Court: Bombay High Court
Bench: JUSTICE V.K. Tahilramani & V.L. Achliya
Hemali Bindesh Kelaiya Vs. Bindesh Jayantilal Kelaiya On 13 May 1994
Law Point:
Hindu Marriage Act, 1955 — Sections 13(1)(ia), 13(1)(iii) — Evidence Act, 1872 — Section 65 — Cruelty — Mental disorder — Failure to prove both grounds — Non-entitlement of wife to get decree of divorce, residential accommodation — All the incidents of cruelty stated by appellant-wife except one are vague in nature — Marriage life should be reviewed as a whole and few isolated instances over period of years will not amount to cruelty — Evidence of respondent-husband remains unchallenged that he had not treated her with cruelty or given abuses and assaulted her — That appellant herself left matrimonial house and did not come back when respondent made attempts to bring her back for cohabitation — As regards mental illness of respondent, viz., schizophrenia, there is non-compliance of Section 65 of Evidence Act before leading secondary evidence — Medical papers produced by doctor are not primary but secondary evidence — Respondent, even if he did suffer from schizophrenia, it was not to such an extent as to make living together impossible — Merely branding a spouse as schizophrenic is not sufficient — Averment of respondent that he did not suffer from “paranoid schizophrenia” has not been dislodged in cross-examination — No dent created in this averment in cross-examination that respondent had not given any mental or physical cruelty to appellant by giving abuses and beating — Appellant failed to prove that she has contributed Rs. 2 lacs for purchasing new flat and spent Rs. 4 lacs to 5 lacs for furnishing and decorating flat — She is not entitled for any residential accommodation as prayed — Appellant failed to prove her case.
JUDGEMENT
The appellant-wife has filed this appeal against the judgment and order dated 6.6.2013 passed by the Family Court No. 5, Mumbai in Petition No. A-182 of 2008. Petition A-182 of 2008 was filed by the appellant before the Family Court claiming decree of divorce on the ground of cruelty and on the ground that the respondent is suffering from mental disorder, Thus, the petition was filed under Section 13(1)(i-a) and Section 13(1)(iii) of the Hindu Marriage Act, 1955. In the said petition, she has also prayed for grant of accommodation and for return of her ‘Stridhan’ as per the list attached to the petition.
2. The case of the appellant is that her marriage with the respondent took place on 26.1.2000 at Mumbai. After marriage, she started cohabiting with the respondent. During their co-abitation, she noticed that the respondent is suffering from mental sickness. He used to have recurrent attacks of mental disorder/illness due to which, he became violent and he gave abuses and assaulted her, thus, causing her mental and physical cruelty. According to the appellant, the respondent gave her abuses and assaulted her on 26.1.2000 at the time of their honeymoon, in February, 2003 when they had gone to South India, on 27.10.2003, in August, 2004, in January, 2006, September, 2006, 23.4.2007 and on 5.5.2007. According to the appellant, on 23.4.2007, the respondent gave abuses and beat her mercilessly. Due to fear, she was compelled to leave the matrimonial house. Therefore, since 23.4.2007, she is staying at her parents’ house. On 5.5.2007 the respondent came to her parents’ house. He caught her hand and was pulling her in presence of her father and her brother and he was screaming at her. The appellant’s father and brother tried to rescue the appellant from the clutches of the respondent. At that time, the respondent gave abuses in filthy language and assaulted her father and brother.
3. The further case of the appellant is that the respondent had purchased a new flat and the appellant had contributed Rs. 2,00,000 for purchasing the flat. She also spent amount for decorating the flat, therefore, she has claimed accommodation. According to the appellant, her belongings as per the list attached to the petition, were in the custody of the respondent, hence, she had claimed for return of her ‘Stridhan’. As far as this aspect is concerned, it may be stated at this stage that before the Family Court at the time of arguments, the learned Advocate for the appellant submitted that the appellant has received all her ‘Stridhan property’ as per the list and there is no ‘Stridhan property’ remaining in the custody of the respondent. In view of these facts, it is not necessary for us to go into the issue of return of ‘Stridhan’.
4. The respondent had contested the petition by filing his written statement. He admitted the marriage. He also admitted that the appellant was staying at her parents’ home since 23.4.2007. The rest of the allegations are denied by him.
