IMTNje HIGH COURT OF CHHATISGAIiH AT: BILASPUR ssr!fij@ ^— f^ m. A. fMisc.) No.11 ?- Of 2008 •^^ ^PPELLANT ^Man Mohan Prasad Gujar aged 28 years, son of / ^ ^ - Shri Shiv Prasad Gujar, resident of Kofkharra, tehsil Pendraroad and district Bilaspur (C.G.) .....••;:^.^'^';... tff.^-' ^ I^SPONDENT Srnt. Pushpa Bai, aged 26 years,wife of Shri Man ^ > Mohan Prasad Gujar, through next fiiend Krishna Prasad Gujar, aged 55 years, son of not-known, resident of village Dhanouli (Pathratola) tehsil Pendraroad, district Bilaspur (C.G.) APPEAL UNDER SECTION 2rOF THE HINDU MARRIAGE ACT. 1955. HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra First Appeal (M.l No.112 of 2008 Man Mohan Prasad Gujar versus Smt. Pushpa Bai JUDGIVIENT i v ? v.^ i c4 f i r-r I"3 ^ ci U ^ .:-i iJ 1 B 1 k-» Postfor 24-6-2010 Sd/- Prashant Kumar Mishra Judge ^;3-ij I "^K 1. "'s.. ^^^•v asl'^ ^ ^^..^: ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Appellant Respondent First Appeal (M.l No.112 of 2008 Man Mohan Prasad Gujar versus Smt. Pushpa Bai Present: Shri Somnath Verma, counsel for the appellant. Shri Yogendra Chaturvedi, counsel for the respondent. Appeal under Section 28 ofthe Hindu Marriaae Act, 1955 ,.L..,..^^.J(JDG|VJENTI.-.-L.^W& (Delivered on ^4^June, 2010) The instant appeal under Section 28 of the Hindu Marriage Act, 1955 (henceforth 'the Act, 1955') has been preferred by the appellant/husband, whoseapplication for grant of a decree of divorce under Section 13 of the Act, 1955 has been dismissed by the trial Court. 2. The marriage betweenthe.j|arti|is was solemnizedabout 7-10 years back from the date of institution of divorce proceedings. The parties belong to Gujar caste and are governed by Hindu law. 3. According to the appellant, the respondent/wife remained in her vvnose ap|)!jcauon-tor uranroj' a aecree o[ ... parental house for a period of 2 years after the marriage and thereafter she came to reside with the appellant in her matrimonial house after the "Gauna" ceremony. They have no issue from the wedlock. It was stated in the application that the mental condition of the respondent was not normal and this state of her mind was concealed from the appellant at the time of marriage. The abnormality from which she was ••iOQ oi .'••' vears aner ine fnarnar:- •^ L ^- ^ suffering increased day by day and the respondent was behaving peculiarly inasmuch as she was not wearing clothes properly and used to run out of the house on the road and sometimes she used to dance for no reason. She also threatened the appellant of consuming poison and was using abusive language. It was further stated in the divorce application that she was subjected to treatment by the doctor as well as she was administered local. medicine including Jhadphoonk, however, there was no improvement in her mental condition. Thus, a decree was prayed on the ground covered under Section 13(1)(ib) and (iii)oftheAct, 1955. 4. The respondent resisted ithe divorpe application: by submitting inter alia that her mental condition was never abnormal apd she is of sound mind and that she has been leading her matrimonial life and was discharging the matrimonial obligations in an orderly manner. It was stated that she has'been subjectedlo crueltyibytheiappellant as well as by other members of his family for not bringjng motor cycle, fridge and cash of Rs.50,000/- as dowry and that she was assaulted and removed from the matrimonial house and the appellant is threatening to perform second marriage. She was not given proper food and clothes and after being expelled from the house, she had fallen ill and is residing in her parental house for last VA years. The appellant neyer taken c^ tc^^ask aj)oyt h^^lh:b^njg and is not maintaining her. She is ready to perform her matrimonial obligations and to lead the marital life and is ready to go back to her matrimonial house as and when the appellant is ready to take her. 5. In course of trial, theappellantiexamined himselfasA.W.-l, Hari ^ Singh as A.W.-2 and Babulal as A.W.-3. On the other hand, the —-Ufc. respondent examined herself as N.A.W.-1, Lalman as N.A.W.-2 and Ratan Singh as N.A.W.-3. 6. The appellant has not produced any medical evidence in support of his case that the respondent was suffering from mental disorder. Even in his examination-in-chief, he has only stated that the respondent was not mentally balanced. It has not been stated by him that she was suffering from any mental disorder or that she has been suffering incurably of unsound mihd;v The-appellanfs witnesses, namely, Hari Singh, A.W.