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2020 DIGILAW 1654 (MAD)

Srividya v. Subramaniam

2020-09-24

M.GOVINDARAJ

body2020
JUDGMENT : (Prayer: Civil Miscellaneous Second Appeal filed under Section 100 CPC read with Section 28 of the Hindu Marriage Act, against the decree and judgment made in CMA No.67/2003 passed by the Principal District Judge, Chengalpattu dated 25.11.2005 reversing the decree and judgment made in HMOP No.22 of 1997 on the file of the Principal Sub Court, Chengalpattu, dated 28.08.2002 and prays that the same may be set aside, reversed and varied.) 1. The respondent/wife is the appellant in this Civil Miscellaneous Second Appeal. Aggrieved over the order of the Lower Appellate Court, in reversing the judgment of the Trial Court and granting decree in favour of the petitioner/husband, the appellant/wife preferred the above Civil Miscellaneous Second Appeal. 2. For the sake of convenience, the parties are called as per their rankings in the petition filed for decree of nullity of marriage. 3. The petitioner/husband filed a petition under Section 12(1)(c) of the Hindu Marriage Act, 1955, for a decree of nullity of marriage solemnized between the parties on 31.05.1996. It is relevant to state that the petitioner/husband had averred that the marriage was solemnized between the parties on 31.05.1996 as per Hindu Rites and Customs. The marriage was an arranged marriage and it was consummated. The petitioner/husband had intercourse with the respondent/wife for about ten times and they were done after much persuasion. According to the petitioner/husband, the respondent/wife is very dull and totally passive in her behaviour and expressed her aversion in marital life in begetting children. The petitioner was a Research Scientist and he used to read books for a long time. When he wanted to relax in the night, he sought conjugal company of the respondent, but she was persistently evasive and requested the petitioner not to disturb her at all during her sleep. Therefore, the petitioner suffered silently many times because of the refusal. It gave an impression to him that the respondent got married out of compulsion by her parents. On 23.12.1996, he had taken her to Dr.Mangala Nagarajan, who opined that the respondent was suffering from Schizophrenia and referred her to Dr.Sarada Menon for further consultation. That was the first time the petitioner came to know of the fact that the respondent was suffering from Schizophrenia. On 23.12.1996, he had taken her to Dr.Mangala Nagarajan, who opined that the respondent was suffering from Schizophrenia and referred her to Dr.Sarada Menon for further consultation. That was the first time the petitioner came to know of the fact that the respondent was suffering from Schizophrenia. Thereafter, in the exchange of letters happened between the petitioner and his father-in-law and mother-in-law, it was disclosed that the problem was subsisting even before the marriage. Since the conjugal company was refused, he was leading a life of saint for seven months. Since the respondent and her parents intentionally suppressed the material facts, he left her at her parents house on 09.05.1997 and took her to Dr.Sarada Menon along with her parents on 10.05.1997 wherein the Doctor has confirmed the ailment mentioned above. On the basis of the above facts, the petitioner filed a petition for decree of nullity of the marriage solemnized between the parties. 4. The respondent/wife denied all the allegations and contended that she did not suffer the disease of Schizophrenia and that she was normal and was working as a Teacher. She further contended that she was treated very badly at the matrimonial house and her mother-in-law demanded more dowry. Her husband is an ill tempered person and used to behave abnormal. When he had corns in his heals, she only took him to the Doctor as a dutiful wife. But for the purpose of getting divorce, he had taken her to the Doctor for getting some medical certificate and also forcibly obtained letters from her and her parents. Since they had no other go, they have given the letters relied on by the petitioner. 5. The Trial Court examined the evidence of P.W.1 to P.W.3 and marked Exs.P1 to P15 on the side of the petitioner. On the side of the respondent, R.W.1 to R.W.3 were examined and Ex.R1 was marked. The Trial Court, relying on the above document filed by the respondent, dismissed the petition filed by the petitioner for nullity of marriage. 6. However, on appeal, the Lower Appellate Court, without properly appreciating the evidence, reversed the finding and granted decree under Section 12(1)(c) of the Hindu Marriage Act, 1955. 7. The Trial Court, relying on the above document filed by the respondent, dismissed the petition filed by the petitioner for nullity of marriage. 6. However, on appeal, the Lower Appellate Court, without properly appreciating the evidence, reversed the finding and granted decree under Section 12(1)(c) of the Hindu Marriage Act, 1955. 