HINDU MARRIAGE ACT SEC. 13 [1] [1A] & [III]She merely suffered from cognitive deficiency. which is not a ground for granting divorce = the appellant-husband Darshan Gupta had never given the respondent, moral or emotional support, during the time of her distress. Despite the request of her treating doctor, he never accompanied her during the course of her consultations with doctors. The Family Court expressed the view, that the appellant husband Darshan Gupta himself, was responsible for the state of affairs of his wife-Radhika Gupta, inasmuch as, he did not heed the advise of the gynecologist, after the abortion of her first pregnancy in June 1999. The consulting Gynecologist had advised the couple against planning any further conception, for a period of at least two years. Despite the aforesaid advice, Darshan Gupta impregnated his wife Radhika Gupta, just after eight months of the said abortion. His desires had overridden, the health advisory of the gynecologist. The Family Court also concluded, that the appellant-husband had failed to establish, that the mental unsoundness of mind or mental disorder of the respondent-wife was of such degree, that he could not be expected to live with her.= Darshan Gupta had not been able to prove, that his wife was suffering from any incurable unsoundness of mind and/or mental disorder. Insofar as the solitary expert witness produced by the appellant-husband Darshan Gupta is concerned, Dr. M. Veera Raghawa Reddy-PW4, had admitted that while examining Radhika Gupta, he did not observe any signs of aggressiveness in the respondent-wife. On the contrary, he affirmed, that she was having a smiling face, and also,observed a calm and cool conduct.= Radhika Gupta left the company of the appellant-husband Darshan Gupta on 3.10.2011. On the said date itself, Radhika Gupta addressed a letter to the Registry of this Court. The said letter read thus : "The Hon'ble Supreme Court, by the order dated 19.09.2011 directed us to live happily for a period of six months. In pursuance to the directions of the Hon'ble Supreme Court, my husband taken me into his matrimonial company on 29.09.2011 and kept me separately at his row (sic) house situated at Jubilee Hills. However, I am reporting from that day i.e. 29.09.2011 my husband is not behaving properly with me. Instead of showing love and affection, he is abusing me with filthy language without any reason. He is calling me "PAGAL" as and when he is addressing me. He is further saying that I have no sense and intelligence. Further he repeating me to leave him by taking money. He is further saying that even though his appeal before Supreme Court is dismissed he is not going to live with me. My in-laws also compelling me to agree for divorce by accepting money. My husband threatening me to agree for Divorce. The torture of my husband is beyond my tolerance. Hence under the above compelling circumstances I am leaving to my mothers' place."= whether the relief sought by the learned counsel for the appellant, on the ground of irretrievable breakdown of marriage is available to him. The reason for us to say so, is based on a judgment rendered by this Court in Vishnu Dutt Sharma vs. Manju Sharma, (2009) 6 SCC 379, wherein this Court has held as under:- "10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.= We would, in our endeavour to determine the issue in hand, examine the matter, by reversing the roles of the parties. We will examine the matter as if, the wife had approached the Family Court seeking divorce, on the ground that her husband had suffered brain damage leading to cognitive deficiencies. Yet, despite the said deficiencies, his working memory had returned to "near normal" after treatment. And his mental condition was such, that it would not have any effect on his matrimonial obligations. And the wife's family is agreeable to pay an amount to be determined by this Court (just as the husband-Darshan Gupta, has offered), so as to enable their daughter to break away, and find a more suitable match. Should she have been granted freedom from her matrimonial ties, in the given facts, in order to do complete justice to the parties? We would ask ourselves, whether the husband would have accepted such a plea, in the facts denoted above? In such situation, if this Court had, in exercise of its jurisdiction under Article 142 of the Constitution of India, granted compensation to the husband, and had dissolved his marriage on the pretext of doing complete justice between the parties, would the same be acceptable to the husband? We have no doubt in our mind, that on a reversal of roles, the husband, without any fault of his own, would have never accepted as just, the dissolution of his matrimonial ties, even if the couple had been separated for a duration, as is the case in hand. Specially, if the husband had, right from the beginning, fervently expressed the desire to restore his matrimonial relationship with his wife, and to live a normal life with her.= For the reasons recorded hereinabove, we find no merit in these appeals, and the same are accordingly dismissed.

published in ' http://courtnic.nic.in/supremecourt/qrydisp.asp
"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6332-6333 OF 2009


Darshan Gupta ... Appellant

Versus

Radhika Gupta ... Respondent



J U D G M E N T


Jagdish Singh Khehar, J.


1. The marriage between the appellant-husband, Darshan Gupta and the
respondent-wife, Radhika Gupta, was solemnized on 9.5.1997 at the Holiday
Inn Hotel in Hyderabad, as per Hindu rights and customs.
This was not the
first matrimonial alliance between the two families. The husband's elderbrother was already married to the wife's sister. 
Both parties admittedly
belong to well-to-do families. At the time of marriage between the
parties, Darshan Gupta, the husband was 22 years of age, and Radhika Gupta
was 19. Now the husband is 35, and the wife 32. The marriage between the
parties was duly consummated, and their relationship blossomed into one
full of love and affection.

2. The cordiality between the parties continued for a period of two
years, till the wife conceived for the first time in February 1999. The
aforestated conception was aborted when Radhika Gupta was in the fourth
month of her pregnancy, as she had commenced to suffer from hypertension
resulting into fits, extreme morning sickness and general weakness. 
The
decision to abort the pregnancy in June, 1999, was based on medical advice.

3. The wife Radhika Gupta conceived for the second time in February
2000. During the instant pregnancy, she had similar symptoms, as she had
suffered on the earlier occasion. For the aforesaid reason, and on medical
advice, when the pregnancy was in its eighth month, a caesarian operation
was performed in September, 2000. 
At the time of birth of the child, the
wife, Radhika Gupta, was unconscious. Even after the child was delivered,
she remained unconscious. The child born to Radhika Gupta survived for
only eight days.

4. Since Radhika Gupta had developed serious medical complications,
she was treated at the best hospitals at Hyderabad, amongst others at the
Apollo Hospital, as an indoor patient. Doctors from across the country
were consulted. They had attended upon her, at the behest of her husband
Darshan Gupta. To ensure that there was no deficiency in her medical
upkeep, she was shifted to the Leelavathi Hospital at Mumbai. At Mumbai,
further tests were conducted and surgeries were performed. She also sought
consultations from the National Institute of Medical Health and
Neuroscience, Bangalore (NIMHANS).

5. During the treatment of Radhika Gupta, neurologists and
gynecologists looking after her believed, that she had suffered brain
damage. On that account, she is stated to have lost her memory, so much
so, that she could not even recognize persons of close affinity. Her
speech was also stated to have been substantially impaired. It was averred,
that the condition of the wife was such, that she could not even dischargeher personal obligations. 
She had to be assisted by an attendant.
According to the contention of Darshan Gupta, the condition of Radhika
Gupta was no better than a child of five years. He also alleged, that
Radhika Gupta's condition was such, that she could not be left alone in the
room, nor could she be permitted to use the bathroom by herself.
Gynecologists, who examined Radhika Gupta had opined, that she was not fit
for discharging her matrimonial obligations. They also felt, that she
could not bear a child. Neurologists believed, that it was impossible forthe husband to live with Radhika Gupta. 
On the subject of their marital
relationship, the husband contends, that his wife did not allow him to
touch her physically, even to please her. It is the husband's assertion,
that at times Radhika Gupta would wake up in the middle of the night, and
thereafter, would not allow him to sleep. Darshan Gupta even accused his
wife, for shouting and screaming without any reason.

6. For the upkeep, maintenance and sustenance of his wife, the
appellant Darshan Gupta, is stated to have created a trust with a corpus of
Rs.10,00,000/-. 
For his wife's residence, the appellant Darshan Gupta
persuaded his father to execute a lease deed of a flat in a posh locality,
at a nominal rent, in favour of the trust. 
Besides the aforesaid, the
appellant Darshan Gupta has been paying his wife Radhika Gupta a sum of
Rs.25,000/- per month towards maintenance, during the pendency of the
proceedings.