-2 and Babulal, A.W.-3 have not stated anything about the respondent being suffering from any mental disorder. Instead, Hari Singh, A.W.-2 h^s stated that both husband and wife were at fault. Babulal, A.W.-3 has also stated that there was dispute between the mother-in-law and the daughter-in-law, i.e., the respondent and that according to him, both of them can still reside together. The^appellant has.nol, statecl an^tJbjng^p hjs^ex^mination-in- chief as well as in his cross-examination that the respondent has deserted him. 7. Learned counsel for the appellant, relying on. Sharda vs. Dharmpal, (2003) 4 SCC 493, has prayed that this Court may orderfor medical examination of the respondent. This Court is afraid, how such an order can be passed at the appellate stage on mere asking of ,learned counsel for the appellant aMheitjme of-final hearing without first making any foundation about mental disorder or schizophrenic mind of the respondent. Learned counsel has also relied on Adhyatma BhattarAlwar vs. Adhyatma Bhattar Sri Devi, AIR 2002 .f^ :•;- f\ -'•> t-.^.l,.^^^^^-^^ 4 SC 88 and G.V.N.Kameswara Rao vs. G. Jabilli, AIR 2002 SC 576 in support of his arguments. 8. Section 13(1 )(ib) and (iii) of the Act, 1955 reads thus: "13. Divorce.—(1)Any marriage solemnised, 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- xxxxx xxxxx X5?XXX -^ U ^S If t xxxxx ••:-.f A.. ...^ (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or xxxxx xxxxx xxxxx xxxxx (iii) has been incurably of unsound mind, or has been suffering continuously or intermjtteritly 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.—\nthis clause,— (a) the expression "mental disorder" means ''fr;,':^ tH-,,..^;"titiOH^r f0f 3 CDHtini.Oi.:.c n^r".":':! mental illhessr * 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 persisteht 'disorder' 6r"cJisability 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 xxxxx xxxxx xxxxx xxxxx' 9. The term "desertion" has been defined in the explanation at the end of Section 13(1)cf the Act, '1955; ' In 'SaWfn Pancfey vs. Pre/n l—^ Chandra Pandey, (2002) 2 SCC 73 and Lachman Utamchand Kirpalani vs. Meena alias Mota, AIR 1964 SC 40, the Hon'ble Supreme Court has held that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent, and withbut reasonable cause, it is a total repudiation of the obligations of marriage. The burden to prove desertion is on the person who alleges that the other party has deserted him/her without reasonable cause. 10. In the present casey-the appellant'has^failed to make out a case of desertion as nothing has been said by him in his statement that the respondent has left him with an intention of permanent forsaking and abandonment. On the other hand, the respondent has stated in her statement that'she was' treated iwithf'cruelty l her-matrim6nial house. She has denied the suggestion that she is residing separately without any sufficient cause. One of the important piece of evidence is the statement of Hari Singh, A.W.-2, who has statecl that both husband and wife were at fault. Considering the totality of the evidence, the ground ofdesertion is notproved. 11. The appellant's plea regarding mental disorder of the respondent is not supported byvany imedJcalAevidencey 'ln-the ^elebrated case of Dr. N.G.Dastane vs. Mrs. S.Dastane, (1975) 2 SCC 326, it has been held that the expression incurably of unsound mind cannot be so widely interpreted as to cover feeble minded persons or persons of dull intellect. In Shardavs. D^armpa7(supra);the> Hon'ble Supreme Court has held that the degree and extent of mental disorder to justify a decree of divorce is incurable unsoundness of mind of a kind that the i..ra D:.' —':vmeuic..i evia'erjce. in inB ce'ieDratOa ;.;^ -• MSW^-S.KS^^^^^ /^^?3"^i :c<^>- ^f\ other spouse cannot reasonably be expected to live with him or her, a few strong instances indicating short temper and erratic behaviour may not amount to suffering continuously or intermittently from unsoundness of mind. The medical evidence regarding requisite degree of mental disorder is relevant though not conclusive. 