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Ashish S/O Arun Jadhav vs Sau. Surekha W/O Ashish Jadhav on 17 December, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.

Writ Petition No.1403 of 2017
(Ashish Jadhav V Sau. Surekha Jadhav)
And
Writ Petition No.8097 of 2017
(Sau. Surekha Jadhav V Ashish Jadhav)
———————————————————————————————————————-
Office Notes, Office Memoranda of Court’s or Judges Order.
Coram, appearances, Court’s Orders
or directions and Registrar’s orders.
Mr. Kamal Anandani, Counsel for petitioner.
Ms. N.L. Jaiswal, Counsel for respondent.

Coram : Manish Pitale, J.

Dated : 17th December, 2018.

The petitioner (husband) in Writ Petition No.1403 of 2017 is
the respondent in Writ Petition No.8097 of 2017, filed by the wife. These
Writ Petitions challenge two orders passed by the Family Court at Akola.

2. The parties were married on 15-12-2004 and after marriage
they started residing at Akola. There are two children from the wedlock, a
boy aged about 9 ½ years and a girl aged about 11 years.

3. On 23-05-2016, the petitioner in Writ Petition No.1403 of 2017,
filed Divorce Petition, seeking a decree of divorce from the respondent wife
on the ground of cruelty. During the pendency of the Divorce Petition, the
respondent-wife filed an application for grant of custody of the children,
who continued to be with the petitioner-husband after matrimonial dispute
arose between the parties. It is an admitted position on record that the
respondent-wife is presently residing at Bhusawal with her relatives since

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the year 2016. The Family Court Akola disposed of the application for
grant of custody filed on behalf of the respondent-wife (A-Petition No.67 of
2016), by directing that since the children are studying at Akola, the
petitioner i.e. the husband shall bring the children to the Family Court at
Akola, on each working Saturday i.e. first and third Saturday of each month
from 01.00 pm, to 4.00 pm, where the respondent i.e. mother of the
children would be able to meet them. It was further directed the said order
dated 30-11-2016, that the petitioner would handover the custody of the
children to respondent during each long holiday and the custody would be
shared equally during the holidays between the parties before the Family
Court. The petitioner had raised a contention that the respondent was
mentally not balanced and that it would not be safe to handover the
custody of the children to her. But, the Family Court noted that no
document was produced in support of such a contention raised on behalf
of the petitioner. Before this Court, the petitioner has placed on record
documents in the form of prescription and other documents to show that
the respondent was suffering from mental illness. It was claimed that she
was suffering from Schizophrenia and that in these circumstances, the
order of the Family Court granting custody during vacations was not
sustainable. The respondent has denied the claims made in the Writ
Petition on behalf of the petitioner regarding her mental illness.

4. Writ Petition No.8097 of 2017, has been filed by the wife
challenging order dated 22-09-2017, whereby an application filed by the
respondent therein i.e. husband, seeking her examination by a medical
Board was allowed. It was directed in the said order that the Counsel
representing the said respondent i.e husband would suggest the name of

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appropriate Psychiatrist by the next date of hearing.

5. The learned Counsel appearing for the petitioner wife in Writ
Petition No.8097 of 2017, has submitted that the aforesaid order dated
22-09-2017, passed by the Family Court was unsustainable because there
was no issue framed in the Divorce Petition as regards the alleged mental
illness of the wife and that the only issue was regarding alleged cruelty
inflicted by her on the respondent-husband. In absence of framing of
issues in respect of mental illness, reliance placed on documents
specifically placed on record by the respondent husband regarding alleged
mental illness of the wife, was not justified and that therefore, the order
deserves to be set aside. The allegations made on behalf of the husband
regarding mental illness of the wife are serious. But, when the order
impugned in Writ Petition No.1403 of 2017, was passed such documents
were not placed before the Family Court. Thereafter, the copies of the
documents have been placed before this Court, which prima facie indicate
that the respondent-wife may have been taking treatment for mental
illness but in the absence of the documents being proved by procedure
known to law, it would not be proper for this Court to draw any conclusion
in writ jurisdiction. At the same time, a proper finding on detailed evidence
is necessary before the Family Court for further direction as regards the
handing over physical custody of the children during vacations or otherwise
to the respondent wife.

6. The contention raised on behalf of the wife in Writ Petition
No.8097 of 2017, wherein she is the petitioner that in the absence of a
specific issue before the Family Court regarding mental illness, direction for

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her examination by Psychiatrist given in order dated 22-09-2017 is
unsustainable, appears to be justified.

7. In the light of the above, both the Writ Petitions i.e. Writ
Petition Nos.1403 of 2017 and 8097 of 2017, deserve to be partly allowed
in the following terms :

(a) The order dated 30-11-2016, passed by the
Family Court which is the subject matter of challenge in
Writ Petition No.1403 of 2017, is modified to the extent
that the petitioner therein i.e. Ashish Jadhav, shall
bring the children to the Family Court at Akola on each
working Saturday i.e. first and third Saturday of each
month from 1.00 pm to 4.00 pm., so that they will be
able to meet respondent wife Surekha Jadhav. The
direction of handing over children during half of the
long vacations to respondent wife Surekha is set
aside.

(b) The Family Court is directed to consider the
prayer for grant of custody of children to the wife in the
separate proceeding already initiated by her under
Section 6 of the Guardian and Wards Act, 1890, after
taking into consideration the documents pertaining to
alleged mental illness of the respondent wife.

(c) This Court is not expressing any opinion on the

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merits of the claims of the parties as regards alleged
mental illness of the respondent wife.

(d) The order dated 22-09-2017, passed by the
Family Court, which is the subject matter of challenge
in Writ Petition No.8097 of 2017, is set aside. The
respondent therein i.e. husband Ashish is granted
liberty to apply to the Family Court to frame a specific
issue as regards alleged mental illness of the petitioner
therein i.e. Surekha, on the basis of the documents
which he has relied upon to claim that she is mentally
unfit.

(e) The petitioner wife Surekha would be entitled to
oppose such an application on merits before the Family
Court.

(f) Upon the parties approaching the Family Court in
terms of the liberty granted in this order, the Family
Court shall decide the prayers made on their behalf as
expeditiously as possible.

8. Writ Petitions are disposed of.

JUDGE
Deshmukh

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