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2011 DIGILAW 445 (GAU)

Sampa Karmakar v. Sanjib Karmakar

2011-05-24

A.K.GOSWAMI, AMITAVA ROY

body2011
JUDGMENT Amitava Roy, J. 1. The instant appeal is by the wife impugning the decree for dissolution of her marriage with the respondent vide the judgment and order dated 18.6.2004 rendered by the learned District judge, Dhubri in Title Suit (D) Case No. 39/2002. 2. We have heard Mr. N. Choudhury learned Counsel for the appellant and Mr. D Mazumdar, learned Counsel for the respondent assisted by Ms. T. Sakia, Advocate. 3. The pleadings of the parties would necessarily have to be briefly traversed to comprehend the necessary facts for better appreciation of the rival submissions. The parties were married on 11.6.2000 at the residence of the appellant at Dhubri according to Hindu rites and rituals. They thereafter resided for a few days at the village residence of the respondent and then shifted to a rented house at Garigaon, Guwahanti and eventually to an accommodation in the Gauhati University campus at Jalukbari. The respondent incidentally is a Scientific Officer of the Gauhati University (for short, hereinafter referred to as 'the University'). According to the respondent (petitioner in the divorce proceeding), he gradually observed abnormal and disagreeable conduct, behavior and attitude of the appellant and the intensity thereof was of such a magnitude that it had cast an impression on him that it would no longer be possible to reside with the appellant. According to him, though this was brought to the notice of the appellant's parents, no step was taken to remedy situation and that thereafter being without any alternative he took her to Dr. Jayanta Das, a Psychiatrist from Guwahati for treatment on 21.12.2000. The doctor after examining the appellant referred her to Dr. Mrs. N. Borgohain of GNRC for psychodiagnostic evaluation The respondent pleaded that her examination by the aforenamed doctor had revealed that she was suffering from Paranoid Schizophrenia. As advised by Dr. Mrs. N. Borgohain, the respondent then took the appellant to Dr. Jayanta Das for consultation who, in turn, referred them to Dr. Dipali Dutta, Head of the Department of Psychiatry and Principal, Guwahati Medical College. Though Dr. Jayanta Das also advised that the appellant should remain under treatment for at least few days, the latter though cooperated for some time, refused to do so subsequent thereto and also stopped taking medicines. 4. Dipali Dutta, Head of the Department of Psychiatry and Principal, Guwahati Medical College. Though Dr. Jayanta Das also advised that the appellant should remain under treatment for at least few days, the latter though cooperated for some time, refused to do so subsequent thereto and also stopped taking medicines. 4. The respondent further asserted that gradually the appellant became more aggressive and exhibited irresponsible and erratic behavior causing unbearable hardships, tension and anxieties to him, thus, leading him to believe that she was suffering from mental disorder from before her marriage, a fact concealed from him by her and her parents. In his petition the respondent narrated specific instances of the unnatural and peculiar conduct and behavior of the appellant. He averred that the appellant desired to remain naked and used to break valuable utensils as well as eased herself in the bathroom-cum-urinal keeping the door open. The respondent further averred that not only she was found reluctant in discharging her domestic works, she did not allow him to work as well and insisted his company in the bed both day and night expressing intense sexual desire. According to the respondent, all these robbed him of his peace of mind, so much so that he lost his balance. The respondent further asserted that the appellant used to laugh at the guests whenever they visited his house and used to remove the receiver of the telephone as and when it rung. She even went to the extent of destroying the research works, books, valuable papers without any rhyme or reason. He further alleged that when he used to retire in the night she used to switch on the lights of the room and even attempted go outside at late night and telephone the police to come and arrest her. According to him, the appellant used to have a knife with her and constantly threatened him with dire consequences. The respondent further stated the appellant disclosed to him that before her marriage she loved one Mr. Amitabh Bhattacharyya and also revealed that she had sex with one Mr. Kamal Bhattacharyya several times. According to the respondent, he unsuccessfully tried to persuade her to mend her ways only to be grossly abused by slang and unbearable language. 5. The respondent further stated the appellant disclosed to him that before her marriage she loved one Mr. Amitabh Bhattacharyya and also revealed that she had sex with one Mr. Kamal Bhattacharyya several times. According to the respondent, he unsuccessfully tried to persuade her to mend her ways only to be grossly abused by slang and unbearable language. 