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2004 DIGILAW 173 (KER)

M. Divya v. P. B. Sajith

2004-04-07

J.B.KOSHY, K.THANKAPPAN

body2004
Judgment :- Thankappan, J. Respondents, the wife and her father, in O.P.No.538/99 on the file of the Family Court, Kozhikode are the appellants herein. The Original Petition was filed by respondent-husband under Sec.12(1)(b) and (c) of the Hindu Marriage Act, 1955 for a declaration of the marriage between the 1st appellant and himself as null and void. Crl.M.C. is filed by respondent-husband and two others who are the accused in C.C.No.125/2000 on the file of the Chief Judicial Magistrate’s Court, Kozhikode to quash charge sheet filed in Crime No.116/99 of Kasba Police Station, Kozhikode. The charge-sheet in the above case was based on a complaint filed by the 1st appellant under Sec.498-A read with Sec.34 IPC. 2. The marriage between the respondent-husband and the 1st appellant was solemnized on 27-12-1998. It is averred in the Original Petition that at the time of marriage and prior to that the 1st appellant was suffering from mental disorder of schizophrenia and that consent of the respondent-husband was obtained by suppressing the above fact. The further case of the respondent-husband was that on the date of the marriage he had noted certain unusual behaviour of the 1st appellant. She did not mingle with others, she was reluctant to sleep with him during night and she wanted to sleep in a separate room. According to him, the 1st appellant could not take care of herself and she was gloomy always. She was only a passive partner on the bed. Hence, the respondent-husband prayed for a decree of nullity of the marriage. All these allegations were denied by the appellants. On analyzing the evidence adduced before it, the Family Court allowed the Original Petition by the impugned judgment. 3. She was only a passive partner on the bed. Hence, the respondent-husband prayed for a decree of nullity of the marriage. All these allegations were denied by the appellants. On analyzing the evidence adduced before it, the Family Court allowed the Original Petition by the impugned judgment. 3. Section 12(1) of the Hindu Marriage Act, 1955 reads as follows:- “(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable any may be annulled by a decree of nullity on any of the following grounds, namely.— (a) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (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 (2 of 1978), 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. Clause (ii) of Section 5 reads as follows:- “at the time of the marriage, neither party --- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity or epilepsy.” The above provision would show that a marriage may be annulled by a decree of nullity if one of the spouses has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children. 4. We have to consider the question whether the respondent-husband had proved the allegation of mental disorder of the 1st appellant and such mental disorder was concealed by the appellants at the time of marriage. The burden of proof is very heavy on the party seeking decree of nullity on the round of mental illness as it is held by the Apex Court in the judgment reported in R. Lakshmi Narayan v. Santhi, (2001) 4 SCC 886. The burden of proof is very heavy on the party seeking decree of nullity on the round of mental illness as it is held by the Apex Court in the judgment reported in R. Lakshmi Narayan v. Santhi, (2001) 4 SCC 886. In the said judgment the Apex Court held as follows:- “9. Section 5 provides that a marriage may be solemnized between any two Hindus if the conditions specified in the section are fulfilled. Amongst the other contusions stated therein in clause (ii) it is laid down that at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The clause lays down as one of the conditions for a Hindu Marriage that neither party must be suffering from unsoundness of mind, mental disorder. Insanity or epilepsy and Section 12(1)(b) refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in clause (ii) of Section 5. On a plain reading of the said provision it is manifest that the conditions prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is not per se void but voidable under the clause. Such conditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the court for breaking a marriage already solemnized.” In this context a Full Bench decision reported in Lissy V. Jaison, 2000 (1) KLT 589, is very relevant with regard to the degree of mental disorder of the spouse to grant a decree of divorce or to declare a marriage as null and void. In paragraph 7 of the above decision reads as follows:- “7. Expression incurably of unsound mind cannot be so widely interpreted as to cover feeble minded persons or persons of weak and/or dull intellect who understand nature and consequences of their acts and are able to control themselves, their affairs, reactions