-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.63 OF 2005 FAMILY COURT APPEAL NO.63 OF 2005 FAMILY COURT APPEAL NO.63 OF 2005 Shri Atulchandra Madhukar Kulkarni. ...Appellant Shri Atulchandra Madhukar Kulkarni. ...Appellant Shri Atulchandra Madhukar Kulkarni. ...Appellant V/s. V/s. V/s. Mrs.Hema Atulchandra Kulkarni. ...Respondent Mrs.Hema Atulchandra Kulkarni. ...Respondent Mrs.Hema Atulchandra Kulkarni. ...Respondent Mrs.Seema Sarnaik for the Appellant. Mrs.Seema Sarnaik for the Appellant. Mrs.Seema Sarnaik for the Appellant. Mrs.Anjali Helekar for Respondent. Mrs.Anjali Helekar for Respondent. Mrs.Anjali Helekar for Respondent. WTIH WTIH WTIH FAMILY COURT APPEAL NO.1 OF 2004 FAMILY COURT APPEAL NO.1 OF 2004 FAMILY COURT APPEAL NO.1 OF 2004 Mrs.Hema Atulchandra Kulkarni. ...Appellant Mrs.Hema Atulchandra Kulkarni. ...Appellant Mrs.Hema Atulchandra Kulkarni. ...Appellant V/s. V/s. V/s. Shri Atulchandra Madhukar Kulkarni. ...Respondent Shri Atulchandra Madhukar Kulkarni. ...Respondent Shri Atulchandra Madhukar Kulkarni. ...Respondent Mrs.Anjali Helekar for Appellant. Mrs.Anjali Helekar for Appellant. Mrs.Anjali Helekar for Appellant. Mrs.Seema Sarnaik for Respondent. Mrs.Seema Sarnaik for Respondent. Mrs.Seema Sarnaik for Respondent. WITH WITH WITH FAMILY COURT APPEAL (STAMP) NO.1836 OF 2005 FAMILY COURT APPEAL (STAMP) NO.1836 OF 2005 FAMILY COURT APPEAL (STAMP) NO.1836 OF 2005 Shri Atulchandra Madhukar Kulkarni. ...Appellant Shri Atulchandra Madhukar Kulkarni. ...Appellant Shri Atulchandra Madhukar Kulkarni. ...Appellant V/s. V/s. V/s. Mrs.Hema Atulchandra Kulkarni. ...Respondent Mrs.Hema Atulchandra Kulkarni. ...Respondent Mrs.Hema Atulchandra Kulkarni. ...Respondent Mrs.Seema Sarnaik for the Appellant. Mrs.Seema Sarnaik for the Appellant. Mrs.Seema Sarnaik for the Appellant. Mrs.Anjali Helekar for Respondent. Mrs.Anjali Helekar for Respondent. Mrs.Anjali Helekar for Respondent. CORAM : H.L. GOKHALE & CORAM : H.L. GOKHALE & CORAM : H.L. GOKHALE & SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. DATE OF RESERVATION OF JUDGMENT : 4-10-2005 DATE OF RESERVATION OF JUDGMENT : 4-10-2005 DATE OF RESERVATION OF JUDGMENT : 4-10-2005 DATE OF PRONOUNCEMENT OF JUDGMENT : DATE OF PRONOUNCEMENT OF JUDGMENT : DATE OF PRONOUNCEMENT OF JUDGMENT : 28-10-2005 28-10-2005 28-10-2005 JUDGMENT (PER SMT.R.S. DALVI, J.) :- JUDGMENT (PER SMT.R.S. DALVI, J.) :- JUDGMENT (PER SMT.R.S. DALVI, J.) :- -2- 1. These three appeals have been filed from a 1. These three appeals have been filed from a 1. These three appeals have been filed from a Judgment of the Family Court No.3 at Pune dated Judgment of the Family Court No.3 at Pune dated Judgment of the Family Court No.3 at Pune dated 30th May, 2003 disposing of one petition filed by 30th May, 2003 disposing of one petition filed by 30th May, 2003 disposing of one petition filed by the husband (the appellant in Appeal no.63/05 ) the husband (the appellant in Appeal no.63/05 ) the husband (the appellant in Appeal no.63/05 ) and the other petition filed by his wife (the and the other petition filed by his wife (the and the other petition filed by his wife (the respondent in that appeal.) respondent in that appeal.) respondent in that appeal.) 2. The husband had filed a petition for 2. The husband had filed a petition for 2. The husband had filed a petition for divorce under Section 13-1(ia) and 13-1(iii) of divorce under Section 13-1(ia) and 13-1(iii) of divorce under Section 13-1(ia) and 13-1(iii) of the Hindu Marriage Act, being Petition the Hindu Marriage Act, being Petition the Hindu Marriage Act, being Petition No.A381/2001 and claimed custody of his child, No.A381/2001 and claimed custody of his child, No.A381/2001 and claimed custody of his child, Varun. Varun. Varun. 3. The wife had filed a petition for 3. The wife had filed a petition for 3. The wife had filed a petition for restitution of conjugal rights, being Petition restitution of conjugal rights, being Petition restitution of conjugal rights, being Petition No.A423/2002 and claimed maintenance for herself No.A423/2002 and claimed maintenance for herself No.A423/2002 and claimed maintenance for herself and her son, Varun. and her son, Varun. and her son, Varun. 4. The husband’s petition was decreed; the 4. The husband’s petition was decreed; the 4. The husband’s petition was decreed; the wife’s petition was dismissed. wife’s petition was dismissed. wife’s petition was dismissed. The husband’s The husband’s The husband’s prayer for custody of his child was rejected. prayer for custody of his child was rejected. prayer for custody of his child was rejected. 