the light of the submissions made by the learned counsel for the appellant, the Family Court records are examined by us meticulously.
30. The learned counsel appearing for the appellant-wife has reiterated the contentions taken up by him in the appeal memos as narrated supra.
31. The perusal of the impugned common judgment passed by the Family Court discloses that, it has primarily considered the contentions of the petitioner-husband on the ground that respondent-wife is suffering from an incurable disease i.e. 'paranoid schizophrenia' and it has come to the conclusion that there was no cohabitation and therefore, the marriage has irretrievably broken down. It is necessary to verify as to whether this view taken by the Family Court is with reference to the evidence available on record.
32. The learned counsel appearing for the appellant-wife in his submissions before this Court has contended that, the fact of the marriage on 25-5-2003 is not in dispute by either of
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 the parties. He submits that the documents produced by the petitioner-husband disclose that some treatment was taken by the respondent-wife for 'paranoid schizophrenia'. He submits that the family Court has not got it clarified from Doctor as to whether it is curable or incurable disease and also whether cohabitation is possible or not. He contends that whether the mental disorder of 'paranoid schizophrenia' can be controlled, can there be any cohabitation or whether the severity of the disorder is sufficient enough to grant a decree of divorce. On this count, he has elaborately taken us through the evidence available on record and submits that the parties had cohabited for considerably long time and they had also begotten two children and the children have also appeared before the Family Court, wherein the family Court has also found that preferably the children be with the mother i.e. appellant herein. Therefore, it is contended that the couple lived together and begotten two children and there is also an admission by the petitioner-husband that the appellant-wife was working and he contends that even now she is working in an educational institution. Therefore, he contends that despite the fact that she had taken treatment for 'paranoid schizophrenia' to some
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 extent at some point of time, it is totally under control and it is not aggravated form of paranoid schizophrenia and as such, the Family Court erred in holding that because she had taken treatment for a few days, the marriage has irretrievably broken down and the husband is entitled for the decree of divorce. He also submits that the Family Court did not attempt for a resolution of dispute, but went to conclude that the marriage has irretrievably broken down and the family ties have snapped and the relationship is no more possible. It is contended that, obviously, the Family Court failed to notice the welfare of the children and it has never bothered either to grant any alimony or to direct the petitioner-husband to provide any maintenance, despite the fact that an interim maintenance order was operating against the petitioner-husband. It is further contended that if there is consummation of the marriage and two children have been born, it is evident that the mental disorder of 'paranoid schizophrenia' is intermittent, manageable, treatable though it is incurable. Therefore, on these grounds, he contends that the impugned judgment passed by the Family Court is erroneous and it should have granted the decree for restitution of conjugal rights to the wife
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 and also should have dismissed the petition filed by the husband for dissolution of marriage by way of granting divorce.
33. In the light of the above submissions made by learned counsel for appellant-wife, we have gone through the evidence available on record.
34. Before going into the oral testimony of the witnesses, let us turn our attention to the documents produced. Ex.P1 is the patient information of paranoid schizophrenia and this document do not show the exact nature of the treatment given. However, it is evident that some graph is attached to the said document which is not decipherable by this court. Further, Ex.P2 happens to be the discharge bill and it shows that the appellant herein was admitted to the Spandana Nursing Home, Bangalore from 31-5-2012 to 2-6-2012 i.e. for four days and she was treated by Dr. Srinivasa M. The case summary which is produced along with Ex.P2 discloses that, "The appellant herein aged 32 years is on outpatient treatment from 10-9-2004 for paranoid schizophrenia and she was maintaining well with the tablets Risperidone 3 mg till 10-5-2008. The patient has relapsed on 8/10 after tapering the dose Risperidone 1 mg." This document shows that the appellant has relapsed to normalcy
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 and it cannot be concluded that the disease was considerably uncontrolled. Ex.P5 happens to be a letter issued by Spandana Nursing Home i.e. Dr. M. Srinivasa, whereby, he had authorised Dr. M. Chandrashekhar, to depose before the Court.