5. The respondent further stated that the appellant in addition to the above without any reason left her matrimonial home on 28.2.2001 and though she returned for a brief period on 22.4.2001, she left on the very next day with her elder brother Mr. Badal Karmakar. It was thereafter that the respondent on 6.5.2001 came to learn that the appellant was on her family way. Having learnt of the same, he along with the appellant's brother Mr. Badal Karmakar took her to Dr. Jayanta Das for advice who, in turn, consulted them to see a Gynaecologist. According to the respondent, though the said visit to the Gynaecologist was arranged, he on his return from his office on that particular day, found that the appellant had left for Dhubri with her brother. The respondent also narrated the steps taken by him to bring back the appellant which, according to him, in spite of his best efforts failed. He, therefore, instituted the suit by getting an Advocate's notice issued to her which also remained unresponded. A decree for dissolution of the marriage was, thus, sought for on the ground of mental disorder resulting in cruelty as well as desertion. A prayer for annulment of the marriage under Section 12(b)(ii) of the Hindu Marriage Act, 1955 (for short, hereinafter referred to as 'the Act') was also sought for on the ground that the factum of mental disorder of the appellant had been concealed from him. 6. On receiving the summons of the suit the appellant appeared and filed her written statement. She not only denied the allegations and imputations made against her but asserted as well that the respondent was a greedy man and had resorted to mental and physical torture upon her immediately after a few days of the marriage. She stated that her marriage with the respondent was an arranged one with full involvement of the family members of both the sides and that prior to the final word therefore the parties had conversed with each other for a reasonable period of time. She stated that her marriage with the respondent was an arranged one with full involvement of the family members of both the sides and that prior to the final word therefore the parties had conversed with each other for a reasonable period of time. She, thus, dismissed the allegation of concealment of her mental state as made by the respondent. She further stated that it was the respondent who in fact mounted torture on her on the plea of not having been provided with sufficient dowry, car, household articles like T.V., Refrigerator, Almirah, etc. She also alleged assault by him on her and cruel behavior compelling her to request for dowry goods from her parents. According to her, the respondent started making phone calls to her parents demanding the above for which her father eventually agreed for her safety and security to fulfill the demands to the extent possible. The appellant further pleaded that she was on one occasion following severe torture thrown out of the house, hereafter, being without any alternative she took shelter in her brother's quarter at Ulubari, Guwahati and that on his intervention and that of one cousin brother of the respondent she could return to the matrimonial home. However, the rough and cruel behavior of the respondent continued. According to the appellant, the respondent in order to get rid of her devised a plan of portraying that she was suffering from mental disorder and in furtherance thereof took her to Dr. Jayanta Das without her consent and knowledge. According to her though she for some time followed the advice of Dr. Das, she denied of having availing treatment of Dr. Dipali Dutta at any point of time. She also denied the correctness of the evaluation said to have been made of being ill of Paranoid Schizophrenia. 7. The appellant stated that immediately before the marriage though everything was fixed, the respondent cited a pre-condition of payment of Rs. one lakh in cash, which had to be conceded to by her father to save the marriage. This amount of Rs. one lakh which had been deposited in the form of FDR in the name of the appellant was transferred to the account of the respondent after the marriage. one lakh in cash, which had to be conceded to by her father to save the marriage. This amount of Rs. one lakh which had been deposited in the form of FDR in the name of the appellant was transferred to the account of the respondent after the marriage. The appellant alleged that the respondent was a man of bad character and pervert taste and that as she did not abide by his desires he fabricated a story of her mental illness. She, however, admitted to have left the matrimonial home for Dhubri in the above circumstances being unbearable for her to continue thereat, but she claimed that she did so with due intimation to the respondent. She further alleged that the respondent on having come to learn about her pregnancy tried to persuade her to have the fetus aborted to which, however, she did not agree. The appellant stated that eventually a girl child was born to the parties on 18.11.2001 but alleged that the respondent not only did not come to see the baby, he did not even care to take information about it. She also mentioned about an attempt for conciliation between the parties made by this Court at an earlier point when she had approached it for the purpose of getting the divorce proceeding transferred from the Family Court, Kamrup at Guwahati to that of the District Judge, Dhubri. 8. On the basis of the pleadings of the parties, the following issues were framed: 1. Whether there is any cause of action for the suit? 2. Whether the respondent is suffering from paranoid schizophrenia resulting abnormal behavior and erratic attitude towards the petitioner? 3. Whether the petitioner subjected the respondent to torture as alleged? 4. Whether the petitioner is entitled to get the decree as prayed for? 5. To what other relief/reliefs the parties are entitled ? 