5. The husband was directed to pay alimony at 5. The husband was directed to pay alimony at 5. The husband was directed to pay alimony at the rate of Rs.5000/- per month to the wife and at the rate of Rs.5000/- per month to the wife and at the rate of Rs.5000/- per month to the wife and at the rate of Rs.2000/- per month to the child Varun the rate of Rs.2000/- per month to the child Varun the rate of Rs.2000/- per month to the child Varun since the date of the passing of the Judgment. since the date of the passing of the Judgment. since the date of the passing of the Judgment. -3- 6. The husband was also directed to pay costs 6. The husband was also directed to pay costs 6. The husband was also directed to pay costs of both the petitions to the wife and to bear his of both the petitions to the wife and to bear his of both the petitions to the wife and to bear his own. own. own. 7. Both the parties have challenged the said 7. Both the parties have challenged the said 7. Both the parties have challenged the said Judgment in their respective appeals. The husband Judgment in their respective appeals. The husband Judgment in their respective appeals. The husband is aggrieved by denial of custody of the child and is aggrieved by denial of custody of the child and is aggrieved by denial of custody of the child and the grant of maintenance to the wife and child the grant of maintenance to the wife and child the grant of maintenance to the wife and child whereas the wife is unhappy with the decree of whereas the wife is unhappy with the decree of whereas the wife is unhappy with the decree of divorce. divorce. divorce. 8. From the averments in the respective 8. From the averments in the respective 8. From the averments in the respective petitions and the evidence led by the parties, the petitions and the evidence led by the parties, the petitions and the evidence led by the parties, the case of cruelty practised upon the husband and the case of cruelty practised upon the husband and the case of cruelty practised upon the husband and the fact that the wife was suffering from fact that the wife was suffering from fact that the wife was suffering from Schizophrenia such that the husband could not Schizophrenia such that the husband could not Schizophrenia such that the husband could not reasonably be expected to live with her, would reasonably be expected to live with her, would reasonably be expected to live with her, would have to be seen. Further whether the husband has have to be seen. Further whether the husband has have to be seen. Further whether the husband has withdrawn from the society of the wife without withdrawn from the society of the wife without withdrawn from the society of the wife without reasonable excuse as contended by the wife would reasonable excuse as contended by the wife would reasonable excuse as contended by the wife would also have to be seen. also have to be seen. also have to be seen. 9. There is not much dispute in this appeal 9. There is not much dispute in this appeal 9. There is not much dispute in this appeal with regard to the fact that the husband would with regard to the fact that the husband would with regard to the fact that the husband would have to provide alimony for the wife and have to provide alimony for the wife and have to provide alimony for the wife and maintenance for their child. Similarly, there is maintenance for their child. Similarly, there is maintenance for their child. Similarly, there is not much dispute with regard to the custody and not much dispute with regard to the custody and not much dispute with regard to the custody and -4- access of their child Varun. The husband has access of their child Varun. The husband has access of their child Varun. The husband has filed an affidavit undertaking to pay the amount filed an affidavit undertaking to pay the amount filed an affidavit undertaking to pay the amount of alimony to the extent of Rs.10 lakhs as of alimony to the extent of Rs.10 lakhs as of alimony to the extent of Rs.10 lakhs as directed by us. directed by us. directed by us. 10. It may be stated that the learned Judge of 10. It may be stated that the learned Judge of 10. It may be stated that the learned Judge of the Family Court No.3 at Pune has extensively the Family Court No.3 at Pune has extensively the Family Court No.3 at Pune has extensively considered the evidence led by and on behalf of considered the evidence led by and on behalf of considered the evidence led by and on behalf of both the parties with regard to the aspect of both the parties with regard to the aspect of both the parties with regard to the aspect of divorce/restitution of conjugal rights. divorce/restitution of conjugal rights. divorce/restitution of conjugal rights. 