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 Vs.

Mohan Anandrao Deshmukh & Anr.     … Respondents

J U D G M E N T

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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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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