advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, September 20, 2013

Curable mental disorder -No ground for divorce = 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. Whysall[4], 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. The High Court of Judicature at Calcutta, in Pramatha Kumar Maity v Ashima Maity[5] has held that mental disorder of the wife, 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 husband could not be expected to live with the wife. The Allahabad High Court, in Mt. Tilti Vs. Alfred Rebert Jones[6] has held that where it has come on record that the wife has improved her educational qualifications and has been looking after her children, the apprehension of the husband that there is danger to his life or to his children is not borne out is the finding recorded in the said case. 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 him before the trial court.= It is thus clear that the respondent, even if she did suffer from schizophrenia, is in a much better health condition at present. Therefore, this Court cannot grant the dissolution of marriage on the basis of one spouse's illness. The appellant has not proved the fact of mental disorder of the respondent with reference to the allegation made against her that she has been suffering from schizophrenia by producing positive and substantive evidence on record and on the other hand, it has been proved that the respondent is in much better health condition and does not show signs of schizophrenia as per the most recent medical report from NIMHANS, as deposed by PW-4 in his evidence before the trial court.- Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly. In the Vedic period, the sacredness of the marriage tie was repeatedly declared; the family ideal was decidedly high and it was often realised[7]. In Vedic Index I it is stated that “The high value placed on the marriage is shown by the long and striking hymn”. In Rig Veda, X, 85; “Be, thou, mother of heroic children, devoted to the Gods, Be, thou, Queen in thy father-in- law’s household. May all the Gods unite the hearts of us “two into one” as stated in Justice Ranganath Misra’s ‘Mayne’s Treatise on Hindu Law and Usage’[8]. Marriage is highly revered in India and we are a Nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case, the respondent was unwell and was taking treatment for the same. The illness had its fair share of problems. Can this be a reason for the appellant to abandon her and seek dissolution of marriage after the child is born out of their union? Since the child is now a grown up girl, her welfare must be the prime consideration for both the parties. In view of the foregoing reasons, we are of the opinion that the two parties in this case must reconcile and if the appellant so feels that the respondent is still suffering, then she must be given the right treatment. The respondent must stick to her treatment plan and make the best attempts to get better. It is not in the best interest of either the respondent or her daughter who is said to be of adolescent age for grant of a decree of dissolution of marriage as prayed for by the appellant. Hence, the appeal is liable to be dismissed. Accordingly, we dismiss the appeal and uphold the judgment of the High Court in not granting a decree of divorce and allowing the petition for restitution of conjugal rights. Therefore, we grant a decree for restitution of conjugal rights under Section 9 of the Act in favour of the respondent.

       published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40785           
                               REPORTABLE




                 IN      THE      SUPREME       COURT       OF       INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.8264 OF 2013

                  (Arising out of SLP (C) No. 3544 of 2007)




          KOLLAM CHANDRA SEKHAR                       ... APPELLANT

                                     Vs.

           KOLLAM PADMA LATHA                        ... RESPONDENT



                               J U D G M E N T

V. Gopala Gowda, J.



       Leave granted.

2.     This appeal is directed against the common judgment and  order  dated
28.09.2006 passed in CMA No. 2858 of 2002 and CMA No. 2859 of  2002  of  the
High Court of Andhra Pradesh as it has set aside the judgment and decree  of
divorce granted in favour of the appellant-husband dissolving  the  marriage
between the appellant and respondent by  dismissing  the  Original  Petition
No. 203 of 2000 filed by the appellant for  dissolution  of  their  marriage
under Section 13 (1)(iii) of the Hindu Marriage Act,  1955  (in  short  ‘the
Act’) and allowing the Original  Petition  No.  1  of  1999  filed  by   the
respondent-wife against the appellant by granting  restitution  of  conjugal
rights urging various facts and legal contentions.

3.  The factual and rival legal contentions urged on behalf of  the  parties
are adverted to in this judgment with a view to examine  the  tenability  of
the appellant's submissions.  The relevant facts are stated as hereunder:

      The marriage between the appellant and the respondent  was  solemnized
on 31.05.1995 at Kakinada (Andhra Pradesh) as per Hindu  rites  and  customs
and their marriage was consummated.  It is the case of  the  appellant  that
at the time of marriage, he was working as Senior Resident at the All  India
Institute of Medical Sciences in New Delhi. After marriage, the  respondent-
wife joined the appellant at New Delhi and secured employment  in  the  said
Institute.

4.   It is the case of both the parties that when they were living  at  New
Delhi, the brother of the appellant died in an accident.  At that point  of
time, the appellant herein came  to  Yanam  (Andhra  Pradesh)  leaving  the
respondent at Delhi, who gave birth to a female child on 07.07.1997.