9. In support of their respective cases whereas the respondent examined five witnesses including himself and brought on record eight documents, the appellant adduced the oral testimony of four witnesses including herself and also exhibited two documents. The judgment and order in assailment followed. As would be apparent therefrom, the learned Trial Court granted the decree as prayed for on the ground that the appellant was a patient of Paranoid Schizophrenia and that her conduct and behavior entitled the respondent to the relief as prayed for. 10. The judgment and order in assailment followed. As would be apparent therefrom, the learned Trial Court granted the decree as prayed for on the ground that the appellant was a patient of Paranoid Schizophrenia and that her conduct and behavior entitled the respondent to the relief as prayed for. 10. Before adverting to the contentious submissions made on behalf of the parties, it would be appropriate to briefly sketch the salient features of the evidence on record. 11. The respondent while examining himself as P.W.1, substantially adhered to his averments in the petition in specific details. Having outlined his case in his pleadings as above, it is considered inessential to repeat his testimony exhaustively. Apart from replicating the instances vis-a-vis the appellant in his endeavour to highlight her grossly abnormal behavior, gestures and attitude which complement the diagnosis of Paranoid Schizophrenia, the respondent alleged desertion by her on 28.2.2001 with a mind not to return to the matrimonial home. 12. The evidence of the respondent was in the form of an affidavit to which he enclosed as well eight documents as evidence relating to the treatment as well as the Advocate's notice. In cross-examination, however, he amongst, others, indicated about the negotiations at various stages before his marriage was finalized with the appellant He admitted in particular to have talked to her to know each other, hereafter, he conveyed that he had liked her so that final consent for the marriage could be given. He, however, denied the allegations of dowry demands and the torture alleged to have been unleashed on the appellant by him. In cross-examination, he revealed that that the differences between them arose when the appellant between them arose when the appellant refused to cook meal for him and started defying him. He conceded that in the rented house the bathroom was not attached and independent and that there were three places of conveniences which were commonly used by all the inmates of the house. He also admitted that none else but he had seen the appellant bathing naked in the bathroom. He stated that he presumed that the appellant was suffering from psychiatric problem because of her such conduct. Though he claimed to have collected medical documents (Exhibit 1 to 7) himself, he stated that he did not know the signatures appearing thereon. He also admitted that none else but he had seen the appellant bathing naked in the bathroom. He stated that he presumed that the appellant was suffering from psychiatric problem because of her such conduct. Though he claimed to have collected medical documents (Exhibit 1 to 7) himself, he stated that he did not know the signatures appearing thereon. He admitted to have received one refrigerator and one Godrej Almirah sent to him by his father-in-law, but denied the suggestion of the demanding more dowry made by the letter (Exhibit-B) allegedly written at his insistence. He further admitted in his cross-examination that he had never gone to see his daughter. 13. The evidence of PW 2, Ms. Anamika Karmakar, sister-in-law of the appellant is to effect that she had marked some abnormal behavior of the appellant during short stay for about a week at her village home. In the cross-examination, she made a stray statement that the appellant now and then attempted to assault her. 14. PW 3, Ms. Ujjwala Karmakar, sister of the respondent referred to an incident in the first week of January, 2001 when she received a telephone call from him (respondent) asking her to visit his house for necessary intervention to pacify the appellant who had become aggressive and violent. This witness stated that the appellant had disclosed to her that she desired to remain naked and that she still loved Mr. Kamal Bhattacharyya and further that she maintained sexual relationship with him. This witness in her cross-examination, however, affirmed that between the parties was preceded by due negotiations. She also stated that during her stay for a couple of days with the appellant at her matrimonial home after the marriage she did not notice any abnormality in her behavior. According to her, a woman while in her family way is mentally weak and is sensitive to become enraged on slightest pretexts. According to her at that stage a woman deserves to be treated better and provided with proper nutrition. 15. P.W.4. Dr. Dilip Kalita was a resident of an adjacent flat in the same apartment where the parties used to stay in the campus of the university. He mentioned about frequent quarrels for which he along with others tried to convince them to maintain peace in the environment of the campus. 15. P.W.4. Dr. Dilip Kalita was a resident of an adjacent flat in the same apartment where the parties used to stay in the campus of the university. He mentioned about frequent quarrels for which he along with others tried to convince them to maintain peace in the environment of the campus. This witness stated that he having informed the father of the appellant about such behavior and conduct, the latter on a query made by him as to whether she was suffering from any mental disorder, responded that if there be some, treatment therefore would also be available. 