7. In response, the case set up by Radhika Gupta has been, that after
her first conception was aborted in June, 1999, the attending gynecologist
at Apollo Hospital, had cautioned the couple against any further conception
for at least two years. 
The couple had been advised, that pregnancy of
Radhika Gupta during this period could lead to serious medical
complications. Despite having been forewarned by the gynecologist, Radhika
Gupta alleges, that her husband had proceeded with unsafe cohabitation,
resulting in a second pregnancy within a short period of eight months
(after the termination of the first pregnancy), i.e., well within theunsafe period. 
According to Radhika Gupta, true to the advice of the
attending gynecologist, the second pregnancy resulted in the same symptoms
as she had suffered during her first pregnancy. It was her assertion, that
she had again started to suffer from hypertension resulting in fits,
extreme morning sickness and general weakness. 
Despite the precarious
condition of the wife, she was persuaded by her husband, Darshan Gupta, to
carry on the pregnancy till the eighth month. The wife acknowledges the
caesarian operation conducted on 20.9.2000, as also the fact, that the
child born to her surviving for only eight days. In this behalf her
assertion is, that her husband was to be blamed for the same, as he did notheed to the medical advice of the gynecologist.
According to Radhika
Gupta, the fall out of the second pregnancy, specially the effect thereof
to her health, was the real cause of the turn around of the matrimonial
relationship, between the parties. For that, Radhika Gupta blames her
husband.

8. Despite the factual position noticed hereinabove, Radhika Gupta -
the wife, claims to be hale and hearty. Before the Family Court, she had
expressed, that she was ready and willing for any medical evaluation, at
the Court's behest. 
According to Radhika Gupta, after the death of the new
born, her husband did not extend, the care that she deserved from him.
This had happened after the termination of the first pregnancy also.
 At
that juncture, her parents had taken her to neurologists, psychologists and
occupational therapists of national repute. After the caesarian surgery,
Radhika Gupta had remained unconscious. She used to suffer series of fits.
It is therefore, that she had to be shifted to the Apollo Hospital. After
treatment, she had regained her consciousness, and had become more
oriented. It is the wife's assertion, that yet again after the episode of
the second pregnancy, the husband did not extend any emotional or moral
support to her. Rather than taking care of her, she was shifted to her
parents' house in May 2002. It is the wife's contention, that her parents
again took good care of her. They had again sought advice from specialists
of different medical fields, as before. The undisputed factual position
between the parties is, that ever since she was shifted to her parents
house in May 2002, Radhika Gupta has remained at her parents' house, except
for a few days (from 29.9.2011 to 3.10.2011), that also, in compliance with
the desire and directions of this Court.

9. It has been, and it still is, the wife's case, that she is
intensely concerned about her future relationship with her husband, and
that, her greatest and paramount desire is to rejoin her husband, and to
live with him normally in a matrimonial relationship, once again.
According to the respondent-wife, all efforts made by her have failed, only
on account of the rigid attitude of her husband.

10. On the above facts, OP No.926 of 2002 was filed by the appellant-
husband before the Family Court seeking dissolution of marriage under
clauses (ia) and (iii) of Section 13(1) of the Hindu Marriage Act, 1955.
As against the aforesaid, OP No.629 of 2003 was filed by Radhika Gupta,
before the same Court, seeking restitution of conjugal rights under Section9 of the Hindu Marriage Act, 1955. Both the cases were clubbed together.
Evidence was recorded in OP No.926 of 2002, and the same was treated as
evidence for the determination of OP 629 of 2003 as well.

11. Darshan Gupta examined four witnesses in all. He examined himself
as PW1. He examined his maternal aunt Nirmala Devi as PW2. Darpan Gupta,
the twin elder brother of the appellant-Darshan Gupta was examined as PW3.
Dr. M. Veera Raghava Reddy, a practicing neurologist was examined as PW4.
The testimony of the husband Darshan Gupta who appeared before the Family
Court as PW1, was in consonance with the factual position indicated in the
pleadings, as also, in the factual narration recorded hereinabove. PW2 and
PW3 being close family relations supported the statement of Darshan Gupta-
PW1, in all material particulars. While deposing before the Family Court,


Dr. M. Veera Raghava Reddy-PW4 stated, that he had referred the respondent-
wife Radhika Gupta to Dr. Nagaraja for a second opinion. The said second
opinion was sought by the appellant-husband Darshan Gupta, and his
relations. Even though Dr. M. Veera Raghava Reddy-PW4, somewhat towed the
line of the appellant-husband Darshan Gupta during the course of his examination-in-chief, he acknowledged during the course of his cross- examination, that when he had visited Radhika Gupta at her residence, her physical condition was normal. He also accepted, that he had not prescribed any medicine to the respondent-wife, for the effect of eclampsia on the brain, as there was no medicine for it. He admitted, that he did not advise or refer Radhika Gupta to any psychiatrist or clinical physiologist, for evaluating her physical and mental functions, nor did he
prescribe her any treatment to improve the said functions. He however opined, from his experience, that even if treatment had been taken by Radhika Gupta from psychiatrists/clinical physiologists, her improvement would have been limited to 4-5%. He also acknowledged, that he had never
given any opinion to the appellant-husband, that Radhika Gupta was suffering from loss of cognitive deficiency, or that she was not fit for conjugal life.
 It would be pertinent to mention, that it stands noticed in
the order of the Family Court, that 
when Dr. M. Veera Raghava Reddy-PW4,
appeared before the Family Colurt to depose in the matter, Radhika Gupta was sitting in the court-hall observing court proceedings. During their interaction Dr. M. Veera Raghava Reddy-PW4, had enquired about her welfare.
She had responded by stating, "I am fine sir, thank you.".