11. The parties besides examining themselves 11. The parties besides examining themselves 11. The parties besides examining themselves had examined other witnesses. The husband had examined other witnesses. The husband had examined other witnesses. The husband examined the Doctor who treated his wife one examined the Doctor who treated his wife one examined the Doctor who treated his wife one Dr.Suresh Pant, his father Madhukar Kulkarni and Dr.Suresh Pant, his father Madhukar Kulkarni and Dr.Suresh Pant, his father Madhukar Kulkarni and his friend one Omprakash. The wife examined his friend one Omprakash. The wife examined his friend one Omprakash. The wife examined another Doctor who treated her one Dr.Ratnakar another Doctor who treated her one Dr.Ratnakar another Doctor who treated her one Dr.Ratnakar Shirvaikar. Shirvaikar. Shirvaikar. 12. The reading of the evidence as a whole 12. The reading of the evidence as a whole 12. The reading of the evidence as a whole shows that after about 5-6 years of marriage and shows that after about 5-6 years of marriage and shows that after about 5-6 years of marriage and when their child was about 4-5 years old, the when their child was about 4-5 years old, the when their child was about 4-5 years old, the parties had a serious rift in their relationship. parties had a serious rift in their relationship. parties had a serious rift in their relationship. The husband is a IPS officer. The wife is a The husband is a IPS officer. The wife is a The husband is a IPS officer. The wife is a housewife. The parties lived at various places in housewife. The parties lived at various places in housewife. The parties lived at various places in Maharashtra where the husband was transferred Maharashtra where the husband was transferred Maharashtra where the husband was transferred during his service. The incidents narrated by the during his service. The incidents narrated by the during his service. The incidents narrated by the -5- parties are in consonance with their stay at parties are in consonance with their stay at parties are in consonance with their stay at various places. The husband was transferred from various places. The husband was transferred from various places. The husband was transferred from Latur to Jalgaon, Buldhana, Nagpur, Bhandara and Latur to Jalgaon, Buldhana, Nagpur, Bhandara and Latur to Jalgaon, Buldhana, Nagpur, Bhandara and later sent on deputation in UN Peacekeeping force later sent on deputation in UN Peacekeeping force later sent on deputation in UN Peacekeeping force at Kosovo. He is now on deputation with the at Kosovo. He is now on deputation with the at Kosovo. He is now on deputation with the Central Government. Central Government. Central Government. 13. The evidence shows more than usual wear 13. The evidence shows more than usual wear 13. The evidence shows more than usual wear and tear of marriage atleast from the time the and tear of marriage atleast from the time the and tear of marriage atleast from the time the parties were stationed at Buldhana. That was parties were stationed at Buldhana. That was parties were stationed at Buldhana. That was during the period from May 1996 to July 1998. The during the period from May 1996 to July 1998. The during the period from May 1996 to July 1998. The husband has narrated various instances to show husband has narrated various instances to show husband has narrated various instances to show case of cruelty which have been listed and case of cruelty which have been listed and case of cruelty which have been listed and enumerated by the learned Family Court Judge enumerated by the learned Family Court Judge enumerated by the learned Family Court Judge relating to incidents that happened either between relating to incidents that happened either between relating to incidents that happened either between the parties or with others at various places. The the parties or with others at various places. The the parties or with others at various places. The husband has alleged that the wife insulted him, husband has alleged that the wife insulted him, husband has alleged that the wife insulted him, was aggressive, rebelled against him, abused him was aggressive, rebelled against him, abused him was aggressive, rebelled against him, abused him and insisted on spending a more than his means. and insisted on spending a more than his means. and insisted on spending a more than his means. His evidence further shows her acts of snatching His evidence further shows her acts of snatching His evidence further shows her acts of snatching the telephone whilst he was conversing, getting up the telephone whilst he was conversing, getting up the telephone whilst he was conversing, getting