in the normal way. In paragraph 7 of the above decision reads as follows:- “7. Expression incurably of unsound mind cannot be so widely interpreted as to cover feeble minded persons or persons of weak and/or dull intellect who understand nature and consequences of their acts and are able to control themselves, their affairs, reactions in the normal way. S.5(2) of the Hindu Act lays down as one of the conditions for a Hindu Marriage that neither party must be incapable of giving valid consent in consequence of unsoundness of mind or has been suffering from mental disorder. S.12(1)(b) renders, at the instance of the other party a marriage voidable, which is in contravention of this condition. Clause (iii) of sub-s(1) of S.13, deals with incurable unsoundness of mind which may occur even subsequent to the marriage. Onus of proving that the other party to the marriage is of incurably unsound mind or that he/she is suffering from mental disorder is on the person alleging it. It must be proved by cogent and clear evidence. ‘Mental’ means pertaining to mind. Unsoundness of mind has to be understood as lack of state of mind or capacity to understand one’s affairs, or marital obligations, or implications of marital relationship. Clause (iii) has been substituted by Marriage Laws (Amendment) Act, 1976 for the original clause (iii) which was as under; “has been incurably of unsound mind for a continuous period of not less than three years immediately proceeding the presentation of the petition.” The above view was on the basis of an earlier decision of the Apex Court in Ram Narain Gupta v. Smt. Rameshwari Gupta AIR 1988 SC 2260 which stipulates that “Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognized 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.” 5. In the light of the above legal position and on the basis of the evidence we have to consider the nature of the so-called mental disorder namely, schizophrenia alleged to have been suffered by the 1st appellant. The term schizophrenia is defined in the World Book Medical Encyclopedia 95 Edition as “a severe mental disease characterized by unpredictable disturbances in thinking. The term schizophrenia is defined in the World Book Medical Encyclopedia 95 Edition as “a severe mental disease characterized by unpredictable disturbances in thinking. It refers to the characteristic schizophrenic behaviour of withdrawing from reality and thinking in illogical, confused patterns”. In The New Complete Medical and Health Encyclopedia Vol. III 87 Edition Schizophrenia is described as the most common and destructive of the psychotic reactions and it is characterized by withdrawal from external reality. Inability to think clearly, disturbances in effective reaction (capacity to feel and express emotion), and a retreat into a fantasy life. It is relevant to note the definition of the term ‘schizophrenia’ given in Mosby’s Medical Dictionary 1995 Second Edition, which reads as follows:- “any one of a large group of psychotic disorders characterized by gross distortion of reality, disturbances of language and communication, withdrawal from social interaction, and the disorganization and fragmentation of thought, perception, and emotional reaction. Apathy and confusion; delusions and hallucinations, rambling or stylized patterns of speech, as evasiveness, incoherence, and echolalia; withdrawn, regressive, and bizarre behaviour, and emotional instability often occur”. The respondent-husband has deposed that on the date of the marriage itself he had noted certain unusual behaviour of the 1st appellant. According to him, the 1st appellant was not looking straight. Noticing this eye defect, her eyes were tested and provided contact lens. It is the case of the respondent-husband that the 1st appellant was in the habit of speaking broken sentences and she had no interest in extra curricular activities or studies. The further case of the respondent-husband is that the 1st appellant used to visit her parental come every week and the purpose of the visit was to administer medicine and to suppress her mental illness. The case of the respondent-husband is supported by PW3. The Family Court had placed much reliance on the evidence of PWs.1 and 3 to come to a conclusion that the 1st appellant was suffering from mental disorder of schizophrenia at the time of marriage. But the Family Court ignored the fact that a young lady like the 1st appellant may behave in certain unusual manner at the time of marriage especially the 1st appellant suddenly left her near relative and parents. She has to take some time to adjust in a new surroundings. She is the only daughter of her parents. But the Family Court ignored the fact that a young lady like the 1st appellant may behave in certain unusual manner at the time of marriage especially the 1st appellant suddenly left her near relative and parents. She has to take some time to adjust in a new surroundings. She is