7. Aggrieved over the same, the petitioner has preferred the above Civil Miscellaneous Second Appeal on the following substantial questions of law:- “(1) When Sec.5 of the Hindu Marriage Act imposes condition for solemnizing the marriage and under Section 5(b) the prohibition for marriage must be of such type and extent that the party consenting must be suffering from mental disorder of such ground or extent to make that person being unfit for matrimonial relationship to the extent of procreation of children, the petitioner-husband herein having admitted that the marriage was consummated many times with the wife can it be a ground to invalidate the marriage under Section 12(b) of the Act ? (2) Does not the fact that the marriage was consummated many times (an admitted case) exclude the application of clause 12(b) which in turn excludes the very existence of basis and application of contravention described under Section 5(b) ? (3) Is it open to the husband to allege the marriage being voidable at his instance after one year period after having admitted the sexual satisfaction out of the marriage and can be bring the case within the meaning of Section 5(b) prohibition ? (4) When there is no limitation being prescribed for filing petition under Section 12 of the Act as in the case of sub clause 12(c) and (d) is the petition under Section 12(1)(b) of the Act maintainable by virtue of the admission of matrimonial relationship by the husband at any time after the consummation of the marriage ? (5) Does not the allegation of the husband in the Original Petition filed by him prohibit and a failure to make out a case under Section 12 and at best it can be only a case under Section 13 for decree for divorce if such allegations are proved and is the petition under Section 12 in the case at all maintainable. As the matrimonial Court can there be a trial or appellate Court has it any jurisdiction or power to declare a marriage voidable at the instance and a void one at the instance of the petitioner husband even on the petition allegation ? (6) In the absence of the Lower Appellate Court's specific investigation and finding regarding the aspect of disease schizophrenia to be of such an extent to invalidate the marriage or nullify the marriage can the Lower Appellate Court pass a decree for nullity of marriage ? (7) Is the Lower Appellate Court right in reversing the well reasoned and well explained judgments of the Trial Court without factually reversing the findings of the trial Court ? (8) Can the words 'mental disorder' as used under Section 5(b) for the purpose of Section 12(b) have the same meaning which is a stage before the marriage for the purpose of giving the consent and for matrimonial relationship to the limited extent and can it mean and have the same explanation and meaning of the words 'mental disorder' used in Section 13(1)(iii) the explanation (a) of the Act, the latter part of which applies only for a case of divorce.” 8. The learned counsel for the appellant/wife would contend that the petition itself is not maintainable under Section 12(1)(c) of the Hindu Marriage Act (Shortly “the Act”) on the alleged suppression of material facts are fraud. It is categorically admitted by the petitioner himself in the first paragraph of the petition itself that the marriage was consummated and that he had intercourse for about ten times with his wife. Further, during cross examination, he would admit that for three months there was no indication of any mental illness and he could not find out that the wife was suffering from any mental illness. Thereafter, they lived as husband and wife for more than eleven months. Once they lived as husband and wife, for more than eleven months, it cannot be said that there is suppression of material facts and the consent was obtained by force. 9. He would further contend that as admitted by the petitioner, the junior paternal uncle of the petitioner and his father-in-law, namely, the father of the respondent were colleagues. They lived in the official quarters given by the Atomic Research Centre, Kalpakkam, within the township. 9. He would further contend that as admitted by the petitioner, the junior paternal uncle of the petitioner and his father-in-law, namely, the father of the respondent were colleagues. They lived in the official quarters given by the Atomic Research Centre, Kalpakkam, within the township. The township is a very small area and the distance between his junior paternal uncle's house and his father-in-law's house was only 15 minutes walk. It was also admitted by the petitioner that he was also residing in a Quarters allotted by the establishment within the very same township from the year 1991 onwards. In that circumstances, the petitioner could not plead complete ignorance that he was not aware of the family of the respondent and her parents. The father-in-law of the petitioner was a co-worker in the very same establishment and when a reference was made by his junior paternal uncle, he must have enquired about the bride, as it is a normal custom in the State to make pre-marital enquiries. Apart from that, the Betrothal had taken place 1½ months prior to marriage. The petitioner in his evidence would categorically admit that the respondent and her parents were present. He and his relatives liked the respondent/wife; they have exchanged the Muhurtha Pathrika. Thereafter, on 31.05.1996 the marriage rituals were solemnized for more than two hours. When the petitioner was very much aware of the respondent and her family members, who lived for three months without any qualms, he cannot now come out on the allegation of fraud or consent obtained by force. Conveniently, he has not examined the junior paternal uncle who had arranged the marriage also. Therefore, the contention that the consent was obtained by force does not survive. 