THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.1039 of 2002 JUDGMENT: (per the Hon’ble Sri Justice V. Eswaraiah) The appellant is the wife and the respondent is the husband. The husband filed O.P.No.114 of 1999 on the file of the Family Court, Vijayawada, under Section 13 (1) (iii) of the Hindu Marriage Act, 1955 (for short “the Act”), seeking divorce on the ground of unsound mind. The said O.P. was allowed by order, dated 19-02-2002, against which, the present appeal is filed by the wife. The parties are hereinafter referred to as arrayed in the O.P. before the Family Court. It is the case of the petitioner-husband that the marriage between himself and the respondent-wife was performed on 04-12-1997 at his residence at Vijayawada as per Hindu Rites and Customs. On the next day, he came to know that the respondent is lunatic and was suffering from incurable unsoundness of mind. It was not possible for him to live a reasonable life with her. When the matter was informed to the brother of the respondent, he represented that the doctors advised that she would recover after marriage, and as such, they had performed the marriage by concealing the factum of incurable unsoundness of mind. The respondent is not in a position to communicate or give valid consent for the ceremonies even at the time of marriage. Thus, it is stated that he was cheated by the respondent and her family members. Her behaviour was also abnormal and she has literally tried to do some harm to the petitioner. When he informed the same to the brother of the respondent, he took her to Machilipatnam. Since, 06-12- 1997, he was living separately from the respondent. It is further stated that as the marriage failed and there were no chances of compromise, he accordingly got issued a legal notice-Ex.A-3, dated 24-12-1997, for which, the respondent issued a reply notice-Ex.A-4. He, accordingly, prayed to pass a decree of divorce. On the other hand, it is the case of the respondent that the marriage between herself and her husband was performed on 04-12-1997 at the house of the petitioner as per Hindu Rites and Customs. The marriage proposals took place for one year at the instance of the maternal uncle of the petitioner and other relations and elders. Betrothal ceremony took place on 15-08- 1997. Videograph and photographs were also taken. Thereafter, the marriage was performed on 04-12-1997. After marriage, consummation of marriage was postponed at the instance of the petitioner as a condition to satisfy his after thought demand of Rs.1,00,000/- more towards dowry, apart from the dowry what was given at the time of marriage. It is stated that the allegations made by her husband that she possesses unsoundness of mind and incurable features are all false and the said allegations have been made only for the purpose of seeking divorce. It is stated that after receiving the reply notice, the petitioner took her to cohabitation and lived together for more than 20 days happily without any unpleasant situations as alleged. Thereafter, as the additional demand of dowry was not fulfilled, he beat her and dropped her at her parent’s house with a warning that she would get the demanded amount of Rs.1,00,000/-. It is stated that she has also filed a criminal case against her husband under Section 498-A IPC. The learned Judge had considered the aspect as to whether the petitioner is entitled for divorce on the alleged ground of unsoundness of mind of the respondent under Section 13(1) (iii) of the Act. Under Section 13 (1) (iii) of the Act, the husband is entitled to seek a divorce if he establishes that the wife 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 he cannot reasonably be expected to live with her. From a plain reading of Section 13(1) (iii) of the Act, we are of the opinion that unless the petitioner establishes that the respondent has been incurably of unsound mind and has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent, he is entitled for divorce. 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. 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 of the other party, and whether or not, it requires or is susceptible to medical treatment. The meaning of schizophrenia is mental disorder involving failures of perception and withdrawal from reality. Thus, it is clear that schizophrenia means incurably of unsound mind or mental disorder and there is no possibility of curability. Therefore, the questions that arise for consideration are as to whether the respondent has been suffering from incurable unsoundness of mind or mental disorder, which includes schizophrenia, which is not curable in nature and whether the so-called schizophrenia, by which the respondent is alleged to have been suffering, is incurable and that the petitioner is not reasonably be expected to live with her. To establish the case of the petitioner, the petitioner himself was examined as PW.1 and reiterated the averments made in the O.P. and stated that from the date of marriage