5. In order to prove her case, the appellant has adduced her evidence by filing affidavit by way of examination-in-chief. She has also adduced evidence of Dr. Kaustub Mazumdar PW-2 and the evidence of her employer Rajesh Ghatalia PW-3. Thereafter, she has closed her evidence. In order to rebut the claim of the appellant, the respondent-husband has adduced his evidence by filing his affidavit by way of examination-in-chief and, thereafter, he has closed his evidence.
6. We have heard the learned Counsel for the appellant-wife and the learned Counsel for the respondent-husband. We have carefully considered their oral evidence as well as the documentary evidence led by both the parties. The issues which we are called upon to decide, are:
(1) Whether after solemnization of marriage, the respondent treated the appellant with cruelty?
(2) Whether the appellant has proved that the respondent has been incurably of unsound mind and has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent?
(3) Whether the appellant is entitled to a decree of divorce under Section 13(1)(i-a) and 13(1)(iii) of the Hindu Marriage Act, 1955?
(4) Whether the appellant is entitled for residential accommodation from the respondent?
The first three issues are interconnected, therefore, it is necessary to decide them together in order to avoid repetition of evidence.
7. It is an admitted fact that both the appellant and the respondent were married to each other on 26.1.2000 at Mumbai as per Hindu Vedic Rites. They are living separately from 23.4.2007. The appellant has stated that the respondent is suffering from mental disorder and he had not disclosed it to her before their marriage. Due to mental disorder, the respondent became violent and aggressive and he caused her mental and physical cruelty by giving abuses and beating her. On 26.1.2000 when they both had gone for honeymoon, he beat her and he also beat her in the month of February, 2003 when they both had gone to South India and in August, 2004. The respondent had beaten her mercilessly in January, 2006. The respondent had given abuses and assaulted her in the presence of her parents in September, 2006. On 11.2.2007 he had assaulted her. On 23.4.2007 he had beaten her mercilessly and compelled her to leave the matrimonial house and since then she is staying with her parents. On 5.5.2007 the respondent had come to her parent house, pulled her hand, screamed at her and had given abuses and assaulted by hand to her brother and father. The respondent has denied all the above allegations and the happening of alleged incident. The respondent has cross-examined the appellant in order to discredit her statements made in examination-in-chief. The appellant has admitted in unequivocal words that she has not filed any complaint before the police and she has also not made any complaint before her parents regarding the alleged cruelty caused to her by the respondent. If the husband caused mental and physical cruelty to the wife by giving abuses and assaulting her mercilessly, then in normal circumstances, it is expected that a complaint will be filed before the police against the husband either by the victim or by her relatives. Admittedly, in present case, neither the appellant nor her brother or parents have filed any criminal complaint against the respondent regarding causing her mental and physical cruelty.
8. The appellant has stated in her evidence that the respondent had abused and assaulted her in January, 2006 in presence of her parents but neither the appellant nor her parents have filed any criminal complaint against the respondent nor have her parents been examined to support her case. Her evidence further shows that on 5.5.2007, the respondent had given abuses in filthy language and assaulted her father and brother but they have also not filed any complaint against the respondent. Her evidence further shows that her father and brother were assaulted but still they have not filed any complaint against the respondent. The appellant’s father and brother are natural eye-witnesses and victims of alleged abuses and assault on them by the respondent. Therefore, it is incumbent on the appellant to adduce evidence of her father and brother to support and to corroborate her evidence. Admittedly, the appellant has not adduced evidence of her father or brother. She has withheld the best witnesses which are easily available to her. She has also not given any proper explanation for not adducing evidence of the best witnesses i.e. her father and brother. Therefore, in this situation, adverse inference can be drawn against the appellant for non-examination of such material witnesses. Therefore, in such situation, it creates doubt about the truthfulness of the evidence of the appellant.
9. According to the appellant, the respondent gave her abuses and assaulted her on various occasions i.e. on 26.1.2000 at the time of honeymoon, in February, 2003 in South India, on 27.2.2003, in August, 2004, in January, 2006, in September, 2006, on 23.4.2007 and on 5.5.2007. As far as the incidents relating to January, 2006 and 5.5.2007 are concerned, according to the appellant, they occurred in presence of her father and brother, however, both of them have not been examined in relation to these incidents to support and corroborate the evidence of the appellant. On 5.5.2007, it is the case of the appellant that the respondent assaulted her father and her brother. It is not her case that she was assaulted on that day. Yet she has not examined her father and her brother. It is not known why she has not examined the best witnesses who were easily available to her. This raises doubt about the veracity of her evidence.