10. He would further contend that the Doctors, who were examined as P.W.2 and P.W.3 would categorically state that they have opined that it may be a case of Schizophrenia. But, they have not conducted any clinical test to confirm the same. In fact, P.W.3 would give a categorical opinion that the respondent was intelligent, focused and her body language is very much normal. In that event, it can be inferred that the respondent was not suffering any mental illness till she got married. When there is no mental illness, obtaining medical certificates, is an attempt to portray the respondent as a mental patient for the purpose of getting divorce. In that event, it can be inferred that the respondent was not suffering any mental illness till she got married. When there is no mental illness, obtaining medical certificates, is an attempt to portray the respondent as a mental patient for the purpose of getting divorce. In fact, had the petitioner wanted to get divorce, he should have filed a petition for divorce under Section 13(1)(iii) of the Act. Further, the petitioner while describing the respondent as a mentally ill person, he should have followed the procedure laid down under Order 32 Rule 15 CPC. 11. On the other hand, the respondent herself appeared before the Court and adduced evidence cogently till the trial was over. That would show that the respondent was not suffering from any ailment. Further, the evidence of P.W.3 - Doctor would also go to show that even after separation, the respondent was hale and healthy and was working as a Teacher. Therefore, the finding of the Lower Appellate Court is erroneous. 12. The learned counsel for the appellant/wife would rely on the following judgments in support of his contention:- (i) Judgment of Allahabad High Court in RAMESHWARI GUPTA VS. RAM NARAYAN GUPTA [I (1987) DMC 263] (ii) Judgment of this Court in SUJATHA VS. C.D.HARIHARAN [ 1995 (2) MLJ 327 ] (iii) Judgment of the Madhya Pradesh High Court in SMT.PRAVATI MISHRA VS. JAGADANANDA MISHRA [I (1995) DMC 77] (iv) judgment of this Court in L.HEMALATHA VS. N.P.JAYAKUMAR [ 2008 (1) CTC 681 ] (v) Judgment of the Hon'ble Supreme Court in R.LAKSHMINARAYAN VS. SANTHI [ AIR 2001 SC 2110 ] 13. Per contra, the learned counsel appearing for the respondent/husband would contend that the wife suffered from the ailment of Schizophrenia even before marriage and underwent treatment under P.W.3 in the year 1995 and the same was proved by oral and documentary evidence. 14. The learned counsel for the respondent relied on the judgment of the Kerala High Court in GOVINDAN EMBRANTHIRI V POOLAKKAL HOUSE VS. SUJATHA [AIR 2017 KERALA 168] and the judgment of the High Court of Calcutta in RITA DEY (SAHA) VS. ASHIT KUMAR SAHA [AIR 2016 CALCUTTA 261] and the judgment of the Bombay High Court in VANDANA J. KASLIWAL VS. SUJATHA [AIR 2017 KERALA 168] and the judgment of the High Court of Calcutta in RITA DEY (SAHA) VS. ASHIT KUMAR SAHA [AIR 2016 CALCUTTA 261] and the judgment of the Bombay High Court in VANDANA J. KASLIWAL VS. JITENDRA N.KASLIWAL [AIR 2007 BOMBAY 115] and contended that suppression of the material facts definitely amounts to fraud under Section 12(1)(c) of the Act and had the respondent disclosed the fact of ailment before marriage, he would not have consented for the marriage. Therefore, the petitioner's consent to marriage was not free and voluntary, but obtained by suppression of material facts and by playing fraud and hence, the marriage is liable to be annulled under Section 12(1)(c) of the Act. 15. He would rely on the judgment of this Court in SUJATHA VS. C.D.HARIHARAN [ 1995 (2) MLJ 327 ] and the judgment of the Hon'ble Supreme Court in RAM NARAIN GUPTA VS. SMT. RAMESHWARI GUPTA [ 1988 (4) SCC 247 ] in support of his contention for maintenance. 16. According to him, it is well established by the evidence of P.W.2 and P.W.3 that the respondent was suffering from Schizophrenia even before the marriage and that they have suppressed the material facts and it can be pleaded as fraud played on the petitioner. The Lower Appellate Court has categorically given its finding that the conduct of the respondent and her parents amounts to fraud and suppression of facts and thereby, they have obtained the consent of the respondent by force and therefore, the petition is maintainable under Section 12(1)(c) of the Act and the decision granting decree of nullity of the marriage solemnized between the parties need not be interfered with. 17. I have given my anxious consideration to the submission made by the parties. 18. It is beneficial to read Sections 5 and 12 of the Hindu Marriages Act, 1955. Sections 5 of the Act read as under: “5. 17. I have given my anxious consideration to the submission made by the parties. 18. It is beneficial to read Sections 5 and 12 of the Hindu Marriages Act, 1955. Sections 5 of the Act read as under: “5. Conditions for a Hindu marriage.-A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of the marriage; 1 [(ii) 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 1 (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 (iii) the bridegroom has completed the age of 2 [twenty-one years] and the bride, the age of 3 [eighteen years] at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not spends of each other, unless the custom or usage governing each of them permits of a marriage between the two; 19. Section 11 of the Act pertains to void marriages. What is relevant in the case on hand is Section 12 of the Act, which is voidable marriages. Now, it is relevant to read Section 12, as under: “12. Section 11 of the Act pertains to void marriages. What is relevant in the case on hand is Section 12 of the Act, which is voidable marriages. Now, it is relevant to read Section 12, as under: “12. Voidable marriages.