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2002 DIGILAW 1529 (AP)

U. N. Satyanarayana v. U. Sharada

2002-12-27

B.S.A.SWAMY, G.YETHIRAJULU

body2002
G. YETHIRAJULU, J. ( 1 ) THIS is an appeal filed by the husband against the decree of divorce and custody of the minor child granted in favour of the wife by the family Court, Hyderabad in OP No. 289 of 2000 filed by the respondents herein under section 13 (l) (ia) and (iii) and 26 of the hindu Marriage Act, 1955 (for short the act ). ( 2 ) THE facts leading to the decree of divorce and custody of the child are briefly as follows: the parties are hereinafter referred as arrayed in the original petition. Petitioner no. 1 (wife) was married to the respondent (husband) on 29-6-1986. The marriage was solemnized at Hyderabad according to Hindu rites and customs. The respondent is an engineering Graduate. The 2nd petitioner- son was bora to them during the wedlock. Since the date of marriage, the respondent was exhibiting peculiar behaviour. His mind always flickered. At the time of marriage also he was administered anti-depression drug-Lithium. According to his father the respondent was mentally disturbed from 1983 i. e. , since his college days and has been continuously under medication. He could not concentrate on any work due to imbalance and negative thinking. He used to shout and beat the 1 st petitioner by abusing her in filthy language under the depression. He did not choose to work to eke-out his livelihood and completely depended on his father. Whenever the respondent stopped taking medicines, his behaviour turned abnormal and was becoming lunatic torturing the 1 st petitioner. He used to suddenly raise from his bed and started shouting in the midnight threatening the 1st petitioner and throttled her by uttering 1 would like to beat you 15 times , i would like to kill you , 1 would like to cut you into pieces and so on. He used to create these kinds of scenes regularly. The 1st petitioner had to go to her parents house to escape from the respondent, but her father-in-law used to convince her and take back to marital home. Out of 14 years of marital life, she spent about 6 years in her parents house. The parents of the respondent being unable to bear with his extraordinary, cruel and psychotic behaviour left to Varasnasi (Kasi) in february, 1998. The respondent suspected the character of the 1st petitioner at every moment and torturned her regularly. Out of 14 years of marital life, she spent about 6 years in her parents house. The parents of the respondent being unable to bear with his extraordinary, cruel and psychotic behaviour left to Varasnasi (Kasi) in february, 1998. The respondent suspected the character of the 1st petitioner at every moment and torturned her regularly. The 1 st petitioner along with the 2nd petitioner left the house of the respondent and reached her parents house. Despite that, on 17-2-2000, the respondent came to her parents house, beat her and dragged her to take to his house. She made a complaint to the police, Women Protection Cell, on 18-2-2000, but at the instance of the parents- in-law and the family members, compelled to withdraw the same. Every day she is receiving threatening phone calls from the respondent. The fourteen years of bitter experience made the 1st petitioner to realize that there is no possibility of the respondent recovering from lunacy and she is apprehending threat to her life, if she is taken by the respondent. The respondent is also spoiling the career of the 2nd petitioner by not allowing him to study. Hence, the petition for dissolution of marriage between the 1st petitioner and the respondent and to declare the custody of the 2nd petitioner with the 1st petitioner by allowing the petition with costs. ( 3 ) A counter-affidavit was filed on behalf of the respondent and the following are the contents in brief: the 1st petitioner left to her parents house on 31-12-1998 along with the 2nd petitioner. The petitioner either on account of her mental infirmity or with the advise of the relations developed an attitude of enmity against the respondent and deserted him. Without caring for the welfare of the 2nd petitioner, the 1st petitioner abruptly decided to get the marriage dissolved. The respondent is not agreeable for the dissolution of the marriage since it is likely to affect the career of the 2nd petitioner. The petition is, therefore, liable to be dismissed. ( 4 ) THE respondent also filed OP No. 57 of 2001 against the 1st petitioner for restitution of conjugal rights. The averments of the respective parties in both the petitions are almost same. Therefore, the Family court clubbed both the petitions and passed a common order. The petition is, therefore, liable