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2012 DIGILAW 126 (CHH)

SURENDRA GAYAKWAD v. JANAKBAI GAYAKWAD

2012-05-01

G.MINHAJUDDIN, I.M.QUDDUSI

body2012
JUDGMENT G. Minhajuddin, J 1. This appeal has been filed under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 28.4.2010 passed by II Additional Principal Judge, Family Court, Durg (CG), in Civil Suit No.151 A/07, whereby application of the appellant/plaintiff under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce on the ground of unsoundness of mind of the respondent/defendant and of deserting the company of the appellant/plaintiff, has been rejected. 2. The undisputed facts are that marriage between the parties was solemnized about 35-40 years back and since about 1982, the respondent/wife is residing at her parents' house. Out of their wedlock, three sons have been born. However, rest of the facts are disputed. 3. Case of the appellant/plaintiff, in brief, is that marriage between the parties was solemnized about 35-40 years back. The respondent/wife is suffering from mental problem since 1982, on account of which she is not in a position to discharge her marital obligations. In the year 1982, the respondent/wife after leveling false allegations of harassment and torture by the appellant and his family members had left her matrimonial home and since then is residing at her parents' house. The marriage between the parties has irretrievably broken down. Since 1982 the respondent is mentally sick and her condition has deteriorated considerably and there are no chances of her recovery from mental sickness and of returning back to her matrimonial home. On these grounds, an application under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act, 1955") was tiled by the appellant/husband for dissolution of marriage by a decree of divorce. 4. Case of the respondent/defendant, in brief, is that marriage between the parties was solemnized about 35 years back. The appellant/husband was treating her with extreme cruelty and about 24-25 years back, after physically and mentally harassing and torturing her, that the appellant had driven her out of the house and since then, she is residing at her parents' house. After 56 years from the date of driving the respondent out of the house, that the appellant had kept a lady as his wife and when she (respondent) learnt about this fact, she was shocked and had lost her mental balance, for which the appellant alone is responsible. After 56 years from the date of driving the respondent out of the house, that the appellant had kept a lady as his wife and when she (respondent) learnt about this fact, she was shocked and had lost her mental balance, for which the appellant alone is responsible. The respondent had not left her matrimonial home of her own accord, but on account of cruel treatment meted out to her by the appellant and of having been driven out of the house since about 25 years back, that she is, under compulsion, residing at her parents' house. The appellant/husband had neither cared for her nor had provided for her treatment and maintenance. It is only on account of the appellant having kept a second woman as his wife that the respondent had lost her mental balance and had become mentally sick, whereas prior to that she was mentally and physically sound. With the aforesaid averments, the respondent prayed for rejecting the application under Section 13 of the Act, 1955 of the appellant as no ground is available to the appellant for grant of a decree of divorce in his favour. 5. Learned Family Court, after affording opportunity of hearing and of adducing evidence to the parties and considering the material available on record, by the impugned judgment and decree rejected the application under Section 13 of the Act, 1955 of the appellant. 6. Heard learned counsel for the parties, perused the record of the Family Court as also the impugned judgment. 7. The questions to be decided in this appeal are: (i) Whether the respondent/wife is suffering from mental ailment and if so, then of what nature and to what extent? (ii) Whether the respondent/wife for the last about 25 years has abandoned the company of the appellant/husband without just and reasonable cause and is residing at her parents' house of her own accord? 8. The appellant/plaintiff/husband to substantiate the averments made in his application under Section 13 of the Act, 1955 for divorce has examined only himself as PW-1, whereas in order to substantiate the averments made in her written statement, the respondent/defendant/wife has examined her father Gangaprasad Deshlahre as DW-1. 9. 8. The appellant/plaintiff/husband to substantiate the averments made in his application under Section 13 of the Act, 1955 for divorce has examined only himself as PW-1, whereas in order to substantiate the averments made in her written statement, the respondent/defendant/wife has examined her father Gangaprasad Deshlahre as DW-1. 