':^s^ ;>r^i, 1S liS g M iSltii i IIKI w IKii is J^il^llg 'ilMSK w^ K S| ^^s ;iiii ^p "^i^ :? ! wsw^: ^^.^^^.•^^^•-f-'-^y' il§i Si 1§1 ^!i^^!^;^^l'i^^y^ lliigsi@liRiKiSSBiSgB8iBBISS ^B!M IK ^m is ilffil Ril ^liSiiiliili :'^ ^^HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justice Prashant Kumar Mishra ^' ^^,: FirstADpeal (M.) No.111 of 2010 Smt. Roshni Sharma versus S.K.Sharma ^'- JUDGMENT FOR CONSIDERATION Sd/- Prashant Kumar Mishra Judge ^ ,^::"" '^, Hon'ble Shri I.SVI. Quddusi. J.: Sd/-_ ^ , ^.Quddusi \ Judge \ Postforc^-0^-2011 -^^L SdA ^ Prashant Kumar Mishra j Judge r HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice I.M^ Qy^ysj and Hon'ble Shri Justice PrashantJ<ymarJV!lshra FirstAppeal (M.) No.111 of 2010 !/.y^ i' .{"• Appellant Respondent versus Smt. Roshni Sharma S.K.Sharma ^ Present: Shri H.B.Agrawal, Senior Advocate with Ms. Sarina Khan, counsel for the appellant. Shri B.P.Sharma, counsel for the respondent. HrstADpeal under Section 19 ofthe Familv Courts Act, 1984 JUDGMENT (Delivered on ^ -o7--.2011 ) Ver (Prasfiant ICumar (M.is(ira, ff.: The present appeal under Section 19(1) of the F:amily Courts Act, 1984 (henceforth 'the Act, 1984') has been preferred by the appellant/wife challenging the judgment and decree passed by the 1st Additional Principal Judge, Family Court, Raipur allowing respondent/husband's application under Section 5 read with Sections 11 and 12ofthe Hindu MarriageAct, 1955 (henceforth 'the Act, 1955') and thereby declaring the marriage between the parties solemnized on 15-2-2002 as void. 2. The respondent/husband preferred the subject application under Section 5 read with Sections 11 and 12 of the Act, 1955 on the pleadings interalia that the parties were married at Raipur on 15- 2-2002 and after completion of the ceremony and departure of the ^A ^ ^- 2 r^ relatives, the husband did not get any opportunity to have intinr^cy with the wife. They went to Devbhog to his sister's house and there because the house was big a separate room was made available for them. The husband tried to initiate physical retation, however, the wife behaved abnormally and refused to have sexual intercourse. Her brother, on being informed, came to their house and gave severe beatings to his sister (the a-ppellant/wife). Narrating other incidents, the respondent/husband, in substance, pleaded that the wife is suffering from schizophrenia and has a 'CYST' and is not able to procreate. 3. It is further stated in the application that the appellant/wife left her marital house arid went to her parental house without informing the respondent/husband and since thereafter she has not returned to her marital house. The subject application for declaring the marriage as void was filed on 11-2-2003. The appellanVwife submitted her reply and denied the allegations made in the application filed by the respondent/husband. It was stated in the reply that the respondent/husband has administered some medicines and because of that the appellant has fallen ill and that she is not suffering from any disease which may be termed as schizophrenia or mental disorder. 4. On the basis of the pleadings made by the parties, the family Court framed issues as to whether the appellant/wife suffers from recurrent attack of insanity and has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the applicant/husband cannot reasonably be expected to 11../J f .;\ -•;/) /f^ live with the non-applicant/wife and also that the non-appli6aRt"is incurably of unsound mind. Issue regarding non-consummation of marriage due to impotence of the wife was also framed. After discussing the evidence available on record, the family Court has decided all the issues in favour of the respondent/husband and against the appellant/wife. 5. Before proceeding to deal with the evidence and the correctness of the findings recorded by the family Court, this Court shall address itself to the relevant provisions of law under which the relief has been sought for by the respondent/husband. 6. Since the decision in the case depends on interpretation of Section 5(ii)(a) and (b) and Section 12(1)(b) of the Act, 1955, the said sections are quoted hereunder for convenience of reference: "5. Conditions for a Hindu marriage - A marriage may be solemnized between any two Hlindus, if the following conditions are fulfilled, namely:- (i) xxx xxx xxx xxx (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 (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 ofchildren; 12. Voidable Marriages - (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable 1 and may be annulled by a decree of nullity 'on any of the following grounds, namely - ^'si^s!