-(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and 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 imporence 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 4 [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 5 [or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent]; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2) Notwithstanding anything contained in subsection (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.” 20. The petition has been filed by the petitioner under Section 12(1)(c) of the Act. In so far as clause “c” of Section 12(1) of the Act is concerned, the consent was obtained by force [or by fraud as to the nature of ceremony or as to any material fact or circumstance concerning the respondent]. 21. As contended by both the parties, it has to be analyzed as to whether the respondent was suffering from any mental illness and that they have suppressed the said fact amounting to fraud or suppression of material fact to grant nullity of marriage. 22. The relevant provision to be considered in this appeal is Section 5(ii)(b) of the Act. As per Section 5(ii)(b) of the Act, though party was capable of giving 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. 23. At the outset, it is seen that the petitioner has specifically pleaded that the marriage was consummated and he had intercourse for about ten times, in the very first paragraph of the petition. 23. At the outset, it is seen that the petitioner has specifically pleaded that the marriage was consummated and he had intercourse for about ten times, in the very first paragraph of the petition. In that event, it is clear that the respondent was fit enough for marriage and in view of the consummation, pleaded by the petitioner, she was fit for the purpose of procreation of children and the mental disorder alleged by the petitioner ceased to have effect by the conduct of the parties. A perusal of the oral evidence given by the petitioner as P.W.1 shows that the petitioner has categorically admitted that he lived with the respondent without any qualms for at least three months. Till such time, he could not find any symptoms or any indication of the ailment of the petitioner. Thereafter also, he lived with the respondent for a further period of seven months. Thus, the parties have lived as husband and wife for more than eleven months. 24. In similar circumstances, the Hon'ble Supreme Court in R.LAKSHMI NARAYAN VS. SANTHI [ AIR 2001 SC 2110 ] has held as under: “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 conditions stated therein in sub-section (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 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. 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. 10. An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The court will examine the matter with all possible care and anxiety. 11. Bearing in mind the principles which flow from a fair reading of the statutory provisions noted above we proceed to examine whether the appellant has succeeded in establishing the case for declaring the marriage null and void on the ground of mental incapacity of his wife at the time of marriage. Even accepting the findings recorded by the first appellate court which decided the case in favor of the appellant as correct then the position that emerges is that the respondent has been under treatment for some mental problem before the marriage; and that there was no cohabitation between the parties during the period of about one month during which they stayed together. On these findings can it be held that a case for declaring the marriage to be invalid under section 12(1)(b) read with section 5 (ii)(b) has been established. It is not the case of the appellant that the respondent was incapable of giving valid consent to the marriage in consequence of unsoundness of mind at the time of marriage. From the facts found by the appellate court it cannot be held that the respondent 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. To draw such an inference merely from the fact that the spouses had no cohabitation for a short period of about a month, is neither reasonable nor permissible. To draw such an inference merely from the fact that the spouses had no cohabitation for a short period of about a month, is neither reasonable nor permissible. To brand the wife as unfit for marriage and procreation of children on account of the mental disorder it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life. This is the requirement of the law as appears on fair reading of the statutory provisions. The appellate court has also not specifically given such a finding. Merely giving a finding that the respondent was suffering from some mental disorder and she did not have cohabitation with her husband during the period they stayed together is not sufficient to comply with the condition prescribed under section 5(ii)(b) of the Act. We deem it relevant to note here that the observations in the judgment of the trial court about the physical and mental condition of the respondent which have been noted earlier indicates the position that the requirement of section 5(ii)(b) are far from satisfied from the materials placed by the appellant.” 25. As per the above judgment, it is a mere pleading that there is some mental illness and that the other party was not fit for marriage and procreation of children cannot be accepted. It shall be specifically pleaded and the fraud shall be established by convincing evidence. The pleading that she did not have cohabitation with her husband during the period of stay, is not sufficient to comply with the condition prescribed under Section 5(ii)(b) of the Act, after having admitted the co-habitation for eleven months and that after having specifically admitted the lived together as husband and wife and the marriage was consummated. 