12. It would be pertinent to mention, that Radhika Gupta chose not to examine herself as a witness, in either of the two cases before the Family Court. 
She only examined Dr. C.R. Mukundan-RW1, in her defence. During
the course of his deposition, Dr. C.R. Mukundan-RW1 had produced three
documents Exhibits R1 to R3. As per his deposition, when he had examined
Radhika Gupta, he was working as Professor of clinical psychiatry in the
neuro-psychology unit, at NIMHANS, in Bangalore. Consequent upon the
respondent-wife's evaluation by him, he had issued reports Exhibits R1 and
R2. As per the said reports, Radhika Gupta had undergone intensive
cognitive re-training using brain function therapy, and that, she was
provided with graded re-training in alphabet and number recognition and
delayed recall, recognition and recall of words and figures, different
levels of working memory, etc. It was duly noted in Exhibit R2, that at
the first neuro-psychological assessment of Radhika Gupta at NIMHANS in
June 2002, as also, in the second assessment made in July 2002, there was
considerable improvement in her medical condition. It is also recorded in
Exhibit R2, that as per the follow up report, she was currently showing
significant improvement in all cognitive areas, and that, her word finding
difficulty was reduced by 60-70%. It also stands duly noted, that she
could not spontaneously name household articles, and food materials, or
recall the names of persons and objects seen in movies or read in books.
The report (Exhibit-R2) however indicates, that when she had difficulty to
spontaneously name an article or person, she would succeed to do so with a
little effort. The report (Exhibit R2) also notices, that her working
memory had improved so much, that the same could be described as "near
normal", because she was able to execute and complete, working memory
tasks. Thereafter, Radhika Gupta was subjected to a third neuro-
psychological assessment in October, 2002. Again marked improvement was
found in her conceptual organization of numbers, and ability for arithmetic
operations. On this occasion it was found, that her writing skills still
required further improvement. 
The said third assessment expressly notices,
that Radhika Gupta was capable of all normal emotional experiences and
expressions, and that, she was intimately desirous of restoring her future
relationship with her husband. She was found to be fully capable of a
happy marital life. Interestingly, the aforesaid report underlines the
fact, that her improvement would have been a lot more significant and
faster, if her husband had been with her, and had cared for her in her
journey to recovery. It was however, pointed out, that Radhika Gupta still
lacked in self-confidence. Yet, she was found to be highly motivated for
further improvement, and her logical thinking and expressive abilities were
described as excellent. Exhibit R3 produced by Dr. C.R. Mukundan-RW1, was
on the same lines as the earlier two exhibits. Dr. C.R. Mukundan-RW1,
deposed, that Radhika Gupta was not a case of mental disorder. 
Her case
was of severe cognitive deficiencies, on account of brain damage. She had
suffered, the aforesaid brain damage on account of eclampia during the
course of her second pregnancy. 
According to Dr. C.R. Mukundan-RW1, in
some areas of deficiency, she was found to have fully recovered. In some
areas of cognitive deficiencies her improvement was about 60-70%.
According to Dr. C.R. Mukundan-RW1, Radhika Gupta had recovered her working
memory by more than 80%.
 It was further pointed out, that cognitive
deficiency is recoverable, but is dependant on the degree of damage to the
brain, as also, the emotional support the patient gets from family members
at the relevant time. 
In his examination-in-chief, Dr. C.R. Mukundan-RW1
deposed, that during her treatment he had requested Radhika Gupta to bring
her husband along with her. 
But her husband had never accompanied her. It
was sought to be explained, that the presence of Darshan Gupta, would have
given emotional support to her. 
This position remained uncontested during
his cross-examination. 
On the issue of cognitive deficiencies, it was
sought to be clarified, that even though the same would affect the quality
of life of Radhika Gupta, yet the same would have no effect on her
matrimonial obligations. 
During the course of his cross-examination, Dr.
C.R. Mukundan-RW1, denied the suggestion, that Radhika Gupta was not in a
position to discharge her normal day to day functions of life, like bolting
a door after entering the bathroom, or opening a door after bolting it. He
acknowledged, that he himself had given the reports at Exhibits R2 and R3.
At this juncture, it would be necessary to notice, that after consulting
Dr. C.R. Mukundan-RW1, the appellant-husband Darshan Gupta desired a second
opinion, for which he obtained a letter from Dr. M. Veera Raghava Reddy-
PW4, addressed to Dr. Nagaraja. Thereafter, the appellant-husband Drashan
Gupta visited Dr. Nagaraja for a second opinion, but while seeking the
same, he did not admittedly take the respondent-wife Radhika Gupta for
examination at the hands of Dr. Nagaraja.

13. Dr. M Gauri Devi, Superintendent, Institute of Mental Health,
Erragadda, Hyderabad, was examined as Court Witness 1(CW1). Dr. M. Gauri
Devi-CW1 constituted a medical board, at the asking of the Family Court,
for examining and evaluating the medical condition of Radhika Gupta. The
aforesaid medical board comprised of Dr. Ch. Venkata Suresh, Assistant
Professor of Psychiatry of Institute of Mental Health, Hyderabad, Dr. K.
Ashok Reddy, Associate Professor of Psychiatry of Institute of Mental
Health and Dr. S. Bhaskara Naidu, Professor of Clinical Psychology of
Institute of Mental Health Hyderabad. The medical board having examined
Radhika Gupta, submitted its report (Exhibit C1) to the Family Court. A
perusal of the medical report indicates, that the medical board had
recorded its conclusions on the basis of the medical history of Radhika
Gupta, as also, the observations and examination of the respondent-wife.
The medical board expressed the opinion, that the Radhika Gupta was
suffering from cognitive deficiencies, in the form of difficulty in
comprehension, attention, concentration, orientation, perceptual ability,
memory retrieval, word finding difficulty and organization ability. The
said effects, according to the medical board, could influence her day to
day functioning. The defects were, however, found to be on account of
brain damage involving predominately the parietal-temporal region of the
brain. It was concluded, that Radhika Gupta did not manifest any signs of
major mental disorder, and that, she exhibits normal adequate emotional
responses. It was opined, that she would further benefit from neuro-
psychological rehabilitation measures, which are available at NIMHANS.

14. Dr. Bhaskar Naidu, one of the members of the medical board,
deposed before the Court as CW2. He was cross-examined first by the
learned counsel representing the respondent-wife Radhika Gupta, and
thereafter, by the learned counsel representing the appellant-husband,
Darshan Gupta. On being cross-examined at the behest of the respondent-
wife, he stated that he was of the opinion that Radhika Gupta was suffering
from some deficiency of intelligence. He further stated, that the average
intelligence quotient of a human is between 92 to 110 points. He opined
that Radhika Gupta possessed the intelligent quotient between 50 to 55
points. It was sought to be explained, that a person having between 70 to
90 points is called a slow learner or border line person, and a person
having between 50 to 70 points is described as one of moderate
intelligence. In the aforesaid view of the matter, he accepted that
Radhika Gupta could be described as an individual of "moderate
intelligence". He also opined, that by undergoing therapy training, there
is a likelihood of Radhika Gupta to further improve her cognitive
deficiency. When Dr. Bhaskar Naidu-CW2 was cross-examined by the learned
counsel representing the appellant-husband Darshan Gupta, he asserted that
Radhika Gupta was suffering from mild to moderate cognitive deficiency. He
also expressed, that the aforesaid deficiency would not come in her way in
discharging her matrimonial obligations.

15. Based on the evidence led by the rival parties, and also, through the court witnesses, the Family Court arrived at the conclusion, that the husband had failed to establish, that he was subjected to cruelty at the hands of Radhika Gupta. 
On the issue of aggressive and abnormal behavior
of the wife, the Family Court felt, that there was no evidence before the
Court, except the deposition of interested witnesses, namely, the appellant-
husband himself, his maternal aunt Nirmala Devi and his elder twin brother
Darpan Gupta. The Court was of the view, that such behavior, if it was
actually there, could have easily been established through nurses and
attendants of Radhika Gupta. But these, or such like witnesses were
withheld, even though they could have been easily available to the
appellant-husband. 
It was also concluded, that Darshan Gupta had not been
able to prove, that his wife was suffering from any incurable unsoundness of mind and/or mental disorder. Insofar as the solitary expert witness produced by the appellant-husband Darshan Gupta is concerned, Dr. M. Veera
Raghawa Reddy-PW4, had admitted that while examining Radhika Gupta, he did not observe any signs of aggressiveness in the respondent-wife. On the contrary, he affirmed, that she was having a smiling face, and also,observed a calm and cool conduct.

16. The Family Court, on the basis of oral and documentary evidence
produced before it, arrived at the conclusion that Radhika Gupta did not
suffer from any mental disorder or unsoundness of mind. She merely
suffered from cognitive deficiency. The aforesaid cognitive deficiency was
acquired during her second pregnancy. She was found to have substantially
improved from her cognitive deficiency, during the course of her treatment.
The Family Court also expressed the opinion, that Radhika Gupta could have
improved even further, had there been moral and emotional support to her byher husband, Darshan Gupta.
 In fact, the trial Court felt, that the
appellant-husband Darshan Gupta had never given the respondent, moral or
emotional support, during the time of her distress. Despite the request of her treating doctor, he never accompanied her during the course of her consultations with doctors. The Family Court expressed the view, that the appellant husband Darshan Gupta himself, was responsible for the state of affairs of his wife-Radhika Gupta, inasmuch as, he did not heed the advise
of the gynecologist, after the abortion of her first pregnancy in June 1999. The consulting Gynecologist had advised the couple against planning any further conception, for a period of at least two years. 
Despite the
aforesaid advice, Darshan Gupta impregnated his wife Radhika Gupta, just after eight months of the said abortion. His desires had overridden, the health advisory of the gynecologist. The Family Court also concluded, that the appellant-husband had failed to establish, that the mental unsoundness
of mind or mental disorder of the respondent-wife was of such degree, that he could not be expected to live with her.

