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2003 DIGILAW 1261 (MP)

Seema Arora v. Dinesh Kumar Arora

2003-11-19

A.K.SHRIVASTAVA, S.S.JHA

body2003
Judgment ( 1. ) FEELING aggrieved by judgment and decree dated 8-1-2003 passed by Presiding Officer of Family Court, Gwalior in Case No. 63-A/2002 (Hindu Marriage Act), decreeing the application filed under Section 13 (1) (i-a) and Section 13 (1) (iii) of the Hindu Marriage Act (hereinafter referred to as the Act), the wife has preferred this appeal, ( 2. ) ADMITTED facts are that the appellant and respondent were married on 21-1-91 at Gwalior and thereafter a female child was born from their wedlock. ( 3. ) IN brief the case of the husband/plaintiff is that soon after the marriage he came to know that the behaviour of his wife is unusual and quarrelsome. She happens to hurled the abuses. She also happens to take bath during odd hours in the night. On being enquired by the plaintiff/husband, the mother of the wife told that after the delivery of a child, she would become normal. But, when the husband did not notice any change, even after female child was born, he examined the appellant at Agra where she was examined by Dr. Madhuwan in August, 1994. Thereafter, she was admitted in the hospital and was treated. Thereafter, one Psychiatrist Dr. Raheja also examined the wife and ultimately on 28-12-94 she was examined by Dr. R. N. Sahu who treated her since 1994 to 1997, but of no result. Still the wife is of unsound mind. ( 4. ) ON account of her unsound mind she happens to quarrel with the husband (plaintiff) and insisted him to live separately, eventually the plaintiff started living in a separate house near Harinirmal Talkies in the house of Dr. Narain, however, on account of the misbehaviour of the wife, the landlord insisted and ultimately the house was vacated. Thereafter, the husband started living in the house of one Kushwaha where also the wife misbehaved in the same manner as a result of which the landlord insisted to vacate the house and he vacated it. Narain, however, on account of the misbehaviour of the wife, the landlord insisted and ultimately the house was vacated. Thereafter, the husband started living in the house of one Kushwaha where also the wife misbehaved in the same manner as a result of which the landlord insisted to vacate the house and he vacated it. Thereafter, the plaintiff took a house on rent in the locality of Kamal Singh Ka Bagh, that house was of one Premnarayan Sharma where also the wile quarrelled with the landlord and his other tenants as a result of which, on the insistence of those tenants and the landlord the plaintiff vacated the house and in this manner, according to the plaintiff, on account of the misbehaviour of his wife, he vacated 17 houses. ( 5. ) PLAINTIFF further pleaded that the behaviour of the wife was cruelsome, she happens to hurled the abuses, she was also pelting the stones. On 27-8-2000 she threw the goods of the house and on being refrained by the plaintiff, she became more aggressive and threw a bottle on him as a result of which he sustained an injury nearby his left eye. The matter was reported to Police Station, Indergunj and since then the defendant (wife) started living with her mother. ( 6. ) ON account of aforesaid pleadings the plaintiff had sought a decree under Section 13 (1) (i-a) and also under Section 13 (1) (iii) of the Act. ( 7. ) THE averments of the application filed under Section 13 of the Hindu Marriage Act were denied by the appellant by filing a reply in which she has specifically pleaded that her behaviour is not cruel, she never hurled the abuses nor insisted her husband to live separately. The averments of the plaintiff in respect to her unsoundness has been specifically denied by her. The other averments in respect to the quarrel with the tenants and the landlord were also denied. It was thus, contended by the defendant wife that the application of divorce be dismissed. ( 8. ) LEARNED Trial Court framed as many as four issues. Thereafter, the parties led their evidence. The Trial Court came to hold that the plaintiff had proved his case under Section 13 (1) (i-a) and (iii) of the Act and eventually passed a decree of divorce on those grounds. Hence this appeal. ( 9. ( 8. ) LEARNED Trial Court framed as many as four issues. Thereafter, the parties led their evidence. The Trial Court came to hold that the plaintiff had proved his case under Section 13 (1) (i-a) and (iii) of the Act and eventually passed a decree of divorce on those grounds. Hence this appeal. ( 9. ) IN this appeal Shri R. D. Jain, learned Sr. Advocate assisted by Shri V. K. Bharadwaj, has submitted that there is no evidence to the effect that the defendant/wife was "incurably of unsound mind" or she could not reasonably expected to live with the husband and, therefore, the Trial Court erred in law in passing the decree of divorce. It has been putforth by learned Senior Counsel that the decree on the ground of cruelty has been passed by the Trial Court on account of the alleged behaviour of the wife which according to the respondent is of unsound mind and if the ground of unsound mind does not find merit, the ground of cruelty, which is the outcome of the unsound mind, also vanishes. To bolster his submission the learned Senior Counsel has placed reliance on Ram Narain Gupta v. Smt. Rameshwari Gupta, (1988) 4 SCC 247 , Sharda v. Dharmpal, (2003) 4 SCC 493 , Ajitrai Shivprasad Mehta v. Bai Vasumati, AIR 1969 Gujarat 48, Rekha Ravindra Kumar v. Ravindra Kumar Ramchandra, 1993 MPLJ 719 and Usha Gupta v. Santosh Kumar Pahadiya, 1996 MPLJ 42 . ( 10. ) COMBATTING the aforesaid submission of learned Counsel for the appellant