IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 32 OF 2002
Mrs.Sanjivani Bharat Sasane
Age – 42 years,
Occupation – Household,
Residing at Gitanjali, 23 Ashoknagar,
Pune – 411 007. …Appellant
1) Mr.Bharat Dashrath Sasane
Age – 44 years,
Occupation – Business,
Residing at 49, Ashoknagar,
Pune – 411 007.
2) M/s.Sankalpan Shelters,
A partnership firm, registered .. Respondents
under Indian Partnership Act, 1932
having its office at :
107/108, City Mall, Ganeshkind Road, Pune.
Through its partners :
a) Vinodkumar jaichandlal Mittal
b) Mukesh Yeole
c) Ravindra Jagtap.
(Addresses : as above)
Mr.Amol Deshpande for the Appellant.
Mrs.Usha Purohit for the Respondent No. 1.
Mr.Sidharth Ronghe for Respondent No. 2.
CORAM: S. A. BOBDE &
S. J. KATHAWALLA, JJ.
DATE : NOVEMBER 18, 2009.
ORAL JUDGMENT (Per S.A. Bobde, J.) :
This is an Appeal filed against the order of the Family Court I, Pune, dated 22nd February, 2002 allowing the Petition filed by the Respondent husband for divorce under section 13 (1) (ia) of the Hindu Marriage Act, 1956, on the ground of cruelty. The Respondent husband approached the Family Court under the aforesaid provision for divorce on the ground of cruelty based mainly on account of the behaviour of the Appellant which included threats and attempts to commit suicide on various occasions and for gross misbehaviour with him.
2. The Family Court after considering the evidence came to the conclusion that the Appellant had treated the Respondent husband with cruelty and the Respondent was therefore entitled to decree of divorce. At the outset, it may be noted that the Family Court in paragraph 17 has stated that several attempts were made by the Appellant to stall the hearing of the case by not offering herself for crossexamination and that she made all attempts to prolong the matter. When the Court tried to prevent such attempts, she even moved a transfer petition.
Apparently, in the past too, such transfer petitions had been moved by the Appellant in respect of the earlier Presiding Officer,which was rejected. When we expressed a desire to interview the parties. The Respondent husband alone appeared before us and the Learned Counsel appearing for the Appellant stated that he has instructions to say that the Appellant is away at Rishikesh.
The learned counsel for the Respondent stated that the Respondent husband had seen the Appellant in Pune the previous day, i.e. on 17th November, 2009, and is willing to file an affidavit. We did not consider it necessary to go into this controversy and prolong the hearing of this case.
3. The learned Family Court has decided the matter
purely on merits. The learned Family court after considering the
evidence on record came to the conclusion that the Appellant has
repeatedly threatened suicide and in fact made it embarrassing
and dangerous for the husband to cohabit with her peacefully.
In fact, the Appellant in her written statement stated that she
wanted “Kaydeshir Farkat” i.e. judicial separation. It is clear that
the Appellant does not wish to cohabit with the Respondent.
4. Coming to the findings, the Family Court accepted
the Respondent’s case that the Appellant is unable to get along
with any person in the Respondent’s family. The learned Trial
Court has referred to the entire evidence of the Respondent
wherein he has deposed about the attempts made by the
Appellant to commit suicide and about her quarrelsome nature.
Undoubtedly, the Appellant herself has admitted in paragraph 3
of her Written Statement that on 4th February, 1994 she
attempted to commit suicide by jumping into the Mula River. In
paragraph 14, she has clearly admitted that on that day, she
climbed the bridge in order to jump, but was saved by passersby.
Further in paragraph 6 of the Written Statement, she has
admitted that in October, 1991 she consumed insecticide and as
a result was admitted to the Model Colony Hospital. She further
admitted in paragraph 16 that she poured Kerosene on herself
with the intention to commit suicide, but she stopped short of
setting herself alight for the future of the daughter.
5. In Naveen Kohli v. Neetu Kohli [(2006) 4 SCC 558], the
Hon’ble Apex Court held that cruelty may be mental or physical
and intentional or unintentional. The Court broadly defined
‘mental cruelty’ to be such conduct, which inflicts upon the other
party such pain and suffering as would make it not possible for
that party to live with the other. We have no hesitation in
coming to the conclusion that the behaviour of the appellant in
persistantly threatening and attempting suicide would constitute
mental cruelty in law so as to become a ground for divorce. The
threat of personal violence or attempt to commit suicide is
a recognized instance of cruelty [ Dastane v. Dastane
( AIR 1975 SC 1534]. Under the circumstances, it is not possible
for a couple to peacefully carry on a married life, if one partner
repeatedly threatens to commit suicide in public and within the
home in this manner. In our view the Trial Court is therefore
correct in its finding that the repeated attempts on the part of the
Appellant to commit suicide constitutes mental cruelty.