the only daughter of her parents. Hence, we are of the view that the unusual behaviour noted by the respondent-husband and his relatives is not enough to come to a conclusion that the 1st appellant is suffering from any mental disorder. Ignorance in sex or mere passiveness on the bed cannot be considered as incapacity or incapable of performing marital obligations. Admittedly, the 1st appellant became pregnant within three months of the marriage and gave birth to a full born female child. It is only common that certain women will express unusual behaviour and emotional changes during pregnancy. In this context, the evidence adduced by the respondent-husband would show that the 1st appellant was being examined by a gynecologist namely, Dr. Malathy. Hence, we are of the view that the evidence of PWs.1 and 3 is not sufficient to prove that the 1st appellant was suffering from any mental disorder. 6. PW2 is a psychiatrist. After his retirement in the government service he is running a mental hospital namely, Vijaya Hospital, Kozhikode. He deposed that he had got 40 years experience in Psychiatry. The Family Court placed reliance on the evidence of PW2 to find that the 1st appellant was suffering from schizophrenia. Admittedly, PW2 is a family friend of respondent-husband. He also deposed that he examined the 1st appellant in the house of the respondent-husband and had issued Ext.A2 reference card. It has come out in evidence that PW2 has not given any prescription or treatment to the 1st appellant for schizophrenia except Ext.A2 reference card. He further deposed that he had examined the 1st appellant at the request of the petitioner’s father in the petitioner’s house and observed certain symptoms of schizophrenia. But at the same time he gave evidence to the effect that he had not prescribed any medicine for her. That apart, according to him, he was told by the 2nd appellant that first appellant was under Homeopathic treatment from Virajpet for about 3 – 4 years prior to the marriage. But at the same time he gave evidence to the effect that he had not prescribed any medicine for her. That apart, according to him, he was told by the 2nd appellant that first appellant was under Homeopathic treatment from Virajpet for about 3 – 4 years prior to the marriage. But this was denied by the 2nd appellant and RW3, grand father of the 1st appellant. To satisfy his opinion PW2 had a case that he had treated maternal uncle of the first appellant about 15 years back for mental disorder. But this was denied by RWs.1 and 3. RW3 categorically stated that his son had not undergone such treatment. It is not clear from his evidence that whether PW2 has conducted any investigation or examination on the 1st appellant to conclude that she was suffering from schizophrenia. Hence, the finding entered by the Family Court on the basis of the evidence of PW2 that the 1st appellant had been suffering from schizophrenia at the time of marriage and prior to the marriage is not correct. 7. The Family Court went wrong in placing much reliance on Ext.A1. Ext.A1 slip shows a prescription of ‘Anacardium Orientale 200’. The case of the respondent husband is that this homeopathic medicine is for the 1st appellant to control her mental pressure. RW3 had a case that Ext.A1 was given to the mother of the respondent-husband as she had some bodily infirmity. The Family Court accepted the evidence of PWs.1 and 3 and found that the medicine prescribed in Ext.A1 slip is for the use of the 1st appellant. But there is no evidence to show that any medicine as per Ext.A1 slip was administered to the 1st appellant. RWs.1 to 3 had categorically stated that the mother of the petitioner was having loss of memory and for her use Ext.A1 was given. Whatever may be the situation under which Ext.A1 was issued or to whom it was issued, we are only concerned with the reference placed by the Family Court on Ext.A1 to come to a conclusion that the 1st appellant was suffering from schizophrenia. 8. Whatever may be the situation under which Ext.A1 was issued or to whom it was issued, we are only concerned with the reference placed by the Family Court on Ext.A1 to come to a conclusion that the 1st appellant was suffering from schizophrenia. 