itself, the respondent was in the habit of speaking to herself and beating herself. She used to threaten to kill him and others. The marriage was not consummated. Ten days after the marriage, she was referred to Dr.I.Rama Subba Reddy, Psychiatrist by her parents and the Doctor advised the respondent and her sister to take continuous treatment. Thereafter, the respondent left to her parents’ house and did not join him. Ten days thereafter, his brother and brother-in-law went to the house of the respondent and found her in the same condition and, therefore, he got issued a legal notice, for which, a reply was given. Prior to six months of marriage, he and his mother had seen the respondent and after seeing her, he has given his consent for the marriage. Later, he had a discussion in his maternal uncle’s house in the presence of the brothers of the respondent and they have offered to give him some land. The suggestion that for fixing the marriage date, he insisted cash of Rs.1,00,000/- instead of land was denied. The suggestion that as the parents of the respondent offered one acre of land and cash of Rs.70,000/-, he accepted for engagement was denied. The suggestion that he has postponed nuptial ceremony was also denied. The marriage was not consummated as the respondent is suffering from unsoundness mind of incurable in nature. PWs.2, 3 and 4 are known to the petitioner and they stated that the respondent was suffering from mental illness and she was behaving in a different manner. PW.5, who is a relative of the petitioner, stated that the behaviour of the respondent was abnormal even at the time of marriage and also at the time of marriage rituals. Finally, he was informed that the respondent was suffering from mental illness. As the doctors advised that the same will be cured after marriage, the marriage was performed as per the advice of the doctors. Later, the respondent was given coconut water mixed with tablet and after consuming the same, she vomited. PW.6 is a Doctor practising as Psychiatrist in Vijayawada. He stated that he had examined the respondent on 01-12-1997. He saw her for the first time on that day and it was stated that she was behaving abnormally for one month before she was brought to him and she was having suspicious ideas on others, laughing and talking to self, crying, irritable, restlessness and not sleeping well. On examination, he found acute psychotic episode of paranoid Schizophrenia and advised her to admit for observation and treatment. But, the respondent refused for admission and hence, medicines were prescribed for 20 days. Later, the respondent did not come forward. Again, she was examined by PW.6 on 30-04-1999, as per the directions of the Family Court, Vijayawada, and found that she was not having abnormality. For a specific question, whether paranoid schizophrenia is curable or incurable, the doctor answered that it is very difficult to cure 100%. The 2nd question as to whether the disease can be controlled. He answered that by prolonged treatment, it can be controlled. The disease may be by inheritance. Ex.X-2 is the opinion given by him on examination of the respondent as per the directions of the Court. He further stated that one cannot anticipate that one shall get the severity of recurrence of the disease. She has to be taken care by others. To rebut the said averments made by the petitioner, the respondent herself was examined as RW.1 and while denying all the allegations stated that she is the 4th daughter of her parents. Prior to fixation of marriage, the petitioner and his relatives came to her house four or five times. After due deliberations, the marriage was fixed on 15-08-1997. On that day, her parents agreed to give one acre of land and cash of Rs.70,000/- towards dowry. On that day, advance of Rs.20,000/- was given to the petitioner. Thereafter, the marriage date was fixed on 04-12-1997. After fixation of marriage, the petitioner sent a word to her parents to give Rs.1,00,000/- in lieu of one acre of land, for which also they agreed. After marriage, he has demanded a further sum of Rs.1,00,000/- and when they expressed their inability he gave legal notice and filed the said O.P. It is stated that the marriage was performed on 04-12-1997 and the same was consummated. She was subjected to elaborate cross- examination. She admitted that she did not go to the Doctor-PW.6 prior to examination on 30-04-1999. As per the court orders, she went to the said Doctor along with her husband and the Doctor did not carry any test on her. It is stated that after performing the marriage she was alright for nine months. After receiving the notice from the petitioner, she gave reply stating that her parents have given dowry to the petitioner. In this regard, the matter was referred by the petitioner to one K.Jagannadha Rao, who advised that she was alright and nine months after the marriage, she was taken by her husband’s brother and his wife to the house of the petitioner and she stayed there