      It is contended by the  learned  senior  counsel  for  the  appellant,
Mr.Jaideep Gupta, in the pleadings that dispute arose between the  appellant
and his parents on the one hand and the in-laws of the deceased  brother  of
the appellant on the other.  There  were  threats  to  kill  the  appellant.
During that period,  respondent’s  father  stayed  in  the  company  of  the
appellant and his parents at Yanam.   At that time, both the  appellant  and
the respondent suffered tensions and they were restless on  account  of  the
situation created by the in-laws of the appellant’s deceased brother.   Both
of  them  received  medical  treatment  and  due  to  depression,  appellant
submitted his resignation and the respondent also resigned from her  job  at
AIIMS.  The appellant then joined as Assistant Professor in Gandhi  Hospital
at Secunderabad. The respondent and the child also joined him at  Hyderabad.
 It is their further case that while they were in Hyderabad,  the  appellant
used to receive threatening calls from the in-laws of his  deceased  brother
which used to create tension in their family.  The  respondent  was  treated
for hypothyroidism problem.

5.   In the counter statement filed by the respondent, she  contended  that
after one year of their marriage, the appellant  and  his  parents  started
harassing her by demanding colour television,  refrigerator  etc.   In  May
1998, after the death of the father of the respondent, the  appellant  went
on insisting that the respondent gets the  house  situated  at  Rajahmundry
registered in his name and when she refused, he  started  to  torture  her.
The respondent applied for post-graduate entrance  examination,  which  was
scheduled  to  be  held  on  13.08.1998,  and  the  appellant  was   making
arrangements to  go  to  Madras  on  12.08.1998  in  connection  with  FRCS
admission. On 11.08.1998, the  appellant  picked  up  a  quarrel  with  the
respondent insisting that she must get the house at Rajahmundry  registered
in his name to which she did not agree. The respondent also  requested  him
not to go to Madras as she has to appear  for  the  Post-Graduate  entrance
examination on  13.08.1998  for  which  the  respondent  alleged  that  the
appellant badly tortured her both physically and mentally. A  telegram  was
sent to her mother with false allegations of her mental illness with a view
to create evidence as he could have as well conveyed  the  message  through
telephone as there was telephone facility at the house of her  parents.  As
the appellant was preparing to appear for FRCS examination and would  spend
most of his time in the libraries and the respondent and their child  would
be left alone without help, he suggested that the appellant  should  go  to
Rajahmundry and stay with her parents to  which  she  agreed  and  went  to
Rajahmundry and joined Chaitanya Nursing Home and Bhavani Nursing  Home  to
work as a doctor.  In the second week of November, 1998, the appellant came
to Rajahmundry and asked the respondent to go to Yanam and  stay  with  his
parents saying that she can have the company of his  parents  and  she  can
carry on the medical profession along with his father who was also a doctor
to which she agreed. Thereafter, the appellant got issued  a  notice  dated
25.11.1998 to the respondent making certain false allegations  saying  that
she was suffering from schizophrenia and she had suicidal tendencies  etc.,
with the object of marrying again for fat dowry.  The respondent has denied
that she suffered from schizophrenia or  suicidal  tendencies  and  further
stated that during her delivery days and subsequently  on  account  of  the
threats received from in-laws of the appellant’s  deceased  brother,  there
was some depression for which the respondent was treated and the  appellant
never allowed her to go through  the  prescriptions  of  her  treatment  at
anytime and she was also not allowed to see the medicines given to  her  as
part of treatment for her depression.    It  is  stated  by  her  that  she
believes that as part of the ill motive of the  appellant,  he  might  have
administered some medicines to build up a false case  against  her  with  a
view to file petition for  dissolution  of  marriage.  The  respondent  got
issued a reply notice to the lawyer of the appellant mentioning  the  above
facts on 18.12.1998.

6.   It is  further  contended  by  the  learned  senior  counsel  for  the
respondent, Mr. Pallav Sisodia, that the appellant never cared for her  and
encouraged his parents to dislodge her from the family  house.   She  filed
O.S. No.53 of 1998 on the  file  of  District  Munsif’s  Court,  Yanam  for
permanent injunction  against  the  parents  of  the  appellant  and  filed
Interlocutory Application No. 237 of 1998 for temporary injunction  against
them not to evict her from the residential house where she was staying.  It
is further stated that the appellant has no  right  to  withdraw  from  her
society and demand for divorce and that she is entitled for restitution  of
conjugal rights. It is  contended  by  the  respondent  that  the  impugned
judgment is a well-considered judgment both on facts and  in  law  and  the
Division Bench of the High Court rightly allowed the appeals filed  by  the
respondent refusing to grant a decree of divorce in favour of the appellant
and granting a decree for restitution of conjugal rights in favour  of  the
respondent.  Therefore, the respondent has  prayed  for  dismissal  of  the
petition filed by the appellant praying for grant of  decree  of    divorce
against her.

