IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 MFA.No. 25 of 2003() -------------------- OP.27/1999 of SUB COURT, PAYYANNUR .................... APPELLANT(S): PETITIONER: ------------------------- PULLANHI DINESAN, S/O. GOPALAN, 29 YEARS, TALILPARAMBA AMSOM, TRICHAMBARAM DESOM, TALIPARAMBA P.O. BY ADV. SRI.M.A.FAYAZ RESPONDENT(S): RESPONDENT: -------------------------- PALANGADAN JYOTHI, D/O. PALANGADAN SREEDHARAN, 23 YEARS, KUNNAPURAM AMSOM, MOTTAMMEL DESOM, MOTTAMMEL P.O., BY HER NEXT FRIEND P. SREEDHARAN, KUNNAMPURAM AMSOM, MOTTAMMEL DESOM, SECURITY STAFF, S.B.I., TALIPARAMBU. ADV. SRI.M.SASINDRAN FOR R THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.F.A. NO. 25 OF 2003 --------------------------------------------------------- Dated this the 24th day of November, 2008 JUDGMENT Harun-Ul-Rashid J. The petitioner in O.P. No.27 of 1999 on the file of the Sub Court, Payyannur is the appellant. The Original Petition was filed for a declaration that the marriage of the petitioner with the respondent is null and void on the ground of insanity of the respondent and on other grounds. The trial court dismissed the Original Petition and hence this appeal. 2. The trial court conducted a very thorough enquiry, examined the petitioner and five other witnesses as PWs.1 to 6, the respondent and three other witnesses as RWs.1 to 4 and marked Exts.A1 to A5 on the side of the petitioner and Exts.B1 to B120(a) on the side of the respondent and also Exts.X1 and X2. The trial court also ordered examination of the parties by a Medical Board consisting of a Psychologist and a Psychiatrist. The report submitted by the Medical Board is marked as Ext.C1 in which it is stated that the petitioner and respondent are not suffering from any mental illness and that they are not insane. According to the petitioner, the M.F.A. NO. 25/2003 2 respondent was incapable of giving valid consent to the marriage consequent to her unsoundness of mind at the time of marriage. The petitioner attempted to prove that the respondent was suffering from mental ailment at the time of marriage preventing her from giving valid consent to the marriage. The doctors who treated the respondent were examined as PWs.5 and 6. PW.5 testified that he diagonised acute mania episode while examining the respondent and that she was admitted in the hospital on 2.11.1998 and was discharged on 13.11.1998. He also testified that the medicines prescribed by him was for acute psychotic episode . PW.5 further deposed that he could not say whether the respondent was suffering from the disease previously. PW.6 also testified that the respondent was suffering from acute psychotic episode. He too was not in a position to say whether the respondent was suffering from psychotic disorder at the earlier point of time. According to the petitioner, the respondent showed signs of mental illness from the first day of the marriage and that she continuously sung songs till morning on that day while the petitioner, his parents and relations kept on watching her throughout the night. They found the respondent restless. They also spoke about the uncontrollable appetite of the respondent who ate almost all the food prepared for the whole family. It is the case of the petitioner that the respondent and her family members concealed the mental illness of the M.F.A. NO. 25/2003 3 respondent when they arranged the marriage. According to him, he would not have agreed for the marriage had he known about the mental illness of the respondent. The respondent, on the hand hand, has denied all the allegations levelled against her. 3. The Medical Board examined the parties during April, 2001, that is, about two and a half years after the marriage. Ext.C1 report can only suggest the mental state of affairs of the respondent as on April, 2001. PW.5, the doctor who examined the respondent within two weeks of the marriage and PW.6 who examined her within a month of the marriage deposed that the respondent was suffering from acute psychotic episode and that they were not in a position to state whether the respondent was suffering from the disease previously. The evidence of the doctors is supported by PW.3, the mother of the petitioner/husband. PW.4, his brother-in-law also testified that the respondent behaved abnormally. From the evidence of PWs.5 and 6 coupled with the evidence of the family members of the petitioner, the reasonable inference that can be drawn is that the respondent was suffering from an incurable mental disease. The pleadings and evidence indicate that the respondent behaved abnormally on the day of the marriage and during the following days. The fact that the respondent was taken to the doctor immediately also strengthens the petitioner's case. Normally no person will take such a strange stand soon M.F.A. NO. 25/2003 4 after the marriage and that too when the marriage was an arranged marriage. The court below has taken a negative approach. 4. The petitioner also sought a decree of nullity on the ground that the marriage was not consummated. The court below rightly held that the materials on record is not sufficient to prove that the marriage was not consummated. We uphold the finding of the court below on that ground. 5. We find on evidence that the petitioner has satisfied the conditions laid down in Section 12(1)(c) of the Hindu Marriage Act, 1955. Consent to the marriage was obtained by fraud. Further, under Section 13 (1)(iii) of the Hindu Marriage Act, any marriage solemnized, 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 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. The petitioner is, therefore, entitled to a decree declaring his marriage with the respondent null and void on the ground that consent was obtained by fraud and also for the reason that the respondent was suffering from mental disorder. 6. Yet for another reason also, we find that the petitioner is entitled to the relief sought for. The parties got married on 18.10.1998. Circumstances reveal that there was no occasion for the parties to live even M.F.A. NO. 25/2003 5 for a day as husband and wife, though in paper they lived as husband and wife for a few weeks. For the last ten years, the parties are living separately and there is no possibility of the parties living together in future. The marriage between the parties has irretrievably broken and has become a deadwood. 7. Irretrievable breakdown of marriage is not a ground by itself for divorce. But, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind, as held by the Supreme Court in the decision reported in Durga Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353. The Supreme Court in the above decision, on finding that 14 years have elapsed since the husband and wife had separated, held that there has been irretrievable breakdown of marriage between the parties and that reunion was impossible and that the parties cannot at this stage reconcile themselves and live together forgetting their past. The Supreme Court, therefore, held that there is no other option except to allow the appeal and set aside the judgment of the High Court and affirm the order of the Family Court granting decree of divorce. 8. We are convinced that no useful purpose will be served by keeping such a marriage alive on paper, it would only aggravate the M.F.A. NO. 25/2003 6 agony of the parties. In Anjana Kishore v. Puneet Kishore, 2002 (10) SCC 194 and in Swati Verma Vs. Rajan Verma (2004 (1) SCC123 ), the Supreme court held that the marriage between the parties has irretrievably broken down and has been rendered a dead wood, exigency of the situation demands the dissolution of such a marriage by a decree of divorce to put an end to the agony and hardships of the parties. 9. The Supreme Court observed that once the parties have separated and the separation has continued for sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has been broken down beyond repair. It would be unrealistic for the law not to take notice of that fact and it would be harmful to the society and injurious to the interests of the parties. In the result, the appeal is allowed. A decree is passed declaring the marriage between the petitioner and the respondent null and void. There will be no order as to costs. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.F.A. NO. 25/2003 7 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.F.A. NO. 25/2003 JUDGMENT 24th November, 2008 M.F.A. NO. 25/2003 8