1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 47 of 2010 WITH CIVIL APPLICATION NO. 57 of 2010 Pratima @ Rani Hemant Nagrale age 41 years, Occ: Housewife, R/at: c/o. Prashant Dongare A-504, Sarla Garden, Nehru Road, Vakola Bridge, Santacruz (E), Mumbai 400055. ....Appellant (orig. Respondent) v/s. Hemant Namdeorao Nagrale Age 46 years, Occ: Service, r/at: 1st floor, Above Colaba Police Station, Shahid Bhagatsingh Road, Colaba, Mumbai 400001. .....Respondent (orig. Petitioner) Mr. R. S. Apte with Vaibhav Patankar, advocate for the appellant. Mr. P.K. Dhakhephalkar-Sr. Counsel, a/w. Mr. Ravi Prakash Sharma a/w. S.S.Ghosh and Rahul Sinha i/b. M/s. PHA Advocates for the respondent. CORAM:- A.M.KHANWILKAR AND A.A..SAYED, JJ DATED:- JUNE 29, 2010 ORAL JUDGMENT (PER A.M.KHANWILKAR, J) This Appeal arises out of Judgment and decree passed by the Family 2 Court No. 6, Bandra, Mumbai dated 2nd February, 2009 in Petition No. A-1118/2008. The Family Court allowed the Petition filed by the Respondent- husband and thereby the marriage solemnized between the Appellant and the Respondent on 4th May, 1990 came to be dissolved by a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. By the same Judgment, the Family Court has held that the permanent custody of the children Shivam and Ria shall remain with the Petitioner-father. After the impugned Judgment and decree was passed by the Family Court, the Appellant moved Application Exhibit 13 before the Family Court for setting aside the impugned Judgment and decree having been passed exparte against her. The said Application came to be rejected by the Family Court, inter alia, on the ground that such Application was not maintainable under Order IX Rule 13 of Civil Procedure Code against the impugned Judgment and decree, vide Judgment and order dated 5th October, 2009. The Appellant had independently challenged the said order by way of separate Appeal before this Court being Family Court Appeal No. 201/2009. We have disposed of the said Appeal by separate Judgment today. The grounds, as were raised in the said Appeal, therefore, will have no bearing on the present Appeal. 2. In so far as present Appeal is concerned, as aforesaid, the Respondent- 3 husband instituted Petition before the Family Court for dissolution of marriage solemnized on 4th May, 1990, purportedly under Section 13(1)(i-a) and Section 26 of the Hindu Marriage Act, 1955. The relief claimed in the said Petition is also consistent with the title of the Petition, under Section 13(1)(i-a), for dissolution of the marriage of the Petitioner and the Respondent solemnized on 4th May, 1990. However, the allegations on the basis of which the said relief was prayed would indicate that the Respondent-husband not only made grievance about the attitude of the Appellant in lodging false and frivolous complaints against him so as to cause him harassment and mental cruelty. In addition, in the Petition, it is extensively stated that the attitude of the Appellant was essentially on account of her mental disorder . In that, she was suffering from intermittent schizophrenia attacks. The details of the said behaviour pattern of the Appellant has been elaborated in the Petition. We do not propose to burden this Judgment with all those events for the nature of final order that we propose to pass. It is common ground that suit summons was duly served on the Appellant whereafter she appeared and participated in the Court proceedings on the date mentioned in the suit summons, but remained absent on all subsequent dates. It is common ground that the Appellant did not even file written-statement to deny the allegations made in the Petition. On the other hand, the Respondent-husband besides producing documents also relied on his 4 affidavit which was in lieu of his examination-in-chief. While referring to the pleadings and the evidence and documents produced by the Respondent- husband, the trial Court proceeded with the matter without the written statement of the Appellant and allowed the Petition on 2nd February, 2009. Thereby dissolved the marriage between the the Appellant and the Respondent performed on 4th May, 1990 by decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act. What is significant to notice is that the Family Court while allowing the Petition was impressed by the allegations made by the Respondent against the Appellant about her state of mental disorder and the fact that she was suffering from schizophrenia. The finding recorded by the Family Court can be discerned from Paragraph 13 & 14 of the impugned decision. The same reads thus: “13. It was also material to mention that the contention in regard to the fact that respondents behaviour was abnormal and unnatural and she was suffering from schizophrenia and even his contention in the petition about the behaviour of the respondent from time to time since after the marriage has been corroborated by the copies of exchanges of letter and correspondence between the parties and the copies of medical reports submitted by the petitioner. Even his contention that the respondent had even lodged police complaint has been corroborated by the documents produced on record. Then in the light of the fact that respondent chose to remain absent and had not challenged the contention in that respect those facts are required to be held as proved. 14. Then the incidents narrated by the petitioner about the behaviour of the respondent make it clear that the respondent had caused tremendous torture and harassment to the Petition. Even the version of the petitioner that he had taken all due care and treated the 5 respondent for time to time is also supported by the medical reports. Even as is clear from the testimony of the petitioner that petitioner has made all efforts to save the marriage but the respondent did not improve her behaviour and not only that had even not cared for the children and even her behaviour proved to be dangerous for the children. Even she had made police complaints against the petitioner and also published such news in newspaper and defamed him. That also amounts to cruelty because she has not brought any material on record to substantiate her contention against the petitioner in her police complaints and rather deemed to have admitted the petitioner contention that such complaints of respondent in police complaints are false.” ( emphasis supplied ) 3. While considering the challenge of the Appellant to the impugned Judgment and decree amongst other grounds, we are convinced that this is imminently fit case which requires to be remitted to the trial Court for fresh consideration in the light of our opinion stated hereinafter. 