17. Having regard to the aforesaid conclusions, the Family Court
dismissed OP No.926 of 2002 filed by the appellant-husband Darshan Gupta on
the ground that he had not been able to prove the ingredients of either
clause (ia) or clause (iii) of Section 13(1) of the Hindu Marriage Act,
1955. 
On the other hand, OP No.629 of 2003 was allowed holding that the
respondent-wife was entitled to the relief of restitution of conjugal
rights. Her husband Darshan Gupta was accordingly directed to receive her
back into his house within three months, and to give her moral and
emotional support. On his failure to do so, he was directed to continue to
pay the interim maintenance amount fixed by the Family Court, till he
finally accepts her back into his house. At this juncture, and in the
context under reference, it would be sufficient to record, that the parties
have not been able to reside together till date.

18. Dissatisfied with the common order dated 2.2.2006 passed by the
Family Court, Hyderabad, the appellant husband filed FCA No.36 of 2006 to
assail the order passed in OP No.629 of 2003. Similarly, he filed FCA
No.37 of 2006 to impugn the order passed in OP No.926 of 2002. The High
Court disposed of FCA No.36 of 2006 and FCA No.37 of 2006 by a common order
dated 6.7.2009. By the aforesaid common order, the High Court dismissed
both the appeals preferred by the appellant-husband, by accepting and re-
endorsing each finding of fact, recorded by the Family Court, Hyderabad.

19. The common order passed in FCA No.36 of 2006 and FCA No.37 of 2006
by the High Court on 6.7.2009 was assailed by the appellant-husband Darshan
Gupta by filing Petitions for Special Leave to Appeal being SLP (C)
Nos.22571-22572 of 2009. On 14.9.2009, this Court granted leave, in the
above mentioned petitions.

20. On 27.7.2011, this Court directed both parties with their family
members to appear before the Hon'ble Judges hearing the matter, in chamber.
Accordingly, on 23.8.2011, the parties appeared, and were heard in
chambers. While adjourning the matter to 19.9.2011, the Hon'ble Judges who
had heard the parties in chamber recorded, that the parties were not in a
position to arrive at an amicable settlement. Despite the above, on the
next date of hearing, i.e., on 19.9.2011, learned counsel representing the
rival parties informed this Court, that the appellant, as well as, the
respondent had expressed their mutual willingness to live together in a
separate flat, initially for a period of at least six months. This Court,
being desirous of an amicable settlement, permitted the appellant and the
respondent to live together. While granting the said liberty, the bench
hearing the matter, recorded its earnest hope, that there would be no
interference by other family members. The parties were required to inform
this Court, of the outcome of their effort.

21. It is submitted by learned counsel representing the rival parties,
that Radhika Gupta joined her husband Darshan Gupta in a separate flat at
Hyderabad, on 29.9.2011. Darshan Gupta and Radhika Gupta, however,
remained together only for a few days. During the said period, the parties
could not persuade themselves to maintain a relationship of cordiality, nor
was there any physical relationship between them.
Radhika Gupta left the
company of the appellant-husband Darshan Gupta on 3.10.2011. On the said
date itself, Radhika Gupta addressed a letter to the Registry of this Court. The said letter read thus :
"The Hon'ble Supreme Court, by the order dated 19.09.2011 directed us to live happily for a period of six months. 
In pursuance to the
directions of the Hon'ble Supreme Court, my husband taken me into his matrimonial company on 29.09.2011 and kept me separately at his row (sic) house situated at Jubilee Hills.


However, I am reporting from that day i.e. 29.09.2011 my husband is
not behaving properly with me. Instead of showing love and affection, he is abusing me with filthy language without any reason. 
He is
calling me "PAGAL" as and when he is addressing me. He is further saying that I have no sense and intelligence. Further he repeating me to leave him by taking money. He is further saying that even though his appeal before Supreme Court is dismissed he is not going to live with me. 
My in-laws also compelling me to agree for divorce by
accepting money. My husband threatening me to agree for Divorce. 
The
torture of my husband is beyond my tolerance. Hence under the above compelling circumstances I am leaving to my mothers' place."
It is apperant from the above, that the efforts of the parties to convince
one another, of settling the matter amicably, did not yield to any fruitful
results.

22. It is thus, that the matters came to be relisted for hearing.
Learned counsel representing the rival parties expressed their desire, that
the appeals be heard and disposed of on merits. It is therefore, that we
have resolved to adjudicate upon the matters. We may only record, that it
is routine to settle issues of law, but it is formidably cumbersome, and
distressingly painful to decide issues of relationship. All the same,
having heard learned counsel for the rival parties, we shall record our
conclusions, on the issues canvassed.

23. The appellant-husband has sought dissolution of marriage on two
grounds. First and foremost, he claims to have been subjected to cruelty
on account of the intemperate behaviour of his wife. For the instant
prayer, he relies on clause (ia) of Section 13(1) of the Hindu Marriage
Act, 1955. The second ground on which the appellant-husband seeks
dissolution of marriage is, that his wife is of incurable unsound mind, and
suffers from such a mental disorder, that the appellant cannot be
reasonably expected to live with her. For the instant second prayer, the
appellant-husband relies on clause (iii) of Section 13(1) of the Hindu
Marriage Act, 1955. The two provisions on the basis whereof the husband
seeks annulment of marriage are being extracted hereunder for facility of
reference:-

1 "13. Divorce

(1) Any marriage solemnised, whether before or after the
commencement of this Act, may, on a petition presented by
either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party-
1[(ia) has, after the solemnisation of the marriage,
treated the petitioner with cruelty; or
(iii) has been incurably of unsound mind, or has been
suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with the
respondent.
Explanation -In this clause-
(a) the expression "mental disorder" means mental illness,
arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and
includes schizophrenia;
(b) the expression "psychopathic disorder" means a persistent
disorder or disability of mind (whether or not including sub-
normality of intelligence) which results in abnormally
aggressive or seriously irresponsible conduct on the part of the
other party, and whether or not it requires or is susceptible to
medical treatment"


24. Insofar as the allegation of cruelty levelled against the wife is
concerned, the same did not constitute a serious challenge at the hands of
the appellant on the basis of the facts pleaded and proved during the
course of hearing. Being conscious of the fact, that the Family Court, as
well as, the High Court were unanimously of the view, that the appellant
had failed to discharge the onerous responsibility of substantiating even a
single fact to demonstrate any erratic behaviour of Radhika Gupta, which
would constitute and establish cruelty at the hands of the wife towards the
husband, recourse was advisedly taken to cumulatively project the factual
position for both the grounds, on the basis whereof annulment of marriage
was sought, i.e., on account of intemperate behavior, as well as, on
account of the alleged mental condition of the wife. This is how we
understood the submissions advanced at the hands of the learned counsel for
the appellant-husband. And therefore, that is the manner in which the same
will be considered. We shall, therefore, first briefly record the factual
basis constituting the foundation of the challenge.