10. As far as the incident dated 26.1.2000 is concerned, according to the appellant, it occurred on their honeymoon when they had gone for honeymoon for 15 days through package tour. There were 8 to 10 couples in the tour. Appellant asked the respondent why they could not enjoy like other couples. Whereupon, he became furious and started behaving in a rude manner and started saying bad words. The appellant has not stated exactly in what manner the respondent behaved, which according to her, was rude behaviour. She has not stated what were the words stated by the respondent. Thus, these allegations are found to be very vague and they would not be of much help to the appellant. Thereafter, according to the appellant, in the month of February, 2003, they had gone to South India for two weeks. She has stated that on almost every day of their stay, the respondent used to argue with her on small issues and used to beat her. The appellant has not stated on what issues or things the respondent used to argue with her about or beat her. She has not stated that any injury was caused to her. No details have been furnished by the appellant, which makes her case unreliable. The appellant has stated that on 27.10.2003, the respondent abused her and stated bad words to her when her mother had expired. Again no details have been stated by the appellant so as to make her case believable. Her allegations are vague in nature. Thus, we find no credence can be given to them.
11. According to the appellant, in August, 2004 the respondent had beaten her so mercilessly that she could not bear the pains and went to her parents’ house. Again the reason for beating her up, has not been stated nor has she stated what were the injuries sustained by her. No medical certificate has been produced by her to substantiate her claim. She has stated that she disclosed to her father and her brother about the incidents but they have not been examined to support and corroborate her case. We have already discussed above about the incidents which according to the appellant, occurred in January, 2006 and on 5.5.2007. Hence, we will not reiterate here our discussion in relation to those incidents.
12. It is further the case of the appellant that in the month of September, 2006 she had served “chhole and bread” to the respondent. The respondent behaved in an ill-mannered way. He had had arguments with his father few minutes before the dinner. The respondent then threw the plate of food and spoiled the hall. He also threw the appellant’s food in the dust bin and shouted at everybody. As far as this incident is concerned, assuming it is true, it is seen that the respondent was angry with his own father and not the appellant and the incident occurred as the respondent had had an argument with his father just a few minutes before, it is further the case of the appellant that she was slapped by the respondent and respondent pressed the neck of his own mother. The respondent then asked his father to clean the room and went to sleep. Besides the incidents relating to January, 2006 and 5.5.2007 which we have already dealt with, this is the only incident about which necessary details have been given by the appellant. This incident occurred as the respondent had had a fight with his father and had nothing to do with the appellant. The respondent did not express his anger only towards the appellant but during this incident he expressed his anger towards all the members of his family. From this incident, it cannot be said that the respondent treated the appellant with cruelty. Married life should be reviewed as a whole and few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period where the relationship has deteriorated to such an extent that because of the acts and behaviour of a spouse, the wronged party found it extremely difficult to live with the other party any longer. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life, would not be adequate for grant of divorce on the ground of mental cruelty. The question whether the act of cruelty complained of, really amounts to cruelty, has to be determined from whole facts and the matrimonial relations between the parties. As to what constitutes the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.
13. In relation to the allegations of the appellant regarding the cruelty by the respondent, it is well settled law that burden of proving cruelty lies heavily upon the person who makes the allegations. In the present case, all the incidents stated by the appellant except the incident in the month of September, 2006, are vague in nature. No details have been furnished by the appellants in respect thereof. As far as the incident relating to September, 2006 is concerned, it appears that anger of the respondent was directly towards his father as he had had heated arguments with his father just few minutes prior to the incident. As stated earlier, the marriage life should be reviewed as a whole and few isolated instances over a period of years will not amount to cruelty. As far as the incident relating to January, 2006 and 5.5.2007 are concerned, the best witnesses i.e. father and brother of the appellant have not been examined to substantiate the claim of the appellant. It is pertinent to note that the respondent has denied all these allegations. The respondent has been cross-examined. The respondent has specifically pleaded and stated in his evidence that he had not given mental and physical cruelty to the appellant by giving her abuses and beating. He has denied all the alleged incidents of cruelty to the appellant by him. He has not at all been dislodged in his cross-examination. It is to be noted that the respondent has specifically stated in his evidence that on 23.4.2007, the appellant herself left the matrimonial home stating that she would come back within ten days to the matrimonial home. She stated that she had to go to her parents house for the purpose of tax accounting of her father’s business. Thereafter, he called her for cohabitation but she did not come as stated by her and on 5.5.2007 he was called by the appellant’s father to their home. Accordingly, he went to the house of the appellant’s father in an auto-rickshaw to bring her back for cohabitation but the appellant did not come with him and at that time, the appellant’s brother and father assaulted him and drove him away. The appellant has not challenged the above evidence of the respondent during the cross-examination that he had not treated her with cruelty and he had not given abuses and assaulted her, therefore, the above evidence of the respondent, remains unchallenged. Therefore, on this piece of evidence, it can safely be held that the appellant left the matrimonial home on 23.4.2007 of her own accord stating that she would come back within ten days for cohabitation. It is pertinent to note that the appellant has also admitted in her cross-examination that the respondent made attempts to bring her back for cohabitation but she did not come back to the matrimonial home.