^S^9we'ssfsy' XXX XXX XXX XXX (b) that the marriage is in contravention of th( conditions specified in Clause (ii) of Section 5." 7. Section 5 of the Act, 1955 provides that a marriage may be solemnized between any two hlindus if the conditions specified in the section are fulfilled. Amongst the other conditions stcited 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) of the Act, 1955 refers that any marriage shall be voidable and may be annulled ifthe marriage is in contravention ofthe condition specified in Clause (ii) of Section 5 of the Act, 1955. 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. 8. Shri H.B.Agrawal, learned Senior Advocate appearjng for the appellant/wife has vehemently argued that the evidence on record does not satisfy the requirement of law as enshrined under Section 5(ii)(b) of theAct, 1955 and that the findings recorded by the family Court are absolutely perverse. c^ ^ ff t^-y fy^&^^ ^ 9. Per contra, Shri B.P.Sharma, learned counsel appearir the respondent/husband has argued that the respondent/husband has proved the necessary ingredients and pre-requisites of law for annulment of themarriage as void as contained in Section 12(1)(b) read with Section 5(ii)(b) of the Act, 1955. He would also submit that the appellant/wife is suffering from mental disorder of such a kind that she is unfit for marriage as also for procreation of children. 10. The law with respect to the construction, impact and sweep of Sections 5(ii)(b) and 12(1)(b) ofthe Act, 1955 has been lucidly dealt with in a judgment of Madhya Pradesh High Court in Smt. Alka Sharma vs. Abhinesh Chandra Sharma, AIR 1991 MP 205. In the said matter, after elaborately considering the relevant legal provisions, its legislative history, harmonizing of the provision vis-a- vis rights of the husband and wife under the Act, 1955, the Court has, thus, summarized its judgment in paragraphs 12, 13 and 14 thereof, which read thus: "12. In interpreting the provisions of S. 5(ii)(b) of the Act such interpretation should be placed and be accepted which would have way for a smooth marital relationship. As has been noticed above S. 5(ii)(b) as it originally stood before amendment, contained one of the conditions of a valid marriage that 'neither party is an idiot or lunatic at the time of marriage.' The above expression was used in the light of the provisions of Indian Lunacy Act, 1912 where a lunatic under S. 3(5) has been defined as a person who is idiot or of unsound mind. The Amendment Act 68 of 1967 introducing drastic amendment to S. 5(ii)(b) substitutes the words 'suffering from mental disorder of such a kind and/or to such an extent as to be ^- jpr 'f' unfit for mairiage and for procreation of children', and is a clear intention of the legislature that a person who is mentally not sound although he may not be idiot or lunatic, is disqualified from contracting a valid marriage. A party cannot be compelled to suffer marital tife with a marriage partner who is not mentally sound and is only fit for procreation of children. It would be absurd to hold that it is only such a mentally ill spouse, who is both unfit for marriage as also unfit for procreation of children, is disqualified to marry. To me, it appears that liberalized provisions of S. 5(ii)(b), as exist, after the Amendment Act 68 of 1976, make any one of the two conditions found wanting in a spouse due to mental disorder, a disqualification for contracting a valid marriage. In my opinion, the word 'and' between the expression 'unfit for marriage' and 'procreation of children' should be read 'and/or' meaning thereby that they may both co-exist or any one of them may exist as a pre-condition of a valid marriage. Reading the provision in the manner aforesaid, it becomes more intelligible and practicable in the marriage situations obtaining in individual cases. To say that a marriage partner that is, the wife or the husband is fit for marriage although mentally unsound, only because he/she has capacity to produce children is to force one of the parties to the marriage to lead all his/her married life with a seriously abnormat or mentally unsound life partner 'procreation of children' is one of the principat aims for going through a marriage ceremony, but it is not all and the only aim of it. A married life may be successful where one or both the parties to the marriage are unable to procreate children, but mental fitness must be taken to be a principal precondition for a valid marriage. The word 'and', therefore, cannot be read only conjunctively, as is sought, to be done by the counsel for the wife. It is true that 'and' can, under given circumstances, keeping in view the subject and iritention of the legislature, be read n-- //', \.