26. It is also relevant to note that the petitioner has specifically pleaded that he was a Scientist and he used to read books for a long time in the night. After completing his studies and research materials, when he wanted to relax by having conjugal company of the wife, at late night to which she requested not to disturb her during sleep. The pleading clearly shows that the petitioner used to approach his wife in the wee hours after completing his readings at night. After completing his studies and research materials, when he wanted to relax by having conjugal company of the wife, at late night to which she requested not to disturb her during sleep. The pleading clearly shows that the petitioner used to approach his wife in the wee hours after completing his readings at night. It should also be borne in mind that the respondent, as admitted by the petitioner himself in his evidence, was working as a Teacher in a Kindergarten School in the very same area. She would also be tired after having worked in the School. Therefore, when a person is taking rest, that too, at the late night, due to tiredness, would get irritated by this disturbance. It is stated that she requested the petitioner not to disturb her after she slept, which means, she was willing during the normal hours, but not at the middle of the night, when she fell asleep. 27. The culture of this Country always to respect the women-dom and put it in a sublime position. On the other hand, whenever the petitioner wanted to relax, he disturbed her at mid-night and her refusal was said to be due to mental illness. In other words, till she cooperates with him, her physical and mental faculties were functioning alright and only when she refused, he found that she was dull and suffering from some ailment. It is an insult to the woman. They cannot be treated as a sexual object or chattel or machine to satiate the sexual urges of the husbands, whenever demanded. The wife shall be respected as a better-half and note as a human chattel. 28. As contended by the learned counsel for the appellant/wife that the parties have resided in a small township at Kalpakkam. The petitioner was residing from 1991 in the very same quarters, after his appointment. His junior paternal uncle and his father-in-law were colleagues. In that event, it is highly probable for the petitioner to know who is who?, particularly, when the father-in-law was a close friend of his junior paternal uncle. Therefore, the petitioner cannot plead ignorance of the identity of the respondent. Further, it is usual custom to make enquiries about the brides and bridegrooms through known sources before marriage. In that event, it is highly probable for the petitioner to know who is who?, particularly, when the father-in-law was a close friend of his junior paternal uncle. Therefore, the petitioner cannot plead ignorance of the identity of the respondent. Further, it is usual custom to make enquiries about the brides and bridegrooms through known sources before marriage. Apart from all these, the Betrothal had taken place 1 ½ months prior to the marriage, in which, both the petitioner and respondent were the centre of focus. In that event, there are more than chances to assess the behaviour of each other. Not only the petitioner, but also his friends and relatives would have noted of anything was abnormal. The petitioner would admit in his evidence that on the day of Betrothal, he liked the respondent and consented for marriage. Pursuant to which, the Muhurtha Pathrika was prepared, which ensures the free consent of both sides for marriage. The petitioner on that day itself had given his consent and has admitted in his own evidence that it was free and voluntary. Thereafter, the marriage had taken place on 31.05.1996 and as per the customs of the petitioner's family, long ceremony was said to have been conducted. The petitioner further admitted that the marriage rituals had been conducted for two hours. Even at that time, he did not find any difference in the behavior of the respondent, much less observed any abnormal behaviour. Therefore, it can be stated that the behavior of the respondent was absolutely normal. After the marriage, the petitioner lead a peaceful life for three months. Till such time, he admits that he could not find any symptom of any mental illness. It is also not the case of the petitioner that his wife was taking any medicine. The Doctors, who deposed on the side of the petitioner had not given any evidence that the respondent was under medication and that the discontinuance led to the consequential effect. 29. In the evidence of the respondent, she stated that she was treated rudely and suffered harassment at the hands of the petitioner and his mother. Her mother-in-law was very particular in getting more dowry and demanded more and more. She also stated that she is a Graduate in Chemistry and was working in a School. She never underwent any treatment and was normal and that the allegations were wrongly made. Her mother-in-law was very particular in getting more dowry and demanded more and more. She also stated that she is a Graduate in Chemistry and was working in a School. She never underwent any treatment and was normal and that the allegations were wrongly made. She further admitted that she was taken to a Doctor, for treatment for tension and that she was never treated as an in-patient. It is also not the case of the petitioner that the respondent was taking some medicine. In this background, it has to be seen as to whether the ingredients of Section 12(1)(c) of the Act is satisfied or not? The answer of this Court, in the considered opinion of this Court, is that it is an emphatic “NO”. 