8. In Dictionary of Practical Materia Medical written by John Henry Clarke, M.D., relied on by the Family Court, it is mentioned that “Anacardium Orientale” is clinically used for alcoholism, apoplexy, brain-fag, constipation, cough, debility, dysmonorrhea, dyspepsia, eczema, elephantiasis, examination funk, hemorrhoids, headache, affection of heart, hypochondriasis, hysteria, insanity, loss of memory, mental weakness, nervous aliments, palpitation, paralysis, pemphigus, rheumatism, self-abuse, diseases of skin, illusions of smell, affection of spine, stiff-neck, vomiting of pregnancy, whooping-cough, warts, writer’s cramp. The characteristics are as follows:- “Anacardium has many features in common with its botanical relatives, the different species of Rhus, especially in its action on the skin, muscles, and joints, but it has also very distinct features of its owe. A very characteristic sensation is a pressing or penetrating pain as from a plug, which may occur in any locality in connection with neuralgias and ear affection, piles, and whenever present. Anacardium will probably be the remedy. Sensation of a hoop or band around the body or about any part is a leading symptom. It has been used with success in diseases of the spinal card with this sensation, and the feeling of a plug in the spine by any motion which causes a pain as if the plug were sticking still further in. Paralysed feeling in knees. Sensation as if knees were bandaged.” From the above passage it is clear that Anacardium Orientale is a homeopathic medicine and it is used for various aliments and Ext.A1 will not prove that it is for the treatment of mental disease alone. Hence, the finding of the Family Court with regard to the mental illness of the 1st appellant is not based on any evidence. 9. The next question raised in the appeal is that whether the consent for the marriage of the petitioner was obtained by fraud. Admittedly, the marriage was an arranged one. In the engagement ceremony more than 150 persons had participated from the side of the respondent-husband. PW2 had also participated. There is evidence to show that the respondent-husband and the 1st appellant had conversation at the time of engagement. Admittedly, the marriage was an arranged one. In the engagement ceremony more than 150 persons had participated from the side of the respondent-husband. PW2 had also participated. There is evidence to show that the respondent-husband and the 1st appellant had conversation at the time of engagement. PW1 respondent, PW3 his father,RW3 grand father of the 1st appellant are lawyers. It has come out in evidence that the marriage proposal was through one of the clients of PW3. PW3 agreed with the proposal and thereafter engagement ceremony was conducted. PW2 has given evidence before the Family Court that he had treated the uncle of the 1st appellant about 15 to 20 years back. If he had any knowledge about the mental condition or the background of the 1st appellant, he cold have revealed it before the marriage. With regard to the allegation of educational qualification of the 1st appellant, there is no evidence to prove that the appellants had committed any fraud. Hence, we are also of the view that the finding of the Family Court on this aspect is also without any evidence. 10. In the above circumstances, we are of the view that the judgment of the Family Court is not sustainable in law to grant a decree of nullity of the marriage of the respondent-husband and the 1st appellant on the ground that the 1st appellant was suffering from mental disorder of schizophrenia at the time of marriage. 11. It has come out in evidence that the respondent-husband had already filed O.P.No.755/99 before the District Court, Kozhikode under Sections 51 and 52 of the Mental Health Act. We have already held that 1st appellant is not a mentally III person. A complaint was also filed before the Vanitha Police Station at the instance of RW3 grandfather of the 1st appellant under section 498A of IPC. Police had already investigated that matter and filed charge-sheet. That is the subject matter of C.C.No.125/2000 before the Chief Judicial Magistrate’s Court, Kozhikode. It is submitted that respondent-husband remarried another lady before stay was obtained and after that the marriage was decreed as null and void. In the above circumstances, both proceedings are liable to be quashed. 12. In the facts and circumstances of the case, we find that the marital relations of the parties are strained, they are living separately and the marriage is irretrievably broken. In the above circumstances, both proceedings are liable to be quashed. 12. In the facts and circumstances of the case, we find that the marital relations of the parties are strained, they are living separately and the marriage is irretrievably broken. During the course of argument, we suggested whether the matter cold be settled between the parties. After due deliberations the respondent-husband had agreed to pay Rs.5 lakhs as damage to the 1st appellant. The above amount was already deposited. Hence, the marriage between the parties is dissolved on the following terms:- i) The respondent-husband shall pay an amount of Rs.5,00,000 to the 1st appellant and child. If the amount is already deposited, the 1st appellant is allowed to withdraw Rs.3,00,000 and balance amount of Rs.2,00,000 shall be deposited in a Fixed Deposit in the name of the minor child. ii) O.P.No.765/99 on the file of the District Court, Kozhikode and C.C.No.125/2000 on the file of the Chief Judicial Magistrate’s Court, Kozhikode and further proceedings are quashed. Appeal and Crl.M.C. are disposed of with the above terms.