7.  The  appellant  filed  the  counter  statement  to  the   petition   for
   restitution of conjugal  rights  denying  the  allegations  made  in  the
   petition. He contended that the behaviour of  the  respondent  even  when
   they were staying at New Delhi was marked by emotional  disturbances  and
   she also received treatment from a psychiatrist there.   He  has  further
   stated  that  he  underwent  severe  mental  stress  due  to   irrational
   behavioural pattern of the respondent.   Her  erratic  behaviour  started
   increasing as  time  passed  by.  She  started  manifesting  symptoms  of
   schizophrenia like violent or aggressive behaviour and a tendency  to  be
   harsh and hostile towards other members of the family without any  reason
   whatsoever which were not visible earlier. For that reason, she was  kept
   with her parents’ family so that she can  develop  a  sense  of  security
   which is required for  patients  suffering  from  schizophrenia.  He  has
   further stated that she also started developing the symptoms like  sudden
   withdrawal and being silent for long periods without any communication.

8. Further, he has stated that after the death of his brother,  he  brought
his wife and child to Hyderabad where he had secured  a  job  as  Assistant
Professor of Orthopaedics in Gandhi Medical College.  He further  contended
that on account of the death of  his  brother,  tension  developed  in  his
family and that neither he nor his family members harassed  the  respondent
demanding goods etc.  He also stated that at the time of  marriage,  mental
status of the respondent was not known to  him.   Further,  the  respondent
tried to evict his parents from their house at Yanam and when she failed in
her attempt, she filed O.S. No. 53 of  1998  at  District  Munsif’s  Court,
Yanam  which  shows  her  erratic  attitude  towards  the  parents  of  the
appellant.

9.  The respondent fell seriously ill due to which the  appellant  sent  her
mother a telegram to come and take care of her.  She went to live  with  her
mother at Rajahmundry as she consulted some psychiatrists  who  advised  her
to live with her mother.  The appellant visited  her  after  two  weeks  and
found that her mental condition had aggravated  to  such  a  point  that  it
would be impossible for him to live with her as her husband.   He  contended
that she was showing all the classical symptoms of  schizophrenia  including
violence, psychotic behaviour, suicidal tendencies, withdrawal symptoms  and
abnormal and irrational behaviour including in the matter of her speech  and
her conversation.   She also used to say  that  she  would  like  to  commit
suicide and he was, thus, worried about her and the  child.  The  respondent
was continuously on psychiatric treatment.  The above  facts  were  narrated
by the appellant in his divorce petition filed before the trial  court.   He
has further contended that under the circumstances narrated  above,  it  was
impossible for him to resume cohabitation with  the  respondent  as  he  was
afraid of danger to his life and that of  his  daughter  and  therefore,  he
requested the  Court  for  grant  of  a  decree  of  divorce  and  that  the
respondent’s petition for restitution of conjugal  rights  be  dismissed  as
she is not entitled to the relief prayed for by her.

10. The learned trial Judge in his judgment  held  that  the  appellant  is
   entitled to a decree of divorce if not annulment  of  marriage  and  that
   since the disease of the respondent was not disclosed  to  the  appellant
   before marriage, she is not  entitled  to  a  decree  of  restitution  of
   conjugal rights.   As a result, O.P. 1/99 filed  by  the  respondent  for
   restitution of conjugal rights was dismissed and  O.P.203/2000  filed  by
   the appellant for grant of divorce was allowed by dissolving the marriage
   between the appellant and  the  respondent  and  decree  of  divorce  was
   granted.

11. The trial court relied on the certified copy of report  from  Institute
of Mental Health, Government  Hospital  for  Mental  Care,  Sanjeeva  Reddy
Nagar, Hyderabad, bearing No. A and D/402/99  submitted  to  the  Registrar
(Judicial) High Court of Andhra Pradesh, Hyderabad, marked  as  Exh.  B-10,
given as per procedure and by conducting chemical examination  etc.  It  is
stated that the report clearly showed that the respondent is suffering from
schizophrenia. The trial court relied on the case of  Tarlochan  Singh  Vs.
Jit Kaur,[1] where it was held that since the fact  of  the  wife  being  a
patient of schizophrenia was not disclosed to the husband before  marriage,
it would amount to matrimonial fraud and therefore it was held the  husband
was entitled to decree of divorce if not annulment of marriage.

12.  Being aggrieved by the common judgment and decree of the  trial  court
passed in O.P. Nos. 1/99 and 203/2000 the respondent filed  appeals  before
the High Court of Andhra Pradesh questioning the correctness  of  the  same
urging various grounds.  The High Court on re-appreciation of pleadings and
evidence held  that  there  is  no  positive  evidence  to  show  that  the
respondent has suffered  schizophrenia  and  even  in  the  case  that  she
suffered from schizophrenia, it cannot be said that she was suffering  from
such a serious form of the disease that it would attract  the  requirements
of Section 13 (1) (iii) of the Act for grant of decree for  dissolution  of
marriage between the parties.