25. On the attitude of Radhika Gupta, the respondent-wife, towards the
appellant-husband, specially after September, 2000, it was submitted that
she was totally disoriented, after she regained consciousness. She could
not distinguish right from wrong. She was no better than a child of five
years. She would wake up in the middle of the night and would start
shouting without any reason. She would not allow the appellant-husband
Darshan Gupta to sleep, after she had woken up. Even otherwise, her
shouting and screaming could occur at any time of the day (or night)
without any cause. She was unpredictable. Neurologist had opined, that it
was impossible for Darshan Gupta, the appellant-husband, to live with his
wife Radhika Gupta. On the subject of her mental condition, it was sought
to be asserted, that after the tragedy wherein Radhika Gupta, lost her new
born only eight days after the child's birth; the appellant-husband, as
also his family members, left no stone unturned for the restoration of her
health. For that, she was taken to the best hospitals, which specialized
in the very disorder, she suffered from. Specialists in all the relevant
fields including neurologists, gynecologists, psychologists, occupational
therapists, and the like, were duly consulted. When advised, second
opinions of experts were also sought. Yet the condition of Radhika Gupta,
did not improve to an extent, as would render her competent, even to take
care of herself. In this behalf, it was submitted, that it was not safe to
leave the respondent-wife alone in her bedroom. Likewise, she could not be
permitted to use the bathroom by herself. Accordingly, an attendant was
engaged to help Radhika Gupta, even for her personal day to day activities.
Insofar as the mental condition of the respondent-wife is concerned, based
on the testimony of Dr. M. Veera Raghava Reddy-PW4, it was submitted that
there was no likelihood of any improvement in her mental framework,
inasmuch as, her improvement (as per the testimony of PW4) would be limited
to 4-5%. It was submitted, that she was forgetful, and had lost her
memory. She could not name household articles or food materials. She
could also not recall the names of persons and incidents, she was otherwise
well-versed with. Her working memory was sub-normal, and therefore, she
could not be expected to execute day to day tasks, or to perform ordinary
obligations, towards her husband and the other family members. Her mental
deficiency, according to the learned counsel representing the appellant-
husband, was on account of brain damage suffered by her, at the time of the
caesarian operation performed upon her, in September, 2000. The said brain
damage, according to the learned counsel, was irreparable. It was pointed
out, that the behaviour of Radhika Gupta, thereafter was proof in itself,
for the aforesaid assertion. On account of the aforesaid brain damage,
even her speech was stated to have been substantially impaired. On the
subject of their marital relationship, it was contended, that the same was
just out of the question. In this behalf it was sought to be pointed out,
that Radhika Gupta would not allow the appellant to touch her physically,
even to please her. The enjoyment of marital life was, therefore,
unimaginable. According to the opinion tendered by Dr. M. Veera Raghava
Reddy-PW4, on account of the cognitive deficiency suffered by Radhika
Gupta, she was not fit for conjugal life. With great emphasis, learned
counsel representing the appellant-husband pointed out, that Radhika Gupta
was no longer fit to bear a child. This position, according to the learned
counsel, was acknowledged unanimously by specialists treating her. It was,
therefore sought to be suggested, that the mental disorientation of Radhika
Gupta was of an order and extent, that the appellant-husband could not
reasonably be expected to live with her. Living with her would result in
subjecting himself to cruelty.

26. The response of the learned counsel, to the factual averments
canvassed at the hands of the learned counsel for the appellant-husband,
constituted a two-pronged attack. First and foremost it was sought to be
averred, that it was Darshan Gupta, the appellant-husband, who was
pointedly responsible for the medical condition of the respondent-wife. It
was therefore submitted, that he ought to squarely accept his fault for the
same. Accordingly it was contended, that it was not open to him to press a
claim for dissolution of marriage under Section 13(1) of the Hindu Marriage
Act, 1955, by making accusations, for which he himself was blameworthy. In
this behalf it was submitted, that after the first conception of Radhika
Gupta was aborted in June, 1999, the attending gynecologist at Apollo
Hospital, had cautioned the couple against any further conception, for at
least two years. The couple had been made aware of the fact, that any
pregnancy during this period would lead to serious medical complications.
Despite having been conscious of the disastrous consequences of Radhika
Gupta's conception, Darshan Gupta had proceeded with unsafe cohabitation,
resulting in her pregnancy within a short period of eight months i.e., well
within the risk period. It was submitted, that the advice of the attending
gynecologist, had proved to be correct, inasmuch as, Radhika Gupta suffered
hypertension resulting in fits, extreme morning sickness and general
weakness. It was pointed out, that the situation could still have been
saved, but for the extreme desire of the husband Darshan Gupta, to have a
child. It is, therefore, that the second pregnancy was not terminated.
Radhika Gupta, therefore, suffered torturous health conditions, during the
eight months of her second pregnancy. The forbidden pregnancy eventually
resulted in brain damage, leading to the consequences on the basis whereof
Darshan Gupta presently seeks dissolution of marriage. In this behalf it
was also sought to be vehemently contended, that the appellant-husband was
not truly interested in the recovery of Radhika Gupta, inasmuch as, he
never extended any emotional support to her, despite the trauma that she
had gone through after she lost her baby in September, 2000. It was
submitted, that according to the experts who had examined her, her
improvement would have been a lot more significant and faster, if her
husband had been with her, and had cared for her, in her journey to
recovery. Even though her attending doctor is stated to have repeatedly
asked Radhika Gupta to bring her husband alongwith her, Darshan Gupta had
never accompanied her during the course of her consultations with Dr. C.R.
Mukundan-RW1. It was, therefore submitted, that the appellant cannot be
granted relief, for a wrong for which he himself was responsible.

27. Learned counsel representing Radhika Gupta even contested the
factual premise, on which the appellant-husband had based his claim for
dissolution of marriage. Insofar as the factual position is concerned,
Radhika Gupt contended, that she was hale and hearty. Even though she
acknowledged, that she was mentally disoriented immediately after she had
undergone the cesarean operation in September, 2000, it was averred, that
she had regained her consciousness and had become normal. Relying on the
reports prepared by experts during the course of her treatment as far back
as in June, July and October, 2002, it was submitted that she had shown
significant improvement in all cognitive areas. Even her working memory
had improved, so much so, that experts had evaluated the same as normal.
It was pointed out, that Radhika Gupta was fully capable of enjoying a
happy marital life, and that, there was no evidence on the record of the
case to establish, that her mental condition would have any effect on her
matrimonial obligations. On her abilities to discharge her matrimonial
obligations, it was submitted that Radhika Gupta was assessed as possessing
normal and adequate emotional responses. During the entire traumatic
period, in the course whereof the parties had separated from one another,
she had persistently expressed that she was intensely concerned with her
future relationship with her husband, and that, her greatest and paramount
desire was to rejoin her husband, and to live with him normally in a
matrimonial relationship once again. Based on expert opinion tendered by
the medical board constituted by the Family Court, the statement of Dr.
C.R. Mukundan-RW1, as also, the testimony of Dr. Bhaskara Naidu-CW2, it was
submitted, that there could be no doubt, that the respondent-wife was
possessed of all necessary ingredients, mental as well as, physical, for
effectively discharging her matrimonial obligations. On the above
averments it was submitted, that the Family Court, as well as, the High
Court had justly adjudicated the controversy, by expressing the same
opinion concurrently.

28. We have given our thoughtful consideration to the rival
submissions advanced at the hands of the learned counsel for the parties.
First and foremost, we must record, that the respondent-wife Radhika Gupta
admittedly suffered brain damage after her cesarean operation in September,
2000. It is not a matter of dispute, that she had remained unconscious for
some time even after having delivered a baby on 20.9.2000. It appears,
that at the time of regaining consciousness, she was totally disoriented,
having lost her memory. The extent to which she had lost her memory is not
discernible from the evidence available on the record of the case. It was
most definitely substantial, as it is clear, that she could not even
recognize persons of close affinity. She could not name household articles
and food materials. She could not remember the names of persons known to
her. She could also not recall the objects and incidents seen by her. She
was unable to execute and complete, working memory tasks. Even her
conceptual organization of numbers, and ability for arithmetic operations,
was limited. Not only that, even her speech was substantially impaired.

29. To deal with her medical condition, her husband Darshan Gupta
seems to have initially extended full financial support, by seeking
consultation of specialists in fields wherein Radhika Gupta needed
assistance. He also ensured, that such treatment was provided to her at
premium hospitals. Material on record demonstrates, that she was admitted
at the Apollo Hospital, Hyderabad, and thereafter, at the Leelavathi
Hospital, Mumbai. Her treatment at NIMHANS, Bangalore, also emerges from
the record of the case. There can, therefore, be no doubt about the
initial commitment of Darshan Gupta towards the welfare of his wife Radhika
Gupta.