6. We find that the Judgment of the learned Family
Court also takes into account evidence of one Dr. Vidyadhar J.
Watve (P.W.No.3), who is a Psychiatrist and one Dr. Subhash
Kale, who gave evidence about the mental disorder, i.e.
‘adjustment disorder’ and of depression, which the Appellant
suffers from. The learned counsel for the Appellant submitted
that the ill treatment by the inlaws,
led to the attempts to
commit suicide, and therefore, since the fault lay with the
Respondent’s family he was barred from pleading ‘cruelty’. It is
not possible to accept this submission in the present case, since it
appears that the attempts to commit suicide continued even after
the couple moved to a new place and began to live separately
from the family of the Respondent husband. The Trial Court
has observed in paragraph 20, that in these circumstances,
the Respondent has stated that sometimes, he may have behaved
in a manner which appears cruel to the Appellant, but this was
only to prevent her from committing suicide or to prevent her
from causing any bodily injury to herself. There are instances
where the Respondent had to physically prevent the Appellant
from committing suicide, such as when she attempted to
consume insecticide in the bathroom, in October 1991. In fact,
the learned Trial Judge has observed that even during the Trial,
the behaviour of the Appellant was not normal and she often
seemed to lose her mental equilibrium.
7. Learned Counsel for the Appellant also brought forth
the contention that by indulging in physical relations with the
Appellant after the alleged acts of cruelty, the Respondent had
condoned these acts and was hence barred from a divorce decree
by section 23 (1)(b) of the Hindu Marriage Act, 1956. We find
that there is no merit in the argument. ‘Condonation’ means
forgiveness for the offence and restoration of the offending
spouse to the status quo ante [Dastane v. Dastane (supra)].
However, condonation is meaningless unless there is some
change in the person who seeks forgiveness or who has been
forgiven. As rightly pointed out in Puthalath Chatu v.
Nambukkudi Jayasree (AIR 1990 Ker 306), condonation rests
on some assurance to the offended spouse, of retracement of the
offending spouse, from the wrong path hitherto followed. In the
present matter, even if the Respondent did have physical
relations after the alleged acts of cruelty, there was no change in
the attitude and behaviour of the Appellant, who continued even
thereafter to threaten and attempt to commit suicide. This
argument is hence rejected.
8. The parties have been living separately for a period of
approximately 8 years before the filing of Petition and as the
matter stands now, the passage of time is about 17 years since
they last resided together. The attempts at reconciliation, prior
to commencement of divorce proceedings in the Trial Court
failed and there does not appear to be a chance of any
reconciliation at present, having regard to the facts and
circumstances of the case. We have considered the entire
evidence of the parties and the arguments advanced by the by the
Learned Advocate for the parties and we find that the conclusion
of the Trial Court regarding cruelty faced by the Respondent is
not liable to be interfered with.
9. The learned counsel for the Appellant submitted that
the Appellant has been awarded maintenance of Rs.3,000/and
that their daughter was initially awarded a maintenance of Rs.2,000/,
but that has been increased to Rs.5,000/.
The Appellant submits that the maintenance payable to the Appellant
should also be increased. Ms. Purohit, the learned counsel for
the Respondent No. 1 states that the Respondent has also
deposited Rs.5 lakhs towards the marriage expenses of the
daughter. We leave the question of enhancement of maintenance
to be agitated before the Family Court by adopting proper
10. The learned counsel for the Appellant also made an attempt to argue the question of succession by the daughter of the property belonging to the Respondents, however, these proceedings are not appropriate for any decision on this issue.
11. In the result, the Appeal is dismissed. However, there will be no order as to costs.
12. This being the view which we have taken, we do not consider it necessary to decide the Civil Application Stamp No.26752 of 2008 and it is hence disposed of. The Civil Application No.329 of 2008 for injunction is also disposed of.Order Accordingly.
(S. A. BOBDE, J.)
(S. J. KATHAWALLA, J.)