13. On perusal of the facts and legal evidence on record and  hearing  rival
legal contentions urged by both the parties, the  points  that  would  arise
for consideration of this Court are:

        1) Whether the  respondent  is  suffering  from  a  serious  mental
           disorder i.e. schizophrenia or incurable  unsoundness  of  mind,
           and can this be considered as a ground for divorce under Section
           13 (1) (iii) of the Hindu Marriage Act, 1955?

        2) Whether the High Court has correctly  re-appreciated  the  facts
           pleaded and evidence on  record  while  dismissing  the  divorce
           petition  of  the  appellant  and  allowing  the  petition   for
           restitution of conjugal rights of the respondent?

        3) Whether the appeal filed by the appellant has to be allowed  and
           we must restore the judgment  and  decree  of  trial  court  and
           dismiss  the  petition  for  conjugal  rights   filed   by   the
           respondent?

        4) What order?

14.  Answer to point nos.1 to 3:

These points are answered together as  they  are  interrelated.  On  careful
scrutiny of the pleadings and evidence on record and the  decision  of  this
Court referred to above, the provision of Section 13(1) (iii) of the Act  is
interpreted and the meanings of 'unsound  mind'  and  'mental  disorder'  as
occurring in the above provisions of the Act are examined  and  referred  to
in the impugned judgment. The High Court, while  examining  the  correctness
of the findings recorded in the common judgment  of  the  trial  court,  has
placed reliance on Ram Narain Gupta vs. Rameshwari  Gupta[2],  wherein  this
Court has interpreted the provision of Section 13(1)(iii)  of  the  Act  and
laid down the law regarding mental disorder or  unsound  mind  as  a  ground
available to a party to  get  dissolution  of  the  marriage.  The  relevant
portions with regard to ‘unsoundness of mind’  and  ‘mental  disorder’  from
the case referred to supra are extracted hereunder:

          “20.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 recognised 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.




        21. The answer to the apparently simple — and perhaps misleading  —
      question as to “who is normal?”  runs  inevitably  into  philosophical
      thickets of the concept of mental normalcy and as involved therein, of
      the ‘mind’ itself. These concepts of “mind”, “mental phenomena”  etc.,
      are more  known  than  understood  and  the  theories  of  “mind”  and
      “mentation” do  not  indicate  any  internal  consistency,  let  alone
      validity, of their basic ideas. Theories of “mind” with cognate  ideas
      of  “perception”  and  “consciousness”  encompass  a  wide  range   of
      thoughts, more ontolopical than enistemological.  Theories  of  mental
      phenomena are diverse and include the  dualist  concept  —  shared  by
      Descartes and Sigmund Freud — of the separateness of the existence  of
      the physical or the material world  as  distinguished  from  the  non-
      material mental world  with  its  existence  only  spatially  and  not
      temporally.  There  is,  again,  the   theory   which   stresses   the
      neurological  basis  of  the  “mental  phenomenon”  by  asserting  the
      functional correlation of the neuronal arrangements of the brain  with
      mental phenomena. The “behaviourist” tradition,  on  the  other  hand,
      interprets all reference to mind as  “constructs”  out  of  behaviour.
      “Functionalism”, however, seems to assert that mind is the logical  or
      functional state  of  physical  systems.  But  all  theories  seem  to
      recognise, in varying degrees, that the psychometric control over  the
      mind operates at a level not yet  fully  taught  to  science.  When  a
      person is oppressed by intense and seemingly insoluble moral dilemmas,
      or when grief of loss of dear ones etch away all the bright colours of
      life, or where a broken marriage brings with it the loss of  emotional
      security, what standards of normalcy of behaviour could be  formulated
      and applied?  The  arcane  infallibility  of  science  has  not  fully
      pervaded the study of the non-material dimensions of “being”.


        22. Speaking of the indisposition of science towards this study,  a
      learned Author says:
      “...we have inherited cultural resistance to  treating  the  conscious
      mind as a biological phenomenon like any  other.  This  goes  back  to
      Descartes in the seventeenth century. Descartes divided the world into
      two kinds of substances: mental substances  and  physical  substances.
      Physical substances were the  proper  domain  of  science  and  mental
      substances were the property of religion. Something of  an  acceptance
      of this division exists even to the  present  day.  So,  for  example,
      consciousness and subjectivity are often regarded as unsuitable topics
      for science. And  this  reluctance  to  deal  with  consciousness  and
      subjectivity is part of a  persistent  objectifying  tendency.  People
      think science must  be  about  objectively  observable  phenomena.  On
      occasions  when  I  have  lectured  to  audiences  of  biologists  and
      neurophysiologists, I have found many of them very reluctant to  treat
      the mind in general and consciousness in particular as a proper domain
      of scientific investigation.
      ...the use of the noun “mind” is dangerously inhabited by  the  ghosts
      of old philosophical theories. It is very difficult to resist the idea
      that the mind is a kind of a thing, or at least an arena, or at  least
      some kind of black box in which all of these mental processes occur.


