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Himachal Pradesh High Court · body

2017 DIGILAW 209 (HP)

Suchita Bhaik v. Rajesh Kumar Bhaik

2017-03-20

DHARAM CHAND CHAUDHARY

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Dharam Chand Chaudhary, J. (oral). Appellant herein was the petitioner in a petition filed under Section 13 of the Hindu Marriage Act, 1955 for dissolution of her marriage with the respondent. Learned District Judge, Shimla, after holding full trial and affording the parties on both sides due opportunity of being heard, has dismissed the petition vide judgment and decree dated 31.12.2008, which is under challenge in this appeal. 2. The grounds on which the decree for dissolution of marriage was sought to be passed in a nut shell read as follows: (i) The respondent-husband is a known/diagnosed patient of schizophrenia since 1988 and during the initial stay about three years of their marriage; he had been picking up quarrels and fights with her on trivials. On 11.3.2002 when the respondent came from the shop, which was opened by him in New Shimla having not in good mood started behaving with her in a awkward manner and when she offered food to him and indifferently such as that he wanted to kill someone. The incident was conveyed to his mother in the village and he was taken to IGMC by her with the help of neighbours in ambulance. (ii) On this occasions when her mother-in-law came to Shimla, she disclosed, for the first time, that the respondent was suffering with such decease since 1988. (iii) The respondent regularly got himself checked up in IGMC Shimla to Dr. Ravi and during such visit was used to stay outside. (iv) He suffered another attack of schizophrenia in the month of October 2002, due to which they had to close the shop and leave Shimla. (v) Later on, in July 2003, she got a job in DAV School Kumarsain. They started living there in rented accommodation. There the respondent allegedly beaten up one Balwant in the neighbourhood and also quarreled with landlord in the year 2005. 3. The respondent-husband has, however, denied the allegations of cruelty so levelled by the petitioner against him being wrong. However, according to him, it is also denied that he is a diagnosed patient of schizophrenia. It is admitted that he is suffering from depression since 1991, which is a disease completely curable. 3. The respondent-husband has, however, denied the allegations of cruelty so levelled by the petitioner against him being wrong. However, according to him, it is also denied that he is a diagnosed patient of schizophrenia. It is admitted that he is suffering from depression since 1991, which is a disease completely curable. It is denied that this fact was concealed from the petitioner at the time of marriage and rather the marriage, which could be settled with the intervention of one Govind Shyam related to both families, the petitioner and her parents were duly apprised about the disease from which he was suffering. 4. Rejoinder was also filed. The contentions to the contrary in the reply were denied being wrong and the case set-up in the petition reiterated. 5. On such pleadings of the parties, the following issues were framed: 1. Whether the respondent has treated the petitioner with cruelty, as alleged? ..OPP 2. Whether the petition is not maintainable? ….OPR 3. Whether the petitioner is estopped from filing the petition by her own act and conduct? …..OPR 4. Whether the petitioner has no cause of action? …..OPR 5. Whether the petition is not according to H.M. Act? …..OPR 6. Whether this Court has no jurisdiction to try the petition? …..OPR 7. Relief. 6. Learned trial Court, on appreciation of the evidence available on record, has dismissed the petition vide judgment and decree under challenge before this Court in the present appeal. 7. The legality and validity of the impugned judgment and decree has been questioned on the grounds inter alia that the evidence qua the cruelty mental as well as physical committed by the respondent upon his wife, has not been appreciated in its right perspective. The allegations in the petition allegedly were not the wear and tear of normal married life and rather the true instances of cruelty he committed upon her. The Court below allegedly has erred in not taking view of the matter that the petitioner-wife came to know about the respondent suffering from schizophrenia after about 4½ years of her marriage with him. There is no appreciation of the specific instances of cruelty given by her in the petition. The Court below allegedly has erred in not taking view of the matter that the petitioner-wife came to know about the respondent suffering from schizophrenia after about 4½ years of her marriage with him. There is no appreciation of the specific instances of cruelty given by her in the petition. The wife allegedly cannot be compelled to remain in the company of the respondent when it is established that he being the patient of schizophrenia may take her life and the life of her son including causing bodily injuries to both of them. Therefore, she had made out a case for the grant of decree of divorce, which relief allegedly has been withheld from her on untenable grounds. 8. On hearing learned counsel representing the parties and also going through the evidence available on record, the only question which needs adjudication in the present lis is that though the appellant-petitioner has made out a case for dissolution of her marriage with the respondent on the ground of he is suffering from an incurable disease, however, learned trial Court on account of misappreciation, misconstruction and misreading of the facts of the case as well as the evidence available on record has wrongly dismissed the petition. 