35. Incidentally, it is relevant to note that the said Dr. M. Chandrashekhara, has deposed before the Court as PW2. In his testimony, he had stated that the case summary is produced by him and it is at Ex.P3 and it was issued at the instance of the father of the appellant. He has stated that "paranoid person having Paranoid schizophrenia will be suspicious, fearfulness, disturbed, biological function, hallucinations, delusion of persecutions, reference and impaired judgment and insight. Illness should persist for at least one month according to International Classification of diseases.". It is evident that it is not continuous, but it is intermittent. The cross- examination of PW2 discloses that his authority to depose before the court was questioned and later, he produced the authorization certificate from Sri M. Srinivasa which is at Ex.P5.
36. In the cross-examination, he states that after delivery, symptoms mentioned in Ex.P8, i.e., the case sheet pertaining to the respondent-wife are possible and there will be
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 such instances after the delivery of a child. He states that symptoms may continue for a period of one year after delivery. A perusal of Ex.P8 disclose that the appellant-wife has taken the treatment and on many number of occasions, she had mentioned that she is normal and she was better and she was on medication. The symptoms were that, lack of interest in any work, feeling to be down, does not allow family members to go out in the fear of something may happen, crying spells and suicidal tendencies. These initial symptoms were treated and the respondent-wife improved a lot and ultimately, she was put on medication continuously. The copy of the discharge summary in the case sheet also discloses that, when she was admitted for three days, she was treated and she was discharged with some medications. This is the only instance, wherein, the appellant herein was shown to be having abnormal behavior and symptoms of Paranoid schizophrenia can be found in a patient after a delivery of child. It is pertinent to note that 'Postpartum psychosis' is also similar to Paranoid schizophrenia and certain literature of Paranoid schizophrenia was also got marked in the cross examination of PW2. They are
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 at Ex.P11 and Ex. P12. Some writings by the patient were also produced at Ex.P13.
37. Coming to the oral testimony of the petitioner i.e. PW1, he has reiterated the petition averments in his affidavit. In the cross examination, it is elicited that the case is conducted by none else than the sister of the petitioner- husband and he denies that he is running a provision stores under the name and style as 'Babu Provision Stores'. It is elicited that, initially, the respondent-wife was treated at NIMHANS and thereafter at Spandana Nursing Home where, Dr. Srinivas M has treated her. He also admits that on 12-12-2011, the second child was born at Nirmala Hospital Shimoga, and since the mother of PW1 was not well, the mother of the appellant-wife had come there and was looking after the mother and the child. He also admits that the first anniversary of the marriage was held in a grand scale. In the further cross examination 17-11-2014, he states that he received notice from the Mahila Dakshatha Samithi, Family Counselling and submits that he did not appear for conselling. Evidently, petition is filed after he received notice from the counseling center. It was suggested to him that the
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 respondent-wife was not suffering from any of the disorders and he has denied the same. In the cross examination, he also admits that, during summer holidays, the daughter of PW1 was staying with the respondent-wife and denies that she has opted to stay with mother only. In the cross examination, he also admits that he has no document to show that respondent-wife tried to abort the child when she was 2 months pregnant initially. Thus, it is evident that, the case is being conducted by none else than the sister of PW1 and there are some suggestions which show that when his sister Meerabai took away the gas stove, PW1 had provided a kerosene stove for cooking to the respondent-wife. He states that, he loves his children and he admits that the address shown in the affidavit is the house belonging to his father and the said house has been gifted by his father to his sister Meerabai. He also admits that once the respondent and her brothers had come to Shimoga and due to an incident, there was a police complaint filed. Curiously, he states that he does not know his father had gifted the house property to his sister Meerabai in his cross examination dated 21-3-2016.
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MFA No. 875 of 2020C/W MFA No. 847 of 2020
38. So far as his earning is concerned, rental agreement is produced by the respondent but the PW1 denies that the Babu Provision stores was transferred to the petitioner and there is rental agreement from Ashok Kumar. In the cross examination dated 8-9-2017, he states that he left his daughter with his parents at Sriram Nilaya, 4th cross, Basavanagudi, Shivamogga, and he is staying at, 8th Cross at Mohammad Manzil, Bapujinagar, Shivamogga. It is not known as to why the PW1 has left his daughter with his parents and for what reason he is living separately from his parents. He pleads ignorance regarding the respondent-wife was employed earlier to the marriage. The photographs and the agreement are confronted to him to show that he is running Babu Provision Stores and they are at Exs.R8 and R9.
