Bidyut Das v. Dipika Majumder — 1995 DIGILAW 150 (GAU)

N.G. Das, J. — This is a husband's appeal from a judgment dated 31.7.1987 passed by the learned Additional District Judge, West Tripura District, Agartala in Case No.TS (Divorce) 17 of 1985. 2. The husband filed a petition under section 12 (1) of the Hindu Marriage Act, 1955 (abbreviated as the Act) for annulment of the marriage by a decree of nullity. The relief was claimed on the allegations that soon after the marriage which was solemnized as per Hindu rites and customs on 6.5.1985 the respondent wife was taken to the parental house of the appellant at Town Pratapgarh where the parents and the younger brother of the appellant used to live. It was alleged that soon after the respondent was taken to the parental house of the appellant the behaviour of the respondent was found abnormal which was not expected of ,a sane person. 3. The appellant being in employment of the Government of Tripura was posted at Sabroom as LD Clerk in the Manpower and Planning Department and after observing 'Kalratri' which fell on 7th May, 1985 the appellant went back to Sabroom and joined his duty there on 15.5.1985. Thereafter on 5.6.1985 the appellant came back to Agartala and found that respondent was not in his parental house. On enquiry the appellant came to know from his parents that the respondent left the house and she was staying at 12, Krishna Nagar, Agartala. On further enquiry the appellant came to know that after his departure for Sabroom the respondent's behaviour was found absolutely abnormal and that she was mad The appellant was informed by his parents that during his absence on 2.6.85 the respondent who used to sleep with the mother of the appellant answered her nature's call on the bed and that on the following day ie 3.6.85 the respondent spat betel leaf juice from her mouth on the food which was about to be taken by the mother of the appellant. 4. Moreover, on 4.6.85 the respondent discharged her stool in the bath room instead of going to latrine. Her abnormal behaviour did not stop there as during the absence of the appellant the respondent tore into pieces the neck less which was presented to her at the time of 'Ashirbad' before solemnization of the marriage. 4. Moreover, on 4.6.85 the respondent discharged her stool in the bath room instead of going to latrine. Her abnormal behaviour did not stop there as during the absence of the appellant the respondent tore into pieces the neck less which was presented to her at the time of 'Ashirbad' before solemnization of the marriage. The appellant also came to know from his parents as well as other relations that sometimes the respondent uttered absurd and irrelevant words and behaved madly to such an extent that on some occasion the respondent poured a full pot of vermilion upon her forehead and thereafter tried to wipe off the vermilion and uttered the words viz. "Bidyut was no more, Bidyut was no more." 5. On coming to know all these facts the appellant took the respondent to the Chamber of Dr. AK Nath, Mental Specialist on 9.6.1985 along with the brother of the respondent and thereafter took her to his own house. But on 11.6.85 the respondent while taking bath in the pond behaved in a hysterical manner exhibiting her insanity and on that night when the appellant was asleep the respondent made an abortive attempt to throttle him. 6. The appellant, therefore, made a search in the personal belonging to the respondent kept in a suitcase and during his search he recovered some old prescriptions of Dr. AK Nath, the Psychiatrist of GB Hospital and from those prescriptions the appellant came to know that the respondent had been under the treatment of Dr. Nath for a long period before her marriage due to her suffering from insanity. On further enquiry the appellant came to know the family history of the respondent, which revealed that the elder sister of the respondent was suffering from insanity and that her elder brother also used to suffer from periodical insanity. On coming to know all these facts the appellant arranged a meeting on 7.7.85 which was attended by, amongst others, three brothers of the respondent and in that meeting the brothers of the respondent informed that the respondent had been suffering from insanity since before her marriage. But the appellant was never informed of the fact that the respondent has been suffering from mental derangement before her marriage. The appellant, therefore, filed the application under section 12 (1) of the Act for a decree of nullity of the marriage. 7. But the appellant was never informed of the fact that the respondent has been suffering from mental derangement before her marriage. The appellant, therefore, filed the application under section 12 (1) of the Act for a decree of nullity of the marriage. 7. The respondent resisted the application and denied all the material allegations set forth in the petition. It was averred that the application under section 12 of the Act was not maintainable as according to the provision of Lunacy Act the appellant did not take permission of the next friend of the respondent to file the suit. It was averred that the respondent was neither under, the care of Samir Baran Majumder nor Samir Baran Majumder was her legal guardian. It was further contended that the appellant demanded huge dowry and he was not satisfied even though the brothers of the respondent spent about sixty thousand rupees at the time of marriage. It was alleged that parents-in-law treated the respondent as a maid servant and that is why she repeatedly approached the appellant and requested him to save her life from the bad atmosphere of the family by taking her to Sabroom. But the appellant turned a deaf ear to that request. The respondent further averred that she was always ready to perform the conjugal relation, but she did not get any happy response from the appellant. 