30. It, however, seems, that the appellant-husband was skeptical about
the outcome of her recovery. His assessment of her medical condition, in
the background of the inputs from the doctors attending on her, probably
created the impression, that she would henceforth be a liability on him.
Dr. M. Veera Raghava Reddy-PW4 may have been responsible for the said
impression. Even during the course of his testimony before the Family
Court, Dr. M. Veera Raghava Reddy-PW4 had opined, that from his experience
he could state, that even if the respondent Radhika Gupta was treated by
psychiatrists or clinical physiologists, her improvement would be limited
to 4-5%. Keeping in mind the hopeless condition of Radhika Gupta, the
appellant-husband could not have expected any kind of positive relationship
with Radhika Gupta. It was natural for him to infer, that his wife would
henceforth be a useless burden. It is not reasonable to blame him for his
impressions. In 2000, when the unfortunate incident occurred, he was
merely 25 years old. One would expect, that all his dreams of a happy
married life, came to be shattered after seeing the medical condition of
his wife, specially in the background of the assessment made by the experts
being consulted. The aforesaid impression in his mind, clearly
demonstrates the reason of his responses towards Radhika Gupta, in the
aftermath of her medical tragedy. He was absolutely sure, that she would
never be able to lead a normal life, and that, there was no question of her
being able to perform her matrimonial obligations. It is in the aforesaid
background, that it is easier to understand why he had refrained from
extending emotional or moral support to Radhika Gupta. But the inescapable
truth is, that factually Darshan Gupta did not extend emotional or moral
support to his wife, after her medical episode. The distress of Darshan
Gupta, and the distance that he started to keep from his wife, emerge from
the statement of Dr. C.R. Mukundan-RW1. Dr. C.R. Mukundan-RW1 placed on
the record of the Family Court three documents (Exhibits R1 to R3). The
aforesaid documents pertain to the treatment of Radhia Gupta during 2002.
In our view, those are the safest documents to be relied upon, for truly
assessing the medical conditions of Radhika Gupta. These reports cannot be
said to have been created, at the asking of one or the other. They were
honest impressions expressed about the state of mental health of Radhika
Gupta. The attending doctor of Radhika Gupta considered it appropriate to
expressly record in one of these reports, that during her treatment, he had
requested Radhika Gupta to bring her husband along with her. He also
noted, that the husband had never accompanied her, despite his aforesaid
indication to Radhika Gupta. The consequence of non-participation of
Darshan Gupta in the course of treatment of Radhika Gupta, is also recorded
in the report. The report notices, that her improvement would have been a
lot more significant and faster, if her husband had been with her and had
cared for her in her journey to recovery. The reasons which may have
weighed in the young husband's mind may be any, but the harsh reality is,
that Darshan Gupta did not extend due care and support to his wife, nor did
he participate in her journey to recovery.

31. Shorn of the participation and support of Darshan Gupta to his
wife Radhika Gupta, it is still material to determine the extent of her
recovery. An assessment of the mental condition of Radhika Gupta, would
render it possible for us to determine whether or not in terms of Section
13(1)(iii) of the Hindu Marriage Act, 1955, her mental disorder is of such
a kind, and to such an extent, that Darshan Gupta cannot reasonably be
expected to live with her. Insofar as the instant aspect of the matter is
concerned, it would be just and appropriate to refer to and rely upon, the
three reports prepared at the relevant time. The aforesaid reports were
placed on the record of the Family Court by Dr. C.R. Mukundan-RW1. The
said reports were prepared in June, July and October 2002. The reports
reveal, that Radhika Gupta had undergone intensive cognitive re-training
using brain function therapy, and she was provided with graded re-training
in alphabet and number recognition and delayed recall, recognition and
recall of words and figures, different levels of working memory, etc. In
the first neuro-psychological assessment of Radhika Gupta at NIMHANS in
June, 2002, as also, in the second assessment made in July, 2002,
considerable improvement was found in the medical condition of Radhika
Gupta. She was found to have shown significant progress in all cognitive
areas, and that, her word finding difficulty was reduced by 60-70%. Even
though the report records, that she could not spontaneously name household
articles and food materials, or recall the names of persons and objects
seen in movies or read in books, yet was noticed, that she could do so with
some effort. The report also records, that her working memory had improved
to an extent, that the same could be described as "near normal". In her
aforesaid assessment, she was found to be able to execute and complete,
working memory tasks. Radhika Gupta was subjected to a third neuro-
psychological assessment in October, 2002. Again marked improvement was
found in her conceptual organization of numbers and ability for arithmetic
operations. The instant third assessment expressly records, that Radhika
Gupta was capable of all normal emotional experiences and expressions. Her
eager and earnest desire about her future reunion with her husband, is also
indicated in the report. She has been assessed as fully capable of
shouldering the responsibilities of a happy marital life. Dr. C.R.
Mukundan-RW1 categorically testified, that Radhika Gupta was not a case of
mental disorder. He clarified, that her case was of cognitive deficiency,
on account of brain damage. According to RW1, Radhika Gupta had recovered
her working memory by more than 80%. He also explained, that cognitive
deficiency is recoverable, but the recovery is dependent on the degree of
damage to the brain, as also, the emotional support the patient gets from
the family members, at the relevant time. It would be pertinent to
mention, that this is the testimony of the same doctor, who had been
requiring Radhika Gupta to bring Darshan Gupta along with her, during the
course of her consultations. During the course of his cross-examination,
Dr. C.R. Mukunan-RW1 denied the suggestion, that Radhika Gupta was not in a
position to discharge her normal day to day functions of life.

32. Besides the testimony of Dr. C.R. Mukundan-RW1, it would be
relevant to mention, that the Family Court had directed Radhika Gupta to
appear before a medical board. It would be appropriate to refer to the
findings and conclusions recorded in the report submitted by the said
medical board, which comprised of eminent specialists in psychiatry and
clinical psychology. In the aforesaid report (Exhibit C1) submitted to the
Family Court, conclusions were recorded on the basis of the medical history
of Radhika Gupta, as also, the observations and examinations of the
respondent-wife. The medical board expressed the opinion, that Radhika
Gupta was suffering from cognitive deficiencies in the form of difficulty
in comprehension, attention, concentration, orientation, perceptual
ability, memory retrieval, word finding difficulty and organization
ability. The said effects, according to the Board, could influence her day
to day functioning. It was however concluded, that Radhika Gupta did not
manifest any signs of major mental disorder, and that, she exhibited normal
adequate emotional responses. It was also opined, that she would further
benefit from neuro-psychological rehabilitation measures, which are
available at NIMHANS. Dr. Bhaskar Naidu, one of the members of the medical
board, was also examined by the Family Court, as a court witness. During
the course of his deposition, Dr. Bhaskara Naidu-CW2, expressed the opinion
that Radhika Gupta could be described as a person of moderate intelligence.
He also expressed, that by undergoing therapy training, there was a
further likelihood of improving her cognitive deficiencies. He also
clarified, that the deficiencies suffered by Radhika Gupta, would not come
in her way to discharge her matrimonial obligations.

33. The aforesaid material, in our considered view, would be
sufficient in recording our conclusions, in respect of the mental health of
Radhika Gupta. Based on the evidence discussed hereinabove, it is not
possible for us to record, that Radhika Gupta suffers from any incurable
unsoundness of mind. It is also not possible for us to hold, that she
suffers from such mental disorder, that it cannot be reasonably expected of
her husband to live with her. The evidence produced before the Family
Court leaves no room for us but to conclude, that Radhika Gupta merely
suffers from mild to moderate cognitive deficiencies. She is categorized
by medical experts as an individual of moderate intelligence. Material on
the record of the case reveals, that she would further benefit from neuro-
psychological rehabilitation measures, which are available at NIMHANS.
Even though the said deficiencies could influence her day to day
functioning, but expert opinion is unanimous that the same would not come
in her way to discharge her matrimonial obligations. It cannot also be
overlooked, that experts have clearly expressed that Radhika Gupta exhibits
normal and adequate emotional responses. She has right from the beginning,
fervently expressed the desire to restore her relationship with her
husband, and to live a normal life, in a matrimonial relationship with him.
In the aforesaid view of the matter, it is not possible for us to
conclude, that the mental condition of Radhika Gupta is such as would
persuade us to accept the appeal preferred by Darshan Gupta under Section
13(1)(iii) of the Hindu Marriage Act, 1955.