up late, not preparing food, demanding sex at odd late, not preparing food, demanding sex at odd late, not preparing food, demanding sex at odd hours, which caused him mental tension. He has hours, which caused him mental tension. He has hours, which caused him mental tension. He has narrated certain instances when the wife did not narrated certain instances when the wife did not narrated certain instances when the wife did not take care of the guests as also his relations as take care of the guests as also his relations as take care of the guests as also his relations as expected. A more serious case has been made that expected. A more serious case has been made that expected. A more serious case has been made that the wife suffered from hallucinations, considered the wife suffered from hallucinations, considered the wife suffered from hallucinations, considered -6- suicide, refused to celebrate his birthday or his suicide, refused to celebrate his birthday or his suicide, refused to celebrate his birthday or his son’s birthday in the traditional way and visited son’s birthday in the traditional way and visited son’s birthday in the traditional way and visited his office to make irrelevant enquiries. He has his office to make irrelevant enquiries. He has his office to make irrelevant enquiries. He has alleged that due to her mental disorder, she used alleged that due to her mental disorder, she used alleged that due to her mental disorder, she used to keep the door of the bathroom open while to keep the door of the bathroom open while to keep the door of the bathroom open while bathing. Upon such evidence, the husband prayed bathing. Upon such evidence, the husband prayed bathing. Upon such evidence, the husband prayed for divorce on the ground that it is impossible to for divorce on the ground that it is impossible to for divorce on the ground that it is impossible to live with her. live with her. live with her. 14. The evidence of the husband shows serious 14. The evidence of the husband shows serious 14. The evidence of the husband shows serious disputes whilst the husband was on deputation at disputes whilst the husband was on deputation at disputes whilst the husband was on deputation at Kosovo. The wife was not happy at the assignment. Kosovo. The wife was not happy at the assignment. Kosovo. The wife was not happy at the assignment. Despite his giving an amount of Rs,3000/- per Despite his giving an amount of Rs,3000/- per Despite his giving an amount of Rs,3000/- per month for the wife and the child and handing over month for the wife and the child and handing over month for the wife and the child and handing over Rs.2.5 lacs, she was not satisfied. He came to Rs.2.5 lacs, she was not satisfied. He came to Rs.2.5 lacs, she was not satisfied. He came to India for her birthday and gave her Rs.1 lac but India for her birthday and gave her Rs.1 lac but India for her birthday and gave her Rs.1 lac but she showed no concern. When he had to leave to go she showed no concern. When he had to leave to go she showed no concern. When he had to leave to go back to Kosovo on 25th May, 2000, his wife back to Kosovo on 25th May, 2000, his wife back to Kosovo on 25th May, 2000, his wife suddenly became very aggressive and violent, threw suddenly became very aggressive and violent, threw suddenly became very aggressive and violent, threw the luggage as well as her Mangalsutra. The the luggage as well as her Mangalsutra. The the luggage as well as her Mangalsutra. The husband accordingly contends that she suffered husband accordingly contends that she suffered husband accordingly contends that she suffered from serious major depression which is a mental from serious major depression which is a mental from serious major depression which is a mental disorder. The wife’s evidence essentially shows disorder. The wife’s evidence essentially shows disorder. The wife’s evidence essentially shows denials of these allegations. The evidence of denials of these allegations. The evidence of denials of these allegations. The evidence of father of the husband is rather repetitive. The father of the husband is rather repetitive. The father of the husband is rather repetitive. The evidence of friend of the husband who is the press evidence of friend of the husband who is the press evidence of friend of the husband who is the press reporter, corroborates certain incidents. The reporter, corroborates certain incidents. The reporter, corroborates certain incidents. The -7- evidence of the doctor examined by the husband who evidence of the doctor examined by the husband who evidence of the doctor examined by the husband who is a M.D. Psychiatrist and who has admittedly