it has been submitted by Shri A. M. Naik, learned Senior Advocate assisted by Shri K. N. Gupta, that there is overwhelming evidence against the appellant so as to show that she has been incurably of unsound mind. Learned Counsel has invited our attention to the evidence of plaintiff (P. W. 1) himself, Harisingh (P. W. 2), Premnarain Sharma (P. W. 3), Harish Kumar (P. W. 4), Motilal Arora (P. W. 5) and much emphasis has been laid on the evidence of Dr. R. N. Sahu (P. W. 6 ). Learned Counsel has also placed heavy reliance on the documentary evidence and has submitted that on going through these documents, singular inference which could be drawn is that the wife is incurably of unsound mind and thus, the Trial Court did not err in passing the decree of divorce. ( 11. R. N. Sahu (P. W. 6 ). Learned Counsel has also placed heavy reliance on the documentary evidence and has submitted that on going through these documents, singular inference which could be drawn is that the wife is incurably of unsound mind and thus, the Trial Court did not err in passing the decree of divorce. ( 11. ) BEFORE dealing with the rival contentions of learned Counsel for the parties it would be relevant to mention that an application I. A. No. 2000/03 was filed by the appellant/wife under Order XXVI Rule 10 (A), CPC. In this application it was prayed that she may be examined by medical board. We are unable to understand that why this application was opposed by the respondent, because he himself is coming forward with a case that the wife is of unsound mind. However, the said application was allowed by this Court on 21-4-2003 and ultimately a medical board examined the appellant/wife and gave its report on 29-7-2003. In this report it has been mentioned that during the period of observation the behaviour of appellant was normal and no psychiatric symptom was elicited. The medical board also opined regarding the intelligence and mental status and found it to be on the border line. ( 12. ) IT has been contended by Shri Naik, learned Sr. Counsel for the respondent that the opinion of the Board amounts to an additional evidence and an opportunity be provided to him for cross-examination as well as to lead additional evidence in rebuttal. ( 13. ) THE question of considering the report of the Medical Board as well as to provide opportunity to lead evidence in rebuttal would be considered later on. At present we are considering the case of the parties as it is, without considering the report of the Medical Board. ( 14. ) BEFORE we deal with the submissions of learned Counsel for the parties on merit, we would like to rewrite Section 13 (1) (iii) of the Act which reads thus :-13. At present we are considering the case of the parties as it is, without considering the report of the Medical Board. ( 14. ) BEFORE we deal with the submissions of learned Counsel for the parties on merit, we would like to rewrite Section 13 (1) (iii) of the Act which reads thus :-13. Divorce.-- (1) Any marriage solemnized, 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-*** *** *** *** *** *** *** *** *** *** *** *** (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 can not 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. ( 15. ) ON going through the aforesaid provision it is luminously clear that by taking the aid of this clause, the plaintiff is required to prove that the husband or the wife as the case may be (in this case wife) has been incurably of unsound mind and unless and until this essential ingredient is pleaded and proved by placing cogent evidence, no decree for divorce can be passed. ( 16. ) WE shall now test the facts of the present case on the anvil of the aforesaid provision of the statute. On going through the averments made in the application filed under Section 13 of the Act it is gathered that nowhere the husband has pleaded this fact that his wife has been incurably of unsound mind, though he has pleaded that his wife is of unsound mind. But that would not suffice to obtain a decree under this clause. ( 17. ) THE evidence which has been led by the plaintiff is that the wife is of unsound mind. In that regard he has examined Harisingh, Premnarayan Sharma, Harish Kumar and Motilal Arora besides his own examination. But that would not suffice to obtain a decree under this clause. ( 17. ) THE evidence which has been led by the plaintiff is that the wife is of unsound mind. In that regard he has examined Harisingh, Premnarayan Sharma, Harish Kumar and Motilal Arora besides his own examination. All these witnesses had said that the behaviour of the wife is unnatural and she is of unsound mind, she happens to hurled the abuses during the period of unsoundness and also becomes cruelsome during that period. Much emphasis has been placed by learned Counsel for the respondent on the testimony of Dr. R. N. Sahu (P. W. 6) who has said that the wife was suffering from Manic Depressive Psychosis and it is further submitted that on treatment the degree may be reduced, but the disease can not be cured permanently. In Exs. P-8 and P-9 which are the prescriptions of Dr. Sahu the disease Schizoaffective has been mentioned. Similarly, in Ex. P-10 the disease Hypomania has been mentioned by this doctor. At this juncture we would like to add that no application was submitted by the husband in the Court below to examine the wife scientifically. The husband further failed to submit any application and did not make any prayer to the Trial Court that the wife (defendant) be kept present when Dr. Sahu is examined in the Court. ( 18. ) IN order to prove the plea of incurable unsoundness of mind, unless and until there is scientific examination by the competent