39. Thus, the evidence of PWs 1 and 2 disclose that, PW1 contend that respondent-wife is suffering from Paranoid schizophrenia and he has produced the case sheet at Ex.P8 and it has been identified by Dr. Chandrashekhar M., who was from Spandana Nursing home. These documents clearly establish that respondent-wife was suffering from Paranoid schizophrenia, but it was under control. It is also evident that,
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 on several occasions petitioner and respondent lived together and they have got two children out of their wedlock. It has also come in the evidence that petitioner is running Babu Provision stores in a rented premises. He states that he had left his daughter with his parents and he was living separately from them in rented premises. This do not gel well with his submission before the court and it appears that in order to prevent the property from being claimed by his children and the respondent-wife, it was alienated by his father in favour of Meerabai. Be that as it may, the evidence on record clearly shows that there is insufficient material to hold that the respondent herself had withdrawn her company from the petitioner. On the other hand, it was the petitioner who did not allow the respondent and the children to live with him. It is the petitioner who did not appear for the counseling before the counseling center when the notice was received by him and instead, he approached the court and filed a petition for decree of divorce.
40. The evidence of RW1, i.e. the appellant herein discloses that she has reiterated her pleadings in her examination in chief by way of affidavit. In the cross-
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 examination, it is elicited that her father is Rajput and her mother is from Sikh community and she denies that she is suffering from Paranoid schizophrenia. She denies all the illness which is attributed her and she also denies that she has suffered any Postpartum psychosis. In the further cross- examination dated 25-11-2017, it is elicited that there was a panchayat and an effort was made for the settlement of matrimonial dispute. She admits that, she also filed a complaint to the police before she went to the house of the petitioner as per the directions of the court. It is suggested that while going to the matrimonial home she had gone with CC TV camera etc. and she had gone there in aggressive way. She has produced the marks card to show that she had studied PUC and she was working as trainee operator in Cinch Connectors India Company. She admits that her name in the SSLC marks Card is 'Gayathri B.N.' and in other documents, it is shown as 'Gayathri Bai'. Nowhere, it is suggested to her in the cross examination that 'Gayathri B.N.' and 'Gayathri Bai' are different. Though she contends that the hospital records show her name as 'Gayathri,' it cannot be concluded that the medical records do not pertain to the appellant herein.
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MFA No. 875 of 2020C/W MFA No. 847 of 2020
41. Coming to the documents produced by the appellant herein who is the respondent before the Family Court, it is evident that the complaint was filed by one Meerabai against the father and brothers of the appellant. It is submitted that the said criminal case has ended in an acquittal. It is pertinent to note that when the appellant-wife went to the matrimonial home there seems to have a scuffle between the said Meerabai and others with the brothers of the respondent and a criminal complaint was filed.
42. Ex.R9 is an agreement wherein, the petitioner has entered into an agreement in respect of the provision stores with one C.S. Girish. It is also accompanied by a rental agreement. Ex.R12 has been admitted by the petitioner and it has been marked in the cross examination of PW1. Ex.R14 happens to be the progress card of Harshitha and it shows that she was studying at Shimoga. The Exs.R17,18, 19 are the marks cards of the respondent-wife, Gayathri bai.
43. From a careful perusal of above evidence on record, it is evident that the reason for the difference between the petitioner and respondent is, respondent-wife was suffering
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 from 'Paranoid schizophrenia' for sometime, and thereafter, instead of treating her for the said disease properly, petitioner had withdrawn himself from the company of the respondent- wife. There is no sufficient material on record to show that the marriage had broken down irretrievably. The evidence of PW2 do not disclose that the severity of the 'Paranoid schizophrenia' was sufficient enough that it amounted to cruelty on the mind of the appellant and that such disease was uncontrollable. The instances which have been stated by PW1 in his evidence shows that on one occasion, appellant-wife had broken the mirror and thereafter, there was some incidents after the birth of the second child and it was the reason for the petitioner to file the suit of divorce. However, from the year 2003 to 2013, there are no such instances, whereby the alleged Paranoid schizophrenia of the appellant-wife was beyond control and beyond treatable circumstances. It is contended by the petitioner that all the medical records are with respondent-wife and he could have summoned the same to the court to show that all along from 2006 to 2013, she was taking the treatment continuously.
