1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Family Court Appeal No.30 of 2002 Shri Rajanikant Yeshwant Mantri Appellant Vs. Smt.Rashmi Rajnikant Mantri Respondent CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. January 15, 2009. ORAL JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This appeal filed by the husband arises from the judgment and order dated 20/1/1998 rendered by the Family Court at Mumbai thereby dismissing Petition No.A-630 of 1991 filed by the husband seeking dissolution of his marriage with the respondent. 2. The parties were married on 20/3/1982 at Dadar, Mumbai as per the Hindu Vedic Rites and on 14/12/1983 daughter Chatali was born to the couple. On 18/10/1985 son Ninad was born to the couple. When the husband approached the Family Court in April 1991 with a petition for divorce under Section 13(1)(iii) of the Hindu Marriage Act, 1955, he alleged that from the year 1987 onwards he was being harassed mentally and suffered tortures, humiliation and tensions because of 2 the behavioural atrocities committed by the respondent - wife. As per him his life was in danger due to the idiocity, unstable and absurd behaviour, insanity and unpredictable behaviour of the respondent - wife. He alleged that the wife suffered from psychopathic / mental disorder or lunacy and it was incurable over the last five years. He also alleged that the wife was in the habit of leaving the matrimonial home without informing any of the family members and without caring for the children. He further alleged that she was avoiding intimacy with him and did not respond to his advances and it was made impossible for him to have a healthy, happy and satisfied married life. The respondent - wife appeared on receiving notice and filed statement at Exhibit 5 and denied all the allegations made by the husband. She countered by saying that she herself was a victim of cruelty and harassment at the hands of the husband and his family members and the husband was trying to take benefit of his own wrongs. She narrated various events of cruelty inflicted on her and denied to have suffered any psychopathic disorder as alleged by the petitioner. She also stated that different doctors had examined her and certified that she suffered no such disorder. The petitioner examined himself at 3 Exhibit 26 and one Laxmi Bhoir (maid servant) at Exhibit 30 as well as one officer from the company where he was employed i.e. Shri Dilip Aaoti at Exhibit 32. He also examined his sister Amita at Exhibit 33. The respondent - wife stepped in the witness box and examined herself. 3. The Family Court framed the following issues and answered accordingly: (1) Does petitioner prove that the respondent has since after the solemnization of the marriage treated him with cruelty? Finding : No (2) Does Petitioner prove that the Respondent 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 that the Petitioner cannot reasonably be expected to live with the Respondent? Finding : No 4 (3) Is Petitioner entitled to a decree of divorce? Finding : No (4) Is Petitioner entitled to custody of the children? Finding : No. 4. At the first instance it must be noted that the appeal was filed almost after four years from the date of the impugned order dismissing the petition for divorce and in the order dated 11/6/2002 this Court noted that even as on that date both the parties were staying under the same roof with the children. It was also noted that a fortnight before, both the spouses along with the children had gone out for a holiday. This Court also made some efforts to persuade the parties to have an amicable settlement of the marital disputes from time to time and both the children were also interviewed. Though it has been noted in the order dated 21/7/2003 that the appellant - husband had agreed to make an arrangement of separate residence for the wife and two children, no such arrangement was 5 made and all of them continued to stay under the same roof. It is also admitted by the respondent - wife that the household is being run on the expenses provided by the husband. 5. In support of the allegations of psychopathic disorder the medical reports of three doctors viz. Dr.Vaidya, Dr. Jyoti Pundalik and Dr. Anand Nadkarni (Exhibits 28 and 29) were before the Court and all the three reports indicated that the wife did not exhibit any evidence of significant psychopathic illness and that the psychometric evaluation reported normal findings with no evidence of any psychopathic disorder. 6. On the issue of cruelty the husband cited the instances allegedly taken place on 21/1/1988, 22/1/1988, 23/1/1988, 28/1/1988 and June 1988. The husband alleged that on 22/1/1988 the wife went to the flour mill at about 9 p.m. and returned at 10 p.m. In the mean while he and the family members were extremely worried. He went to the flour mill and was told that his wife had left from there. He also searched her at the house of Snehal Kulkarni. When the wife returned at 10 p.m. he asked as to why she 6 had taken so much time in returning home and she did not answer. On the next day the wife again asked him to give money to buy the wheat flour and the husband verified from the container in the house that there was enough wheat flour. Within some time he noticed that his mother asked for money as the wife wanted to go to the flour mill. He, therefore, went back to the container which he had seen a little while ago and it was found empty. When he questioned the wife as to where the flour had gone there was no reply and he found that the flour was shifted to another container. Based on this incident it was contended by the husband that the wife was making out some excuses to go out of the house. He was annoyed on this incident and called his father-in-law home and the father also advised her to behave properly. On 27th January 1988 the wife went to bring sweet oil from the neighbouring grocery shop and did not return for half an hour. He went to the grocery shop and was told that the wife did not visit the said shop. On his way back he saw the wife coming from a distance and when asked, she answered that she had gone to a nearby vendor to buy sweet oil at a cheaper rate. As per the husband the other vendor’s shop was just opposite the first vendor’s shop. On 28th January 1988 the husband’s sister and 7 her husband visited his house. The wife was questioned about her behaviour and she got annoyed and broke into tears and left the house. She did not return for an hour or two and, therefore, the husband went to his maternal uncle’s house and found her sitting there. It was also the husband’s case that the wife went to the police station on 28/1/1988 and filed a false complaint against the husband and the in-laws. The maid servant who was examined stated in her examination-in-chief that she had seen the wife assaulting her father-in-law and that the wife used to disobey the orders of the husband. But in the cross-examination the maid servant admitted that she used to work only for a few minutes in the house of the appellant and her evidence was not found to be reliable by the Family Court and rightly so. As far as the police complaint is concerned the husband in his depositions before the Family Court admitted that he had slapped the wife and she got annoyed and left the house, went to the police station and filed a complaint. The two incidents which were prior to filing of the divorce petition were dated 17/3/1991 and 16/4/1991 on which dates the husband alleged that the wife left the house without his knowledge and consent and without caring for the children. The wife 8 in her depositions stated that she was driven out of the house and she again came back. The Family Court rightly noted that the husband was making capital out of petty instances and there was no substance in all these allegations in support of his case that he suffered cruelty on account of the behaviour of the wife. If the wife was driven out of the house she is bound to seek some shelter or approach the institution for help and it was, therefore, natural for her to approach the activists of Mahila Dakshata Samiti. The members of the Mahila Dakshata Committee visited the husband’s house and such an incident cannot be termed as cruelty more so when it was the case of the wife that she was assaulted and driven out of the house. The wife narrated several incidents of assault and on account of the incident that had taken place on 11/3/1991, NC.No.725 of 1991 was registered with the Malad Police Station as the father-in-law had assaulted her by an article lying in the kitchen and she sustained an injury near her left eye. Two stitches were given by the doctor. She also pointed out that she was made to sleep alone in the kitchen from 17/5/1991 onwards whereas the parents and children were sleeping in the living room and the bedroom used to be occupied by the husband. The wife 9 also pointed out that on 30/3/1987 all the family members were summoned by the Malad Police Station on the basis of a complaint of ill-treatment and likely physical harm to her. 7. We are, therefore, satisfied that the reasoning set out by the Family Court for rejecting the husband’s petition does not suffer from any errors and the appeal must fail. 8. Hence the appeal is dismissed with costs. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)