        23. Lord Wilberforce,  referring  to  the  psychological  basis  of
      physical illness said that the area  of  ignorance  of  the  body-mind
      relation seems to expand with that of knowledge. In McLoughlin  v.  O’
      Brian, the learned Lord said, though in a different context:  (All  ER
      p. 301)


      “Whatever is unknown about the mind-body relationship (and the area of
      ignorance seems to expand with that of knowledge), it is now  accepted
      by medical science that recognisable and severe physical damage to the
      human body and system may be caused by the impact, through the senses,
      of external events on the mind. There may thus be produced what is  as
      identifiable an illness as any that may be caused by  direct  physical
      impact. It is safe to say that this, in general terms,  is  understood
      by the ordinary man or woman who is hypothesised by the courts...”


        24.  But  the  illnesses  that  are  called   “mental”   are   kept
      distinguished from those that ail the “body” in a fundamental way.  In
      “Philosophy and Medicine”, Vol. 5 at page X the learned Editor  refers
      to what distinguishes the two qualitatively:
      “Undoubtedly, mental illness is so disvalued because it strikes at the
      very roots of our personhood. It visits us with uncontrollable  fears,
      obsessions, compulsions, and anxieties....
      . . . This is captured in part by the language we  use  in  describing
      the mentally ill. One is an hysteric, is a neurotic, is an  obsessive,
      is a schizophrenic, is a manic-depressive. On the other hand, one  has
      heart disease, has cancer, has the flu, has malaria, has smallpox...”


The principle laid down by this Court in the aforesaid case with  all  fours
is applicable to the fact situation on hand wherein this Court  has  rightly
referred to Section 13 (1) (iii) of the Act  and  explanation  to  the  said
clause and made certain pertinent observations regarding “unsound  mind”  or
“mental  disorder”  and  the  application  of  the  same  as   grounds   for
dissolution of marriage. This Court cautioned that Section 13 (1)  (iii)  of
the Act does not make a mere existence of a mental disorder  of  any  degree
sufficient in law to justify the dissolution of marriage. The High Court  in
the present case stated that  a  husband  cannot  simply  abandon  his  wife
because she is suffering from sickness and relied on the evidence  of  RW-2,
Dr. Krishna Murthy, Superintendent, Institute of Mental  Health,  Hyderabad,
wherein it is stated by him that  schizophrenia  can  be  put  on  par  with
diseases like hypertension and diabetes  on  the  question  of  treatability
meaning that constant medication is required  in  which  event  the  disease
would be under control. The High Court also relied on the evidence of  PW-4,
Dr. Ravi S. Pandey, Professor  and  Head  of  Department  of  Psychiatry  at
NIMHANS, Bangalore, who had examined the  respondent  and  stated  that  the
team could not find any evidence suggesting  that  she  has  been  suffering
from schizophrenia at the time of examining  her  and  also  stated  in  his
cross-examination that no treatment including drugs were  given  to  her  at
NIMHANS as they did not find any abnormality in  her  behaviour.    He  also
stated that it is true that psychiatrically there  is  no  contra-indication
in leading a normal conjugal life.   Thus,  they  gave  her  a  certificate,
which is marked as Exh. B-11, based  on  clinical  examination  and  in  the
absence of any abnormal behaviour  including  psychiatric  features  in  the
past history of respondent. The High Court has not accepted the  finding  of
fact recorded by the trial  court  on  the  contentious  issue  and  further
stated that “schizophrenia” does not appear to be such a  dangerous  disease
and it can be controlled by drugs and in the present case, this  finding  is
supported by evidence of RW-2, who has stated  in  his  examination-in-chief
that the appellant herein has not made any reference to any of the  acts  of
the respondent that can constitute “schizophrenia” ailment.  It  is  further
held by the High Court that there is no positive evidence to show  that  the
respondent has suffered from schizophrenia and even  in  the  case  she  has
suffered from some form of schizophrenia, it cannot be  said  that  she  was
suffering from such a serious form of the disease  that  would  attract  the
requirement as provided under Section 13 (1) (iii) of the Act  and  that  it
is of such a nature that it would make life of the  appellant  so  miserable
that he cannot lead a marital life with her.

15.   We are of the opinion that the High Court has  rightly  examined  the
entire evidence on record and correctly found fault with  the  findings  of
fact recorded by the trial court with regard to the ailment  attributed  to
the respondent for seeking dissolution of  marriage  under  the  ground  of
'unsound mind' which is a non-existent fact. In the case of  Vinita  Saxena
v. Pankaj Pandit[3], this  Court  has  examined  in  detail  the  issue  of
schizophrenia wherein the facts are different and the facts and evidence on
record are not similar to the case on  hand.  Therefore,  the  observations
made in the judgment for grant of decree for dissolution of marriage  under
Section 13 (1) (ia) and Section 13(1) (iii) of the Act cannot be applied to
the fact situation of the case on hand. But, we would like to examine  what
was said in that case on the issue of this disease, schizophrenia -:

      “What is the disease and what one should know?