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MFA No. 875 of 2020C/W MFA No. 847 of 2020
44. Under these circumstances, the crucial period between 2006 to 2011 appears to be normal and there are no such specific incidents which have been narrated by PW1 to show that the respondent-wife had continued to suffer form the bouts of Paranoid schizophrenia. There is nothing on record to show that she was taking treatment and it was uncontrollable after the year 2006. The last report which is available is of the year 2006 and thereafter, it appears that they lived together for sometime and therefore, the second child was born in the year 2011. If the second child was born in 2011, it has to be accepted that they lived together for some time and the reason for filing the divorce petition in the year 2013 has to be explained by the petitioner -husband in a cogent manner. No such explanation is available on record which establishes that the respondent-wife withdrew from the matrimonial home. On the otherhand, the factual matrix shows that when the notice for counseling was issued by Mahila Dakshatha Samithi, Vidyaranyapura, Bengaluru, the petitioner filed the petition for divorce under Section 13(1) (iii) (ia) and (ib) of Hindu Marriage Act.
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MFA No. 875 of 2020C/W MFA No. 847 of 2020
45. Be that as it may, the Ex.P8 which is the material piece of evidence to show that the respondent-wife suffering from Paranoid schizophrenia, do not show that it was uncontrollable and it was sufficient enough to hold that such disease is sufficient enough to bring the same within the meaning of cruelty under Section 13 of the Hindu Marriage Act. Therefore, the conclusion reached by the Family Court that the respondent-wife is suffering 'Paranoid schizophrenia' itself is sufficient enough to dissolve the marriage and grant divorce appears to be perverse.
46. To conclude this aspect, it is relevant to note that a decision in the case of Rajesh K. Gupta Vs. Ramgopal Agarwala and others1 rendered by the Apex Court considered the Paranoid schizophrenia and if it is not of serious nature, the custody of the child may be given to the spouse suffering from such disease. Thus, it is not that disease Paranoid schizophrenia which is sufficient to grant a decree of divorce, but it is the degree of severity of the disorder which is relevant. 1 2005 (5) SCC 359
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MFA No. 875 of 2020C/W MFA No. 847 of 2020
47. The another decision on this aspect would be, the case of Vinita Saxena Vs. Pankaj Pandit2. In this decision, the Apex Court has considered the meaning of the word 'cruelty'. It was held that the 'cruelty' though is a ground for divorce, a course of conduct causing danger to life, limb or health or giving rise to reasonable apprehension of such danger, may be physical or mental, intentional or unintentional varies from time to time, place to place, individual and individual depending on social economic conditions, educational standard, individual temperament etc., as well as intensity, gravity, stigmatic impact of the conduct. It was held that each case may be considered in the context of its own facts taken as a whole and the matrimonial relationship between the parties.
48. In the said case, it was alleged that husband was inflicted with Paranoid schizophrenia and its serious nature causes psychiatric symptoms and its treatment considered and considering the severity of disorder and several specific instances which were narrated which were brought out in the evidence, decree of divorce was granted. However, in the present case, it is necessary to note that the Ex.P8 and the 2 2006 (3) SCC 778
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 evidence of PW2 do not show that though the respondent-wife was suffering from Paranoid schizophrenia, it was not severe and it was fully under control and therefore, from 2006 to 2011 there appears to be cohabitation between the husband and wife and as a result the second child was born to them. It was only after the birth of the second child that the present dispute cropped up between the parties. However, the evidence on record show that an effort was made by the Family Court to unite the parties. But it is not known whether it was referred to mediation or not. The mediation would have resulted in referring the parties for counseling also and it would have ended in a happy situation for both the parties.