4. From the findings recorded by the Family Court, it is amply clear that divorce has been granted albeit on the ground of cruelty, but the Court was also impressed by the fact that the Respondent-husband was unable to continue to cohabit with the Appellant on account of her abnormal and unnatural behaviour due to intermittent schizophrenia attacks. In that view of the matter, at the outset the Court was obliged to examine as to whether the Appellant suffered from such mental disorder which not only resulted in a situation that the Respondent-husband could not reasonably be expected to live with the Appellant, but it was so dangerous that it was bordering on unsound mind of the 6 Appellant-wife and by reason thereof she was incapable of defending her cause. That is the duty of the Court. 5. We are conscious of the fact that the Family Court has allowed the Petition essentially on the ground under Section 13(1)(i-a)-that the Respondent treated the Petitioner with cruelty and not under Section 13(1)(iii) as such. The divorce on the ground of Section 13(1)(iii) can be granted only if the Petitioner is able to prove that he cannot reasonably be expected to live with the Respondent. The Apex Court in the case of Ram N. Gupta v/s. Smt. Rameshwari Gupta reported in (1988) 4 SCC 247 had occasion to expound on this matter. In Paragraph 20 of the said decision, the Court noted that the decree must be such that the spouse asking for relief cannot reasonably be expected to live with the other. The Apex Court in Paragraph 25 has then analyzed the sweep of expression schizophrenia. It is stated thus: “25. ‘Schizophrenia’, it is true, is said to be difficult mental affliction. It is said to be insidious in its onset and has hereditary predisposing factor. It is characterized by the shallowness of emotions and is marked by a detachment from reality. In paranoid states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. In its worst manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions. 7 26. “Schizophrenia” is described thus : A severe mental disorder (or group of disorders) characterized by a distintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becomes socially withdrawn and loses energy and initiative. The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes ; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia) ; paranoid, characterized by prominent delusion ; and catatonic, with marked motor disturbances (see catatonia). Schizophrenia commonly – but not inevitably – runs a progressive course. The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong genetic factors in the causation, and environmental stress can precipitate illness.” 6. As aforesaid, we are conscious of the fact that divorce has been granted by invoking provisions of Section 13(1)(i-a) and not under provisions of Section 13(1)(iii) of the Act. However, from the analysis done by the Family Court, it is amply clear that one of the facet for cause of cruelty is stated to be mental condition and attitude and behaviour of the Appellant which caused cruelty to the Respondent-husband. The Family Court has accepted the plea of the Respondent-husband that the Appellant was suffering from schizophrenia. Considering the observations made in the case of Ram N. Gupta (supra), we have no hesitation in taking the view that before proceeding to record the said 8 finding, it was the duty of the Court to examine the question as to whether the Appellant was a person of unsound mind and was incapable of defending herself. That obligation not only flows from the requirement of Order 32 Rule 15 of the Civil Procedure Code but has been restated by our Court in the case of Meena alias Pratibha Deshpande vs. Prakash S. Deshpande reported in 1983 BCI (0) 95. In Paragraph 4, the Court observed thus:- “If the wife was really affected by the mental disease and was not in a position to take care of herself, it is indeed difficult to understand as to how the matter at all was proceeded with without there being an effort to appoint a guardian for such a person.” 7. We would usefully refer to another decision in the case of Smt. Godavari Devi vs. Smt. Radha Pyari Devi reported in AIR 1985 PATNA 366. As a matter of fact our attention has been invited to this decision by the Counsel for the Respondent. In Paragraph 6 of this decision, the Division Bench of the Patna High Court has observed thus:- “6. It is common ground that herein we are not dealing with the category of persons adjudged to be of unsound mind. That different considerations would be attracted in their case is patent and, therefore, this category may, for all purposes, be left altogether apart. Adverting now to the second category, it seems plain that the issue of unsoundness of mind of the parties in this class is primarily betwixt the Court and the party and is certainly not a lis betwixt the parties themselves. The legislature in its wisdom has conferred a larger and paternal power on the Court to see that each party has the capacity to safeguard its legal interest and is no way handicapped by reason of any mental infirmity. It is equally significant to notice that 9 this broad-based power extends in cases of any mental infirmity and is not necessarily governed by the extreme situation of a person being of unsound mind altogether. To my mind, this beneficial and, indeed, paternal power is wholly vested in the Court and it is in its discretion alone, where it finds that any one of the parties is suffering from a weakness of mind, to proceed for taking steps to safeguard the interest of such a party. To use the language of another jurisdiction, namely, that of contempt, the lis herein is betwixt the Court and such a party and not betwixt the opposite parties as such. As has been said in that jurisdiction, the issue of contempt is primarily between the Court and the contemner, and even more so under O. 32 R.15 in its second category, it is a matter entirely