ORISSA HIGH COURT: CUTTACK MATA No.38 OF 2008 From a judgment dated 24.09.2008 passed by Shri S.K.Pattnaik, Judge, Family Court, Cuttack in Civil Proceeding No.316 of 2005. __________ Sasmita Nayak @ Sasmita Dalai @ Dolly … Appellant -Versus- Gagan Bihari Dalai … Respondent For appellant : Mr. S.P. Mishra, Sr. Advocate M/s Satrughna Swain, P.Das & S.Das For Respondent : M/s. G.P.Dutta, M.Dutta, A.Ghose, S.K.Mohanty and L.K.Sahoo __________ P R E S E N T: THE HONOURABLE MR. JUSTICE A.S.NAIDU AND THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA Date of Hearing – 06.01.2010 : Date of Judgment -18.02.2010 B.N.Mahapatra, J. This appeal is directed against the judgment dated 24.09.2008 passed by the Judge, Family Court, Cuttack in Civil Proceeding No.316 of 2005 whereby the marriage solemnized on 22.06.1997 between the appellant and the respondent has been dissolved by a decree of divorce subject to payment of permanent alimony of Rs.2,50,000/-. 2. The short facts giving rise to the present appeal are that the marriage of the wife-appellant Smt. Sasmita Nayak and respondent- husband Shri Gagan Bihari Dalai was solemnized on 22.06.1997 and they were blessed with two sons. The respondent-husband filed a Civil Proceeding under Section 13(1)(1-a) (iii) read with Section 5 (ii)(a) & (b) of Hindu Marriage Act against his wife-appellant seeking dissolution of marriage by grant of a decree of divorce. The grounds taken by the husband-respondent in the Civil Proceeding before the Judge, Family Court, Cuttack are as follows:- (i) Marriage between the petitioner-husband and the respondent-wife was solemnized in violation of Section 5(ii) (a) and (b) of the Act; (ii) Respondent wife has treated petitioner-husband with cruelty; (iii) Respondent wife has given threat to commit suicide, tried to kill their son with Paniki and pressed pillow on the face of petitioner to kill petitioner; (iv) Respondent wife has incurable unsound mind and has been suffering from continuously and intermittently mental disorder; (v) Respondent wife is incapable of giving a valid consent due to suffering from mental disorder prior to marriage; The counter allegations of the respondent-wife are as follows:- (i) After birth of her two sons through petitioner husband the sister-in-law who has only daughters became envious and meted out torture; (ii) The petitioner-husband has extra-marital relationship with another woman; (iii) The petitioner-husband has made superficial allegation of mental disorder of the respondent-wife; To substantiate the pleadings before the Family Court, the respondent herein examined himself as PW-1, his mother as PW-2 and 2 the treating Physician Dr. Indubhusan Das as PW-3. He also exhibited documents vide Ext.1 to Ext.1/19 series, Ext.2 to Ext.2/4 series. The appellant-wife has examined three witnesses. OPW-1 is Sankar Prasad Nayak, the brother of the appellant, OPW-2 is appellant herself and OPW-3 is Iswar Chandra Mohapatra, an independent witness. 3. The learned Judge, Family Court after referring to oral and documentary evidence came to the conclusion that the parties are not in a position to lead peaceful conjugal life. There is also no possibility of re- union. So, there should be separation by dissolution of marriage between the parties. Consequently, the learned Judge, Family Court by a decree of divorce dissolved the marriage of the appellant and respondent solemnized on 22.06.1997 subject to payment of permanent alimony of Rs.2,50,000/- (two lakhs fifty thousand) within a period of two months from the date of order. Being aggrieved by the said order, the wife has preferred this appeal. 4. Mr.S.P.Mishra, learned Senior Advocate, appearing for the appellant-wife submitted that the impugned judgment of the Judge, Family Court was unjust, illegal, arbitrary, perverse and against the evidence available on record. It is strenuously argued that the Judge, Family Court has not recorded any finding of his own that the ground of cruelty as alleged against the appellant was made out to arrive at a conclusion for dissolution of marriage solemnized between the appellant and respondent on 22.06.1997 by a decree of divorce. It is submitted that the appellant has completed her M.A. degree and has never visited any doctor for the reason that there was absolutely no symptom of any 3 mental insanity with her. After a lapse of major portion of marital life of eight years and having been blessed with two sons, the vague allegation of cruelty on the part of the appellant-wife has been made with a view to get a decree of divorce. Even if accepting for the sake of argument that the appellant was under treatment and pursuant to the prescription of the doctor dated 21.04.2005, C.T. scan/MRI and EEG were made on 19.04.2005 and 20.04.2005, the reports clearly indicate that the standard of brain is normal