\ as 'or' and vice versa, but 1 do not find any objection \rf reading 'and' as 'and/or'. According to me, if 'and' is read only as 'or' the legislative intent cannot be fulfilled. If the word 'and' is read as 'or', a spouse suffering from such a mental disorder as would make her/him incapable of giving birth to children would be disqualified for marriage irrespective of the fact that he or she is otherwise fit for leading a life of a marriage partner with the other party. It may be noticed that under S. 13(1)(iii) of the Act 'mental disorder' as a ground of divorce is only where it is of such a kind and degree that 'the petitioner cannot reasonablv be expected to live with the respondent'. Assistance, according to me, can be taken of the above provision for understanding the expression 'unfit for marriage' used in S. 5(ii)(b) of the Act, that is unfitness of the party suffering from mental disorder should be of such a type that the petitioner cannot reasonably be expected to run the risk of married life with the respondent. Understanding the word 'unfit for marriage' in the above manner and in the light of the provisions of S. 13(1)(iii) of the Act. l am, therefore, of the opinion that mental disorder merely disabling 'procreation of children' may not be, ina given case, a good ground for nullifying the marriage. We can envisage a spouse marrying at late age or a mental djsorder of such a type where he or she is unable to complete a sexual act or a man or woman having no sexual organ for procreation of children but he or she may be otherwise completely fit as a marriage partner irrespective of a mental disorder disabling her/him from procreating children. In such a case permitting dissolution or nullification of marriage would break the marriage tie on an unsubstantial ground. In a given situation where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible it may furnish a good ground for nullifying the marriage because to beget children from rr- - 8 a wedlock is one of the principal aims of Hindu marriage where Sanskar of marriage is advised for progeny and offsprings. The word 'and', therefore, should be read as 'and/or' permitting the matrimonial Court in a given situation and given case of mental disorder to nullify a marriage if either of them or both the conditions exist making living of the parties together highly unhappy if not impossible. In my considered view, therefore, the word 'and' should not only be read as 'or' but should be read as 'and/or' meaning 'either or both'. 13. There can be another angle or looking at the same provision to give it effective meaning. In interpreting the provisions of S. 5(ii)(b), the order 'procreation' has, in my opinion, should be construed to have a wider legal meaning. The literal or dictionary meaning of the word 'procreate' or 'procreation' is as under:- (1) According to Shorter Oxford English Dictionary the word 'procreate' is explained thus: To beget, generate, to produce offspring, engender. (2) According to Longman Synonym Dictionary, Procreate: v.1.- 1 . beget, engender, generate, create, conceive, father, sire give birth to, get; bread, propagate, reproduce, spawn. 2. Cause, produce, effect effectuate, make happen, bring about, bring to pass, give rise to, occasion, begin, originate, initiate, sow the seeds of. 14. In the context of S. 5 of the Act and the subject dealt with therein, namely to lay down conditions for a valid Hindu marriage, the word 'procreate' has to be assigned a wider legal meaning that is, according to me, capacity of a spouse 'to give birth as also to rear up and bring up children.' A spouse although not sterile and ^..v^ medically fit to give birth to children may still be unfit, due to his or her mental disorder, to look after and bring up children. It may be noted that under S. 5(ii)(b) of the Act a reasonable degree of sound mental state is a precondition of marriage for both the parties that is the man and the woman. The word 'procreation', therefore, implies within it not only capacity to give birth to children but also to look after them as well soas to bring them up. The entire expression 'mental disorder of such a kind or to such an extent as to be unfit for marriage and for procreation of children', therefore, conveys that if one of the