16. P. W.5, Bhabesh Kalita, at the relevant point of time was a Chowkidar of the University. He stated to have noticed that the appellant used to break utensils and rebuke the respondent in the quarter. He also mentioned about her abnormal and erratic behavior and the inability of the respondent to control her. In cross-examination, this witness, however, conceded to have found some broken utensils lying inside the house in one occasion. He also expressed his ignorance as to the cause thereof. 17. The appellant in her deposition also stood by her averments in the written statement in necessary details. She in specific terms stated on oath that the plea of Paranoid Schizophrenia had been manufactured by the respondent to offer a cause for obtaining a decree of divorce. She denied the allegation of abnormal or cruel behavior of hers. In cross-examination, she admitted that the letter (Exhibit-B) written by her did not mention the date thereof. She also stated that the letter did not bear any reference of payment of Rs. 1.20 lakh. She clarified that there was no such demand prior to the marriage but remarked that she had not got the husband and the house of her choice. She admitted to have been taken to Dr. Jayanta Das by her brother and after the respondent had taken her thereto she also admitted to have taken the medicines prescribed by the said doctor and also that Exhibit-1 to 7 were the prescriptions regarding her treatment. According to her, on receipt of the Advocate's notice from the respondent she had given a reply thereto. She, however, clarified of not having stated that the respondent was a man of bad character or pervert taste. 18. According to her, on receipt of the Advocate's notice from the respondent she had given a reply thereto. She, however, clarified of not having stated that the respondent was a man of bad character or pervert taste. 18. D. W.2, Banamali Karmakar, father of the appellant, affirmed that the marriage was preceded by due negotiations, but reiterated the respondent's demand of Rs. one lakh in cash besides other articles as a pre-condition therefore. He stated that in order to save the marriage scheduled to be solemnized on 11.6.2000 an amount of Rs. 1.20 lakh was deposited in the form of FDR in the name of the appellant on 9.6.2000. He, however, affirmed that the respondent continued to torture the respondent for not paying the full amount required to purchase a Maruti Car and forced the appellant to collect the amount from him. According to this witness, as the atrocities did not stop, he sent his son Badal Karmakar and one daughter to Guwahati for necessary intervention and that having failed and being without any alternative, they returned with her and that since then she had been residing with him. This witness also stated about an incident of assault by the respondent on the appellant on their way back from the chamber of Dr. S. Deka while she was in an advanced stage of pregnancy. He categorically denied the allegation of unsoundness of mind of the appellant. In cross-examination, this witness, amongst others, stated that he had never got the appellant examined by any psychiatrist prior to her marriage. 19. D. W.3, Smt. Pranita Chakraborty a neighbor of the appellant before her marriage, stated that the appellant was her daughter's private tutor while she was studying in Class-I and II standards. According to this witness, the appellant was quite normal in her conduct and behavior. In cross-examination, this witness stated that her daughter had passed Cass-I standards in the year 1998. 20. D.W.4, Sri Badal Karmakar, brother of the appellant, stated that in the month of August, 2000 the respondent one day in the evening tortured the appellant and drove her out of the house, hereafter, finding no other alternative she took shelter in his rented house. According to this witness, he then contacted Mr. Nil Ratan Karmakar, cousin brother of the respondent and that on their joint intervention they could restore the appellant in her matrimonial home. According to this witness, he then contacted Mr. Nil Ratan Karmakar, cousin brother of the respondent and that on their joint intervention they could restore the appellant in her matrimonial home. This witness stated that on 7.5.2001 he and the appellant had visited Dr. J.N. Das for medical advice who referred them to a Gynaecologist as at the relevant time she (appellant) was carrying. According to this witness, after they had returned to the University quarter, they round the respondent to be absent and as he did not return for a long time they returned to Dhubri. 21. As referred to hereinabove, the respondent had brought on records the medical documents relating to the treatment of the appellant as well as the Advocate's notice dated 4.7.2001. In course of cross-examination the respondent inter alia proved a letter (Exhibit-B) written by the appellant to her father expressing her disappointment and frustration for not being provided with the household essentials as promised by him and her brother. 