for eight days. Right from the year 1998, the petitioner was handling her and used to leave her at her parent’s house. Every time, she spent seven days with the petitioner. Likewise, she spent four times. She stated that she never behaved in abnormal manner either with the petitioner or with anybody. No altercation took place at the time of the marriage. The marriage was consummated. She is not suffering from paranoid schizophrenia and it is possible to lead conjugal life with the petitioner. RW.2, who is a relative of the parties and an agriculturist, stated that the respondent has four sisters and they are married and living with their respective husbands. He is one of the caste elders for settlement of the marriage of the petitioner with the respondent. On the date of fixation of the marriage also, a function was arranged by taking photographs, and garlands were exchanged formally. At the time of betrothal function, an amount of Rs.20,000/- was given to the brother of the petitioner and one acre of land and Rs.70,000/- cash were agreed to be given by way of dowry. Two months after the betrothal function, the marriage was performed on 04-12-1997. The petitioner insisted to give cash instead of one acre of the land and accordingly, he was given a sum of Rs.1,50,000/-. After the marriage, the respondent was brought to Sultanagaram. Again, the respondent was taken to the house of the petitioner, where she stayed for one week and later she came and informed that the petitioner is demanding to pay the cost of one acre land by selling away the same and the claim of the said Rs.1,00,000/- is only sole cause for the disputes among the parties. RW.3, who is the brother of the respondent, stated that the respondent is his 4th sister and he stated about the demand of the petitioner for dowry and, thereafter, as per the advice of elders, a sum of Rs.1,50,000/- was given in addition to Rs.20,000/- given earlier, and the dispute arose because of further demand of Rs.1,00,000/- to be given by selling away the land. There is no dispute with regard to the marriage among the parties on 04-12-1997 as both of them had deposed that the marriage was performed on the said date. Ex.A-1 is the marriage invitation card and Ex.A-2 is the marriage photograph. The learned Family Judge, who examined the marriage photo, observed that the petitioner appears to be in a normal status with eyes opened and whereas the photograph of the respondent is concerned, her eyes were more or less closed. So, on the face of it, she appears to be abnormal and of unsound mind. We are of the view that it is not possible for any Judge or a Doctor or a Specialist to decide the abnormality by seeing a photograph. At the time of taking photographs, if any person blinks obviously their eyes appear, more or less, to have been closed. Therefore, the observation of the Family Judge that on mere seeing the photographs one could observe that there is mental abnormality, is not warranted and the same is uncalled for. Insofar as the medical evidence of PW.6 is concerned, the only report available before the Court is Ex.X-2. Admittedly, as per Ex.X-2, dated 30-04- 1999, the date on which PW.6 examined the respondent as per the directions of the Court. It is stated that as per the record, the respondent was first examined by him on 01-12-1997. It was reported that she was walking and behaving abnormally for one month before she was brought to him at that time. She was having suspicious ideas on others, laughing and talking to herself, crying, irritable, restlessness and not sleeping well. He examined and found acute psychotic episode of paranoid schizophrenia and advised her to admit in the hospital for observation and treatment. As she refused for the same, he prescribed medicines for 20 days. Thereafter, she did not come to follow up and again she was examined by him on 30-04-1999 as per the directions of the Court and found that she is not having any abnormality at that time. If that be so, as the Doctor, who examined her on 30-04-1999, stated that there was no abnormality when he was examined on 30-04- 1999, it cannot be said that she was suffering from mental disorder or paranoid schizophrenia. There is no evidence to show that she was suffering from paranoid schizophrenia. The Doctor himself found that she was not having any abnormality when he examined her on 30-04-1999. No medical evidence has been produced before the Court that she was suffering from incurable disease of any kind of mental disorder. Therefore, we are of the opinion that the Court below ought not to have granted divorce on the ground of mental disorder. As such, the order of the court below is liable to be set aside. Accordingly, the appeal is allowed. However, it is open to the petitioner to seek divorce on any available grounds contemplated under Section 13 of the Act, if he is so advised. There shall be no order as to costs. ________________ V.ESWARAIAH, J _________________ B.N.RAO NALLA, J Dated: 06-04-2010 Prv