BEFORE HON'BLE DIVISION BENCH IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR F.A.(M) No. °( ^2008 APPELLANT ^.^Applicant) \ ^^ ' \^ licant)^ \ ^ ^^ ANAND KUMAR KASHYAP r S/o Shri. Kashi Ram Kashyap Aged About 35 Years, Resident at: Gawlipara, DURG '^-*-w RESPONDENT (Non-Applicant) ,Smt. BIWU W/o Anand Kumar Kashyap, Aged about 30 Years, Present Address : Station Para., KHSINGA District: Kalahandi, Through : Father Shri. Nand Kishore Gupta. FIRSTAPPEAL U/S 19(1) OF THE FAMILY COURT'S ACT. ^-^ 6o HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON?BLE SHRI T. P. SHARMA & HON»BLESHm R.L. JHANWAR. JJ. FERST APPBAL (M| No. 72/2008 APPBLLANT Anaad ^Kumar Kashyap s/o Shri. Kashi (Applicaat) Raia Kashyap aged about 35 years, resident at: GawUpara, Dui'g RESPONDENT Versus Sint. Biau w/o Auaad Kuniar Kashyap (Non-AppUcant) \ First Aopeal uader Section 19 (11 ofthe Familv Courfcs Act. 1984 Preseat: Shri Uttam Paadey, counsel for ftie appeUaat/appIicant. Shri Shree Kuiaar Agrawal, Sr. Advocate wifh Shri Anaad Kuniar Gupta, counsel for fhe respondent. ORAL - JUDGMBNT (Passed on 8th December, 2009) The followmg judgment of fhe Court was passed by T. P. Sharma, J. The challenge ia fhis appeal is to the judgraent and decree dated 22.4.2008, passed by the Pnncipal Judge, Famity Court, Durg (CG) ia CivU Suit No.287-A/2006, whereby, leamed Judge of the Fanxily Court has disniissed the suit filed under Section 12 (c) offhe Hiadxi Marriage Act, 1955 (for short 'fhe Act3}, declaring the xnardage as void by a decree of divorce. The decree is iinpugned on fhe ground fhat fhe Court below has not considered the proved E^ ^ssy^ %, IWB^S^ fact of nisanity of fhe respondent aad thereby cofflLiiiitted aii illegality. 2. Accordiag to fhe pleadiags of fhe parties, the appeUaat was marded to fhe respondent on 10.12.2005. The behaviour of the respondent was abnormal. She refused to consununate fhe Biarriage. Her reaction was not noraial, In fhe nionfh of June, 2006, the appeUaat found soiae mediciae iii fhe purse of the respondent. After laakiag enquiry frora a Medical Store, it was found that the raediciaes are related to ttie mental disease, Then he caUed Uie father of fhe respondent, who after in.terrogation admitted fhat the respondent is suffering from mental problem aad inental iUness. He took fhe respoudent beforc fhe Mental Specialist Dr. Maiaak Dev Sikdar. After exaaiiniag the respondent^ Dr. Sikadar found that the respondent is suffering frora nieutal iUness. Lastly, fhe fatfaer of the respondent took her to his house. Thereafter, fhe respoadent filed a petition iinder Section 12 (c) of fhe Hindu Marriage Act declaring fhe xn.ardage as void, 3, The respondent has denied tiie iUness, specificaUy fhat she was suffermg from aay mental .lUiiess and she reftxsed to consuxainate fhe raarriage. She was residiag with fhe appeUant as his wife aiid dischargiag her oiadtal obUgation, Her behaviour was nonaal. Her reaction was also abuormal. 4. On fhe basis of averments, issues were framed axid after airordiiig opportunity of heariag to fhe parties, fhe leamed Judge of tlie Pamily Court has disinissed the suit for declaration of niardage as void. 5, We have learaed counsel for fhe parties aad have perused the judgiaent impugned aad record offhe Family Court, ^•:'^1, ^ i k. ^^./ ""•4£y 6. Leamed counsel for fhe appeUant vehenienfly argued tiiat the appeUaat has categorically pleaded aiid proved by adduciag fhe evidence of himsetf, Snit. Rekha Kashyap, sister in law (Bhabhi) of fhe appeUaat, Harish Kashyap, Prakash Soni, Dr, Mamak Sikdar, who have deposed that behaviour of the respondent was abnormal since mception. The appellant has tded his level best for consuniraation of uiamage, but fhe respondent has not co- operated. Her reaction was not nonnal. Mediciaes used for nieutal iUness were found ra the purse of fhe respondent. The appeUaat called father of fhe respondent, who had adxnitted fhe xnental iUness of fhe respondent. She was also exainuied by Dr. Mainak Dev Sikdar, who has also deposed fhat fhe respondent was suffermg froin niental iUness. Leanied counsel furfher argued ttiat fhe respondent was not capable of giviag valid. cbnsent, siace she was suffenng froui inental disorder up to the extent of her iinfitoess for inarriage and for procreation of chUdren, fhe appeUant is entiUed for declaration of marriage to be void under Section 12 (c) ofthe Act. 7, On fhe other hand, leamed counsel for fhe respondent vehemenUy opposed the petition and argued that io. case of declaration ofinamage betweeu fhe parties iinder Section 12 (c) of the Act, fhe appellant is requircd to prove fhe fact that the inarriage has been solemnized in. violation of the provisions of Sectiou 5 (ii) of the Act aad tliat too by fhe evidence of fhe expert aad fhe appeUant is also required to prove fhat such condition was existing before solemnizatiou of fhe marriage aud not after soleiiinization of fhe niarriage. 