8. Upon the pleadings of the parties the following issues were framed by the learned trial Court: 1. Whether the petitioner has any cause of action for filing this suit ? 2. Whether the OP was found to be abnormal as alleged by the petitioner ? 3. Whether the petitioner is entitled to get decree of divorce under the provisions of section 12 (1) (b) of the Hindu Marriage Act as invalid marriage ? 4. Whether the petitioner was entitled to get any relief or reliefs ? 9. In support of his petition the appellant examined 5 witnesses including Dr. AK Nath, the Psychiatrist. The respondent also examined 3 witnesses including herself. 10. Learned trial Court dismissed the petition with costs with the following observations: "In the instant case the evidence put forward by the petitioner in respect of abnormal behaviour of the respondent Dipika Majumder relates to the period after her marriage. AK Nath, the Psychiatrist. The respondent also examined 3 witnesses including herself. 10. Learned trial Court dismissed the petition with costs with the following observations: "In the instant case the evidence put forward by the petitioner in respect of abnormal behaviour of the respondent Dipika Majumder relates to the period after her marriage. But no evidence has been led by the petitioner in this case that Dipika was unfit for marriage due to disease of Schizophrenia. In view of the aforesaid submission I find that the arguments advanced by the learned Advocate Mr. M. Kar Bhowmik in this case may be a good ground for divorce or for other reliefs as per provision of Hindu Marriage Act. But the petitioner is not entitled to get the declaration that the marriage is annulled in view of the provision of section 12 (1) (b) of the Hindu Marriage Act." 11. It would be quite apparent from the facts narrated above that the appellant claimed dissolution of marriage by a decree of nullity mainly on the grounds that the respondent has been suffering from Schizophrenia since long before her marriage with the appellant and that this fact was concealed by the brothers of the respondent. So, the first question which calls for determination is whether the respondent was a patient of Schizophrenia before her marriage with the appellant. If it is found that the respondent had been suffering from Schizophrenia long before the marriage then the next question which will pose for consideration is whether this material fact, namely, ailment of Schizophrenia was not brought to the notice of the appellant or his parents. 12. Mr. M. Kar Bhowmik, the learned counsel appearing on behalf of the appellant has at the very outset submitted that finding of the learned trial Court will show that it was a good case for divorce. But the learned trial Court did not accept the contention of the appellant that the respondent was suffering from the ailment of Schizophrenia long before her marriage. The contention of Mr. Kar Bhowmik is that this finding of the learned trial Court that the respondent was not suffering from ailment of Schizophrenia long before the marriage is a perverse finding as a perusal of the evidence of Dr. The contention of Mr. Kar Bhowmik is that this finding of the learned trial Court that the respondent was not suffering from ailment of Schizophrenia long before the marriage is a perverse finding as a perusal of the evidence of Dr. AK Nath who has been examined as PW 1 and the prescription and certificate issued by him will make it abundantly clear that the respondent was under the treatment of Dr. Nath and that Dr. Nath was treating her for her ailment of Schizophrenia. 13. Dr. AK Nath, PW 1 who exhibited the prescription marked as Exts 1,2, 3, 4 and 5 and the certificate marked as Ext 6 deposed that he treated the respondent by prescribing medicines from time to time. He deposed that he gave the prescriptions marked as Exts 1,2,3, 4 and 5 and also deposed that he prescribed the medicines for treatment of the respondent for her ailment of Schizophrenia. The doctor was cross-examined but nothing material could be elicited from him to discredit his testimony. On the other hand, during examination by the Court the doctor deposed that respondent was suffering from acute Schizophrenia and that the certificate which he issued marked as Ext 6 would also indicate that. The prescriptions marked as Exts 1,2, 3,4 and 5 which have been proved by Dr. Nath will further show that the respondent was under the treatment of Dr. Nath long before her marriage. 14. Dr. Jiban Chakraborty, PW 2 who is attached to the Mental Psychiatric Department in GB Hospital since 1978 deposed that on 11.7.85 he issued a certificate in respect of the illness of the respondent and handed over that certificate to the husband of the respondent. That certificate has been marked as Ext 7 and this Ext 7 which was issued by the doctor on 11.7.85 shows that the respondent had been suffering from Schizophrenia and she was under his treatment. 15. Cross-examined as DW 1 Smti Dipika Majumder stated that she did not visit Dr. Jiban Chakraborty after June, 1985. She however admitted that she knew Dr. Jiban Chakraborty and that she was treated by Dr. Jiban Chakraborty after her marriage. It has also been deposed by her in her chief that she was under the treatment of Dr. AK Nath (PW 1) before her marriage and that she used to take medicines from Dr. Nath for sleeping purpose. She however admitted that she knew Dr. Jiban Chakraborty and that she was treated by Dr. Jiban Chakraborty after her marriage. It has also been deposed by her in her chief that she was under the treatment of Dr. AK Nath (PW 1) before her marriage and that she used to take medicines from Dr. Nath for sleeping purpose. She deposed that she could not sleep properly due to mental pressure during the time of examination. It is, therefore, apparent from the version of respondent that she was under the treatment of Dr. AK Nath (PW 1) before her marriage. 