9. Before coming to the facts of case and also the evidence available on record, it is desirable to take note of the provisions contained under Section 13(1)(iii) of the Act, which reads as follows: “13. Divorce:- 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- (i) xxx xxx xxx (ia) xxx xxx xxx (ib) xxx xxx xxx (ii) xxx xxx xxx (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 (b) The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or xxx xxx xxx 10. A bare reading of the above provisions leave no manner of doubt that in order to succeed on such grounds the party seeking decree of divorce should plead and prove that the disease, with which the other spouse is suffering, is not curable or he/she is suffering from mental disorder either continuous or intermittently of such a nature that it is not possible to the party seeking the decree of divorce to live with the ailing spouse. The explanation ‘a’ and ‘b’ defines the ‘mental disorder’ and ‘psychopathic disorder’. 11. True it is that the instances of cruelty detailed supra in this judgment and quoted in the petition by the petitioner have been pressed into service for seeking the decree of divorce. However, if coming to the proof thereof she is satisfied with her own testimony and also that of one Madan Singh Chauhan, PW-1, who has proved the record qua admission of the respondent in psychiatric department of the IGMC Shimla during the period 8.11.2003 to 11.11.2003. He has also proved the copy of discharge slip Ex.PW-1/A, however, it was not for PW-1 to have said something about the nature of the ailment from which the respondent was suffering. The onus to prove issue No.1 was on the petitioner. She failed to discharge the same because the testimony of PW-1 and discharge slip Ex.PW-1/A is not sufficient to discharge the onus upon her. Nothing has come on record qua the nature of the ailment with which the respondent was suffering in the statement of PW-1. Although in Ex.PW-1/A the primary disease, from which the respondent was suffering, finds mentioned, however, whether it was schizophrenia or depression, it remained unexplained. Learned Trial Judge, therefore, has not committed any illegality or irregularity while holding that for want of the expert opinion viz. Although in Ex.PW-1/A the primary disease, from which the respondent was suffering, finds mentioned, however, whether it was schizophrenia or depression, it remained unexplained. Learned Trial Judge, therefore, has not committed any illegality or irregularity while holding that for want of the expert opinion viz. the opinion given by the doctor concerned, it cannot be said that the respondent is suffering from schizophrenia or that while under the attack thereof used to be violent and thereby the petitioner-wife really apprehends danger not only to her own life but also to that of her minor son. 12. Interestingly enough the marriage was solemnized on 25.10.1997. No evidence has also come on record to show that the respondent is suffering from a disease, which is not curable. The first attack of the disease as per the allegations in the petition was suffered by the respondent on 11.3.2002 i.e. after about 4 ½ years of marriage, which itself reveals that he is not suffering from a disease nor suffering the attacks regularly. At the most and as per his own admission he is suffering from depression, however, there is nothing to believe that such disease is not curable. Above all the petitioner and respondent had lived as husband and wife in the company of each other till June 2005, which amply demonstrates that the respondent is not suffering from a disease of such a nature that it has become difficult for the petitioner to live in his company. 13. Interestingly enough, she did B.Ed. from Himachal Pradesh University and it is he who, as per her own evidence, used to attend to the business in the shop he had opened in New Shimla. The respondent as such is not suffering from any incurable disease and rather the story has been fabricated and engineered by the petitioner merely to get rid of him as admittedly he is suffering from a disease i.e. depression. The present as such is the case where the petitioner is backing out from her responsibilities and moral obligations towards her ailing husband, who at this juncture need her company. 14. It is not the petitioner’s case that the respondent has turned her out from matrimonial home. No doubt, she claims that she apprehends danger to her life; however, for the reasons hereinabove the same is not correct. 14. It is not the petitioner’s case that the respondent has turned her out from matrimonial home. No doubt, she claims that she apprehends danger to her life; however, for the reasons hereinabove the same is not correct. The respondent-husband is still prepared to live with her in the matrimonial home as stated by learned counsel at bar during the course of arguments. Being so, it is difficult to believe that the petitioner has made out a case for dissolution of her marriage with the respondent by a decree of divorce on the ground as discussed hereinabove. The legal principles settled by the apex Court in V. Bhagat versus D. Bhagat, (1994) 1 Supreme Court Cases, 337 and K. Srinivas Rao versus D.A. Deepa, (2013) 5 Supreme Court Cases 226, are not attracted in this case being distinguishable on facts. 15. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed. Consequently, the judgment and decree passed by the trial Court is affirmed. No order so as to costs.