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Madhya Pradesh High Court · body

2003 DIGILAW 682 (MP)

Rajendra Kumar Koshake v. Renuka

2003-05-07

A.K.AWASTHY

body2003
Judgment ( 1. ) THIS appeal is filed by the appellant/petitioner under Section 28 of the Hindu Marriage Act against the judgment and decree dated 23. 12. 1996 passed by the District Judge, Mandla in Civil Suit No. 23-A/1994 wherein the petition filed under Section 12 of the Hindu Marriage Act for anulling the marriage was dismissed. ( 2. ) THE admitted facts of the case are that the marriage in between the appellant and the respondent was solemnised according to Hindu rites and customs in the month of May, 1994 at Village Saraiya, Tah. and District Balaghat. ( 3. ) THE case of the appellant/plaintiff is that after the solemnisation of the marriage when the respondent/wife came to the matrimonial house, her behaviour was found abnormal. That on the first night, the wife was frigid and unresponsive to the sexual advances. That she was disorganised and irrelevant in arranging her affairs and talks. That the consent of appellant was obtained by concealing the deranged state of mind of respondent and fraud was practised by the respondent family by representing the good mental health. The appellant has alleged that on account of the insanity respondent is incapable of leading matrimonial obligation and it is difficult for the appellant to lead tension-free normal life. It is alleged that the respondent/wife was taken to Dr. Pradeep Kumar at Rewa who has diagnosed that she was suffering from Schizophrenia and she was treating for her mental disorder by Doctor at Nagpur. The appellant has alleged that the respondent/wife was suffering from Schizophrenia before solemnisation of the marriage. The appellant has prayed that the marriage between the appellant and the respondent be annulled by decree of nullity under Section 12 (1) (b) of the Hindu Marriage Act. ( 4. ) THE respondent/wife has denied the allegation that she was suffering from mental illness and that on account of the mental illness her behaviour on the first night or thereafter in the matrimonial house was uncommon, erratic and abnormal. It is alleged that the appellant wanted more amount of dowry in the marriage and he used to pressurise and ill-treat the respondent for acquiescing more amount of dowry. It is further alleged that the respondent has invented the false story of mental disease of the respondent in order to resist the petition filed by the respondent wife for grant of maintenance. It is further alleged that the respondent has invented the false story of mental disease of the respondent in order to resist the petition filed by the respondent wife for grant of maintenance. The allegation of playing fraud or concealment are denied by the respondent. ( 5. ) LEARNED Trial Court has framed the issues and the appellant has examined himself as P. W. 1, Rakesh Verma (P. W. 2) and from the side of the respondent, respondent examined herself. Learned Trial Court has concluded that the appellant has failed to prove that his wife was suffering from Schizophrenia and as such the petition to annul the marriage was dismissed. ( 6. ) THE appellant has challenged the impugned judgment on the ground that the learned Trial Court has not properly appreciated the evidence and wrongly held that the marriage was not solemnised in contravention of the provisions of Section 5 (ii) (b), (c) of the Hindu Marriage Act. The appellant has prayed that the judgment and decree passed by the learned Trial Court be set aside and the decree be passed of annulling the marriage under Section 12 (1) (b) of the Act. ( 7. ) PETITIONER Rajendra Kumar has stated that he went with father to see the respondent in her parents house where the respondent came only for one minute before him. P. W. 1 Rajendra Kumar has further stated that on 18. 5. 1994 the marriage was solemnised and the video reel of the Bhanwar and other proceedings was prepared. Rajendra Kumar (P. W. 1) has further stated that in the month of June, 1994 he found that the behaviour of his wife was abnormal and she was showing the sign of immaturity and it was found from the papers kept in the box of his wife that she was being treated for mental disease of Schizophrenia. ( 8. ) RAJENDRA Kumar (P. W. 1) is Sub-Engineer in the M. P. Housing Board, Mandla. It does not appeal to reason that the person of the appellants status and education will fail to observe the sign of immaturity and mental illness in his wife at the time when he went to see her in the house of her parents. ) RAJENDRA Kumar (P. W. 1) is Sub-Engineer in the M. P. Housing Board, Mandla. It does not appeal to reason that the person of the appellants status and education will fail to observe the sign of immaturity and mental illness in his wife at the time when he went to see her in the house of her parents. Rajendra Kumar (P. W. 1) has admitted that his wife was present during the entire marriage proceedings and she has taken part in the rites performed in the marriage. At the time of the solemnisation of the marriage he and his father and other family members were present. If the respondent would have been in state of underdeveloped