22. Mr. Choudhury has emphatically argued that the respondent having failed to prove that the appellant was at all relevant times of unsound mind and/or suffering from mental disorder within the meaning of Section 13 of the Act, the learned Trial Court had fallen in gross error in dissolving the marriage between the parties and that, therefore, the impugned judgment and order ought to be interfered with in the interest of justice. Referring to the pleadings and the evidence on record, the learned Counsel has urged that it being apparent therefrom that the marriage was preceded by due negotiation between the family members of the parties and also interaction between them at individual levels, the plea of concealment of such mental state has no acceptable basis and is a myth. While stoutly refuting the allegation that the appellant was at the relevant point of time suffering from Paranoid Schizophrenia as said to have been diagnosed, Mr. Choudhury has maintained that there being no evidence worth the name cognizable in law, the learned Trial Court was patently wrong in proceeding on the premise that the said mental state had been admitted by the appellant. According to him, the documents (Exhibit 1 to 7) not having been proved, are inadmissible in law and ought not to be acted upon for any purpose whatsoever. According to him, the documents (Exhibit 1 to 7) not having been proved, are inadmissible in law and ought not to be acted upon for any purpose whatsoever. The learned Counsel dismissed the alleged disclosures made by the father of the appellant to P.W.4 about her mental state and by the appellant to P.W.2 about her past association and involvement with Sri Kamal Bhattacharyya contending that neither the father of the appellant (D.W.2) nor she had been confronted with these in course of their cross-examination. While insisting that the appellant's casual testimony of availing treatment from Dr. J.N. Das and taking the medicines prescribed by him is not demonstrative of the fact that she had admitted of being suffering from Paranoid Schizophrenia, Mr. Choudhury has argued that her mere statement that Exhibit 1 to 7 relate to her treatment also does not unerringly prove that she had been suffering from the said disease/mental disorder. The learned Counsel urged with reference to the findings recorded in the impugned judgment that as the respondent had failed to prove any ground enumerated in Section13 of the Act, the decree of dissolution of marriage is patently erroneous and is liable to be set aside. In support of his contentions, Mr. Choudhury placed reliance on the decisions of the Apex Court in Bishwanath Rai v. Sachhidanant Singh, AIR 1971 SC 1949 and in Narbada Devi Guta v. Birendra Kumar Jaiswal & Anr., AIR 2004 SC 175 . 23. In reply, Mr. Majumdar has assiduously contended that the respondent having discharged his burden to prove that the appellant at the time of marriage and also thereafter had been suffering from mental disorder as contemplated in Section 13(1)(iii) of the Act, the decree of dissolution of marriage has been rightly granted and, therefore, no interference with the impugned judgment and order is warranted. While contending that the conduct and behavior of the appellant to constitute mental disorder and consequently cruelty vis-a-vis the parties would have to be judged in the context of the status of the respondent and the standard of living to which he was used to, the learned Counsel has taken us through the evidence on record to demonstrate the unsustainability of the allegation of torture on dowry demands said to have been made by the respondent on the appellant. According to Mr. According to Mr. Mazumdar, not only Exhibit-B, the letter written by the appellant does not indicate any force or compulsion to which she had been allegedly subjected by the respondent, the respondent having amply proved the abnormal behavior and disagreeable conduct, behavior and attitude of hers, he was even otherwise entitled to a decree of divorce on the ground of cruelty. As the appellant had not denied the fact that she had been taken to a Psychiatrist and that she had not only subjected herself to such treatment and had taken medicines as well, formal proof of the documents relatable to her treatment was not called for. The absence of any cross-examination of the respondent on the specific instances cited by him in his pleadings as well as in his testimony, according to Mr. Mazumdar, unfailingly proves that the appellant was suffering from such mental disorder for which it was neither safe nor advisable for him (respondent) to continue to live with her. According to the learned Counsel, the learned Trial Court having duly assessed the evidence on record and noticed the demeanor of the appellant in Court, the ultimate finding recorded in the impugned judgment and order in favor of dissolution of marriage on the ground of Paranoid Schizophrenia ought not to be interfered by this Court in the present appeal. As in spite of repeated endeavors of the respondent the appellant did neither respond thereto nor expressed her desire to return to the matrimonial home, the learned Counsel argued that there is even otherwise no possibility of reconciliation and that as the marriage is dead for all intents and purposes, no interference on that count as well would be justified. To reinforce his argument Mr. Mazumdar has placed reliance on the decisions of the Apex Court in Sharda v. Dharmpal, I (2003) DMC 627 (SC)= (2003) 4 SCC 493 ; Vinita Saxena v. Pankaj Pandit, I (2006) DMC 531 (SC)=II (2006) CLT 19 (SC)=128 (2006) DLT 387 (SC)= (2006) 3 SCC 778 ; and in Jagdish Singh v. Madhuri Devi, II (2008) DMC 8 (SC)=II (2008) CLT 392 (SC)= (2008) 10 SCC 497 . 24. We have analyzed the pleadings of the parties and the arguments advanced on the basis thereof as well as the evidence on record. 24. We have analyzed the pleadings of the parties and the arguments advanced on the basis thereof as well as the evidence on record. The respondent though had sought to project the ground of mental disorder and desertion as envisaged in Section 13 of the Act, a visible higher emphasis was laid on the first plea and the learned Trial Court as well modeled the judgment and order thereon. Our scrutiny of the evidence on record leaves us with the impression that the pleadings as well as the evidence bearing on the ground of desertion are evenly balanced even judged by the principle of preponderance of probability. The impeachment of the carriage on the ground of concealment of the subsisting mental disorder of the appellant also on a survey of the pleadings and the evidence lacks persuasion. Axiomatically, therefore, the challenge to the impugned judgment and order has to be tested vis-a-vis the ground of mental disorder as is sought to be pursued by the respondent and resisted by the appellant. 