30. The judgment relied on by the learned counsel for the respondent in GOVINDAN EMBRANTHIRI V. POOLAKKAL HOUSE VS. SUJATHA [AIR 2017 KERALA 168] deals with a case where the husband found the wife taking medicines from day one of the marriage and she was found sleepy and drowsy from the beginning. They hardly stayed together for 15 days. Therefore, considering the factual circumstances and admitting the premedical history that the wife was suffering from the mental illness, decree was granted under Section 12(1)(c) of the Act. 31. The judgment of the High Court of Calcutta in RITA DEY (SAHA) VS. ASHIT KUMAR SAHA [AIR 2016 Calcutta 261] relied on by the learned counsel for the respondent is a case of Cancer. At the time of marriage, the advanced stage of Cancer was suppressed. It was considered as suppression of material facts and fraud played as per Section 12(1)(c) of the Act. Had the husband was given that information, he would not have married a Cancer patient and given his consent for marriage. That the case of wife suffering from malignant Cancer prior to the marriage is a material fact and it should have been divulged to the other party. Suppression of the fact would definitely attract Section 12(1)(c) of the Act. But the said case is not be applicable to the case on hand. 32. The judgment of the Bombay High Court in VANDANA J.KASLIWAL VS. JITENDRA N.KASLIWAL [AIR 2007 BOMBAY 115] relied on by the learned counsel for the respondent, has already been relied on in the previous judgment, on the same proposition. But the said case is not be applicable to the case on hand. 32. The judgment of the Bombay High Court in VANDANA J.KASLIWAL VS. JITENDRA N.KASLIWAL [AIR 2007 BOMBAY 115] relied on by the learned counsel for the respondent, has already been relied on in the previous judgment, on the same proposition. Therefore, I do not want dilate on the facts of that case elaborately. 33. The learned counsel for the respondent has relied on the judgment of this Court in SUJATHA VS. C.D.HARIHARAN [ 1995 (2) MLJ 327 ] in which the report of the Law Commissioner and the case of SMT.ASHA SRIVASTAVA VS. R.K.SRIVASTAVA have been relied on, for the proposition that concealment about the ailment of Schizophrenia will amount to suppression of material facts. In the said judgment, this Court, further relying on two other judgments, has held that the concealment of Schizophrenia will amount to fraud and obtaining consent by force. 34. But whether the above case will apply to the present case on hand or not? has to be seen, in the light of the judgment of the Hon'ble Supreme Court in RAMESHWARI GUPTA VS. RAM NARAIN GUPTA [I (1987) DMC 263] relied on by the appellant. The Hon'ble Supreme Court in the above case has discussed about the illness:- “'10. From the reading of clause (iii) to sub-section (1) of Section 13, read with Explanation (a), it is clear that the “mental disorder” the phrase that occurs in clause (iii), includes Schizophrenia. The question is what is schizophrenia? In Reader's Digest “Family Health Guide” a concise but vivid description of “Schizophrenia” is given at page 486 thus: “Schizophrenia A serious mental disorder marked by irrational thinking, disturbed emotions and a breakdown in communications with others. Schizophrenia is the most common type of psychosis, accounting for about half the serios mental illness in Britain. The cause is not known, but it may related to a hereditary disorder in metabolism. Environment also has an influence. People who develop schizophrenia often have a history of un-happiness and emotional stress in early childhood. Later, frustration and disappointment may contribute to the development of schizophrenia in a person who is predisposed to it. The condition can, however, arise in people from a normal stable family background. Schizophrenia is a variable illness. It can be mild or very severe. People who develop schizophrenia often have a history of un-happiness and emotional stress in early childhood. Later, frustration and disappointment may contribute to the development of schizophrenia in a person who is predisposed to it. The condition can, however, arise in people from a normal stable family background. Schizophrenia is a variable illness. It can be mild or very severe. There are four broadly different types but there is no definite dividing line between them. An individual case may change from one type to another or may have characteristics of more than one. In simple schizophrenia, there is gradual mental deterioration with little tendency to delusions and hallucinations. Paranoid schizophrenia is marked by suspiciousness and delusions of persecution. The Catatonic patient tends to fluctuate between extreme apathy and hyperactivity. In the hyperactive phase, erratic and confused behavior are often combined with delusions of grander. The patient with hebephrenia has incoherent speech, laughs and cries without cause, and generally behaves in a bizzare way. Psychotherapy has occasionally proved effective in the treatment of schizophrenia, tranquillizers and other drugs such as fluphenazine are no replacing shock thereby. With the new approaches being used, the prospect of recovery is considerably better than in the past”. 