HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A. No. 907 of 2001 DATED: 11.03.2010 Between: Madoth Jaya Ram .. Appellant/ And Madoth Anasuya .. Respondent JUDGMENT:- (Per Hon’ble Sri Justice V. Eswaraiah) This Civil Miscellaneous Appeal is directed against order dated 31.07.2000 passed in O.P. No. 2 of 1997 by the Senior Civil Judge, Jangoan, Warangal District, whereby the petition filed under Section 13(1)(ia)(ib) and (iii) of the Hindu Marriage Act, 1955 (for brevity “the Act”) for dissolution of the marriage, was dismissed. For the sake of convenience, the parties are referred to as they are arrayed in the O.P. The marriage between the petitioner-husband and the respondent-wife was solemnized on 10.05.1985 in Tarigoppula village, Narmetta Mandal, as per Hindu customs and rites, and out of their wedlock, two daughters, aged about 9 and 7 years respectively, were born to them. By the time the O.P. was filed, the petitioner was working at South Central Railways. It is stated that after the birth of the two children, the attitude of the wife has been changed and she started ill-treating him and their children. When the same was informed to the parents of the respondent, they took her to their native place for treatment, where she was treated for her mental disorder at Warangal, but the mental illness was not cured and it gradually developed. He got her admitted to Mental Hospital, Erragadda, Hyderabad through the Railways, where she was treated by a psychologist, but there was no improvement in her condition. Owing to her mental illness, she is unable to attend to her regular chores since 1992 and deserted the petitioner and the children. It is stated that the petitioner helplessly bore all ill-treatment and desertion and there are no conjugal rights including cohabitation. The petitioner is only taking care of the minor children giving parental love and affection. In view of her incessant mental illness, it is impossible to have co-habitation with her, and therefore, the petitioner is entitled to a decree for divorce. The respondent-wife filed counter-affidavit admitting the marriage and the birth of the two children born to them and denied all other allegations. It is stated that the petitioner was transferred to Khandwa, Rajasthan in 1992 keeping her and their children at Secunderabad. Since then, he began to doubt her chastity. In April 1992, the petitioner assaulted her severely and sent her into a state of shock. He left the respondent at her parents’ house at Machupahad and her parents spent huge amounts towards her treatment at Warangal and the petitioner did not spend a single pie. The petitioner, with the object of obtaining divorce, spread false stories regarding her mental condition making others believe that she is mentally ill. The petitioner, on 10.02.1995, again assaulted the respondent and sent her to a state of mental depression. She never deserted the petitioner, but on the contrary, the petitioner himself deserted her, as such, she went into a state of depression due to vicious physical attacks on her, and her present mental condition is good and she is able to lead normal life. Ex.A1 – Treatment Book and Ex.A2 – O.P. chit given by the Doctor, which are relied on by the petitioner, are not genuine and they were obtained only for the purpose of his transfer from Rajasthan to Secunderabad on the ground of her mental sickness. The respondent also made Counter-claim for restitution of conjugal rights stating that she could bear all the ill-treatment meted out by the petitioner with the hope that he would mend his manners and she always tried to join the conjugal society of the petitioner, for which, he refused. It is stated that she has not instituted any proceedings under the Hindu Marriage Act, 1955 against the petitioner in any Court of law and she is entitled to restitution of conjugal rights. The petitioner was examined as PW1 and got marked Exs.A1 and A2. The respondent was examined as RW1 and got marked Exs.B1 and B2. The learned Senior Civil Judge, Jangoan, considered all the three grounds taken by the petitioner alleging cruelty on the part of the respondent under Section 13(ia) of the Act, desertion under Section 13(ib) of the Act and alleging that she is suffering from mental disorder under Section 13(1)(iii) of the Act, and held that as per the evidence available on record, those grounds were not established, and accordingly, dismissed the O.P. The learned counsel for the petitioner has strenuously contended that the pleadings coupled with the evidence both oral and documentary, are sufficient to establish mental disorder on the part of the respondent, and therefore, the trial Court ought to have granted decree for divorce. It is contended that as per the averment made in the counter affidavit that the petitioner sent her into a state of mental shock, and thereby, she suffered from mental disorder/depression, and the same is supported by Exs.A1 and A2 which were obtained by the petitioner on the ground of her mental shock, the burden heavily