25. It cannot be gainsaid that a decree for dissolution of marriage to be sustained, it has to in the facts and circumstances, withstand the essentialities of Section 13(1)(iii) of the Act. It would be apt in this premise to extract the relevant excerpts of this legal provision for ready reference: 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 cannot 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. 26. In view of the explanation as above, the expression "mental disorder" is inclusive inter alia of schizophrenia. Having regard to the specific plea of the respondent that the appellant at all relevant times had been suffering from Paranoid Schizophrenia, the adjudication in the instant appeal would understandably centre around the same. 27. 26. In view of the explanation as above, the expression "mental disorder" is inclusive inter alia of schizophrenia. Having regard to the specific plea of the respondent that the appellant at all relevant times had been suffering from Paranoid Schizophrenia, the adjudication in the instant appeal would understandably centre around the same. 27. Before we venture out to deal with the rival submissions outlined hereinabove, we need to clear the deck therefore with reference to the decisions of the Apex Court in Jagadish Singh (supra), wherein Their Lordships of the Apex Court had sounded a word of caution to the Courts exercising appellate jurisdiction to be mindful of the fact that the conclusions of the Trial Court which has the advantage and opportunity of seeing the demeanor of the witnesses, ought not to be normally disturbed. It was propounded that though the appellate Court possesses the same powers as that of the Original Court, these have to be exercised with proper care, caution and circumspection and that a finding of fact recorded by the Trial Court being so advantageously poised, ought not to be lightly disturbed unless its (Trial Court) approach in appraisal of evidence is erroneous, contrary to the well established principles of law or unreasonable. 28. Whereas there cannot be any wrangle on the above proposition of law, we read no prescription as such for the Appellate Court which is also one of facts and law, to re-appreciate the evidence on record to arrive at its independent findings. As a matter of fact during the pendency of the instant appeal, we had an opportunity of interacting with the parties on individual basis, though in a bid to effect reconciliation between them, which we may mention for a little inflexible and rigid stand of the respondent had ultimately failed. The appellant throughout the interview with us had expressed her willingness without any reservation to return to the matrimonial home with the child. 29. The rival averments on the aspect of the mental ailment of the appellant, as sought to be projected, are apparently repugnant to each other and cannot otherwise be reconciled. The appellant neither in her written statement nor in her testimony had admitted that at any point of time she had been suffering from mental disorder of any kind, far less Paranoid Schizophrenia. Noticeably, however, she did not deny the fact that she had visited Dr. The appellant neither in her written statement nor in her testimony had admitted that at any point of time she had been suffering from mental disorder of any kind, far less Paranoid Schizophrenia. Noticeably, however, she did not deny the fact that she had visited Dr. J.N. Das, a Psychiatrist, as taken to him by the respondent and that she had taken the medicines prescribed by the said doctor. In her evidence she has accepted as well that the documents (Exhibits 1 to 7) relate to the said treatment. These documents had been introduced on the basis of the affidavit evidence of the respondent. The opening line of paragraph No. 12 of the affidavit referring to these documents as exhibits reads: "The following documents are enclosed herewith as exhibits". By the said affidavit these documents as such have not been proved as required in law. Understandably, the appellant also did not cause the same to be proved through cross-examination of the respondent. These documents, therefore, remained on records as exhibits. A bare perusal of these documents reveals that these include prescription of medicines by Dr. Jayanta Das, Consultant Psychiatrist; money receipts for the tests conducted as per medical advice as well as a test report issued by the Institute of Neurological Sciences, Department of Neuropsychiatry, Guwahati signed by Mrs. N. Borgohain, Sr. Clinical Psychologist vis-a-vis the appellant. 