14. In order to prove the cruelty, the appellant has also examined PW-3 Rajesh Ghatalia who was her employer. This witness has admitted that he has not personally seen the violent behaviour of the respondent towards the appellant. He has clearly stated in his cross-examination that he has not witnessed any such incidents. Therefore, it is not necessary to rely on the hearsay evidence of PW-3 Rajesh Ghatalia when eye-witnesses are available.
15. The appellant is also seeking divorce on the ground of mental illness of the respondent. In order to prove that the respondent is suffering from mental illness, the appellant has examined PW-2 Dr. Mazumdar. Dr. Mazumdar has stated in his evidence that he is working as Psychiatrist in B.A.R.C. (Bhabha Atomic Research Centre). The respondent is also working in the said Research Centre. Dr. Mazumdar knew the respondent as they were both working in one and same Institution. He has stated that the respondent was taking treatment from him. The respondent had come to his department with symptoms of “paranoid schizophrenia”. The Doctor has produced xerox copies of medical papers of the respondent. It is pertinent to note that the appellant has not produced the original medical papers of the respondent. PW-2 Dr. Mazumdar has admitted that the originals of medical papers of the respondent are, with B.A.R.C. however, they were not produced before the Court and only xerox copies of the medical papers were produced. Thus, the medical papers have not been proved according to law. It is well settled that the burden of proving a fact lies heavily upon the person who makes the allegations. The appellant has not complied with the legal requirements to prove the contents of the xerox copies. Therefore, the medical papers (Exh. 28) cannot be read in evidence against the respondent. Admittedly, the medical papers produced by PW-2 Dr. Mazumdar are not primary evidence but those are secondary evidence. Admittedly, the appellant has not taken permission from the Court before leading such secondary evidence. The appellant was required to comply with Section 65 of the Indian Evidence Act before leading secondary evidence which has not been done by the appellant.
16. The Hon’ble Apex Court has observed in the case of U. Sree v. Srinivasi, I (2013) DMC 91 (SC)=IX (2012) SLT 434=I (2013) CLT 70 (SC), that:
“Secondary evidence relating to contents of a document is in-admissible until non-production of original is accounted for, so far as to bring it within one or other cases provided for under Section 65 of the Indian Evidence Act.”
Admittedly, the medical papers are not the original or certified copies issued by the B.A.R.C. The medical papers, pages 1 to 52 are not in the handwriting of PW-2 Dr. Mazumdar. He is not the author of the documents. He has not given the proper explanation for non-production of the original medical papers. The mandatory essential requirements of Section 65 of the Indian Evidence Act, have not been complied with by the appellant. Therefore, in this situation and considering the above observation of the Hon’ble Apex Court in the above authority, in our opinion, the appellant has failed to prove the medical papers produced at Exh. 28. Therefore, the medical papers produced at Exh. 28 cannot be read in evidence against the respondent.
17. The respondent has specifically stated in his evidence that due to project work and continuous work pressure he was not getting proper sleep, and therefore, he used to take medicines. Dr. Mazumdar has stated in his evidence that the respondent used to take tablets as per his prescription. He has also stated in his cross-examination that the respondent approached B.A.R.C. hospital personally due to work pressure and sleeplessness. He has stated in his evidence that he has prescribed “Trinicalmplus and CPZ” to the respondent. PW-2 Dr. Mazumdar has further admitted in his cross-examination that the above tablets reduce stress and enable proper sleep. The respondent has taken medical treatment for that purpose. Dr. Mazumdar has admitted in his cross-examination in para 13 that he has not prescribed any medicines to the respondent between June, 2007 to September, 2007. He has further admitted in the same paragraph that as per his advice the respondent stopped taking medicines during the above period. In view of the above discussion, in our opinion, the evidence of PW-2 Dr. Mazumdar does not prove that the respondent is suffering from mental disorder to such an extent that it was difficult for the appellant to live with the respondent.