      *A psychotic lacks insight, has the whole of his personality distorted
      by illness, and constructs a false environment out of  his  subjective
      experiences.
      *It is customary to define ‘delusion’ more or less  in  the  following
      way. A delusion is a false unshakeable belief, which is out of keeping
      with  the   patient’s   social   and   cultural   background.   German
      psychiatrists tend to stress the morbid origin of  the  delusion,  and
      quite rightly so.  A  delusion  is  the  product  of  internal  morbid
      processes and this is what makes it unamenable to external influences.
      *Apophanous experiences which occur in acute  schizophrenia  and  form
      the basis of delusions of persecution, but these  delusions  are  also
      the result  of  auditory  hallucinations,  bodily  hallucinations  and
      experiences of passivity.  Delusions  of  persecution  can  take  many
      forms. In delusions of reference, the patient feels  that  people  are
      talking about him,  slandering  him  or  spying  on  him.  It  may  be
      difficult to be certain if the patient has delusions of self-reference
      or if he  has  self-reference  hallucinosis.  Ideas  of  delusions  or
      reference  are  not  confined  to  schizophrenia,  but  can  occur  in
      depressive illness and psychogenic reactions.
      Causes
      The causes  of  schizophrenia  are  still  under  debate.  A  chemical
      imbalance in the brain seems to play a role, but the  reason  for  the
      imbalance remains  unclear.  One  is  a  bit  more  likely  to  become
      schizophrenic if he has a family member with the illness. Stress  does
      not cause schizophrenia, but can make the symptoms worse.
      Risks
        Without medication and therapy, most  paranoid  schizophrenics  are
      unable to function in the real world. If they fall  victim  to  severe
      hallucinations and delusions, they can be a danger to  themselves  and
      those around them.


      What is schizophrenia?
      Schizophrenia is a chronic, disabling mental illness characterised by:
           *Psychotic symptoms
           *Disordered thinking
           *Emotional blunting


      How does schizophrenia develop?
      Schizophrenia  generally  develops  in  late  adolescence   or   early
      adulthood, most often:
           *In the late teens or early twenties in men
           *In the twenties to early thirties in women


      What are the symptoms of schizophrenia?
      Although schizophrenia is  chronic,  symptoms  may  improve  at  times
      (periods of remission) and worsen at other times (acute  episodes,  or
      period of relapse).
      Initial symptoms appear gradually and can include:
           *Feeling tense
           *Difficulty in concentrating
           *Difficulty in sleeping
           *Social withdrawal

      What are psychotic symptoms?
      *Psychotic symptoms include:
      *Hallucinations: hearing voices or seeing things.
      *Delusions: bizarre beliefs with no  basis  in  reality  (for  example
      delusions of persecution or delusions of grandeur).

These symptoms occur during acute or psychotic phases of  the  illness,  but
may improve during periods of remission.

A patient may experience:
      *A single psychotic episode during the course of the illness
      *Multiple psychotic episodes over a lifetime…”




16.   As per evidence of RW-2,  schizophrenia  is  a  treatable,  manageable
disease, which can be put on par with hypertension and  diabetes.  So  also,
PW-4, who had examined the respondent at NIMHANS, Bangalore stated that  the
team could not find any evidence suggesting schizophrenia  at  the  time  of
their examining the respondent and he had stated  in  his  cross-examination
that no treatment including drugs was given to her at NIMHANS  as  they  did
not find any abnormality in her. They thus gave her a certificate of  normal
mental status, based on the absence of any abnormal findings in her  medical
report including  psychiatric  features  in  the  past  history  and  normal
psychological test. We have carefully perused the Report marked as  Exh.  B-
10 dated 24.4.1999 given by the  Doctors  of  Institute  of  Mental  Health,
Hyderabad before the trial court.  The learned trial Judge has  misread  the
contents of the said report  and  also  wrongly  interpreted  the  same  and
recorded the finding that the respondent is suffering from  the  ailment  of
‘schizophrenia’ and therefore he has accepted the case of the appellant  who
has made out a ground under Section 13(1) (iii) of the  Act  wherein  it  is
stated that a spouse suffering from schizophrenia or incurably unsound  mind
is a ground for dissolution of the marriage between the parties.