30. This document discloses the report date of the patient to be 23.12.2000 and that she had been referred for Psychodiagnostic evaluation following complaints of abnormal behavior in the form of ideas of reference, bigger thinking, suspiciousness and hearing of voices. While it is logical to infer that the above list of complaints had been at the instance of the patient or her attendant i.e. the respondent, to start with, it is difficult to co-relate the same with the instances of conduct and behavior referred to by him (respondent) in his petition as well as in his testimony in course of the trial. The interview impression as can be gathered is that she had been cooperative during the interview session and talked irrelevantly at times. The document certifies the patient to be cooperative during the tests conducted on her. The test findings which relate inter alia to DAPT drawing indicated immaturity and feeling of insecurity in her. According to the doctor issuing the report. The document certifies the patient to be cooperative during the tests conducted on her. The test findings which relate inter alia to DAPT drawing indicated immaturity and feeling of insecurity in her. According to the doctor issuing the report. Rorschach protocol revealed poor impulse life and inner resources as well as poor capacity to organize and synthesize the perceptions. The analysis in terms of the tests, therefore, revealed paranoid features to lead to the final impression that the patient appeared to be a case of paranoid schizophrenia. 31. Not only the final impression, as the document reveals, is evidently tentative, the findings of the tests as referred to hereinabove in a way, according to us, align with the state of alarm and apprehension with which, according to the appellant, she had been passing her days in the company of the respondent. To repeat, the impressions following the analysis on her mental state after subjecting to the various tests as mentioned in this document, cannot per se be traced to the alleged abnormal, erratic and weird conduct and behavior of the appellant which appeared to the respondent at times to be abhorrent, nauseating and agonizing. 32. The Apex Court in Bishwanath Rai (supra), was confronted with the issue of admissibility of a letter, Exhibit-1 purported to have been written by one Swami Bimlanand Saraswati @ Awadh Behari Suman. Though this document had been proved to be in the handwriting of Swamiji, Their Lordships were of the view that in absence of his examination in connection therewith, the correctness of the contents of the document could not be held to be proved. 33. The Apex Court in Narbada Devi Gupta (supra), held that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents and that its execution has to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. Their Lordships, however, recorded a departure in situations where the documents are produced and admitted by the opposite party together with the signatures thereon. 34. Their Lordships, however, recorded a departure in situations where the documents are produced and admitted by the opposite party together with the signatures thereon. 34. The Apex Court in Sharda (supra), while examining the issue as to whether a Court's direction to one of the parties before it to undergo medical examination would be violative of his/her personal liberty under Article 21 of the Constitution of India, observed in the context of plea of unsoundness of mind as a ground for divorce under the Act, that evidence has to be adduced in order to establish that the resultant condition is incurable or that the mental disease is of such kind and to such an extent that a spouse cannot be reasonably be accepted to live with the other. It was observed that medical testimony for arriving at such a finding although would be imperative, but of considerable assistance to the Court and that the same being an evidence of experts in the field, would not leave the Court with the obligation of satisfying itself on the issue beyond reasonable doubt. 35. It is, thus, apparent that if the plea of unsoundness of mind or mental disorder as conceived of in Section 13(1)(iii) of the Act is insisted upon for obtaining dissolution of marriage by divorce, the rigor of proof ought to be relatively more stringent as compared to the requirement of principle of preponderance of probability. Having regard to the consequences to follow on various counts on the pronouncement of the decree of divorce on the ground of unsoundness of mind and/or mental disorder, such a prescription appears to be logical, rational and essential. 36. Their Lordships in Vinita Saxena (supra), was seized with a case where the plea of schizophrenia was taken to urge the ground of cruelty for dissolution of marriage under Section13 of the Act. The various facets of schizophrenia were dealt with. In the instant case, the oral evidence on record, in our opinion, does not conform to any of the symptoms of schizophrenia vis-a-vis the appellant. The imputations of her unnatural conduct and behavior do not relate to any of the traits of this disease as discussed in this decision. The determination made therein, therefore, is of no assistance in the facts and circumstances of the case. 37. The imputations of her unnatural conduct and behavior do not relate to any of the traits of this disease as discussed in this decision. The determination made therein, therefore, is of no assistance in the facts and circumstances of the case. 37. In Ram Narain Gupta v. Rameshwari Gupta, II (2008) DMC 8 (SC)=II (2008) CLT 392 (SC)= AIR 1988 SC 2260 , Their Lordships of the Apex Court had held vis-a-vis the concept of unsoundness of mind and mental disorder that the degree thereof must be of such an extent that the spouse seeking relief cannot reasonably be accepted to live with the other. It was held that all mental abnormalities are not recognized as grounds for grant of decree and that if the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law. Their Lordships were of the view that not all schizophrenics are not characterized by the same Mensity of the disease and that mere branding of a person as schizophrenic, therefore, would not suffice to warrant a decree of divorce under the Act. 38. As referred to