35. In the light of the above judgment, if the evidence is analyzed, it could be seen that P.W.2 - Dr.Sarada Menon, during cross examination, admitted that she had not conducted any clinical test nor done any scan or other special tests to come to the conclusion. At the time of consultation, she was under the opinion that the respondent was suffering from Schizophrenia. But in Ex.P11-Doctor's opinion filed the petitioner, even though it is stated by her in her own writing, it is not a signed document. This evidence was elaborately discussed by the Trial Court and the Trial Court has rightly refused to admit the evidence of P.W.2. 36. In my opinion also, Dr.Sarada Menon, without conducting any scientific tests to ascertain that the respondent was suffering from Schizophrenia, has simply opined on superficial observation that it might be the case of Schizophrenia. That cannot be a reliable evidence. There is a specific denial by the respondent that for the purpose of getting divorce, the husband taken her to P.W.2 and obtained medical certificate, in that event, onus is on the petitioner to prove that the respondent was suffering from Schizophrenia. That cannot be a reliable evidence. There is a specific denial by the respondent that for the purpose of getting divorce, the husband taken her to P.W.2 and obtained medical certificate, in that event, onus is on the petitioner to prove that the respondent was suffering from Schizophrenia. The evidence of P.W.2 does not establish that the respondent was suffering from the said mental illness. The evidence of P.W.3, the Doctor, who is said to have treated the respondent in the year 1995, that is before marriage, had stated in his evidence that he has recorded that the petitioner was active, intelligent, focused and had good concentration and he did not find any abnormal body language. If such is an evidence, the opinion without any concrete medical diagnosis that the respondent was suffering from Schizophrenia cannot be relied on. P.W.2 and P.W.3 have not conducted any clinical or scientific tests to affirm the ailment but expressed their opinion. The deposition of those witness reveal contradictions. They can be treated as interested witnesses and their evidence is not above board as unbiased expert, as they appeared on behalf of the petitioner, as his witnesses and not as an expert Medical Practitioners. It is crucial to note that P.W.2 has stated that the chances of the respondent getting cured was there. In that event, it cannot be categorically stated that the respondent was suffering from any mental illness much less Schizophrenia before marriage. Further, the evidence of P.W.3 cannot be relied for the reason it exposes falsehood. He would depose that he was working in Government Hospital during 1995 and thereafter, he could not continue. But would state that he examined the respondent in the year 1997 after two years. It is highly impossible for a person who is not working to examine a patient in a Government Hospital. Further, to falsify the evidence, the handwriting of P.W.3 is entirely different, for any prudent man on a simple view. Thus, the opinion of PW2 and PW3 cannot be substitute a valid medical evidence required to prove the ailment. 37. It is relevant to refer to the Division Bench of this Court in L.HEMALATHA VS. N.P.JAYAKUMAR [ 2008 (1) CTC 681 ] wherein it is observed as under: “15. Thus, the opinion of PW2 and PW3 cannot be substitute a valid medical evidence required to prove the ailment. 37. It is relevant to refer to the Division Bench of this Court in L.HEMALATHA VS. N.P.JAYAKUMAR [ 2008 (1) CTC 681 ] wherein it is observed as under: “15. Merely because there are allegations and counter allegations the marriage between the parties cannot be dissolved and there must be real and extraordinary features warranting grant of such decree on the basis of pleadings. Though the petitioner husband, in his evidence, reiterated the allegations made against the respondent wife, the Court must adopt pragmatic approach. The Court should keep in mind the ground realities and what is important is to decide whether the marriage can be saved and the husband and the wife can live together. Therefore, considering the evidence available on record as a whole, we are of the view that the trial Court is not correct in coming to the conclusion that the respondent wife is mentally unsound. 16. For the above view, support can be had from Ex.C- 1, report given by the Assistant Professor of Psychiatry, Institute of Mental Health, Chennai. The respondent wife was subjected to medical check up at the instance of the trial Court and Ex.C-1 report shows that the respondent wife is conscious, ambulant and is in touch with the surroundings. But, the trial Court rejected the report Ex.C-1 on the ground that the mental condition of the respondent wife just prior to the marriage and at the time of marriage and just after the marriage should only be taken into consideration. The reason that weighed the trial Court, in our considered opinion, is not acceptable, as, it is settled law that to infer condo nation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct. 17. Concededly, as deduced from the evidence, the respondent wife was abnormal for some time at the time of marriage and she was taken to doctor for the same. Exs.P 2 to P-7 support the same. The respondent wife in her evidence has stated that she was taken to Hema Clinic and Dr.Mathrubootham also attended on her. According to her, she was given treatment for depression. Exs.P 2 to P-7 support the same. The respondent wife in her evidence has stated that she was taken to Hema Clinic and Dr.Mathrubootham also attended on her. According to her, she was given treatment for depression. The petitioner as P.W.1 has admitted that treatment was given to the respondent by Dr.Mathrubootham, a psychiatrist. P.W.2, father of the petitioner has deposed that Dr.Mathrubootham did not keep the respondent as inpatient. R.W.2, mother of the respondent, in her evidence has stated that the respondent was taken to hospital and the doctor gave medicine informing that the respondent was suffering from tension due to marriage. R.W.2 has also stated that Dr.Mathrubootham also gave medicine to her daughter. 