17. The High Court has thus rightly set aside the decree of  dissolution  of
marriage granted in favour of the appellant and dismissed his  petition  and
granted a decree  of  restitution  of  conjugal  rights  in  favour  of  the
respondent by allowing  her  petition.  The  High  Court  has  recorded  the
finding of fact on re-appreciation of material evidence on  record  and  has
rightly held that the trial court has erroneously  come  to  the  conclusion
that the respondent was suffering  from  schizophrenia  by  relying  on  the
evidence of PW-1, who is the appellant herein and as per the  opinion  given
by the Committee of Doctors in Ex.B-10. In the deposition by  witness  RW-2,
Dr. K.Krishna  Murthy,  he  has  stated  in  his  examination-in-chief  that
Schizophrenia has become eminently treatable with the  advent  of  many  new
psychiatric drugs. He further stated that many patients  with  schizophrenia
are able to lead a near normal life with medication.  The  trial  court  has
erroneously relied on certain cases referred to and  applied  the  principle
laid down in those cases to the facts of this case even though they are  not
applicable to the case on hand either on facts or in law  as  the  appellant
has not proved the allegations made in the petition against  the  respondent
by adducing positive and substantive evidence on record to substantiate  the
same and that the alleged ailment of the respondent would  fall  within  the
provision of Section 13(1)(iii) of the Act. Therefore, he has not  made  out
a case for grant of decree for dissolution of marriage.  We  have  carefully
examined Ex. Nos. X-6 to X-11,  which  are  the  prescriptions  of  medicine
prescribed to her by Dr. Mallikarjuna Rao, Dr. Pramod Kumar and  Dr.M.Kumari
Devi. The above prescriptions mention the symptoms of  the  ailment  of  the
respondent, which were in the nature of delusions, suspicious  apprehensions
and fears,  altered  behaviours,  suicidal  tendency  and  past  history  of
depression. Reliance is placed by PW 1 on the above documentary evidence  to
prove that  the  respondent  was  suffering  from  the  mental  disorder  of
schizophrenia and therefore  it  squarely  falls  within  the  provision  of
Section 13(1)(iii) of  the  Act  for  grant  of  decree  of  dissolution  of
marriage in his favour. The High Court  has  rightly  held  that  the  trial
court has erroneously accepted the same and recorded its finding of fact  on
the  contentious  issues  to  pass  decree  of  divorce  in  favour  of  the
appellant, which is contrary to the decision of this Court in  the  case  of
Ram Narain Gupta vs. Rameshwari Gupta supra.  The  same  decision  has  been
relied upon by the respondent  before  the  High  Court,  wherein  the  said
decision was correctly accepted by it to set aside the erroneous finding  of
fact recorded by the trial court on the contentious issue.

18.   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. Whysall[4], 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.  
The  High  Court  of
Judicature at Calcutta, in Pramatha Kumar Maity v Ashima Maity[5]  has held
that mental disorder of the  wife,  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 husband could not be expected to live with  the  wife.
The Allahabad High Court, in Mt. Tilti Vs. Alfred Rebert Jones[6] has  held
that where it has come on record that the wife has improved her educational
qualifications and has been looking after her children, the apprehension of
the husband that there is danger to his life or  to  his  children  is  not
borne out is the finding recorded in the said case.   
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 him before the trial court.

19.   The High Court has rightly set aside the said finding and allowed the
appeal  of  the  respondent  after  careful  scrutiny  of   Exh.B-10.   The
correctness of the finding of the High Court in the  impugned  judgment  is
seriously challenged by  the  learned  senior  counsel  on  behalf  of  the
appellant in this appeal.
We have examined this contention,  after  careful
perusal of the contents of Exh.B-10. In our considered view,  the  contents
of the report as stated by the team of doctors do not support the  case  of
the appellant that the respondent is  suffering  from  a  serious  case  of
schizophrenia, in order to grant the decree of divorce under Section  13(1)
(iii) of the Act. 
The report states that the respondent, although suffering
from ‘illness of schizophrenic type’, does not show symptoms  of  psychotic
illness at present and has responded well to the treatment from  the  acute
phases and her symptoms are fairly under control with the medication  which
had been administered to her.  
It was further stated that if there is  good
compliance with treatment coupled with good social and  family  support,  a
schizophrenic patient can continue their marital relationship.  In view  of
the aforesaid findings and reasons recorded,  we  have  to  hold  that  the
patient is not suffering from the symptoms  of  schizophrenia  as  detailed
above.

20. We are of the view that the High Court in  exercise  of  its  appellate
jurisdiction has rightly come to a different conclusion that the respondent
is not suffering from the ailment of schizophrenia or incurable unsoundness
of mind.  Further, the High Court has rightly rejected the finding  of  the
trial court which is based on  exh.B-10  and  other  documentary  and  oral
evidence by applying the ratio laid down by this Court in the case  of  Ram
Narain Gupta vs. Rameshwari Gupta referred to supra.  A pertinent point  to
be taken into consideration is that the respondent had not  only  completed
MBBS but also did a post graduate diploma in Medicine and was  continuously
working as a Government Medical Officer and had she been suffering from any
serious kind of mental disorder, particularly, acute type of schizophrenia,
it would have been impossible for  her  to  work  in  the  said  post.  The
appellant-husband cannot simply abandon his wife because she  is  suffering
from sickness.
Therefore,  the  High  Court  allowed  both  the  CMAs  and
dismissed O.P. No. 203/2000 filed by the appellant for divorce and  allowed
O.P. No.1/99 filed by the respondent for  restitution  of  conjugal  rights
wherein the High Court granted decree of restitution of conjugal rights  in
favour of the respondent.