34. It would also be relevant for us to refer to the alleged erratic
behaviour of Radhika Gupta. In this behalf, it would be pertinent to
mention, that it was pointedly asserted at the behest of the appellant-
husband, that Radhika Gupta would wake up in the middle of the night, and
thereafter, would not allow him to sleep. It was also contended, that
Radhika Gupta would shout and scream without any provocation or cause, at
any time of the day (or night). Other similar allegations were also
levelled by Darshan Gupta against his wife. The Family Court, while
dealing with the said allegations, had rejected the same on the ground,
that there was no evidence before the Court, except the deposition of
interested witnesses, namely, the appellant-husband himself, his maternal
aunt Nirmala Devi and his elder twin brother Drapan Gupta. Since the
husband did not produce independent witnesses available to him before the
Family Court, it was concluded that the husband had failed to establish,
that Radhika Gupta's behaviour was aggressive, erratic or abnormal; or that
he was subject to cruelty on account of such behaviour. We are of the
considered view, that the Family Court, as also, the High Court were fully
justified in drawing their conclusions, insofar as the alleged abnormal,
erratic and aggressive behaviour of Radhika Gupta is concerned. The courts
below were fully justified in recording, that the said behaviour of Radhika
Gupta could have easily been established through the testimony of the
attendants who looked after Radhika Gupta, as also, the other staff, yet
the said witnesses were not produced by the appellant, despite their
availability. Interestingly, however, the appellant-husband himself had
produced Dr. M. Veera Raghava Reddy-PW4, to support his cause. Dr. M.
Veera Raghava Reddy-PW4 appearing for the appellant-husband, during his
deposition asserted that he did not observe any signs of aggressiveness in
the respondent-wife. Since Radhika Gupta was under the care and treatment
of Dr. M. Veera Raghava Reddy-PW4, he would have obviously known of her
erratic behaviour, if the allegations of the husband were correct. The
respondent-wife had also produced Dr. C.R. Mukundan-RW1 on her behalf. He
too would have been aware of such behaviour. The appellant Darshan Gupta,
however, chose not to examine Dr. C.R. Mukundan-RW1, on the said subject.
In fact, there is material on the record of the case to draw a finding,
converse to the submission advanced. In this behalf, it would be pertinent
to mention, that in the order of the Family Court it is duly noted, that
when Dr. M. Veera Raghawa Reddy-PW4, appeared to depose in the matter,
Radhika Gupta was sitting in the court-hall observing court proceedings.
During his interaction with Radhika Gupta, PW4 had enquired about her
welfare, and she had responded by stating "I am fine sir, thank you". The
very court which Radhika Gupta had repeatedly visited, recorded the above
instance to demonstrate that her behavior was far from erratic, as
suggested by the husband. The position, in our view, would be no
different, even if we consider these facts in conjunction with her medical
condition. We are, therefore, satisfied in accepting the conclusion drawn
concurrently by the courts below, that there was no material on the record
of the case, to substantiate the alleged aggressive, erratic or abnormal
behaviour of Radhika Gupta. In the aforesaid view of the matter, it is not
possible to accept the appeal preferred by the appellant even under Section
13(1)(ia) of the Hindu Marriage Act, 1955.

35. Despite our aforesaid conclusions, it is necessary to examine the
instant controversy from another point of view. As noticed hereinabove, it
was the vehement contention of the learned counsel for the respondent-wife,
based on the pleadings filed by Radhika Gupta, as also, the evidence
produced by her, that it was the husband Darshan Gupta alone, who was
blameworthy of the medical condition of the respondent. It was submitted,
that Darshan Gupta desires to encash on his own fault, by seeking
dissolution of marriage, for a consequence, of which he himself was
blameworthy. The instant submission, though not canvassed in that manner,
can be based on a legal premise. A perusal of the grounds on which divorce
can be sought under Section 13(1) of the Hindu Marriage Act, 1955, would
reveal, that the same are grounds based on the 'fault' of the party against
whom dissolution of marriage is sought. In matrimonial jurisprudence, such
provisions are founded on the 'matrimonial offence theory' or the 'fault
theory'. Under this jurisprudential principle, it is only on the ground of
an opponent's fault, that a party may approach a Court for seeking
annulment of his/her matrimonial alliance. In other words, if either of
the parties is guilty of committing a matrimonial offence, the aggrieved
party alone is entitled to divorce. The party seeking divorce under the
"matrimonial offence theory" / the "fault theory" must be innocent. A
party suffering "guilt" or "fault" disentitles himself/herself from
consideration. Illustratively, desertion for a specified continuous
period, is one of the grounds for annulment of marriage. But the aforesaid
ground for annulment is available only, if the desertion is on account of
the fault of the opposite party, and not fault of the party which has
approached the Court. Therefore, if a husband's act of cruelty, compels a
wife to leave her matrimonial home, whereupon, she remains away from the
husband for the stipulated duration, it would not be open to a husband to
seek dissolution of marriage, on the ground of desertion. The reason
being, that it is the husband himself who was at fault, and not the wife.
This is exactly what the respondent has contended. Her claim is, that in
actuality the appellant is making out a claim for a decree of divorce, on
the basis of allegations for which he himself is singularly responsible.
On the said allegations, it is Darshan Gupta, who deserves to be
castigated. Therefore, he cannot be allowed to raise an accusing finger at
the respondent on the basis of the said allegations, or to seek dissolution
of marriage, thereon.

36. There is no dispute between the rival parties, that after Radhika
Gupta's first conception was aborted in June, 1999, the attending
gynecologist at Apollo Hospital, had cautioned the couple against any
further conception for at least two years. The couple had been advised,
that pregnancy of Radhika Gupta during this period could lead to serious
medical complications. Radhika Gupta alleges, that her husband had
proceeded with unsafe cohabitation, leading to her second pregnancy, within
a short period of eight months (after the abortion in June, 1999), i.e.
well within the risk period. Clearly contrary to the medical advisory.
The truth of the second conception, cannot be disputed, in view of the
overwhelming supporting evidence on the record of the case. The conception
could have only occurred because of, unprotected sexual indulgence by
Darshan Gupta. The medical condition of Radhika Gupta, was for one and
only one reason, namely, the second conception of Radhika Gupta, during the
unsafe period. Clearly, the blame thereof, rests squarely on the shoulders
of Darshan Gupta. The instant conclusion is difficult to assimilate. Yet,
there can be no doubt about the truthfulness thereof. It is in this view
of the matter, that the submissions advanced at the hands of the learned
counsel for Darshan Gupta, have been vehemently opposed. The unambiguous
contention of the learned counsel for the respondent is, that the
grounds/facts on which divorce is sought by the appellant, are not at all
available to him under the "fault theory" on which Section 13(1) of the
Hindu Marriage Act, 1955, is founded.

37. We are persuaded to accept the submission noticed in the foregoing
paragraph. There can be no doubt, that all the grounds/facts on which
divorce has been sought, emerge from the medical condition of Radhika
Gupta, after her cesarean operation in September, 2000. The symptoms
during her first pregnancy were such, that the couple was advised not to
conceive for a period of two years. The husband did not heed to the advice
tendered by the attending gynecologist. We are, therefore, inclined to
fully endorse the view expressed by the Family Court, that the appellant-
husband Darshan Gupta himself, was responsible for the state of affairs of
his wife-Radhika Gupta, inasmuch as he did not heed the advice of
gynecologist after the abortion of her first pregnancy in June 1999. There
is no serious dispute, that to satisfy his desires, he impregnated his wife
within a period of eight months, i.e., well within the risk period.
Therefore, she suffered the predicted consequences. The medical condition
of Radhika Gupta, on which the appellant basis his claim for divorce, is of
his own doing. Even though at that juncture, Darshan Gupta was merely 25
years of age, and it may well be difficult to blame him, yet there is no
escape from the fact, that the fault rests on his shoulders. In the above
view of the matter, it is not possible for us to conclude, that Darshan
Gupta did not suffer from any "guilt" or "fault" in the matter. It is,
accordingly, not possible for us to accept, that he can be permitted to use
his own fault to his advantage. His prayer for divorce on the facts
alleged, is just not acceptable. The party seeking divorce has to be
innocent of blame. We are satisfied, that the grounds/facts on which a
claim for divorce can be maintained under Section 13(1) of the Hindu
Marriage Act, 1955, are clearly not available to the appellant Darshan
Gupta in the facts and circumstances of this case. For the instant reason
also, the prayers made by the appellant must fail.