is a M.D. Psychiatrist and who has admittedly is a M.D. Psychiatrist and who has admittedly treated the wife, shows her suffering from serious treated the wife, shows her suffering from serious treated the wife, shows her suffering from serious depression. She has admittedly been treated by depression. She has admittedly been treated by depression. She has admittedly been treated by him from February 1999 to December 2000 for mood him from February 1999 to December 2000 for mood him from February 1999 to December 2000 for mood disorder due to matrimonial problems for which she disorder due to matrimonial problems for which she disorder due to matrimonial problems for which she could adjust. Her last visit is stated to be on could adjust. Her last visit is stated to be on could adjust. Her last visit is stated to be on 29th December, 2000. His evidence shows that she 29th December, 2000. His evidence shows that she 29th December, 2000. His evidence shows that she commenced treatment at a late stage and hence, was commenced treatment at a late stage and hence, was commenced treatment at a late stage and hence, was not completely cured. not completely cured. not completely cured. 15. It appears that from October 2000, his 15. It appears that from October 2000, his 15. It appears that from October 2000, his wife changed her doctor. Her witness Dr.Ratnakar wife changed her doctor. Her witness Dr.Ratnakar wife changed her doctor. Her witness Dr.Ratnakar Shirvaikar who is also a Psychiatrist has deposed Shirvaikar who is also a Psychiatrist has deposed Shirvaikar who is also a Psychiatrist has deposed that her condition has improved upon treatment for that her condition has improved upon treatment for that her condition has improved upon treatment for Schizophrenia which continued for two and half Schizophrenia which continued for two and half Schizophrenia which continued for two and half years. His evidence also shows the abnormal ideas years. His evidence also shows the abnormal ideas years. His evidence also shows the abnormal ideas in her mind, her sleep disorder and the fact that in her mind, her sleep disorder and the fact that in her mind, her sleep disorder and the fact that she used to cry and shout abnormally and talk to she used to cry and shout abnormally and talk to she used to cry and shout abnormally and talk to herself and also quarrel with her mother. His herself and also quarrel with her mother. His herself and also quarrel with her mother. His evidence shows shock treatment given to her and evidence shows shock treatment given to her and evidence shows shock treatment given to her and her non-cooperation with the doctor. She last saw her non-cooperation with the doctor. She last saw her non-cooperation with the doctor. She last saw the Doctor in March 2002. Her said Doctor has the Doctor in March 2002. Her said Doctor has the Doctor in March 2002. Her said Doctor has opined that the husband might have suffered a lot opined that the husband might have suffered a lot opined that the husband might have suffered a lot due to her behaviour. due to her behaviour. due to her behaviour. 16. The learned Judge has considered this 16. The learned Judge has considered this 16. The learned Judge has considered this -8- entire evidence alongside the various judgments entire evidence alongside the various judgments entire evidence alongside the various judgments relating to aspects of cruelty as a ground for relating to aspects of cruelty as a ground for relating to aspects of cruelty as a ground for grant of divorce. grant of divorce. grant of divorce. 17. Though the evidence of the husband has 17. Though the evidence of the husband has 17. Though the evidence of the husband has been refuted by the wife, the fact that she was been refuted by the wife, the fact that she was been refuted by the wife, the fact that she was treated by the two Doctors who have deposed before treated by the two Doctors who have deposed before treated by the two Doctors who have deposed before the Family Court for Schizophrenia has not been the Family Court for Schizophrenia has not been the Family Court for Schizophrenia has not been disputed. The treatment has continued for several disputed. The treatment has continued for several disputed. The treatment has continued for several years. It is also not denied that the husband was years. It is also not denied that the husband was years. It is also not denied that the husband was to be on deputation at Kosovo when the parties to be on deputation at Kosovo when the parties to be on deputation at Kosovo when the parties fell apart. fell apart. fell apart. 18. One aspect between the parties stands out. 18. One aspect