16. Now as already stated Dr. AK Nath in his deposition stated that he prescribed medicines for the respondent for her treatment of Schizophrenia. The certificate issued by Dr. Nath also shows that the respondent has been suffering from acute Schizophrenia. There is no cogent reason why Dr. Nath or Dr. Jiban Chakraborty should depose falsely against the respondent. 17. The appellant who has been examined in this case as PW 3 deposed that I on coming to know from his parents about the abnormal behaviour of the respondent he took the respondent to Dr. AK Nath for her treatment and during his search recovered the prescriptions from the suitcase of the respondent and from those prescriptions he came to know that she was suffering from ailment of Schizophrenia. It was also deposed by him that abnormal behaviour of the respondent was witnessed by his parents as on one occasion during his absence the respondent spat betel leaf juice upon the food of his mother and on another occasion she passed urine on the bed itself and on another occasion she removed vermilion from her fore-head saying that Bidyut was dead. The appellant also deposed that on the night of 11.6.85 the respondent went to the. extent of throttling him while he was asleep. It is stated that he raised cries and his parents rushed to him on hearing his cries. These facts have been well corroborated by the parents of the appellant who have been examined in this case as PWs 4 and 5. 18. The brother of the respondent who has been examined as OPW 2 however denied that respondent was suffering from insanity. But during cross-examination it was elicited from him that the respondent was treated by Dr. These facts have been well corroborated by the parents of the appellant who have been examined in this case as PWs 4 and 5. 18. The brother of the respondent who has been examined as OPW 2 however denied that respondent was suffering from insanity. But during cross-examination it was elicited from him that the respondent was treated by Dr. AK Nath as she used to suffer from illness during her examination period due to tension. That respondent was suffering from some illness finds support from Ext 8 which was written by OPW 2 on 24.6.85. This letter indicates that the respondent was suffering from some disease and she was in the process of recovery. 19. As already stated it has also been admitted by the respondent that she was suffering from loss of sleep. The evidence of her brother, namely, OPW 2 also shows that she was suffering from loss of sleep and used to remain quiet. 20. So, upon consideration of all these facts I am of the view that it has been proved that the respondent was suffering from Schizophrenia long before her marriage. 21. Now, the question is whether this disease Schizophrenia is an incurable disease or not. Mr. Kar Bhowmik has argued that the Schizophrenia is not only incurable but the expectation of becoming Schizophrenia for members of a family increases if one of them is already suffering from Schizophrenia. It is argued by Mr. Kar Bhowmik that women Schizophrenia produced more children than do men Schizophrenics. In support of his contention Mr. Kar Bhowmik has referred to a book, namely, Modern Synopsis of Comprehensive Textbook of Psychiatry/II, Second Edition/Asian Edition by Alfred M. Freedman, MD, Harold I. Kaplan, MD and Benjamin J. Sadock, MD. In Chapter 14 of this book which deals with Schizophrenia it is found under the titled 'Reproduction Rate', at page 424 that "expectation of becoming Schizophrenic of a member of a family increases if one of them is already suffering from Schizophrenia...... Women Schizophrenics produce more children than do men Schizophrenics". The authors in their conclusion about the ailment of Schizophrenia said that despite major advances in the care and treatment of the mentally ill Schizophrenia continues to be a cronic incapacitating disease. 22. Under the heading 'Treatment' the authors stated; "The Phenothiazines have not solved the Schizophrenia problem. Women Schizophrenics produce more children than do men Schizophrenics". The authors in their conclusion about the ailment of Schizophrenia said that despite major advances in the care and treatment of the mentally ill Schizophrenia continues to be a cronic incapacitating disease. 22. Under the heading 'Treatment' the authors stated; "The Phenothiazines have not solved the Schizophrenia problem. The probability of readmission within 2 years of discharge for an initial episode of Schizophrenia, for example, varies between 40 and 60 percent, depending on the study. In the United States, between 15 and 25 percent of discharged Schizophrenics are eventually readmitted and receive continued care for a prolonged period of time. Further more, only 15 to 40 percent of Schizophrenics living in the community achieve an average level of adjustment. And serious, often irreversible side-effects attendant on the long term use of these agents have been reported with increasing frequency." 23. In view of what is stated above we are of the view that this is a disease, the cure of which is remote. From the evidence discussed above we also come to the conclusion that the respondent was suffering from the ailment of Schizophrenia long before her marriage and this fact was neither brought to the notice of the appellant nor to his parents. 