\ IN THE HI6H COURT OF JUOICATURE AT BILASPUR FIRST APPEAL (M) N0. Ll0 /2011 APPELLANT: ;Applicant) M \.' /^ ^ .n///- ^ /7 '< /. >;^ />x '/;?' ,•> / ^y.A)' ^/y0" <y~~ ^ ivinash Surjar, son of Late Shri Basant Rao (Sur-jar, aged about 35 years, resident of Surjar Bada, Chatapara, Tilak Nagar, Bilaspur, Tehsil & District Bi+aspur (CS) Vs RE^PONbENT: lon-applicant) V-t. ^Smt. Aarti Surjar, wife of Shri Avinash Surjar, aged about 25 years, resident of Thakrey Sadan, In front of Satya Automobiles, Bilaspur, Tehsil & District Bilaspur (CS) APPEAL UNDER SECTION 19 OF THE FAMILY COURTS ACT. 1984 ^ HIGH COURT OF CHHATTISGARH. BILA8PUR DB: HON'BLE I. M. QUDDU8I & HON'BLE Q. MINHAJUDDIN, JJ [A °) F.A (Ml No.^0 OF 2011 APPELLANT RBSPONDBNTS: Avinash Gurjar Vs. Smt. Aarti Guriar APPEAL UHDBR SECTION 19 OF THE PAMILY COURT8 ACT, 1984 Preseat: Mr. B. P. Sharma aiid Mr. Vivek Chopda, cousel for fhe appellaat. Abhijit Sarkar, counsel for fhe respondent. ORAL ORDBR (16.11.2011) Per I.M. OimDUSI. J, 1. This appeal has been filed agamst fhe judgment and decree dated 18.3.2011 passed by the Pamjly Court, Bilaspur ia Civil Suit No. 140-A/ 2009 which was ffled u/ s 11 read with section 13 of fhe Hindu Marriage Act for declaration of fhe inarriage perfonned between the appeUaut aad respondent as nuUily on fhe ground ttiat the respondent wife was mentaUy iU and siifferine from. mental disorder. 2. -Dtuing fhe pendtei^cy of fhis appeal, fhe respondent was sent for inedical ch^ck up and for obtamiag report froin Jawaharlal Nehru aud Research Center, Bhilai and a report was received regardiag examination of the respondent by Dr. A. K. Biswas, Head of fbte Departm.ent of Psvchiatry vide medical opinion J- dated 26.08.2011, The foUowing was the opinion which is . reproduced as under: ^ ^ 11 Vii ",y T '; t? "Patlent directed fro«n Hi^> <3ourt, Bilaspur, for psychiatric evaluatton vide Dlrection No. F-A.M.Mo. 40/2011. Historical intortnatiou from accompanylng persons viz., sister Smt. Alka Pawar and brother-in-Iaw Shri C.K. Pawar: Patient referred fi-oia there for psvchiatric evaiuatioa, upoa aU^atioas &om faer hasbaad that she is inentally 1U. The reasons of the aUegations conld not be elaborated upoa lay them. She was earlier treated ia August 2009 at ApoUo Hospital, Bilaspur aad Dr. P.N. Shukla's Hospital, Raipmr. She had developed fevef foUowiag which shereceived some mediciaes by her husbaad foUowiag which she started talking excessively, excesslve eatiag, excessive spendin®they approach no violeace. She recovered after about 20 days and has beea norinal ever siace. She »s off aay medicatioas ever since - ao recotds or docuinents available. Additionalinfortnation from patient;- Patieat is aot taking tnedtcines for about 6 aaonths, but goes to Dr. P.N.Shuida for iaterha check ap. Patient galns retrospective account tfaat she was having sleep dlsturbaace; aad that others felt she was fralking -excessively but she felt she was nermal. No s^aificant FH and persoaal History. 0/E -Well Kumps (words not clearl. Adequate personal care. PMA, RT normal No co^iiti'ire deflcits. Donnt (not clearl reveal active psychopathology (throu^i stream form and coatent aormal) Mood : Falr - appropriate affect Demis Haludnatory expenses Partial Image - "Signs I had only sleep dlsturbance'* bat I canaot say wiiether I aaa a mental Pc" Note:- tBforination of history inadequate, uasupported by documeats aad ao^ weU rellable. - // ^ Opiiaion: 1) In view of the history, patient holds one othet two prpvisional diaanosls - a) Acute mania due to yneral Medicsal Coadtioa. b) DeUrium 2) At present she is found to be normal on meatal status examiaatioa 3) Treataient for the saae 1s available. 