doctor/psychiatrist in that regard, it would be highly unsafe to pass a decree of dissolution of marriage on this count. It is not the case of the plaintiff that the wife was subjected to scientific examination in order to prove that she has been incurably of unsound mind of incurable nature. There is no pleading to that effect and no evidence has been lead in that regard. ( 19. ) SO far as the testimony of Dr. R. N. Sahu is concerned, suffice it to say he has only examined the appellant. Nowhere he has stated that he had examined her scientifically and thereafter, came to hold that she is suffering from the disease of unsound mind of incurable nature. ( 20. ( 19. ) SO far as the testimony of Dr. R. N. Sahu is concerned, suffice it to say he has only examined the appellant. Nowhere he has stated that he had examined her scientifically and thereafter, came to hold that she is suffering from the disease of unsound mind of incurable nature. ( 20. ) THE evidence of the doctor can not be relied for other reasons also and they are that when the doctor was examined in the Court appellant was not present and, therefore, it can not be said that the same Seema, who is defendant in this case was examined by him. This witness has stated that he had no record in respect to the treatment of his patients. Therefore, only on the bald statement of the doctor it would not be safe to hold that the appellant is suffering from the disease of incurable unsound mind in absence of any scientific examination. ( 21. ) IN the case of Ramnarayan Gupta (supra), in Para 20 Their Lordships of Supreme Court held as under :- "the context in which the ideas of unsoundness of mind and mental disorder occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the mental disorder". Its degree must be such that the spouse seeking relief can not reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriage would, indeed, survive in law. " ( 22. ) ON going through the aforesaid decision of the Apex Court, it is clear like a noon day, that merely unsoundness of mind and mental disorder would not suffice for a ground for dissolution of marriage unless and until it is proved that it is of so high degree that the spouse seeking relief can not be reasonably expected to live with the other. On going through the evidence of the witnesses as well as of the plaintiff it can not be held that the husband can not reasonably be expected to live with the wife. A recent decision in this context in the case of Sharda (supra) may also be seen. On going through the evidence of the witnesses as well as of the plaintiff it can not be held that the husband can not reasonably be expected to live with the wife. A recent decision in this context in the case of Sharda (supra) may also be seen. Similar is the view of this Court in the case of Rekha Ravindra Kumar (supra) and Usha Gupta (supra ). In the case of AS. Mehta (supra), High Court of Gujarat while dealing with the proposition "incurably unsound mind" came to hold that the expression "incurably unsound mind" can not be so widely interpreted so as to cover feeble-minded persons or persons of dull intellect. ( 23. ) ONE important fact, which can not be marginalised and blinked away, is that out of the wedlock of the parties one female child was born and the mother of that child, i. e. , the appellant is taking care of her since her birth, which indicates that the wife is not having that much higher degree of unsoundness of mind. True her behaviour became sometime unnatural and quarrelsome but this would not be enough to cover the wordings of "incurably of unsound mind" as emphasized hereinabove by us. ( 24. ) ONE important fact is also be taken into consideration that the husband (plaintiff) did not file any application for appointing any guardian as according to him his wife is of unsound mind. The defendant (wife) was examined in the Court and faced a roving cross-examination over her. The Court also did not notice any demeanour of unsoundness. It has come in the evidence that the respondent was treated upto the year 1997 however, the application under Section 13 of the Act was submitted on 4-12-2000 and it is not the case of the husband that on the date of filing of the application under Section 13 of the Act, the appellant was suffering from unsoundness which is not curable. ( 25. ) AS we have discussed the case without considering the opinion of the Medical Board, we are not deciding the appeal on the said report. ( 26. ( 25. ) AS we have discussed the case without considering the opinion of the Medical Board, we are not deciding the appeal on the said report. ( 26. ) ON the aforesaid premised reasons, we have no hesitation to hold that the plaintiff failed to prove its case that the appellant has been incurably of unsound mind and eventually the decree of divorce passed on this ground by the Trial Court is hereby set aside. As we have set aside the decree of the Trial Court passed on this ground, the decree passed on the ground of cruelty, has also to be set aside, because it is the case of the plaintiff respondent that on account of unsound mind the wife becomes cruel. So far as cruelty is concerned, we may add further that one or two instance would not construe and would not come under the ambit of cruelly and, therefore, on this reason also the decree passed on the ground of cruelty can not be sustained. ( 27. ) IN the result, the appeal succeeds and is hereby allowed. The judgment and decree passed by the Trial Court is hereby set aside and the application filed by husband/plaintiff under Section 13 of the Act is hereby dismissed. The respondent shall bear the costs of the appellant. Counsel fee Rs. 1,000/- if pre-certified.