9. As per the statement of appellant/plaintiff Surendra Gayakwad (PW1), his marriage with the respondent was solemnized about 35-40 years back and since 1982 the respondent is suffering from mental ailment and since then she is residing at her parents' house and is not in a position to discharge her marital obligations. The appellant/plaintiff (PW1) has further stated that out of their wedlock, three sons have been born. However, on account of mental ailment the condition of the respondent has deteriorated considerably and there are virtually no likelihood or chances of her recovery and of leading a normal married life. 10. On the contrary, Gangaprasad Deshlahre (DW-1), who is father of the respondent, has stated that from the inception, the appellant/husband as well as his family members were treating the respondent with extreme cruelty and in the year 1982, after being physically and mentally tortured, she was driven out of her matrimonial home by the appellant, on account of which since then she is residing at her parents' house. He (DW-1) has further stated that about 5-6 years after the respondent was driven out of her matrimonial home by the appellant, that the appellant had kept a lady as his wife and on learning about this fact, the respondent suffered a shock and had lost her mental balance, whereas prior to that she was physically and mentally sound. 11. It is a settled principle of law that admission is the best piece of evidence against a person. Appellant/husband Surendra Gayakwad (PW-1), in his cross-examination, has admitted that since 1982 he had neither provided any maintenance to his wife (respondent) nor had before filing of the application for divorce seen her. He has further admitted that the respondent or her father had not lodged any complaint against him in his department and he has neither transferred any property in the name of his wife (respondent), nor she is enjoying any of his properties. He has further admitted that the respondent or her father had not lodged any complaint against him in his department and he has neither transferred any property in the name of his wife (respondent), nor she is enjoying any of his properties. He has also admitted that a lady named Geetabai is residing in his house as a maidservant for the last 15-20 years and out of their physical relations, three children named Manish, Anil and Aishwarya have been born. He has further admitted that after deleting the names of the respondent/wife and her three sons, he (appellant) had got the names of Geetabai and her three children entered in his medical card without the knowledge of his wife (respondent). 12. The appellant/husband (PW-1) has stated at the very onset of his statement that after leveling false allegations that the appellant is harassing and torturing the respondent/wife physically and mentally, that she had left her matrimonial home in the year 1982 and since then, is residing at her parents' house and despite all efforts being made by him, she had not returned to her matrimonial home and is suffering from mental ailment since 1982, which has aggravated to an irreversible state and there are no chances of recovery and of leading a normal married life. 13. As per statement of Gangaprasad (DW-1), the appellant, from the very beginning, had been treating the respondent with extreme cruelty and had ultimately driven her out of his house in the year 1982 and it is only after learning about the fact that the appellant has kept another lady as his mistress, that the respondent had lost her mental balance. This statement made by Gangaprasad (DW-1) finds corroboration from the admissions made by the appellant/husband (PW-1) in his cross-examination. Only the appellant/husband (PW-1) and his father-in-law Gangaprasad (DW-1) have stated that the respondent is suffering from mental ailment, but no expert opinion of a psychiatrist in the form of evidence has been adduced by the appellant to prove that the respondent/wife is suffering from mental ailment of such a degree and order that it is not possible for the appellant to live with her. 14. 14. In view of the aforesaid discussion of the evidence, it stands proved that the respondent/wife had not left her matrimonial home without any just and reasonable cause of her own accord, but it is only on account of cruel treatment meted out to her by the appellant and of having been driven out of the house that she is residing at her parents' house. It also stands proved that the appellant during subsistence of his marriage with the respondent/wife had kept another lady named Geetabai as his mistress and three children have been born out of their physical relations and it is only after coming to know of this fact, that the respondent/wife had become mentally sick, for which the appellant alone is responsible. As such, the appellant/husband has not been able to establish any of the grounds enumerated in Section 13 of the Act, 1955 for grant of a decree of divorce. Learned Family Court has not committed any illegality or infirmity in passing the impugned judgment and decree, which deserves to be affirmed. 15. In the result, the appeal fails and is, accordingly, dismissed. The impugned judgment and decree dated 28.4.2010 passed by II Additional Principal Judge, Family Court, Durg (CG), in Civil Suit No. 151 A/07, is hereby affirmed. No order as to costs. 16. Additional Registrar (Judicial) is directed to draw up a decree accordingly. Appeal Dismissed.