and there was absolutely no symptom of any mental insanity. Therefore, the reports/documents proved by the respondent clearly nullify the allegation of mental insanity which rather establishes the fact that she is as sound as a normal human being. The appellant herself conducted the case and cross-examined the witnesses and faced the cross-examination twice in courteous and reasonable manner and there is absolutely no occasion to infer any mental abnormality with the appellant. In spite of the specific evidence of the doctor that the disease of the appellant is curable, the learned Judge, Family Court has committed wrong by passing the order of dissolution of marriage and decree of divorce. In support of his contention, Mr. Mishra placed reliance on the judgment of Madhya Pradesh High Court in Hemant Kumar Vs. Ashabai, II (1994) DMC 452. He also placed reliance on several judgments in support of his contention that all kinds of mental disease cannot be termed as unsound mind and a ground for divorce under Section 13(1)(iii) of the Hindu Marriage Act, 1955. 4 5. Mr. G.P.Dutta, learned counsel appearing on behalf of the respondent-husband strenuously contended that by well reasoned order the learned Judge, Family Court has passed the decree of divorce. There is no infirmity in the order warranting interference by this Court. Relying on the evidence led by both the parties and referring to several judgments of the apex Court and High Courts, the learned Judge, Family Court has passed the decree of divorce. Therefore, the appeal is liable to be dismissed. 6. The pleadings in the Civil Proceeding reveal that it was filed on the ground of cruelty on the part of the wife and her incurable unsound mind. To deal with these issues, it is necessary to refer the relevant provisions of Section 13 of Hindu Marriage Act, 1955, which are reproduced below:- “Section 13(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: (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ii) … … … (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 5 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.” Section 13(1)(ia) envisages that any marriage solemnized whether before or after commencement of the Hindu Marriage Act, 1955 may on a petition presented by either the husband or the wife can be dissolved by a decree of divorce on the ground that the other party has after the solemnization of marriage treated the petitioner with cruelty. ‘Cruelty’ for the purpose of Section 13(1)(ia) of the Act connotes that while discharging the matrimonial duties and obligations, the conduct or behaviour of one spouse towards the other should be such that it would adversely affect the other. The cruelty may be mental or physical. The apex Court in Shobharani V. Madhukar Reddy, AIR 1988 SC 121, held as under:- “Section 13(1)(i-a) uses the words “treated the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and 6 per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.” It is also necessary to construe Clause (iii) of Section 13(1); particularly the words ‘incurably of unsound mind’. With a view to bring a case within the four corners of Section 13(1)(iii) of the Act, it is to be established that the other side is of incurably unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent. 7. These words ‘incurably of unsound mind’ depict the state of mind of a person who is incapable of managing himself and hence discarded to the situations where he will not be called upon to manage himself or his affairs but will live an artificial life until his death. From a medico legal point of view such person will not be able to maintain normal contact with external reality, and to appreciate the distinction between what is going on solely in his own mind, and what is going on beyond it in the external world. May be an individual who suffered severe mental or physical illness cannot be cured in the sense that he cannot expect to get restored to his original condition. However, an individual, who could be cured of the disease and resumes his/her normal life, after the treatment not withstands the fact that he/she may have to take some medicines to preserve his cure would not satisfy the requirement of law laid down u/s. 13(1) of the Act. To put it pithily if an individual is able to lead a normal life and to manage himself and his 7 affairs, no reasonable person would describe him as incurable of unsound mind or afflicted by an incurable mental illness because he is advised to take a medicine once a week or even once a day. (See the decisions in Whysall V. Whysall, 1959 (3) All ER 389; Chapman V. Chapman, 1961 (3) All ER 1105; Robinson V. Robinson, 1964 (3) All ER 232 and Taylor’s Medical Jurisprudence.) 