12. In Ram Narain Gupta vs. Smt Rameshwari Gupta, (1988) 4 SCC 247, the Hon'ble Supreme Court, while dealing with a case under Section 13(1)(iii) ofthe Act, 1955, has held thus: "20. The context in which the ideas of unsoundness of 'mind' and 'mental disorder' occur iri the sectioh as grounds for dissolution of a marriage, require the assessment of the degree of the 'mental disorder'. Its degree must be such that the spouse seeking relief cannot reasonably be expeded,tQjiye,w!^jhe,o^^ ^lL^r^Labnopatities^ are not recognized as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law. 21. The answerto the apparently simple—and perhaps misleading - question as to "who is normal?" runs inevitably into philosophical thickets of the concept of mental normalcy and as involved therein, of the 'mind' itself. These concepts of'mind', 'mental phenomena' etc., are more known than understood and the theories of "mind" and "mentation" do not indicate any internal consistency, let alone validity, of their basic ideas. Theories of 'mind' with cognate ideas of 'perception' and 'consciousness' encompass a wide range of thoughts, more ontOlogical than epistemblogical:' TKeories bf merital phenomena are diverse and include the dualist concept— shared by Descartes and Sigmund Frued - of the separateness of the existence of the physical or the :':Dre k::;:-.;vn tl"3r-t under^toari and tlic <n[:;n!-ir.;. . - .;.T material world as distinguished from the non-material mental world with its existence only spatially and not temporally. There is, again, the theory which stresses the neurological basis of the 'mental phenomenon' by asserting the functional correlation of the neuronal arrangements of the brain with mental phenomena. -The 'behaviourist' tradition, on the other hand, interprets all reference to mind as 'constructs' out of behaviour. "Functionalism", however, seems to assert that mind is the logical or functional state of physical systems. But all theories seem to recognize, in varying degrees, that the psychometric control over the mind operates at a level not yet fully taught to science. When a person is oppressed^by intense and seemjngly insoluble moral dilemmas, or when grief of loss of dear ones etch away all the bright colours of life, or where a broken marriage brings with it the loss of emotional security, what standards of normalcy of behaviour could be formulated and applied? The arcane infallibility of science has not fully pervaded the study of the non-material dimensions of 'being'. 25. 'Schizophrenia', it is true, is said to be difficult mental affliction. .It is said to be insidJQusrin.its onset and has hereditary predisposing factor. It is characterized by the shallowness of emotions and is marked by a detachment from reality. In paranoid states, the victim responds even to fleeting expressions of disapproval from others by disproportionate .reactions! generated .by ihallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. In its worst manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions. •;t.:-v (-'•^ »••-;/•..,*fl-y 29. The High Court referred to and relied upon the decision of the Calcutta High Court in Smt. Rita Roy v. '^ ; !.,.;.. ... ^.. \^ l^ Gopal 8 Sitesh Chandra, AIR 1982 Cal 138. In that case the Division Bench ofthe Calcutta High Court observed: ... each case of schizophrenia has to be considered on itsownmerits .... ... According to the aforesaid clause (iii), two elements are necessary to get a decree. The party concerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder. At the same time that disease must be of such a kind and of such an extent that the other party cannot reasonably be expected to live with her. So only one element of that clause is insufficient to grant a decree." 13. In the present case, there is no evidence that the respondent is suffering from any kind of mental disorder or is schizophrenic. The appellant has miserably failed to establish a ground for divorce under Section 13(1)(iii)oftheAct, 1955:; .< 14. This Court does not find any ground for interference in the impugned judgment and decree dated 11-9-2008 passed by the trial Court. The first appeal fails and is hereby dismissed. The impugned judgment and decree passed by the trial Court is affirmed. There shall be no order as to costs. 15. A decree be drawn up accordingly. p.aAantK"»»rMishra Judge : ' i....:; '•••..:• ^.' -f -.: 5 .-./ ^ t ^^^'... — . i n ^ ..