spouses suffers from such mental disorder which renders him or her unfit for discharging marital obligations towards the other spouse and parental obligation towards children, if they would take birth out of the wedlock, are considered as disqualified to contract a valid marriage." Yi. 11. In the case in hand, the husband has alleged that the wife is suffering from paranoid schizophrenia and is incurably of unsound mind. On 4-8-2008, the husband submitted an application under Order 32 and Section 151 of the Code of Civil Procedure, 1908 (henceforth 'the Code') for appointment of guardian/next friend. Smt. Kalyani Pandey, mother of the wife/appellant accorded her consent to be the next friend/guardian of the wife/appellant, which is recorded in the order-sheet of the trial Court on 14-11-2008. In course oftrial, the husband examined himselfas AW-1,Dr. Prakash Narayan Shukla as AW-2, Dr. Rajkumari Badwani as AW-3 and Dr, Mamta Jindal asAW-4. The husband has stated that when he tried to become intimate and physical with the wife, she started uttering that he should not touch her as thieves are standingoutside and they may witness the incident and shall not spare him. It is further P-- ,///&s: 10 stated by him that he opened the door and came out of the find that there was nobody outside the room. However, the wife still refused to have sexual intercourse. According to the husband, his wife was in the habit of moving out of the house without informing him and the family members causing immense uneasiness to him. Every time search was made and thereafter she used to come back in the midnight at about 12 AM—2PM along with members of her parental family. Whenever he entered their room, she used to move out of the room. He, later on, became aware that she was suffering from paranoid schizophrenia even before the marriage and the treatment continued after the marriage. 12. AW-2 Dr. Prakash Narayan Shukla, aged 61 years, having more than 28 years of practice and experience as a Psychiatrist, has deposed that he had examined the wife and he found that she is suffering from paranoid schizophrenia. He hasstated that when the patient was brought before him, the disease had already attained its aggravated form and that the ailment is ihcurable and the patient has to remain under regular administration of drugs and in spite of this, there were always chances of aggravation of the degree of ailment and whenever it takes aggravated form, the disease is called as insanity/unsoundness ofmind. 13. AW-3 Dr. Rajkumari Badwani, who is a Radiologist, has deposed that the wife/appellant was referred to her by AW-4 Dr. Mamta Jindal for conducting her sonography examination and upon /investigation, she found that both the ovaries of the wife/appellant ^ ^- (" • i 'es are infected by polycyst/ovariancyst and that there are high of the lady being infertile. 14. AW-4 Dr. Mamta Jindal is a Gynecologist having more than 17 years of experience. According to this witness, the wife/appellant was suffering from polycyst and there are every chances of the lady being infertile. 15. The wife/appellant has not entered the witness box and her mother/next friend Smt. Kalyani Pandey has deposed on her behalf as NAW-1. In her cross-examination, she admits that after coming back from Devbhog, the respondenVhusband had invited them to his house for discussion about the behaviour of the wife/appellant at Devbhog and that she herself and her son (brother of the wife/appellant) tried to inculcate her daughter and on her refusal, her son had given a beating to the daughter. 16. With the above state of evidence on record, it is appropriate at this point to refer to the trial Court's order dated 25-9-2008, whereby the husband's application under Order 32 and Section 151 of the Code was decided. In this order, it has been mentioned by the learned trial Judge that the wife/appellant appears to be suffering from some kind of mental disorder and she does not appear to be competent to protect her interest, therefore, it is necessary to appoint guardian/next friend to defend her in the suit. From the order-sheets, it appears that the wife/appellant has made appearance before the trial Court on several occasions and the 'opinion formed by the trial Court is probably based on the Court's ^ ^ 12 interaction with and observation of the wife/appellant. Be that as it may, the wife/appellant and her mother admit that she is suffering from some kind of mental disorder, though, it was their stand in course of trial and in reply to the husband's application for appointment of next friend, that she started suffering from mental disorder because of ill-treatment and wrong medication given to her after marriage. 