19. It is trite law that for the purpose of grant of a decree of divorce, the petitioner must establish that unsoundness of mind of the respondent is incurable or his/her mental disorder is of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with his/her spouse. Medical testimony for arriving at such a finding although may not be imperative, but undoubtedly would be of considerable assistance to the Court. However, such medical testimony being the evidence of experts would not leave the court from the obligation of satisfying itself on the point in issue beyond reasonable doubt. Relevance of a medical evidence, therefore, cannot be disputed. [vide: Sharda v. Dharmpal (2003) 4 SCC 493 ]. 22. However, the evidence on records makes it clear that the respondent wife was normal before the marriage and even after the marriage, but during the marriage time, she had a short spell of psychiatric disturbance. The trial Court ought to have taken note of the evidence of the respondent wife that the inmates of the petitioner husband ill-treated her. Apart from that, when the imputation against the character of the respondent wife is alleged by the petitioner husband, such baseless allegation of illicit relationship would lead to mental depression of the respondent wife. Therefore, even on merits, we do not have any hesitation to hold that the respondent wife is not a person of unsound mind.” 38. Apart from that, when the imputation against the character of the respondent wife is alleged by the petitioner husband, such baseless allegation of illicit relationship would lead to mental depression of the respondent wife. Therefore, even on merits, we do not have any hesitation to hold that the respondent wife is not a person of unsound mind.” 38. As per the above judgment, the mental torture given by the mother-in-law and the petitioner demanding dowry and preventing her from going for work would have created a mental depression and there are probabilities that due to the mental depression, the respondent was suffering from some ailment. When those probabilities cannot be ruled out, the contention of the petitioner that there was suppression of material facts viz., Schizophrenia cannot be taken as proved beyond reasonable doubt. Therefore, the judgments relied on by the learned counsel for the respondent would not apply to the present case. 39. From the consideration of the totality of the circumstances, which leads me to infer that the petitioner having known the respondent 1 ½ months before the marriage and that he lived happily for about 3 months without any complaints, and that he disturbed her at the middle of the night and when she refused, called her mentally ill patient, does not fall under Section 12(1)(c) of the Act. The important ingredients of the above section is that at that time of marriage, the petitioner must have suffered any mental illness to such an extent that she was unfit for marriage and for procreation of children. But the factum was disproved by the admission of the petitioner that the respondent was well known to the petitioner, before marriage, he liked her and had cohabitation for three months with consummation, and lived together for 11 months under the same roof. In such circumstances, the allegation of suppression of material fact of fraud ceased to have effect. The evidence of the Doctor R.W.2, though not an expert, reveals the fact that the appellant/wife even after separation from her husband was working as a Teacher in a School and used to take the children to the Doctor, when they were in disposed. This evidence shows that she was hale and healthy and added to that she herself contested the case not assisted by Guardian. This evidence shows that she was hale and healthy and added to that she herself contested the case not assisted by Guardian. Hence, it is very clear that the appellant was not at the time of marriage and thereafter, suffering from any mental illness, much less Schizophrenia. Events, which had happened after the grant of decree of nullity can be construed as the consequence of the conduct of the petitioner also. The subsequent events cannot be taken into consideration in the present appeal. Therefore, the contention of the learned counsel for the petitioner/husband that the respondent/wife was found mentally ill subsequently and admitted to home is not germane for the present appeal. Therefore, in the considered opinion of this Court, the order dated 25.11.2005 passed in CMA No.67 of 2003 by the Principal District Judge, Chengalpattu, without considering the evidence of P.W.2 and P.W.3., in proper perspective, is not sustainable in law and accordingly, stands set aside. The questions of law are answered in favour of the appellant. 40. In fine, the Civil Miscellaneous Second Appeal stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.