Suvarnalata vs Mohan Anandrao Deshmukh & Anr

dated 18th November, 2003, dismissing Family Court 2

Appeal No.30 of 2003 and the second is the judgment

and order dated 30th August, 2005, passed in Review

Petition No.9108 of 2005, dismissing the Review

Petition as well.

3. At the very beginning it may be mentioned that

the respondent-husband filed a petition for divorce

in the Family Court at Aurangabad on 29th July,

1999, on the ground that the appellant herein is a

patient of schizophrenia. The said petition came

to be allowed by the Judge, Family Court and decree

of divorce was passed in favour of the respondent-

husband.

4. Aggrieved by the decree, the appellant moved

the High Court which affirmed the judgment and

decree of the Family Court.

5. This appeal arises out of Special Leave

Petition (C) No.9482 of 2007 and when notice was

issued on 14th May, 2007, the same was limited to

the question of the findings of the Courts below 3

relating to the mental disorder of the appellant.

Notice was also issued as to payment of a lump sum

amount by the respondent-husband to the appellant

since it was expressly stated on her behalf that

she did not wish to challenge the final decree of

divorce granted in favour of the respondent-

husband. When the matter came up for final

hearing, Ms. Nandita Rao, learned Advocate

appearing for the appellant, urged that the

respondent has remarried after obtaining the decree

of divorce and as a result, since the appellant did

not wish to affect the respondent's second

marriage, she had chosen to confine her challenge

to the judgments of the Courts below to the

findings on issue No.2 alone framed by the Family

Court, namely, as to whether she is suffering from

any mental illness? After referring to the

findings of the Judge, Family Court on the

aforesaid issue, wherein the case of the

respondent-husband had been accepted and the issue 4

was affirmed in the affirmative, Ms. Rao then

referred to the judgment passed by the same learned

Judge of the Family Court at Aurangabad on 28th

December, 2002, on the question of custody of the

minor daughter, Naveli, born of the marriage

between the parties, being Petition A-60 of 2001

filed by the respondent-husband. Ms. Rao pointed

out from the judgment that the stand of the

respondent-husband that he had better credentials

to be granted custody of the minor daughter than

the appellant, was negated by the same learned

Judge after taking into consideration the same

evidence alleging that the appellant suffered from

schizophrenia. Ms. Rao pointed out that the same

learned Judge realized that the earlier order

passed by her in the divorce proceedings had been

obtained on a mis-representation of facts which

amounted to fraudulent behaviour on the part of the

respondent-husband. Ms. Rao pointed out that the

learned Judge of the Family Court observed that 5

after seeing the appellant in Court at the time of

trial and at the time when she gave evidence, it

was difficult for her to come to the conclusion

that the appellant was schizophrenic. Another

circumstance mentioned in the judgment of the

Family Court in the custody matter relating to the

insertion of Copper-T by Dr. Sakulkar, a

Gynaecologist, fully negated the respondent's claim

that during the period in question the appellant

had refused to cohabit with the respondent which

amounted to cruelty on her part towards the

respondent. Ms. Rao submitted that since the

respondent had remarried, the appellant-wife did

not wish to go into the details and was, therefore,

confining her submissions in the appeal to the

quantum of payment of a lump sum amount by way of

permanent alimony.

6. Ms. Rao submitted that the respondent was

leading a luxurious life and it was only incumbent

for the respondent to provide a residence to the 6

appellant and their minor daughter, and to pay a

sum of Rs.75 lakhs by way of permanent alimony.

She prayed for an order accordingly.

7. Appearing for the respondent-husband, Mr.

Ananthbhushan Kanade, learned Advocate, attempted

to emphasize the findings of the Courts below

regarding the alleged mental disorder of the

appellant, but focused more on the amount claimed

by the appellant towards permanent alimony. He

submitted that the claims made by the appellant

were not only without any foundation, but

exorbitant and that the fact that respondent had

purchased an Innova car did not justify the claim

of the appellant.