8. According to sub-clause (a) of the Explanation, 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. Sub-clause (b) of the Explanation lays down that 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. In order to succeed on this ground, it is obligatory on the part of the husband to prove that his wife has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that he cannot reasonably be expected to live with the respondent. The Legislature in their wisdom has intentionally incorporated the words disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Thus, a husband can succeed if he establishes mental illness, incomplete development of mind or any other disorder or disability of mind which includes schizophrenia. 8 9. Marriage unites a man and a woman as husband and wife. In our society, it is considered as heavenly tie between a man and a woman. Divorce is a stigma on such heavenly tie. No Hindu woman likes to live in the society as a divorcee. A petition for divorce must be dealt in very cautiously manner. The apex Court in Yamanaji H.Jadhav Vs. Nirmala, AIR 2002 SC 971, held that as per the Hindu Law administered by Courts in India divorce was not recognized as a means to put an end to marriage, which was always considered to a sacrament, with only exception where it is recognized by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. 10. Perusal of the impugned order reveals that the learned Judge, Family Court has extensively discussed the contentions of the parties, referred to evidence on record and some case laws before passing the decree of divorce. But in the impugned judgment, the learned Judge, Family Court, has not recorded any specific finding that the ground of cruelty on the part of the appellant-wife has been made out as alleged by the respondent-husband. He has also not recorded any finding that the respondent-husband has proved the unsound mind of the wife and the wife has been suffering continuously or intermittently from mental disorder of such kind and to such extent that she cannot reasonably be expected to live with her husband. The said grounds, in the present case, being the foundation for passing of a decree of divorce, 9 in the absence of such specific finding, the impugned order and judgment of the learned Judge, Family Court is not sustainable. What we find from the impugned judgment, the learned Judge, Family Court, after discussing the contentions of the parties and referring to some case laws abruptly came to the conclusion that parties are not in a position to lead a peaceful conjugal life. There is also no possibility of reunion and therefore there should be separation by dissolving the marriage solemnized between the parties and passed the decree of divorce. 11. A reading of Section 13 of the Hindu Marriage Act, unambiguously reveals that the legislature in its wisdom did not prescribe irretrievable breakdown of marriage as a ground for granting decree of divorce. The Supreme Court in the case of Visnu Dutta Sharma v. Manju Sharma, AIR 2009 SC 2254, being confronted with such a problem observed as follows: “………. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the parliament to enact or amend the law and not for the Courts.” In view of the aforesaid authoritative pronouncement, we feel that the ground basing upon which the decree for divorce was passed by the Judge, Family Court cannot be sustained. Moreover, since there is no finding recorded on the crucial questions regarding cruelty and the kind and extent of unsound mind of wife, the order passed by learned Judge, Family Court is also unsustainable 10 and the matter needs reconsideration. Hence, the case is remitted to the Court of learned Judge, Family Court, Cuttack to decide the aforesaid crucial questions. The MATA is disposed of accordingly. ..……………………. B.N.Mahapatra, J. A.S.Naidu,J. I agree. ………………………. A.S.Naidu, J. 11 Orissa High Court, Cuttack Dated February, 2010/pcp/sss/bose (1) In view of the above, we set aside the impugned judgment and order dated 24.09.2008 passed by the learned Judge, Family Court, Cuttack and remand the matter to pass a reasoned order indicating as to whether there exists any ground of cruelty on the part of the appellant- wife or not and accordingly appropriate decree be passed within a period of six months from the date of receipt of a copy of this judgment giving liberty to both parties. (2) 8. The crucial question is whether cruelty has been established or not. Without deciding that issue, the learned Judge, Family Court granted the decree of divorce only on the ground that the parties are not in a position to lead peaceful conjugal life and there is no possibility of reunion. Since there is no finding recorded on that crucial question regarding cruelty, the order passed by learned Judge, Family Court is unsustainable and the matter needs reconsideration. Hence, the matter is remitted to learned Judge, Family Court to decide above said crucial question. 12