18. The respondent has stated in his evidence that he was working in B.A.R.C. i.e. Nuclear Power Corporation India Ltd. He had been promoted. He also worked as the Secretary of the society from 2002 to 2007. He is still performing his official work and he is not suffering from any mental disorder. Hence, on this basis, it can safely be held that he is not suffering from any mental disorder to such an extent as to make it difficult to live with him.
19. The appellant has not stated in her evidence that the respondent was hospitalized for some period of time or repeated electric shock treatment was given to the respondent. The appellant’s witness PW-2 Dr. Mazumdar has also not stated in his evidence that the respondent was hospitalized for some period of time for his alleged mental disorder and electric shock treatment was given to him. In fact, Dr. Mazumdar has stated that if the patient is violent and aggressive, they gave electric shock. This shows that the respondent’s behaviour was not so violent or aggressive so as to give him electric shock treatment. Dr. Mazumdar has admitted that on 2.4.1998 the respondent approached B.A.R.C. hospital due to work stress and sleeplessness. He prescribed “Trinicalmplus and CPZ” on 2.4.1998 to the respondent. Dr. Mazumdar has further admitted that these tablets were prescribed to reduce stress to enable proper sleep to the respondent. Dr. Mazumdar has stated that from December, 2004 onwards, he had prescribed “Olanex tablets of 2.5 mg.” to the respondent. Dr. Mazumdar has admitted that he had not prescribed any medicines to the respondent between the period from June, 2006 to September, 2007. He has admitted that that as per his advice, the respondent stopped taking medicines during this period. It has come in the evidence of Dr. Mazumdar that “Olanex” tablets are available in 2.5 mg., 5 mg., 7.5 mg., and 10 mg. Thus, this shows that lowest possible dosage was being given to the respondent. PW-2 Dr. Mazumdar who is the appellant’s witness, has also stated about the promotion of the respondent from “B” Grade to “C” Grade. He has also stated that he was aware that the respondent was the Secretary of the society of his building Royal Accord. This shows that the respondent was not suffering from such a disorder that the appellant cannot reasonably be expected to live with him.
20. Mrs. Agarwal, the learned Counsel for the appellant has placed reliance upon the decision of the Supreme Court in the case of Vinita Saxena v. Pankaj Pandit, reported in I (2006) DMC 531 (SC)=II (2006) CLT 19 (SC)=128 (2006) DLT 387 (SC)=III (2006) SLT 78=AIR 2006 SC 1662. Mrs. Agarwal pointed out that in the said case, the husband was suffering from mental disorder. It was a case of “paranoid schizophrenia” which is similar to the illness of the present respondent. She pointed out that in the said case, it was held that the wife, was entitled to a decree of divorce. We have carefully gone through the said decision. In the said decision, it is noticed that the husband was suffering from mental disorder and was not able to have sexual relationship with wife, due to which, the marriage was not consummated. The Supreme Court in the said decision held that this fact by itself construes “mental cruelty” and is a good ground for grant of divorce. Moreover, in the said case, the husband attempted to commit suicide and was a case of “paranoid schizophrenia”. The parties were living separately and had not seen each other since last 13 years. Considering humane aspect, the Supreme Court held that the wife was entitled to a decree of divorce. Thus, it is seen that it was not only on the ground that the husband was suffering from “paranoid schizophrenia” that divorce was granted but it was mainly on account of the fact that the husband was not able to have sexual relationship with the wife which resulted in non-consummation of marriage, which according to the Supreme Court, constitutes mental cruelty and is a good ground to grant divorce and divorce was granted. No doubt, the husband was suffering from “paranoid schizophrenia”, but the Supreme Court has observed that under Section 13(1)(i-a) “mental disorder” as a ground of divorce is only where it is of such a kind and degree that the appellant-wife cannot reasonably be expected to live with the respondent-husband. In the present case, it is seen that the respondent was working in a responsible post in B.A.R.C. He had been promoted. He was working as Secretary of his society for a number of years during the period that the appellant was married to him. From these facts, it is seen that the husband i.e. respondent was able to live a normal life.