to be dismissed. ( 4 ) THE respondent also filed OP No. 57 of 2001 against the 1st petitioner for restitution of conjugal rights. The averments of the respective parties in both the petitions are almost same. Therefore, the Family court clubbed both the petitions and passed a common order. On the aspect of dissolution of marriage and the declaration of the custody of the minor child, the 1 st petitioner adduced evidence by examining herself as PW1 and marking Exs. Al to A27. No oral or documentary evidence on behalf of the respondent. The Family Court after considering the evidence of the petitioners, both oral and documentary, came to a conclusion that this is a fit case for dissolution of marriage and accordingly allowed OP no. 289 of 2000 and dismissed OP No. 57 of 2001 filed by the respondent for restitution of conjugal rights. The respondent being aggrieved by the judgment in OP No. 289 of 2000 of the Family Court preferred this appeal challenging its validity. ( 5 ) THE point for consideration is whether the petitioner-wife is entitled for dissolution of marriage on the ground of insanity of the husband ? ( 6 ) THE relationship of the parties is not disputed. The 1st petitioner as PW1 deposed that ever since the marriage on 29- 6-1986, the respondent was exhibiting peculiar behaviour with a flickering mind. After marriage, she came to know that he was suffering with it since prior to the marriage and he was under the administration of anti-depression drug from his student days. He used to shout against everybody in the house and beat her by using filthy language in a depressed state. She narrated the sequence of events referred in the petition and further stated that it became impossible for her to lead marital life with him or to live at his house. Therefore, she was compelled to leave to her parents house and educate her son. The respondent was made to work in an organisation known as suchitra Electronics by her father-in-law on the ground that she will get some peace in the house, if the respondent is not at home. The salary of Rs. 800/- also used to be paid by his father-in-law to the company and the company in turn used to pay the same to the respondent. The salary of Rs. 800/- also used to be paid by his father-in-law to the company and the company in turn used to pay the same to the respondent. The respondent was examined and treated by Dr. Sunil kumar, Dr. M. V. R. Sharma, Dr. Prasad Rao, dr. K. Krishna Murthy, Dr. Chandrasekhar and others and the opinions given by then reflect that there are no chances of recovery of the respondent to normal life and there is no treatment for the disease of the respondent on account of its severity. She filed Exs. A3 to A5 prescriptions issued by Dr. K. S. Sudheer Kumar, who treated the respondent for the disease of epilepsy, Manic depression and Psychosis. She filed Ex. A7 certificate, dated 13-6-2001 issued by Manasa Nauring Home to show that the respondent underwent treatment for epilepsy, Manic depression and Psychosis. She filed Ex. A8 - medical certificate - dated 24-1-2001 issued by Manasa Nursing Home showing the nature of treatment given by dr. M. V. R. Sharma to the respondent. Ex. A9 is the medical prescription issued by dr. Kartikeya Krishna Murthy for the disease of Schizophrenia and for depression. The respondent was not using the medicines prescribed by various Doctors from time to time and he hates to see the Doctors. When his parents were taking him to Doctors, he was behaving cruelly and violently and was beating them also. Due to the above violent nature of the respondents, she left the house in the year 1993. The behaviour of the respondent was to such an extent compelling the petitioner to make Ex. A10- complaint to the police and on account of the undertaking covered by Ex. All given by the respondent that he will not behave violently, she withdrew the complaint. At the instance of elders, she again went to the house of the respondent along with the 2nd petitioner but she could not find any change in the behaviour of the respondent and he repeated the same behaviour and also beat her on 22-11-1996 and 23-11-1996. Ex. A13- letter was addressed by the respondent to her admitting the beatings given to her and promising that he would not behave like that and take the medicines as advised by the Doctor. The respondent is not attending to any duty and he is not trying for any job. The 1st petitioner also filed Ex. Ex. A13- letter was addressed by the respondent to her admitting the beatings given to her and promising that he would not behave like that and take the medicines as advised by the Doctor. The respondent is not attending to any duty and he is not trying for any job. The 1st petitioner also