49. Under these circumstances, it is clear that though the respondent-wife was suffering from 'Paranoid schizophrenia', it was treated, it was under control and therefore, petitioner- husband lived with the respondent-wife and they have begotten a second child in the year 2011. This aspect has been lost sight of by the Family Court while granting the decree of divorce. The Family Court seems to have considered the fact that the evidence showed that the respondent-wife was suffering from
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 'Paranoid schizophrenia' and therefore, it granted a decree of divorce without looking into the severity of the disorder.
50. Coming to the question of restitution of conjugal rights, the appellant-wife has filed the petition for restitution of conjugal rights and it is evident that after the birth of the second child, the respondent-wife made an effort to join the matrimonial home and she having failed in her attempt approached the counseling center and therefore, a notice was sent to the petitioner-husband but he did not appear before the counseling center. The aversion of the petitioner for the counseling has resulted in the filing of the petition of decree of divorce. If the petitioner and respondent lived together till the year 2011 when they have begotten a child, what happened between 2011 to 2013 i.e. in between the birth of the second child and filing of the petition should have been brought out by the petitioner before the Family Court. There are no such specific instances wherein mental disorder has aggravated and it was impossible for him to live with the respondent-wife. Under these circumstances, it has to be inferred and concluded that petitioner-husband refused to live with the respondent- wife and he had withdrawn from the matrimonial relationship.
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 When the petitioner had withdrawn himself from the matrimonial relationship with his family, we find that the petitioner-husband should have been directed to join the matrimonial home and for restitution of the conjugal rights. Under theses circumstances, we are of the opinion that the Family Court has not considered the severity of the mental disorder suffered by the respondent-wife and it blindly accepted that the mental disorder of the respondent-wife itself is sufficient to be the cruelty and proceeded to grant the decree of divorce.
51. Yet another aspect to be noted is that, the Family Court has failed to notice that an interim order of maintenance of Rs.4,000/- per month was operating against the petitioner- husband. The petitioner-husband was directed to pay a sum of Rs.4,000/- per month to the respondent and despite the fact that there are two school going children while granting the decree for divorce, no alimony was determined by the Family court. The safety and welfare of the children is paramount and non consideration of the grant of alimony itself shows that the Family Court had not applied its mind to the facts and circumstances of the case. Under these circumstances, we are
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MFA No. 875 of 2020C/W MFA No. 847 of 2020 constrained to hold that the finding given by the Family Court is not sustainable under law and as such, the appeals deserve to be allowed.
52. It is also relevant to take notice of the fact that the learned counsel for the appellant-wife has produced photographs showing that the petitioner and respondent along with their children were living together and submitted that dispute had cropped up at the instance of the sister of the petitioner-husband. However, there being no such evidence against the sister of the petitioner, we refrain from entertaining such contention made by the learned counsel for the appellant.
53. So far as the documents which show that the respondent-appellant is working in an educational institution is concerned, we take judicial note of the said fact to get ourselves satisfied about the severity of the mental disorder of the appellant-wife. We reiterate that our findings are based on the evidence available on record before the Family Court only.
54. Hence, in view of the discussions made supra and in the facts and circumstances of the case, the appeals succeed. Hence, the following:
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C/W MFA No. 847 of 2020 ORDER
(i) The appeals in MFA No.875/2020 and MFA No. *847/2020 filed by the appellant-Wife are hereby allowed.
(ii) The petition filed by the petitioner-
husband in MC No.3356/2013 under Section
13(1) (iii) (ia) and (ib) for divorce is hereby
dismissed.
(iii) The petition filed by the respondent-wife in MC No.3812/2013 under Section 9 of the Hindu Marriage Act, is herby allowed.
(iv) The petitioner-husband in MC
No.3356/2013 is directed to resume conjugal
relationship with appellant by allowing her to live with him by decree of restitution of conjugal rights.
Sd/-
JUDGE Sd/-
JUDGE List No.: 19 Sl No.: 1 *Corrected vide Court order dated 12.12.2023*