hereinabove, the documents (Exhibits 1 to 7) had not been proved by the respondent in accordance with law and when confronted with, he conceded of being ignorant of the author of the signatures thereon. In this factual premise, the testimony of the appellant to the effect that she had visited Dr. Jayanta Das, Psychiatrist with the respondent, took medicines prescribed by him and that the documents (Exhibits 1 to 7) relate to her such treatment, in our opinion, ipso facto cannot be a substitute of the enjoinment of proof thereof as required in law. We are, therefore, of the unhesitant opinion that the evidence of the appellant to the above notwithstanding, the respondent was not absolved of his obligation in law to prove these documents in accordance therewith so as to be admissible as well as of being of any probative worth. These documents as a corollary, therefore, cannot serve as a proof of the fact that at the relevant point of time the appellant was suffering from Paranoid Schizophrenia. 39. These documents as a corollary, therefore, cannot serve as a proof of the fact that at the relevant point of time the appellant was suffering from Paranoid Schizophrenia. 39. Even otherwise, in view of the observation made by us on the basis of the report (Exhibit-7), we are left unimpressed that the same unmistakably establish that the appellant was then or at any earlier point of time was a patient of Paranoid Schizophrenia. There is no evidence of any prior history of this illness of the appellant and, as already observed, the respondent did not examine any doctor to either prove these documents and/or to explain the real implications of the medical terms used therein and/or the diagnosis finally made. As the oral evidence of the parties and their witnesses otherwise neutralize each other on this aspect of the controversy, we are constrained to hold that the respondent had failed to prove that the appellant was a patient of Paranoid Schizophrenia either at the time of marriage or thereafter during her stay in the matrimonial home. 40. We have noticed that the averments made by the respondent in his petition vis-a-vis the specific instances bearing on the conduct and behavior of the respondent, though had been refuted by her (appellant) in her written statement were not tested by his cross-examination. In this regard, we cannot overlook the symptoms of the appellant disclosed to Mrs. N. Borgohain, Senior Clinical Psychologist necessitating a series of tests to ascertain her mental condition. These symptoms as have been referred to hereinabove in course of discussion on Exhibit-7, in our opinion, cannot stem from the instances cited by the respondent. The complaints of abnormal behavior in the form of ideas of reference, bigger thinking, suspiciousness and hearing of voices have no perceptible nexus with the conduct and behavior imputed by him. Even assuming the veracity of the respondent's plea in this regard, we cannot persuade ourselves to conclude that the conduct and behavior of the appellant per se would have given rise to a situation rendering the co-existence of the parties impossible from the view point of the respondent so as to tantamount to cruelty within the meaning of Section 13 of the Act. The instances cited, unusual though, if correct, the respondent's role as a husband to control and rectify the appellant cannot be overlooked. The instances cited, unusual though, if correct, the respondent's role as a husband to control and rectify the appellant cannot be overlooked. Evidence discloses that the appellant while in the company of the respondent in the public used to decently dressed, well behaved and that there had never been any occasion for embarrassment for him for any such conduct of hers. 41. D.W.3 in her deposition on oath had stated that in the year 1998-1999 the appellant used to be the private tutor of her daughter. The evidence of the appellant on oath relieving the respondent from the accusation of being cruel or of pervert taste, according to us, demonstrates a rational and discernible mind of hers. She, however, did not absolve her of the charge of torture on dowry demands. Not only she had in categorical terms in her written statement branded the respondent's allegation vis-a-vis her unnatural conduct and behavior to be manufactured, in absence of her cross-examination on her alleged disclosures on premarital association/involvement with Mr. kamal Bhattacharyya and that of D.W.2 about her mental illness, the testimony of P.W.2 and P.W.4 on this count also, according to us, does not advance the case of the respondent. 42. The learned Trial Court, as the impugned judgment and order would reveal, in our view, had erred in appreciating the pleadings and the evidence of the parties bearing on the plea of mental disorder. Its premise that the appellant had admitted that she had been suffering from Paranoid Schizophrenia is not borne out by the records. As stated earlier, the decree of divorce is wholly based on the conclusion that the appellant had been suffering from the aforementioned disease making it impossible for the respondent to live a married life with her. 43. In view of our findings as above, we are of the unhesitant opinion that the respondent had failed to prove that the appellant had been suffering from Paranoid Schizophrenia or any other mental disease within the meaning of Section 13 of the Act so as to entitle him to a decree of divorce. The findings and conclusions recorded by the Trial Court to the contrary are, therefore, not sustainable in law and on facts. 44. The impugned judgment and order is, thus, interfered with. The appeal is allowed.