8. Mr. Kanade also submitted that the claim of the

appellant regarding payment of a lump sum amount by

way of permanent alimony under Section 25 of the

Hindu Marriage Act, 1955, was not maintainable in

view of the pendency of four matters relating to 7

grant of maintenance under Section 125 of the

Criminal Procedure Code and under Section 18 of the

Hindu Adoption and Maintenance Act, 1956, for the

minor daughter. Since on 14th May, 2007, notice was

issued on the application for condonation of delay

and also on the Special Leave Petition on the

question of the findings relating to mental

disorder and payment of lump sum amount to the

appellant and since it was also recorded that the

petitioner did not wish to challenge the final

decree of divorce granted in favour of the husband,

we shall confine our judgment and order to the said

aspects only.

9. As far as the prayer for condonation of delay

in filing the Special Leave Petition is concerned,

we are of the view that sufficient grounds have

been made out to condone such delay, particularly

because a large portion of the delay was on account

of the pendency of the Review Petition which had

been filed against the judgment and order of the 8

High Court dismissing her appeal. The delay in

filing the Special Leave Petition is, accordingly,

condoned.

10. As far as the question of findings relating to

the mental disorder of the appellant is concerned,

we are inclined to accept the subsequent finding

arrived at by the same learned Judge of the Family

Court, who had decreed the suit of the Respondent

No.1 for divorce, in the custody proceedings.

Having regard to the observations made by the

learned Judge while passing orders on the custody

petition of the minor, in our view, we should

desist from making any further observation in the

matter, as we are concerned with the effect such

findings may have on the minor child. Suffice to

say that we are unable to accept and agree with the

findings regarding the appellant's alleged mental

disorder/schizophrenia and have little or no

hesitation in holding that such findings cannot be 9

sustained and have been rightly rejected by the

learned Judge of the Family Court.

11. This brings us to the last question involving

the quantum of permanent alimony under Section 25

of the Hindu Marriage Act. As we have already

pointed out hereinbefore, the said prayer is not

only maintainable but also justified in the facts

and circumstances of the instant case. The

statements made in paragraphs 7 to 12 of the

Rejoinder Affidavit filed by the appellant to the

Counter Affidavit filed on behalf of the respondent

Nos. 1 and 2, have not been denied by the

respondents, except to the extent that the vehicle

indicated had been purchased by the respondents

after obtaining a loan. The list of assets owned

by the respondent No.1, set out as Annexure-1 to

the rejoinder affidavit, indicates that the

respondent No.1 is sufficiently well-off to provide

for a suitable lump sum amount towards permanent

alimony as maintenance to the appellant and her 10

daughter, Naveli, though may not be to the extent

as claimed by the appellant. Since it is not

possible for us on the general information

supplied, to arrive at the estimated income of

respondent No.1, we are of the view that while

retaining the matter in this Court, the Family

Court may be directed to take additional evidence

to ascertain the estimated income of the respondent

No.1 from the list of assets indicated by the

appellant, and, thereafter, to send the same to

this Court for passing final orders in this appeal.

12. It is, therefore, ordered that the appeal be

kept pending for a period of three months and the

records be remitted to the learned Judge, Family

Court at Aurangabad, to take additional evidence

relating to the estimated income of the Respondent

No.1, keeping in mind the list of assets annexed by

the appellant to her Rejoinder Affidavit and to

send back the same to this Court for final disposal

of the instant appeal. Such additional evidence is 11

to be taken within two months from the date of

receipt of a copy of this order by the learned

Family Judge, Aurangabad, and the same is to be

sent to this Court within a fortnight thereafter.

13. Let a copy of this order be sent to the Judge,

Family Court at Aurangabad, Maharashtra, forthwith

and the parties are directed to appear before the

said Court on 26th April, 2010 for the aforesaid

purpose.

................................................J. (ALTAMAS KABIR)

................................................J. (CYRIAC JOSEPH) New Delhi Dated: 05.04.2010.