mind being like a child, it was very easy for the appellant and his family members to recognise the illness. The appellant has not produced the video film or the photographs taken at the time of the solemnisation of the marriage to show that from her posture and facial look it was evident that the respondent was suffering from any mental weakness. ( 9. ) RAJENDRA Kumar (P. W. 1) has stated that he took his wife to Rewa for medical check-up by Dr. Pradeep Kumar who has diagnosed her that she is suffering from Schizophrenia and he kept the treatment given by him continued even at Mandla. Appellant has not examined this material witness Dr. Pradeep Kumar. The prescription given by Dr. Pradeep Kumar is Ex. P/12 but the name of disease is not mentioned in it. Rajendra Kumar (P. W. 1) has admitted in paragraph 19 of his deposition that there is overwriting in Ex. P/12 on the month of examination. The name of the husband is not mentioned in Ex. P/12 nor the age or she is Kumari or wife is mentioned in Ex. P/12. Consequently, learned Trial Court has rightly disbelieved the document Ex. P/12. ( 10. ) APPELLANT has not examined his parents, family members and friends to substantiate his statement that the fraud or concealment was practised at the time of marriage or the behaviour of respondent was immature and indicated that she was mentally derailed or weak. Learned Counsel for the appellant has argued that the respondent has admitted in her cross-examination that she was examined by Dr. Learned Counsel for the appellant has argued that the respondent has admitted in her cross-examination that she was examined by Dr. Bang at Nagpur who is specialist of mental disease and as such the burden was on the respondent to show that from what kind of mental disease she was suffering. From the bare admission of respondent that she visited to the clinic of Dr. Bang it cannot be presumed that she was suffering from Schizophrenia. Appellant has relied on citation of Alka Sharma v. A. C. Sharma, AIR 1991 MP 205 , but from this ruling it is clear that the appellant should prove that degree of mental disorder in order to bring out the case under Section 5 (ii) (b) of Hindu Marriage Act. Thus, even after the alleged admission the burden remained on appellant to prove the attainable degree of mental disease of respondent. ( 11. ) LEARNED Trial Court has observed in paras 10 and 11 of his judgment that from gesture, movement and from the way of her conversation in Court, the respondent was normal and mentally sound. Consequently, I hold that the appellant has utterly failed to prove that the respondent was suffering from mental disorder at the time of her marriage. ( 12. ) LEARNED Counsel for the respondent has relied on the citation of R. Laxminarayan v. Santhi, III (2001) SLT 749=i (2001) DMC 694 (SC)= (20001) 4 SCC 688, in which it is observed that in case nullity of marriage under Sections 12 (1) (b) and 5 (ii) (b) of the Hindu Marriage Act, burden lies heavily on the petitioner to prove on the ground of unsoundness of mind or mental disorder, It is reit (sic) by the Supreme Court in para 9 of the judgment (supra) that onus of proof is very heavy on the party who approaches the Court for breaking a marriage already solemnised. The behaviour of respondent/wife just before the marriage and at the time of marriage and just preceding the marriage is essential in assessing the degree of the mental disorder. The degree of mental disorder must be such that the spouse seeking the relief cannot reasonably be expected to live with the other. The behaviour of respondent/wife just before the marriage and at the time of marriage and just preceding the marriage is essential in assessing the degree of the mental disorder. The degree of mental disorder must be such that the spouse seeking the relief cannot reasonably be expected to live with the other. In case of R. Laxminarayan (supra), in para 11 it is observed that to brand the wife as unfit for marriage and procreation of children on account of mental disorder it needs to be established that the ailment suffered by her is of such kind or to such an extent that it is impossible for her to lead a normal married life. ( 13. ) THE appellant/husband has not examined any doctor to prove that his wife was suffering from mental disorder known as Schizophrenia. Nothing in the record to suggest that the behaviour of the respondent/wife just before or at the time of marriage was erratic or so abnormal as to render her incapable of leading a normal matrimonial life. The appellant/husband has not produced evidence to prove that what was the nature of the mental disease of his wife and he ha? further failed to establish that the mental disorder was of such a higher degree that it was not possible for her to lead a normal matrimonial life. In these circumstances, I am of the opinion that the learned Trial Court has rightly held that the appellant/husband has failed to establish that the mental ailment of his wife was of such nature as to annul the marriage under Section 12 (1) (b) read with Section 5 (ii) (b) of the Hindu Marriage Act. ( 14. ) THE appeal is without merit and it is hereby dismissed. Parties are directed to bear their own costs on the appeal.