between the Court and the party alone and nobody else has any vested interest or right to agitate the unsoundness of mind of his opponent in this class. To put it tersely, it is not an issue betwixt the parties and neither the plaintiff nor the defendant has the locus standi to challenge or question the soundness of mind of the opposite side and claim an adjudication thereon at the very threshold. If this were to be so permitted in this field, there would, perhaps, be no end to allegations and counter allegations in this regard and its misuse would be capable of working grave public mischief.” (emphasis supplied). Applying the above legal position, we have no hesitation in taking the view that the Family Court before accepting the allegation leveled against the Appellant that she was suffering from mental disorder on account of intermittent schizophrenia attacks, it was obliged to enquire into that aspect as contemplated under the provisions of Order 32 of the Civil Procedure Code. It is only after recording its satisfaction that the Appellant was capable of defending her own cause, it ought to have proceeded further in the matter. In other words, the trial Court has committed manifest error in exercise of discretion and power vested in it. As a matter of fact, the law mandates that the Court is obliged to enquire into 10 allegation such as in the present case that the Respondent-wife was of unsound mind and her behaviour due to her state of mind was causing cruelty to the Petitioner-husband. Notably, the Respondent-husband was relying on documentary evidence to substantiate his allegation that the behaviour of the Appellant was unacceptable and intolerable. The Family Court having allowed those documents to be taken on record and based its finding on the basis of the case made out by the Respondent-husband in that regard, the minimum that the Family Court ought to have done is to make enquiry and satisfy itself as to whether the Appellant-wife was of such unsound mind that she was incapable of defending her interest. That satisfaction has to be recorded by the trial Court in the first place. 8. In the circumstances, we have no hesitation is setting aside the impugned Judgment and decree on this limited ground and instead relegate the parties before the Family Court for fresh consideration of the matter in accordance with law. After the remand pursuant to this decision, the Family Court in the first instance will have to make enquiry into the fact as to whether the Appellant- wife was of such unsound mind at the relevant point of time that she was unable to defend her interest. If the Family court were to be satisfied on that aspect, it would be then obliged to take measures as provided in Order 32 of the Code so 11 as to do substantial justice to the Appellant-wife. However, on the other hand if the Family Court were to be satisfied that the Appellant-wife was not of such unsound mind as would result in denying her fair opportunity and was not incapable of defending her interest, in that situation, the Family Court would proceed with the matter from the stage of cross-examination of the Plaintiff’s witness. We are conscious of the fact that this arrangement would be in the nature of overlooking the rejection of the application filed by the Appellant-wife under Order IX Rule 13 for setting aside the exparte decree. However, we have not examined the correctness of the stand taken by the Appellant-wife in the said application on its own merits, having found that remedy under Order IX Rule 13 was unavailable. We are also conscious of the fact that the Family Court has already recorded finding on the grounds pressed into service by the Appellant- wife regarding sufficient cause for not appearing before the Court, but while disposing off the companion Appeal, we have already opined that it was not open to the Family Court to enquire into those aspects and the said finding recorded by the Family Court were of no avail especially when the Family Court has opined that the Application under Section IX Rule 13 was unavailable. 9. Accordingly, we partly allow this Appeal on the following terms:- 12 (i) The impugned Judgment and decree is set aside. Instead the Petition No. A-1118/08 is restored to the file of the Family Court for reconsideration of the matter in the light of the observations made by us hitherto. (ii) The Family Court shall first enquire into the fact as to whether the Appellant-wife was of such unsound mind which prevented her to defend her interest at the relevant time and depending on the outcome of the satisfaction thereon, may pass such other appropriate order as may be necessary. (iii) In the event, the Family Court were to form the opinion that the Appellant-wife was of unsound mind at the relevant time and was incapable of defending her interest, may have to take recourse to measures under Order 32 of the Civil Procedure Code and proceed with the matter in accordance with law. (iv) Whereas, if the Family Court were to be of the view that the Appellant-wife was capable of defending her cause, may then proceed with trial from the stage of cross-examination of the Petitioner’s (Respondent herein) witnesses. (v) The parties shall appear before the Family Court on 16th August, 2010 at 11.00 a.m. on which date the Family Court may pass further directions as may be warranted in the situation. 13 (vi) The Family Court, however, shall ensure that the remanded proceedings are decided as expeditiously as possible in any case by end of November 2010. Parties appearing through Counsel have assured that they will extend full co- operation to the Family Court for early disposal of the proceedings. (vii) No order as to costs. 10. At this stage Counsel for the Respondent-husband submits that the operation of this decision be kept in abeyance. Instead, we direct the Family Court not to give effect to the direction of proceeding further with the matter till 16th August, 2010. That would subserve the ends of justice. 11. In view of the disposal of the First Appeal, we dispose of Civil Application No. 57/2010 with liberty to the Applicant to move for the same relief at the appropriate stage which will be decided on its own merits. All questions are left open to be decided on its own merits. (A.A.SAYED, J) (A.M.KHANWILKAR, J)