filed Ex. A16 - medical certificate, dated 4-7-2001 issued by Woodlands Asha neuropsychiatry Centre showing that the respondent was treated as an inpatient from 17-8-1999 under Dr. G. Prasad Rao. She further stated that on 15-7-2000 the respondent came to her partents house, beat her parents and herself and threatened them with dire consequences. Immediately, she made a complaint to Asifnagar Police and on the basis of the complaint, the police arrested him and booked a petty case covered by STC No. 669 of 2000 on the file of the iv Special Metropolitan Magistrate. ( 7 ) THE evidence given by PW1 reiterating the averments in the petition and the further information furnished by her through evidence are amply establishing that the respondent is suffering with schizophrenia and mental illness and the disease reached a stage due to which there is no possibility to cure it. Prior to the hearing of the matter, a reconciliation effort was made by this Court. The 1st petitioner was also convinced and she readily agreed to extend all possible help for the treatment of the respondent. The father of the respondent, who is presently staying at Varanasi along with his wife was also secured to prevail on the respondent to agree for treatment and to take the medicines regularly. But, his father after making all his efforts to get the disease of the respondent treated, expressed his helplessness and his difficulty to remain at Hyderabad on account of the sickness of his wife at Varanasi. ( 8 ) SECTION 13 (l) (iii) of the Act reads as follows: "sec. 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 0 ). . . . . . . . . . . . . . . . . . . . . . . . (ii ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii ). . . . . . . . . . . . . . . . . . . . . . . . (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: (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 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " ( 9 ) THE above Section provides for dissolution of the marriage by way of decree of a divorce if one of the spouses has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind, which makes it impossible for the other spouse to live with such person. The respondent is suffering with Schizophrenia and according to the opinion of the medical experts it is in the aggravated form and there is no possibility for cure. In this regard, we wish to refer to Concise Medical Dictionary page No. 566 (Oxford Medical Publications 1980) wherein schizophrenia is described thus: "a severe mental disorder (or group of disorders) characterized by a distintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with others. He becomes socially withdrawn and loses energy and initiative. The main type of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid, characterized by prominent delusion; and catanoic, with marked motor disturbances (see catanoia ). Schizophrenia commonly - but not inevitably - runs a progressive course. The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. Schizophrenia commonly - but not inevitably - runs a progressive course. The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong factors in the causation,, and environmental stress can precipitate illness. " ( 10 ) A Division Bench of the Calcutta high Court in Smt. Rita Roy v. Sitesh chandra, AIR 1982 Cal. 138 , observed that each case of Schizophrenia has to be considered on its own merits. ( 11 ) IN Ram Narain Gupta v. Smt. Rameshwari Gupta, AIR 1988 SC 2260 , the Supreme Court held as follows: ". . . . . . . . . All mental abnormalities are not recognised as grounds for grant of decree. If the meet existence of any degree of mental abnormality could justify dissolution of a marriage few marriage would, indeed, survive in law. schizophrenia it is true, is said to be difficult mental affliction. It is said to be insidious in its onset and has hereditary pre-disposing factor. It is characterised by the shallowness of emotions and is marked by a detachment from reality. In paranoid- states, the victim responds even to fleeting expressions of disapproval from others by disaproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindess and of expression of sympathy appear to the victim as insidious traps. In its worst manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions. But the personality- distintegration that characterizes this illness may be of varying degree. Not all schizophrenics are characterized by the same intensity of the disease. The mere branding of a person as schizophrenic, therefore, will not suffice. . . . . . . . . . . . . " ( 12 ) THE Court while assessing the gravity of the mental illness has to take into consideration various incidents narrated by the petitioner leading to a cumulative