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The Appellant filed for divorce against his wife because she was diagnosed with an incurable schizophrenic disease. The learned judge G. A. SANAP, J, dismissed the appeal due to lack of substance from the Appellant’s side. The learned judge passed the judgment on 14.01.2022 in the Family Court Appeal No. 95 OF 2014 in DANESH MADHUKARRAO PAHADE V. SMITA DANESH PAHADE.

Facts of the case – On the 4th of February, 1991, the Appellant and the respondent married. The respondent moved in with the Appellant after his marriage. On the 06th of August 1992, the couple had their first child, Swaroopa. The Appellant claims that the respondent has never acted or behaved normally from the commencement of their relationship. The respondent had severe signs of mental illness, which manifested itself in unsettling acts of violence. The respondent and the Appellant’s family used to be always at differences. The respondent’s behavior disrupted the Appellant’s home’s tranquil atmosphere. According to the Appellant, the respondent progressively admitted that she had a mental illness. Mr. Kishor Gojalwar, their family doctor, initially treated her. Dr. Sudhir Bhave, a psychiatrist, was recommended to her by her family doctor. According to Dr. Sudhir Bhave, the responder was depressed. He wrote the prescriptions. The responder took medications for a while but declined to see Dr. Bhave and ceased taking medications.

In 1995, the responder traveled to her parent’s house and stayed there. The Appellant’s daughter was living with him. According to the Appellant, the respondent oppressed him and his family members. According to the Appellant, the respondent abandoned him for more than two years without explaining before filing the petition. The responder has an incurable mental disorder. The Appellant contends that he will be unable to maintain his marriage to the respondent in the future. He petitioned for divorce on the grounds stated above. The claim was disputed by the respondent, who provided a written statement. The respondent rejected the substance of the Appellant’s complaints. According to the respondent, the Appellant and his family members allegedly tormented and abused the respondent in her marital residence. The Appellant and his family drove the respondent out of the home in 1994. She was staying with her parents. The responder has been performing community service. The respondent claims that the Appellant took unfair advantage of the situation to custody the girl. The respondent was forced to retain her daughter in possession of her mother-in-law because she was working.

She had filed the petition after being refused permission to meet her daughter. The petition was denied. She has expressed her willingness to live with and cohabit with the Appellant. After 1994, the Appellant and respondent agreed that they would live apart but that the respondent would not be denied access to the little daughter. The Appellant and respondent settled their minor disagreements in February 2005 and began cohabiting. They decided to share a home for two years. The respondent has expressly disputed that they had cohabited for two years before filing the petition.

Mrs. Padma Chandekar, the learned Advocate for the Appellant, stated that the Appellant’s oral and documentary evidence is coherent, credible, and adequate to accept his case. The learned Advocate has relied on the rulings in Uttara Praveen Thool v. Praveen Bhanudas Thool and Smt. Santana Banerjee v. Sachindra Nath Banerjee to substantiate this position. In these cases, it is concluded that there must be forgiveness and restoration to establish condonation under Section 23 (1) (b) of the Hindu Marriage Act, 1955 and that the stated act must be a bilateral act of both spouses rather than a unilateral act of one of the parties. It is believed that occasional cohabitation to heal a relationship does not constitute a condonation of cruelty. The learned Advocate went on to say that the medical evidence was adequate to show that the respondent was suffering from an incurable Schizophrenia disorder. The three grounds asserted in the divorce case have been proven, according to the learned Advocate for the Appellant, and hence the appeal ought to be accepted.

Shri U. M. Aurangabadkar, the learned Advocate for the respondent, contended that the grounds cited by the Appellant for obtaining a divorce order had not been shown in this instance. The learned Advocate said that the basis of desertion could not be recognized because the petition was filed by the Appellant and respondent in 2005, within two years after establishing the cohabitation. According to the learned Advocate, the parties lived together. They cohabited for two years in 2005 as part of a negotiated settlement, and so the abovementioned act would represent the condonation of the grounds of cruelty and desertion. According to the learned Advocate, in this matter, the Appellant has failed to substantiate the grounds of cruelty, abandonment, and mental instability related to schizophrenia. The learned Advocate has relied on judgments in the cases of Ram Narain Gupta v. Smt. Rameshwari Gupta, Naveen Kohli v. Neelu Kohli, and Kollam Chandra Sekhar v. Kollam Padma Latha establish this contention.

The learned judge declared that the Appellant’s evidence was insufficient to sustain the desertion claim. It is crucial to note at this point that the Appellant and respondent reconciled their differences in 2005 and began living together. As a result, the legal need for separation is not met in this situation. The second critical factor is animus deserendi. There must be clear evidence to prove that the marriage is irreparably destroyed and that the parties have no desire to live together or cohabit. The respondent, in this case, is prepared to live with the Appellant. There is solely Appellant’s testimony on the issue of desertion. He may have investigated his family members to substantiate his findings on the material elements. There is no conceivable rationale for not questioning a family member as a witness in this scenario. It is worth noting that, now that the daughter has reached the age of majority, she would have vouched for both the Appellant’s and the respondent’s actions.

As a result, in the opinion of the learned judges, the basis of desertion cannot be recognized, first, since there is no cause of action, and second, because there is no definite and persuasive proof.

Click here to view the Judgement

Reviewed by Rangasree.