21. It is thus clear that the respondent,  even  if  she  did  suffer  from
schizophrenia, is in a much better health condition at present.  Therefore,
this Court cannot grant the dissolution of marriage on  the  basis  of  one
spouse's illness. 
The appellant has not proved the fact of mental  disorder
of the respondent with reference to the allegation made  against  her  that
she has  been  suffering  from  schizophrenia  by  producing  positive  and
substantive evidence on record and on the other hand, it  has  been  proved
that the respondent is in much better health condition and  does  not  show
signs of schizophrenia as per the most recent medical report from  NIMHANS,
as deposed by PW-4 in his evidence before the trial court.

22. For the aforesaid reasons, we are of the firm  view  that  the  findings
and reasons recorded in setting aside the judgment and decree of  the  trial
court is neither erroneous nor does  it  suffer  from  error  in  law  which
warrants our interference and calls for setting aside the impugned  judgment
and decree of the first  appellate  court.  
Therefore,  this  Court  cannot
interfere with the impugned judgment of the High Court as the same is  well-
reasoned and based on cogent reasoning of facts and evidence on  record  and
accordingly, we answer point no.4 in favour of the respondent.

23. Under Hindu law, marriage is an institution, a meeting  of  two  hearts
and minds and is something that cannot  be  taken  lightly.  In  the  Vedic
period, the sacredness of the marriage tie  was  repeatedly  declared;  the
family ideal was decidedly high and it  was  often  realised[7]. 
 In  Vedic
Index I it is stated that “The high value placed on the marriage  is  shown
by the long and striking hymn”. 
In Rig Veda, X, 85; “Be,  thou,  mother  of
heroic children, devoted to the Gods, Be, thou,  Queen  in  thy  father-in-
law’s household. 
May all the Gods unite the hearts of us “two into one”  as
stated in Justice Ranganath Misra’s ‘Mayne’s  Treatise  on  Hindu  Law  and
Usage’[8]. 
Marriage is highly revered in India and we  are  a  Nation  that
prides itself on the strong foundation of our marriages, come hell or  high
water, rain or sunshine. 
Life is made up of good times and bad, and the bad
times can bring with it  terrible  illnesses  and  extreme  hardships.  The
partners in a marriage must weather these storms and embrace  the  sunshine
with equanimity. 
Any person may have bad health, this is  not  their  fault
and most times, it is not within their control,  as in  the  present  case,
the respondent was unwell and  was  taking  treatment  for  the  same.  
The
illness had its fair share of problems.  Can  this  be  a  reason  for  the
appellant to abandon her and seek dissolution of marriage after  the  child
is born out of their union? Since the child is now a  grown  up  girl,  her
welfare must be the prime consideration for both the parties.   In view  of
the foregoing reasons, we are of the opinion that the two parties  in  this
case must reconcile and if the appellant so feels that  the  respondent  is
still suffering, then she must be given the right treatment. 
The respondent
must stick to her treatment plan and make the best attempts to get  better.
It is not in the best interest of either the respondent or her daughter who
is said to be of adolescent age for grant of a  decree  of  dissolution  of
marriage as prayed for by the appellant.  Hence, the appeal is liable to be
dismissed.



24.  Accordingly, we dismiss the appeal and uphold the judgment of the High
Court in not granting a decree of divorce and  allowing  the  petition  for
restitution  of  conjugal  rights.  Therefore,  we  grant  a   decree   for
restitution of conjugal rights under Section 9 of the Act in favour of  the
respondent.





                                       …………………………………………………………J.       [G.S.
                                       SINGHVI]







                                       …………………………………………………………J.         [V.
                              GOPALA GOWDA]



New Delhi,                                                   September  17,
2013





-----------------------
[1]    AIR 1986 P & H 379

[2]   (1988) 5 SCC 247

[3]    (2006)3 SCC 778

[4]   (1959) 3 All ER 389

[5]    AIR 1991 Cal 123

[6]    AIR 1934 All 273

[7]    Vedic Index, I, 484,485; CHI,I,89 as in Ranganath Misra J.  Revised.,
Mayne’s Treatise on Hindu Law and Usage,  Fifteenth  Edition,  2003,  Bharat
Law House at p.97

[8]    Fifteenth Edition, 2003, Bharat Law House at p.97





-----------------------
41





No comments:

Post a Comment

Note: Only a member of this blog may post a comment.