result that it is impossible for the wife to live with the husband. . . . . . . . . . . . . " ( 12 ) THE Court while assessing the gravity of the mental illness has to take into consideration various incidents narrated by the petitioner leading to a cumulative result that it is impossible for the wife to live with the husband. ( 13 ) IN Ayyalasomayajula Satyanandam v. Ayyalasomayajula Ushadevi, 1987 (1) alt 335 (DB), a Division Bench of this court in a case for divorce on the ground of unsound mind observed that it is for the petitioner to establish either of incurable unsoundness of the respondent or that the mental disorder is such a kind and to such an extent that the other spouse cannot reasonably be expected to live with the respondent. ( 14 ) IN order to fulfil the intendment of the Legislature under Section 13 (l) (iii) of the Act, two elements have to be satisfied (i) the party concerned has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder, which means the mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, which includes schizophrenia. Psychopathic disorder means a persistent disorder or disability of mind, which results in abnormally aggressive or seriously irresponsible conduct - whether or not it requires or is susceptible to medical treatment; and (ii) as a result thereof, the disease must be of such a kind and of such extent that either party cannot reasonably be expected to live with the other spouse. On establishing both the ingredients only, the petitioner is entitled to a decree of divorce. Establishment of one or other element is alone not sufficient to grant a decree of divorce. The question whether the petitioner has been able to establish both the above ingredients has been considered in the foregoing discussion. The oral evidence coupled with the documentary evidence adduced by the petitioner is establishing that the respondent has been suffering with schizophrenia and the difficulties she faced by living with the respondent making it impossible for her to live with him. The oral evidence coupled with the documentary evidence adduced by the petitioner is establishing that the respondent has been suffering with schizophrenia and the difficulties she faced by living with the respondent making it impossible for her to live with him. ( 15 ) WE have also carefully examined the behaviour of the respondent and despite our efforts to make him to undergo treatment, he was not willing to join as an inpatient in any hospital of mental care and was claiming that he was not having any such ailment. The certificates issued by the psychiatrists clearly indicate that he is suffering with Schizophrenia and mental illness of incurable nature and there is no possibility of the respondent getting back to normalcy. ( 16 ) IN the light of the above circumstances, we are of the view that the family Court was right in ordering dissolution of the marriage. We do not find any ground to interfere with the judgment of the Family Court and we are inclined to confirm the decree of divorce granted by the Family Court, Hyderabad. ( 17 ) SO far as the custody of the minor child (2nd petitioner) is concerned, he is studying X Class and he is staying with his mother and maternal grand parents receiving good education. It may be desirable to keep the boy under the custody of the mother instead of keeping him with the respondent. Since the 2nd petitioner is already with the 1st petitioner at her parents house, he shall continue to remain with his mother till he attains majority. ( 18 ) THE learned Counsel for the appellant herein submitted that the appellant is attached to the boy so much and if the boy is not shown to him, there is every likelihood of his disease aggravated leading to serious consequences; therefore, she requested that the appellant may be given visiting rights to the minor child once in a month. ( 19 ) KEEPING in view of the representation of the learned Counsel for the appellant and the totality of the circumstances, we feel that the appellant should be allowed to visit the boy on holidays between 3. 00 p. m. , and 4. 00 p. m. , with the permission of respondent No. l, but at the same time he should not create any hindrance or disturbance to the studies of the boy. 00 p. m. , and 4. 00 p. m. , with the permission of respondent No. l, but at the same time he should not create any hindrance or disturbance to the studies of the boy. If the appellant turns violent and tries to harm the 2nd respondent physically or otherwise, the 1st respondent is given liberty to seek modification of this order. ( 20 ) IN the result, the Appeal is dismissed by confirming the judgment dated 6-11-2001 of the Family Court in op No. 289 of 2000. Each party to bear its own costs.