1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 435 OF 2010 Mahendra s/o Yadavrao Ghansawant ....Appellant. Versus Meena w/o. Mahendra Ghansawant ....Respondent. Mr. A.A. Jagatkar, Advocate for appellant. Mr. S.P. Brahme, Advocate for respondent. CORAM: S.V. GANGAPURWALA, J. DATED: 14th September, 2010. PER COURT : 1. The present appellant and the respondent are husband and wife. The present appellant had filed a petition for divorce under the provisions of the Hindu Marriage Act, on the ground that the respondent has treated the petitioner with cruelty and that the respondent is suffering intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected live with the respondent. The Trial Court as well as the Lower Appellate Court dismissed the petition of the present appellant for divorce, holding that neither the respondent has treated the petitioner with cruelty nor the appellant has proved that the respondent is suffering from mental 2 disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. 2. Mr. Jagatkar, learned counsel for the appellant submitted that the Courts below have misread the evidence of the appellant and of Dr. Joshi, who was examined and with whom the respondent has taken treatment. Shri. Jagatkar, learned counsel contended that the respondent was even admitted to the hospital of Dr. Joshi as indoor patient and had been given electro convulsive therapy. According to the learned counsel, Doctor Joshi had stated that during the period of such attack the patient is unable to attend the domestic work, unable to take care and can even tear the books. According to Shri. Jagatkar, the said facts are sufficient to come to the conclusion that the appellant cannot be reasonably expected to live with the respondent as the appellant would always be under fear. The learned counsel further contended that the evidence of P.W. 2 i.e. the mother of the appellant has gone unchallenged. She was not cross examined and P.W. 2 has stated that the respondent behaved with the petitioner and his family members with cruelty. In such circumstances, the decree for divorce ought to have been granted. 3. Per contra, Shri. Brahme, the learned counsel for the respondent, submitted that there is no such evidence of cruelty on record. On the contrary, it is the case of the appellant that the respondent suffers from 3 mental disorder and the evidence of the doctor is helpful to the respondent. 4. I have heard the learned counsel at length and also gone through the record with their assistance. 5. Both the Courts below have discussed the evidence led by the parties. Regarding the ground agitated by the appellant for divorce on account of mental disorder of the respondent, the evidence does not reveal that the respondent was suffering from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. For ready reference the provisions of clause (iii) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 are quoted below :- "13. Divorce.- (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party - (i) ...... (ia) ...... (ib) ...... (ii) ..... (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent 4 that the petitioner cannot reasonably be expected to live with the respondent. Explanation.- In this clause- (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment or;" On perusal of the said provision, it is manifest that the requirement is not only that the respondent shall suffer from mental disorder, but the disorder should be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Keeping in view this proposition, the Trial Court exercising its powers under section 165 of the Evidence Act put the following question to Dr. Joshi :- "Q. Did you find mental disorder to such a kind and to such a extent that spouse of patient cannot be reasonably be expected to live with her ?" Doctor categorically and specifically replied in negative, meaning thereby that mental disorder of the respondent was not of such a kind 5 and to such an extent that the spouse of the patient cannot reasonably be expected to live with her. The said doctor was the witness of the appellant and he himself has opined this fact. Even reading the evidence as a whole, the doctor had nowhere expressed earlier during his examination-in-chief or otherwise that the mental disorder of the respondent is of such a kind or to such an extent that the appellant cannot reasonably be expected to live with the respondent. On the contrary, on specific question being put by the Court, the doctor has answered in the negative. In respect of the other ground about cruelty, there is no such proof with specific incidents on record of the act of the respondent. Allegations of general nature are made even in the deposition of P.W. 2 about the abuses on the part of the respondent, but without any specific instances. 5. In the light of above, no substantial question of law arises. The second appeal is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA, J.] ssc/sa435.10