1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Second Appeal No. 187 of 2008 Ashish v. Sau Manik ------------------------------------------------------------------------------------------------------------- - Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr S.C. Bhalerao, Adv for appellant. Mr A.V. Bhide, adv for respondent. Coram : B.P. Dharmadhikari, J Dated : 2nd June 2008 The appeal is by appellant-husband challenging concurrent rejection of his petition for divorce on the ground of cruelty. Cruelty is alleged on account of conduct of respondent- wife and also by pleading mental unsoundness (schizophrenia). I have heard learned counsel for the parties. The finding about absence of cruelty is based upon appreciation of evidence and appellant is not in a position to formulate any substantial question of law on that account. It is argued that fitness certificate (exhibit 87) produced by respondent could not have been relied upon by the courts below as Superintendent, Mental Hos0pital at Nagpur was not examined. It is to be noted 2 that burden was upon husband to show that wife was mentally unwell. The evidence discloses that he has miserably failed to substantiate it. His apprehension about her mental disorder was based on the alleged hot tempered nature of respondent; her quarrelsome attitude, not working for family at residence and always being asleep. The courts below have rightly concluded that he has failed to discharge the burden independently. Lastly, it is argued that since 1996, parties are residing separately and marriage has been irretrievably broken. Mr A.V. Bhide, learned counsel for respondent contends that appellant has performed illegal marriage subsequently. There is no material on record to show that marriage has irretrievably broken. Merely because the parties are residing separately for the last twelve years, such inference cannot be drawn. No substantial question of law arises in the present second appeal. Appeal dismissed. No costs. Judge. joshi