24. Now the vital question which is to be determined is whether the appellant in view of our above finding of facts is entitled to get the decree of nullity of his marriage with the respondent. In this regard what calls for determination is whether the concealment of the fact that the respondent was suffering from Schizophrenia and had been under the treatment of Dr. AK Nath, the Psychiatrist of the GB Hospital would attract the provisions contained in clause (c) of section 12 (1) of the Act which reads as under: "12. Voidable marriage. (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely...... Voidable marriage. (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely...... (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner (was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978) d the consent of such guardian was Obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent." The words underlined were substituted by Amendment Act, 1976 for the words 'or fraud'. The word 'fraud' has not been defined in the Act. However, 'fraud' according to Chambers's Twentieth Century Dictionary Revised Edition, means 'deceit'. Thus in case where consent to the marriage has been obtained by deception it was liable to be annulled under section 12 (1) (c) of the Act. Before the amendment of clause (c) of section 12 (1) of the Act and insertion of the words "as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent" by the Marriage Laws (Amendment) Act, 1976 the emphasis was in respect of the 'consent' as to the nature of ceremony of the factum of marriage itself. 'Fraud' did not include such fraud as procured the appearance without the reality of consent. In Mulla's Hindu Law, Thirteenth Edition, at page 682 the relevant observation read as under : "A person who freely consents to a solemnization of the marriage with the other party in accordance with customary ceremonies that is, with knowledge of the nature of the ceremonies and intention to marry, cannot raise an objection to the validity of the marriage on the ground of any fraudulent representation or concealment. The test to be applied is whether there was any real consent to the solemnization of the marriage." 25. In the case of P vs. K reported in AIR 1982 Bombay 400 it has been held that : "Fraud means misrepresentation ,or concealment of any material fact or circumstance concerning the respondent. The test to be applied is whether there was any real consent to the solemnization of the marriage." 25. In the case of P vs. K reported in AIR 1982 Bombay 400 it has been held that : "Fraud means misrepresentation ,or concealment of any material fact or circumstance concerning the respondent. If a party to a marriage is suffering from some abhorrent disease such as leprosy or venereal disease, and if this is not disclosed it will be definitely concealment and consequently fraud as to material fact and circumstances." 26. We are also of the view that the general proposition would not hold good after the amendment of clause (c) of section 12 (1) of the Act by Marriage Laws (Amendment) Act, 1976. The Legislature in its wisdom has added the words "as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent". Thus the emphasis cannot be laid only regarding the nature of ceremony or factum of marriage but in case there is a deception as to any material fact or circumstance concerning the respondent the said case would also be covered by clause (c) section 12(1) of the Act. A marriage cannot however be annulled on the basis of any and every misrepresentation or concealment. However, if there is a misrepresentation or concealment regarding the material fact concerning the respondent then the provision contained in section 12 (1) (c) would definitely be attracted. 27. We have already made our finding that the respondent has been suffering from the ailment of Schizophrenia since long before her marriage and it is such a disease the cure of which is absolutely remote. Dr. Nath has not only deposed but also issued certificate to the effect that the respondent has been suffering from acute Schizophrenia. We have discussed above the magnitude of this disease. 28. In the instant case, it is not disputed that neither the appellant nor the parents of the appellant was ever informed before the marriage that respondent was suffering from the ailment of Schizophrenia, a disease the cure of which is absolutely remote. We have discussed above the magnitude of this disease. 28. In the instant case, it is not disputed that neither the appellant nor the parents of the appellant was ever informed before the marriage that respondent was suffering from the ailment of Schizophrenia, a disease the cure of which is absolutely remote. We are, therefore, of opinion that consent of the appellant to this marriage was obtained by concealment about the ailment of Schizophrenia from which the respondent was suffering and such act on the part of the respondent and her guardian would amount to obtaining the consent of the appellant by fraud as to any material fact concerning the appellant and as such the provisions contained in section 12 (1) (c) would be attracted. It may however be pertinent to mention here that it is an admitted fact that the appellant and respondent are living separately since institution of the suit and they did not live together for a day since institution of the suit on 15.7.1985. 29. In view of the findings arrived above we set aside the judgment and decree of the Court below and declare that the marriage between the appellant and the respondent is liable to be annulled by a decree of nullity under clause (c) of section 12 (1) of the Act and we accordingly grant a decree of nullity of the marriage. But under the circumstances there would be no order as to costs.