lies on the respondent to prove that she suffered from mental disorder rather than her husband. It is also contended that the respondent, having made allegations against the petitioner, has not chosen to examine any of the neighbours or the doctors to prove her allegations and the petitioner is in no-way responsible for her mental ill-health, and therefore, the trial Court erred in disbelieving the version of the petitioner about the mental disorder on the part of the respondent. Heard the learned counsel for both the parties and perused the material placed on record. The decree dated 31.07.2000 was passed by the trial Court dismissing the O.P. No.2 of 1997 filed by the petitioner for divorce and allowing the counter-claim of the respondent for restitution of conjugal rights, but the petitioner filed only single appeal questioning the order and decree of the trial Court in dismissing the petition filed for divorce and also in allowing the counter claim. The questions that arise for consideration, are as follows: i) Whether the petitioner could establish the grounds of cruelty, desertion and mental disorder for grant of decree for divorce? ii) Whether the Trial Court is justified in allowing the counter- claim filed by the respondent-wife. The petitioner-husband, who was examined as PW1, deposed that out of their wedlock they had two daughters studying 7th and 8th classes respectively and the wife herself left him in 1992 and since then, he has been looking after the daughters. He stated that they have no conjugal society and she used to beat the children. Since 1992, she used to act cruelly, abnormally and was irresponsible towards him and would run over the road stating that he is not her husband. Sometimes, she tried to pour kerosene both on herself and on him, and their children used to run away out of fear. He took her to the doctor till 1995, and sometimes, she used to remove her clothes from her body stating that extremists will come and kill her. He filed the O.P. seeking divorce on the ground that she treated him and their children cruelly and also deserted him on the ground of mental disorder. It is stated that he never doubted her character nor beat her severely in April, 1992. He also did not assault her on 10.02.1995 causing her suffer mental depression. The allegations that he doubted her character and beat her in April, 1992 sending her to a state of shock, and that again he beat her in February, 1995 and he did not spend single pie for medical treatment, and he is only responsible for her mental disorder, and that he did not take her to hospital for treatment, are all denied. It is stated that Ex.A1 – Treatment Book discloses that she was treated from 1992 to 1995. In the middle, she was also treated in both Mother Theresa Hospital and Government Mental Hospital, Erragedda, where Dr.Bhuvaneswari treated her. A suggestion made to the petitioner that the respondent was not suffering from mental disorder and schizophrenia, is denied. It is admitted that the respondent filed M.C. No.31 of 1995 prior to the petitioner filing the O.P. and when his father was killed by extremists in the year 1992 at his native place in Bommapur village, his wife was present there. He gave evidence in M.C. 31 of 1995, which is marked as Ex.B1 to the effect that his wife lost mental balance after seeing the incident of Naxlities killing his father. He does not possess any bills for proof of her treatment. It is stated that she was freely treated in the Government Hospital. He cannot give the date on which she tried to pour kerosene on herself and on his person, but the incident took place when he was at Malkajgiri in 1986, but he cannot even give the name of the house- owner in which he used to live, and he cannot give the date or dates when she removed her clothes with the fear of Naxalites killing her. He worked at Kandwa from December, 1991 to March, 1992. He further deposed that he never suspected the illegal intimacy between the respondent and his brother, as such, he never beat her on that ground. The suggestion that he never allowed the respondent to see the children at Machupadu village is denied, but he categorically stated that he is not willing to take the respondent along with him even if her health is certified to be good. He denied a suggestion that the respondent is in sound state of mind and healthy now. He accepted the suggestion that he is willing to marry the sister of the respondent. RW1, who is the respondent-wife, stated that she filed M.C. No.31 of 1995 prior to the petitioner filing the O.P. and she is getting Rs.400/- p.m. towards maintenance. It is stated that when the petitioner was working at Kandwa she was kept in the house at Malkajgiri along with the children. She came to know that her father- in-law was murdered by the Naxalites. The petitioner used to come once in a week while he was working at Kandawa and suspect her character attributing illicit intimacy with his brother and on that pretext he used to threaten her that he will marry again. He