17. When this admission is considered along with the statement of the husband's witnesses, particularly, AW-2 Dr. Prakash Narayan Shukla, coupled with the fact that the appellant/wife has not graced the witness-box to face the cross-examination and to afford a chance to the trial Court to examine her mental capability and demeanour, this Court has no hesitation in affirming the finding recorded by the trial Court to the effect that the appellanVwife is suffering from paranoid schizophrenia and is incurably of unsound mind. 18. In Smt. Asha Srivastava vs. R.K.Srivastava, AIR 1981 Delhi 253 and Rajinder Singh vs. Smt. Pomilla, AIR 1987 Delhi 285, it has been held that concealment of fact of the wife suffering from schizophrenia is concealment of a material fact concerning the spouse and is covered by the provisions of Section 12(1)(c) of the Act, 1955. 19. Keeping in mind the nature of evidence with regard to the appellant/wife's sufferance from paranoid schizophrenia, it is // l,_. 13 necessary at this stage to understand the nature of the^iTK disorder called 'schizophrenia'. Schizophrenia is characterized by a withdrawal from reality, with. a tenancy towards antistic thinking, flat or incongruous emotional reactions and inconsistent and impulsive behaviour. The patient may show a tendency to maintain false belief, which cannot be corrected by reasoning or logic. False perception and hallucinations (mostly auditory) may be present. The term or word "schizophrenia", which means a "split personality" was coined by Bleuer (1911) to describe a certain condition of the patient's mind. Previously, the condition was referred to as "dementia praecox", because such patients, usually young, tend to appear demented through their inability to respond adequately to the environment. However, since the condition is due, not to any detectable abnormalities of the brain, but to a "split from reality", the term "dementia praecox" is no wadays replaced by the scientifically more accurate term "schizophrenia". The medical opinion is that there are several types of schizophrenia, of which 'paranoid schizophrenia' is one of the conditions. This type of schizophrenia is explained as under:- Paranoid Schizophrenia The illness usually begins late in life, between the age of 25 and 35 years. The patient may justify his incapacity to cope with stress by laying the blame on others. He may feel that others are against him and are out to persecute him. He may attribute his ,failures to the jealousy or "spite" of superiors, associates or f^olleagues. He may even ascribe the failure of his marriage to an ^—- &^^^ ?• /^^y 14 r^) imagined infidelity on the part of the wife. Such delusions ar frequently centered round some near relative or friend. The delusions may be logical or bizarre. He may also have grandiose delusions. Because of his superior intelligence, he may claim to lead his country to victory or the world to prosperity. He may claim to reach the sun, the moon or the stars within a few years. He may claim to be the greatest authority on religion, science or philosophy. 20. The only decision of the Supreme Court on a similar mental disorder schizophrenia, which was made a ground for divorce, is in Ram Narayan Gupta y. Smt Rameshwari, AIR 1988 SC 2260. The Hon'ble Supreme Court has also referred in the aforesaid judgment a few standard books on Medicine and had taken help of them in understanding the mental ailment. The following rhedical opinion extracted by the Supreme Court in the judgment was relied upon for applying the same to the case before it (at p. 2267 ofAIR): "/ do not use the word 'schizophrenia' because 1 do not think any such disease exists....... 1 know it means widely different things to different people. With a number of other psychiatrists, 1 hold that the words 'neurosis', 'psychoneurosis', 'psychopathic personality', and the like, are similarly valueless. 1 do not use them, and 1 try to prevent my students from using them, although the latter effort is almost futile once the psychiatrist discovers how conveniently ambiguous these terms really are......" \^ In general, we hold that mental illness should be thought and ^ spoken of less in terms of disease entitles than in terms of :y^. w^- .^ 15 personality disorganization. We can precisely define organization' and disorganization; we cannot precisely define disease......." 21. Some assistance alsocan be had