38. Towards the same end, learned counsel for the appellant advanced
yet another submission. Learned counsel representing the appellant, sought
dissolution of marriage on the ground, that the matrimonial ties between
the parties had irretrievably broken down. It was, therefore, the
contention of the learned counsel for the appellant, that this Court would
be justified in annulling the marriage between the parties, specially when
the parties have lived apart for more than 12 years. Inviting this Court's
attention to the intervention at the instance of this Court, in compliance
whereof the parties had made a last ditch effort to live together, and had
actually taken up residence in an independent flat in Hyderabad on
29.9.2011, it was pointed out, that they could not persuade themselves into
a relationship of cordiality. It was, therefore, sought to be suggested,
that there was no likelihood of the parties ever living together as husband
and wife. It was accordingly submitted, that this Court should consider
the annulment of the matrimonial ties between the parties, on the ground of
irretrievable breakdown of marriage.

39. At the present juncture, it is questionable as to 
whether the
relief sought by the learned counsel for the appellant, on the ground of
irretrievable breakdown of marriage is available to him. The reason for us
to say so, is based on a judgment rendered by this Court in Vishnu Dutt
Sharma vs. Manju Sharma, (2009) 6 SCC 379, wherein this Court has held as
under:-
"10. On a bare reading of Section 13 of the Act, reproduced
above, it is crystal clear that no such ground of irretrievable
breakdown of the marriage is provided by the legislature for
granting a decree of divorce. This Court cannot add such a
ground to Section 13 of the Act as that would be amending the
Act, which is a function of the legislature.


11. Learned Counsel for the appellant has stated that this
Court in some cases has dissolved a marriage on the ground of
irretrievable breakdown. In our opinion, those cases have not
taken into consideration the legal position which we have
mentioned above, and hence they are not precedents. A mere
direction of the Court without considering the legal position is
not a precedent.


12. If we grant divorce on the ground of irretrievable
breakdown, then we shall by judicial verdict be adding a clause
to Section 13 of the Act to the effect that irretrievable
breakdown of the marriage is also a ground for divorce. In our
opinion, this can only be done by the legislature and not by the
Court. It is for the Parliament to enact or amend the law and
not for the Courts. Hence, we do not find force in the
submission of the learned Counsel for the appellant.


13. Had both parties been willing we could, of course, have
granted a divorce by mutual consent as contemplated by Section
13-B of the Act, but in this case the respondent is not willing
to agree to a divorce."


In this behalf, it would also be relevant to refer to another judgment
rendered by this Court in Gurbax Singh vs. Harminder Kaur, (2010) 14 SCC
301. Paragraph 20 of the cited judgment is relevant to the issue, and is
accordingly being extracted hereunder:-
"Finally, a feeble argument was made that both the appellant and
respondent were living separately from 2002 and it would be impossible
for their reunion, hence this Court exercising its jurisdiction under
Article 142 of the Constitution, their marriage may be dissolved in
the interest of both parties. Though, on a rare occasion, this Court
has granted the extraordinary relief dehors to the grounds mentioned
in Section 13 in view of the fact that the issue has been referred to
a larger Bench about permissibility of such course at present, we are
not inclined to accede to the request of the appellant. If there is
any change of law or additional ground included in Section 13 by the
act of Parliament, the appellant is free to avail the same at the
appropriate time."

Even otherwise, in the facts and circumstances of this case (which are
being highlighted while dealing with the appellant's next contention), we
cannot persuade ourselves to grant a decree of divorce, on the ground of
irretrievable breakdown of marriage, for the simple reason that the
breakdown is only from the side of the husband. The wife - Radhika Gupta
has consistently maintained, that she was intensely concerned with her
future relationship with her husband, and that, her greatest and paramount
desire was to rejoin her husband, and to live with him normally in a
matrimonial relationship, once again. Since in the present case, the
respondent does not consent to the severance of matrimonial ties, it may
not be possible for us to accede to the instant prayer, made at the hands
of the learned counsel for the appellant.

40. Since we were not agreeable with the contention advanced by the
learned counsel for the appellant, on the plea of irretrievable breakdown
of marriage, learned counsel sought the same relief, for the same reasons,
by imploring us to invoke our jurisdiction under Article 142 of the
Constitution of India, and to annul the marriage between the parties, as a
matter of doing complete justice between the parties. Doing justice
between the parties is clearly a constitutional obligation. This Court has
been bestowed with the discretion "... to make such order as is necessary
for doing complete justice in any cause or matter pending before it...".
The concept of justice, however, varies depending on the interest of the
party. On most occasions, it is advisable to adjudicate matters in
consonance with law. Whenever it is possible to do so, on the touchstone
of the courts conscience, the determination rendered would simultaneously
result in doing justice between the parties. All the same, since we have
been called upon to annul the marriage between Darshan Gupta and his wife
Radhika Gupta in order to do complete justice to the parties, we have
ventured to thoughtfully examine the matter from instant perspective as
well.

41. In the context of doing justice it was suggested, that the
appellant would be ready and willing to pay the respondent, whatever was
considered appropriate by this Court. We are informed, that the appellant
is financially well-to-do. We shall, therefore, keep in our mind the
appellant's offer while examining the instant issue. 
We would, in our
endeavour to determine the issue in hand, examine the matter, by reversing
the roles of the parties. We will examine the matter as if, the wife had
approached the Family Court seeking divorce, on the ground that her husband
had suffered brain damage leading to cognitive deficiencies. Yet, despite
the said deficiencies, his working memory had returned to "near normal"
after treatment. And his mental condition was such, that it would not have
any effect on his matrimonial obligations. And the wife's family is
agreeable to pay an amount to be determined by this Court (just as the
husband-Darshan Gupta, has offered), so as to enable their daughter to
break away, and find a more suitable match. Should she have been granted
freedom from her matrimonial ties, in the given facts, in order to do
complete justice to the parties? We would ask ourselves, whether the
husband would have accepted such a plea, in the facts denoted above? In
such situation, if this Court had, in exercise of its jurisdiction under
Article 142 of the Constitution of India, granted compensation to the
husband, and had dissolved his marriage on the pretext of doing complete
justice between the parties, would the same be acceptable to the husband?
We have no doubt in our mind, that on a reversal of roles, the husband,
without any fault of his own, would have never accepted as just, the
dissolution of his matrimonial ties, even if the couple had been separated
for a duration, as is the case in hand. Specially, if the husband had,
right from the beginning, fervently expressed the desire to restore his
matrimonial relationship with his wife, and to live a normal life with her.


42. We are of the view, that the issue in hand should be adjudged by
the above standards, when the same prayer is made by the husband. To
constitute justice, the picture should appear to be the same, irrespective
of the angle from which it is viewed. If the same sequence of facts cannot
be viewed as doing justice to the husband, they have to be likewise viewed
for the wife as well. It is, therefore, not possible for us to accept even
the last plea advanced at the hands of the learned counsel for the
appellant.

43. For the reasons recorded hereinabove, we find no merit in these
appeals, and the same are accordingly dismissed.


..................................J.
(P. Sathasivam)




..................................J.
(Jagdish Singh Khehar)
New Delhi;
July 1, 2013.
ITEM NO.1E COURT NO.8 SECTION XIIA
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 6332-6333 OF 2009


DARSHAN GUPTA Appellant (s)

VERSUS

RADHIKA GUPTA Respondent(s)


Date: 01/07/2013 These Appeals were called on for judgment
today.


For Appellant(s)
Mr. Amit Anand Tiwari,Adv.


For Respondent(s)
Mr. A.Venayagam Balan,Adv.

Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice P. Sathasivam and
His Lordship.


The appeals are dismissed in terms of the signed reportable
judgment.



|(Mahabir Singh) | (Veena Khera) |
| Court Master | Court Master |


(Signed reportable judgment is placed on the file)


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