expressed that he was intending to marry her younger sister. She further stated that the petitioner, without providing medical treatment to her, left her at her parents’ house at Machapadu. Their parents took care of her and gave treatment in the hospital, as such, she became mentally and physically fit and her parents asked the petitioner to take her back, but he refused to take her. When both of them led marital life for three years at Malkajgiri, he used to beat her and threaten that he would marry again. Unable to bear the beatings of her husband, she went into mental depression in the year 1995, and again, she was dropped at her parents’ place. Her parents again got her treated in the hospital by spending huge amounts and she is now completely recovered. Her father also held a panchayat before the elders, wherein the petitioner accepted to take her with him after some more days and promised to pay Rs.500/- p.m. towards medical expenses, but he never paid the amount nor did he take her back along with him. Now, she is in good health and prepared to join the company with him to lead marital life and will take care of her children. Her husband got prepared documents Exs.A1 and A2 for the purpose of his transfer from Kandwa to Hyderabad. Now, she is ready to get examined by any Doctor to prove that her mental condition is good. She denied a suggestion that she behaved aggressively, abnormally and was irresponsible towards him and her children during her treatment, and she never suffered from schizophrenia disease. She stated that she underwent treatment in connection with her health, and the doctor gave Ex.B2 – Certificate, but she cannot name the disease and the drugs used by her. In support of the averments made in the O.P., PW1, except examining himself, has not examined any other witnesses. Even though several allegations have been made that the respondent used to behave abnormally and in irresponsible way and beat their children, but none of their children nor any of the doctors, who treated her, were examined. The petitioner himself admitted that when his father was killed by Naxalities at his native place, the respondent was present. Maybe, this is one of the reasons for her mental depression. Added to that the respondent stated that the petitioner used to ill-treat her and doubted her character. When she was not seen while he was working at Kandwa, and admittedly, merely because she was treated for mental depression, it cannot be said that she has been suffering from mental disorder from the very beginning. Depression is not mental disorder. Mental Health Act, 1959, defines Mental Disorder into four specific forms. Mental disorder means mental illness; arrested or incomplete development; psychopathic disorder; and other disorder or disability of mind which includes schizophrenia. The petitioner has not filed any medical evidence in order to prove her mental disorder. Anybody can say that during the course of her oral evidence, she was suffering from mental disorder, but such evidence, unless corroborated by any other legal evidence, cannot be accepted in view of the specific averments made by the respondent as to their truthfulness, more so, the counter allegations made by the respondent. We are of the view that mental depression suffered by her is either due to the shock received by her when the Naxalites killed her father-in-law or due to the fact that the petitioner ill-treated her or beat her apart from scandalizing her character. Therefore, in our considered opinion the trial Court rightly disbelieved the contention of the petitioner with regard to her mental disorder. Insofar as the desertion is concerned, except the petitioner, neither the children nor his brother nor any of the neighbours, are examined to prove the allegations of desertion on the part of the respondent. Therefore, we hold that the ground of desertion has not at all been established. In the absence of any corroborating evidence, the sole testimony of the petitioner cannot be relied on and taken as a basis to hold that respondent herself left voluntarily and deserted him for two years prior to filing the O.P. According to the petitioner, she lived with him in 1995. If that be the case, the ground of desertion has not been established. With regard to cruelty, there is no corroborating evidence except the self-same evidence of the petitioner. Therefore, we are of the considered opinion that the petitioner himself left the respondent at her parents’ house, and hence, the counter-claim made by her was rightly allowed by the trial Court entitling her to the restitution of conjugal rights. In the light of the above discussion, we do not see any infirmity in the order dated 31.07.2000 passed in O.P. No. 2 of 1997 by the Senior Civil Judge, Jangoan, Warangal District, warranting interference by this Court. Hence, the Civil Miscellaneous Appeal is devoid of merits, and the same is, accordingly dismissed. No costs. ________________ V. ESWARAIAH, J. 11th March, 2010 ________________ B.N. RAO NALLA, J. bcj