Suvarnalata
Vs. Mohan Anandrao Deshmukh & ANR. [2010] INSC 254 (5 April 2010)
Judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2994
OF 2010 (Arising out of S.L.P.(C)No.9482 of 2007) Suvarnalata ... Appellant
Mohan Anandrao Deshmukh & Anr. ... Respondents
ALTAMAS
KABIR, J.
1.
Leave granted.
2.
In this appeal the appellant has challenged two orders passed by
the Aurangabad Bench of the Bombay High Court. The first is the judgment and
order 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.
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