21. The legal question that arises for our consideration is whether the marriage between the parties can be dissolved by granting a decree of divorce on the basis of one spouse’s mental illness which includes schizophrenia under Section 13(1)(iii) of the Act. In the English case of Whysall v. Shysall, (1959) 3 All.ER 389, it was held that a spouse is incurably of unsound mind if he or she is of such mental incapacity as to make normal married life impossible and there is no prospect of any improvement in mental health, which would make this possible in future. Mental disorder of the husband even if proved, cannot, by itself, warrant a decree of divorce and it must be further proved that it is of such a nature as the wife could not be expected to live with the husband. Inability to manage his or her affairs is an essential attribute of an incurably unsound mind. The facts pleaded and the evidence placed on record produced by the appellant in this case, does not establish such inability as a ground on which dissolution of marriage was sought for by her before the Trial Court. It is, thus, clear that the respondent, even if he did suffer from schizophrenia, it was not to such an extent as to make living together impossible.
22. Merely branding a spouse as a schizophrenic is not sufficient. The degree of mental disorder of the spouse must be proved to be such that petitioning spouse cannot reasonably be expected to live with the other. The Supreme Court in the case of Ram Narain Gupta v. Rameshwari Gupta, reported in II (1988) DMC 364 (SC)=AIR 1988 SC 2260, has held that the degree of mental disorder must be proved. It should be such that the petitioning spouse cannot reasonably be expected to live with the other. The context in which the ideas of unsoundness of “mind” and “mental disorder” occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the “mental disorder”. Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognized as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage, few marriages would, indeed, survive in law. But the personality disintegration that characterizes this illness may be of varying degrees. Not all schizophrenics are characterized by the same intensity of the disease. The mere branding of a person as schizophrenic therefore, will not suffice. For the purpose of Section 13(1)(iii) “schizophrenia” is what schizophrenia does. According to Clause (iii), two elements are necessary to get a decree. The party concerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder. At the same time that disease must be of such a kind and of such an extent that the other party cannot reasonably be expected to live with him. So only one element of that clause is insufficient to grant a decree.”
23. As stated earlier, the respondent has denied that he was suffering from any such mental illness and according to him, he was taking medication as he was suffering from stress and sleeplessness. The respondent has been cross-examined at length. This averment of the respondent that he did not suffer from “paranoid schizophrenia” has not been dislodged in the cross-examination. The respondent has also stated that he had not given any mental or physical cruelty to the appellant by giving her abuses and beating. No dent has been created in this averment in the cross-examination. In view of the above discussion, in our opinion, the appellant failed to prove that the respondent-husband treated her with cruelty and her husband i.e. the respondent is suffering from any mental disorder of such nature that she cannot be reasonably expected to live with him. In our view, the evidence of the respondent shows that there was minor wear and tear of their married life. It is a settled law that a decree of divorce cannot be granted on minor wear and tear of married life. Therefore, the appellant is not entitled to get the decree of divorce on the ground of cruelty and mental disorder of the respondent as per Section 13(1)(i-a) and 13(1)(iii) of the Hindu Marriage Act, 1955.
24. The Appellant has also claimed residential accommodation on the ground that she had contributed Rs. 2,00,000 at the time of purchasing a new flat. She has also spent Rs. 4,00,000 to Rs. 5,00,000 for furnishing and decorating the flat. The respondent has denied the above allegations of the appellant. He has specifically pleaded and stated in his evidence that he had repaid Rs. 2,00,000 to the appellant by cheque. This averment of the respondent has been admitted by the appellant in her cross-examination. Paragraph 41 of her cross-examination shows that the respondent repaid Rs. 2,00,000 to her. As far as her averment that she had spent Rs. 4,00,000 to Rs. 5,00,000 on furnishing and decorating the flat is concerned, she has not adduced any type of cogent or documentary evidence to prove that she has spent Rs. 4,00,000 to Rs. 5,00,000 for furnishing and decorating the flat. Thus, we find that the evidence of the appellant is doubtful and not trustworthy and in our view, the appellant has failed to prove that she had contributed any amount at the time of purchasing of the flat. The respondent has specifically stated in his evidence that he has purchased the flat by taking loan and his parents also contributed towards the same. This evidence of the respondent has not at all been challenged during his cross-examination. The appellant has not produced any purchase deed or share certificate to prove her joint ownership over the disputed flat. Therefore, the evidence of the respondent that he is owner of the flat, appears to be trustworthy and believable. In such circumstances, we hold that the appellant failed to prove that she has contributed Rs. 2,00,000 for purchasing new flat and spent Rs. 4,00,000 to Rs. 5,00,000 for furnishing and decorating the flat. Therefore, she is not entitled for any residential accommodation as prayed.
25. On going through the entire evidence on record, we are of the opinion that the appellant failed to prove her case. There is no merit in the appeal. The appeal is, therefore, dismissed.
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