4) Upon treatinent dtsease is curable, but a relapse is possible 8d/- x xx x x Dr. A. K. Biswas, Head, Deptt. of PsycMatry Aa objection has been filed by fhe appeUant to the above inedical opinion that the Medical Of&cer naniely Dr. Biswas who examined the respondent had no knowledge about fhe past histoiy ofthe respondent regaiding her niental iUness. The opiaion has been quoted above, accordiag to which, it has been observed that She was earlier treated iu August 2009 at ApoUo Hospital, BUaspur aad Dr. P.N. Shukla's Hospital, Raipur. Any how, we feel tiiat it was necessaiy to give opportunily of cross examination to fhe appeUant also. The inedical report was Uable to be pToved by suTnmoning Dr. Biswas. Further we have found that section 11 of fhe Hindu Marriage Act, 1955 (fpr short "Act, 1955) deals wifh void inarriages. It provides that any inarriage soleiiuiized after coBainenceiaent of this Act shaU be nuU and void aud may, on petition presented by eitheri'party thereto [agaiast the ofher party], be so declared by a decree of nulli^r ifit contravenes aay one ofthe conditions specified ia clauses (i), (iw) and [v] ofSection 5. /[ ;_'-^,_'^s-s^-v ^•.^^^^^^^^^^^S^^^^^^^^^^Ssssy^^v-.ys V Section 5 of the Act is also relevant here and quoted below: "5. Conditions for a Hiadu Biarriage.—A marriage inay be soleuuiized between aay two Hiadus, if fhe folloiwing conditions are fuIfiUed, namely:- (i) neither party has a spouse Uviag at fhe tiiae of fhe miamage; (ii) at fhe time ofthe marriage, neither party- (a) is iacapable of giviag a valid consent to it in consequence ofunsounduess ofaiind; or (b) though capable of giviag a valid consent, has been suffermg finm mental disorder of such a kind or to such an extent as to be iinfit for inarriage and the procreation ofchildren; or (c) has been subject to recurrent attacks of insaru.ly. (iii) the bridegrooin has coiapleted the age of [twenly- one years] and the bride, fhe age of [eighteen. years] at the ;trme ofthe marriage; (iv) the pardes are not within. the degrees of prohibited relationship unless he custoin or usage goveEaing each of theni permits of a marri^e between fhe two; (v) the pardes are not sapmdaa of each other, unless fhe custoin or usage govemiag eacb of fheni peniiits ofa niarriage belween the two;*' A bare readiug of the abovc ppovisions shows that the grounds 'mental iUness' or of 'unsound mind' have not been mentioned ia Section 5. However, ia section l3(l)(ui) it has been inentioned fhat aay inarriage solenuiized, whether before or * ~'' after the coiiunencenient of this Act, m.ay, on a petition presented by' eifher the husbaud or the wife, be dissolved by a decree of divorce on the ground fhat fhe other party has been uiciirably ofunsound miad, or has been sufiering contiauously or intemuttently fi-om. inental disorder of sucli a kiod expected to live wifh fh.e respoiident. . /''"'-_ /.-- -5- Ts Rw> 6. In view of the above positioii, under Section 11 a inarriage cannot be declared a nuUity on fhe ground inentioned iu section 5(2)(b) i-e., at fhe tune of uiarriage, neither party fhough capable of giviag a valid consent, has been suffering 6x>si inental disorder of such a kiad or to such aa extent as to be urL&t for uiarriage aad fhe procreation of children. However, under the provisions of section 13(lj(iii) of the Act, the petition for divorce would be mamtmna.ble. Therefore, we are of the opiaion that the niatter requires reconsideration at fhe end of learaed Family Court iu view of the fresh opinion obtaiaed by this Court, as quoted above. 7. In view of fhe above we allow this appeal in part, set aside the uapugned decree aad renut fhe inatter back to fhe femily coiul for decision afresh. 8. Needless to inention fhat the parties shaU be allowed to amend fhe pleadiugs, adduce further evidence, file docuinents or get fhe docuinents verified etc., and thereafter the decision shall be taken afi-esh at the earUest. 9. The records of the Tribunal shaU be sent back without furfher delay. The inedical report ui origiaal shaU also be sent alongwith the lower court record and ou the record of fhe appeal,.a Xerox copy ofthe said report shatl be kept 10. The parties' shaU appear befsre fhe Fanuly Court concemed on 05tb ofDecember, 2011. 11. It is expected fhat the inatter shall be decided as expeditiously as possible preferably wifhin a period of 3 inonfhs flpoin the datejrfagpearauce ®fhe pardes. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge ^ // --u; K-"' 'nu'Mraiwyffifta^S'Bi^ ^i^sSSss.^s^^SfS^^si^s^^-'^.'fi^i^SSaSs.