8, In order to appreciate fhe arguments ofthe parties, we have examiaed fhe evidence adduced on behalf of flie parties, A decree for declaration of mardage as void has been clauned by fhe appeUaat on tlie ground ofviolation ofClause (ii) ofSection 5 ofthe Act which reads as under : 5. Conditioas for a Hiadu marriage - A mardage may be soleninized between any two Hiadus, tf fhe foUowing conditions are fulfilled, namely;- (ii) at the time ofthe mamage, neither party - (a) is iacapable of giviag a vaUd consent to it iii consequence of unsoundness ofmmd;or (b) fhough capable of giviag a vatid consent, has been sufFermg frora ixiental disorder of such a kuid or to such an extent as to be unfit for marriage and the procrcation ofchildren; or (c ) has been subject to recurrent attacks of iasanity 9. In order to prove tlie existence of grounds' of violation of Clause (ii) of Section 5, fhe appellant was required to adduce fhe evidence and prove the fact fhat eifher fhe respondent was iacapable of giviag a valid consent ta consequence of unsoundness of inuid or she was capable of giviag fh.e valid consent, but was unfit for niardage aad procreation of children on fhe ground of niental disorder. This grozind can be proved by fhe expert i.e, fhe Mental Expert. The appeUaiit has exaoiin.ed Dr. Maiaalc Dev Sikdar, who had deposed in his evidence tih.at he has exaoinied Bmn Kashyap vide Ex,P/3 and have also seen the tablets aad wrappers of mediciaes, which werc related to fhe treataient of inental illness. Doctor Maiaak Sikdar also deposed fhat fhe person who was along wifh Binu Kashyap inforoied hioi fhat behaviour of Biau Kashyap is abnormal aad ia one of her famUy relatives i.e, her niatenial iincle was also sufiering wifh the saine disease^ but he has not nientioned tiiese facts ui his report* He also deposed fh.at Biau Kashyap is co-operated in her exammation, on fhe basis of raediciaes, which Biau Kashyap was takiiig aad fhe irifomiation given by fhe person came with Biau Kishyap, he has opiiied fhat 4^ tlie respondent Binu Kashyap was suffering frora Schizoplirenia or Psychosis. 10, In cross-examiaation, Dr. Mainak Sikdar has speciBcaUy admitted in para 4 that he has not mentioned ia his report about the abnonnal behaviour of Biau Kashyap aad it is not possible to opiae on a siagle exainiaation fh.at fhe patient is siifiFering Irom aay rsiental iUness or not. He also deposed tiiat he has not advised for M.RJ., C.T.Scaa or blood test exaoiiaation and has opiaed only on fhe basis of medicuies aad fhe history given by the person who came with fhe patient, He has also deposed fhat even he has not written ttie name of the patient aad fhe place of her residettt. 11. On niiaute scrutiny offhe evidence Qfthis Doctor, Mainak Sikdar aad fhe history given by ftie relative aad friends of fhe patient, it is not possible for arriviag at a findiag that fhe person is suffermg froni oiental disorder up to tiie extent as to isiake her unfit for giviag consent for maaiage aiid procreation of children ao.d fhat too before her nxarriage, 12. The appellant himsetf has adiaitted that at the tixne of negotiatk)u of marriage he hunsetf has gone to the house of fhe respondent to see her. The inardage was soleninized iii accordaiice with the Hiadu rituals, but fhe appeUaiit or his ^rtaesses have not deposed that at the tmie when tiie appeUaat had seen th.e respondent during negotiation of mardage or at the time of perfoniiance of rituals, beliaviour or reaction of fhe respondeut was abnox'aial, Tlie appeUant has speci&caUy deposed fhat behaviour of the reapondent was coxapletely abnonnal, her reaction was abnoniial, she is laentally depressed aad not ia a position to perfoxza her routme work. But on the oftier haad, the appeIlaAit had speci&cally deposed fhat the respondent was taking oiedicin.es relating to her inental iUness. If a person is takiag ^_ medicme for mental iUness, he/she would uot be abnormal during fhe period of effect of niedicuie and if a person himself/herself is takmg inediciae of inental illness regularly and punctually, it is difficult to beUeve that he/she is inentaUy £U. Both tlie facts are contradictoiy to each ofher. 13. Burden to prove fhe fact of niental disorder of fhe respondent at tiie tiine of solemnization of uxamage was on the appellaat but the appeUaiit has not discharged tihie aforesaid burden, 14. After appreciation of ftie evidence available ou record, the leanied Priacipal Judge of FamUy Court has dismissed the suit for declaration of marriage as void. i 15, In absence of proof of such mental disorder, leanied Principal Judge, Family Court has rightly disndssed fhe suit for declaration of laarriage as void. The Court below has not committed aay iUegaUty ia dismissing the suit, 16 c We do not faiid aay substan.ee in fhe appeal* The appeal is Uable to be dismissed aad it is hereby disinissed. 17, No order as to coste, 18. Decree be drawn accorduigly. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^i^ni^ 1