ORISSA HIGH COURT : CUTTACK R.S.A. No. 135 OF 2009 From the judgment dated 6.3.2009 passed by Shri S. Pujahari, learned District Judge, Puri in RFA No. 75 of 2006 confirming the judgment dated 7.7.2006 and decree dated 21.7.2006 passed by Shri L.N. Sahu, learned Civil Judge (Senior Division), Puri in MAT Case No. 59 of 2003. ------------- Sri Jitendra Choudhury …… Appellant -Versus- Smt. Sangeeta Mohapatra & another …. Respondents. For Appellant : M/s. S.Das, P.Chuli, A. Mishra & S.Soren. For Respondents: M/s. N. Pattnaik, & A.K. Das (for Respondent no.1.) Mrs. N.Patnaik. (For respondent no.2) ----------------------- Decided on - 07.01.2011 -------------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ------------------------------------------------------------------------------------------ M.M. DAS, J. This second appeal arises out of Matrimonial Suit No. 59 of 2003 filed by the appellant (husband) for declaring the marriage between the appellant and the respondent no.1 invalid on the ground that the same was solemnized perpetrating fraud and mis-representation on the appellant and in the alternative for dissolution of the marriage by a decree of divorce. The learned Civil Judge (Senior Division), Puri after trying the said matrimonial dispute by judgment dated 7.7.2006 dismissed the said suit on contest against both the defendants-respondents, the defendant – respondent no. 2 being the father of the defendant-respondent no.1. The appellant - husband carried an appeal against the said judgment and decree registered as R.F.A. No. 75 of 2006. The learned appellate court, i.e., the learned District Judge, Puri by his judgment dated 13.3.2009 dismissed the appeal being devoid of merit by confirming the judgment of the learned trial court. Hence, this Second Appeal. 2. The vital issue which arose in the suit was that the defendant – respondent no.1 – wife was suffering from Schizophrenia disease which was suppressed during the marriage. The learned lower appellate court which is the final court of fact arrived at a finding that it has not been brought to record that the behaviour of the respondent no.1-wife was abnormal to such an extent that looking at her one can say her to be Schizophrenic and it cannot be accepted that it was known to her parents prior to the marriage that she was suffering from Schizophrenia. As a matter of fact, it has been found that the respondent no. 1 – wife prosecuted her studies normally. 3. This Second Appeal has been admitted on the following substantial question of law:- 2 “Whether the learned courts below have committed an error holding that the respondent no.1-wife was not suffering from Schizophrenia mental disorder prior to her marriage in view of the evidence adduced by the P.W.1 on behalf of the appellant ? 4. A marriage solemnized between two hindus can be dissolved and a decree for divorce can be passed if the conditions specified in section 13 of the Hindu Marriage Act, 1955 (for short, ‘the Act’) are satisfied. Section 13 of the said Act prescribes that any marriage solemnized, whether before or after the commencement of the said Act can, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on any of the grounds stated in clauses (i) to (vii) of the said sub- section. Clause (iii) of the said sub-section provides that the marriage can be dissolved and a decree of divorce can be passed if 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. Mental disorder has been explained in the said clause to mean mental illness arrested or incomplete development of mind, psychopathic disorder or any order disorder or disability of mind and includes Schizophrenia. “Psychopathic disorder” has been defined as persistent disorder or disability of mind (whether or not including 3 sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment. (emphasis supplied) 5. The only relevant material, which the appellant has produced before the Court, is the evidence of the doctor-P.W.1. I find that on perusal of the said deposition, the learned trial court arrived at a finding that there is no iota of evidence on record available in the case at hand that the alleged mental disorder on part of the defendant no.1 (wife) is of such a type that she cannot enter into sexual act for procreation of children and, therefore, after analyzing the evidence of the doctor- P.W.1, came to the conclusion that the marriage cannot be declared as void and the decree for divorce as sought for by the appellant, cannot be granted. 6. The learned lower appellate court on considering the materials available on record along with the evidence of P.W.1 held that it cannot be said that the fact that the respondent-wife was suffering from schizophrenia prior to her marriage, was known to her father, who himself is a doctor. Hence, it is not sufficient to declare the marriage a nullity unless it is categorically shown that such fact was within the knowledge of the parents of the respondent no. 1 - wife, which they suppressed from the plaintiff at 4 the time of marriage of respondent no. 1 with the appellant. The lower appellate court further relying upon the decision in the case of Ram Narayan Gupta v. Smt. Rameswari Gupta, 1988 SC 2260 and another decision in the case of Smritikana Bag v. Dillip Kumar Bag , A.I.R. 1982 (Calcutta) 547, came to the conclusion that it cannot be said that the plaintiff-appellant has discharged the burden by proving the fact that the respondent-wife though a chronic schizophrenic, which is also a mental disorder, was suffering from mental disorder to such an extent and to such a degree that it was not expected on the part of the plaintiff to lead a normal conjugal life with her. 7. On perusal of the evidence of P.W.1, the doctor, it is seen that he examined the respondent-wife as an outdoor patient on 16.12.2002. He collected the history from the mother of the respondent no.1 that the respondent no.1 had appetite loss, laughing and crying to self at times remaining quite and withdrawn and talking much repeatedly. He again examined respondent no.1 at his residence, when both the mother of the respondent no.1 as well as the father-in-law, who accompanied her, disclosed that there was no improvement. He has also stated that the respondent no.1 was a graduate. 8. It further appears from the evidence of P.W.1, the doctor, that the father-in-law of respondent no.1 is a doctor. P.W.1 5 has nowhere stated that the behaviour of the respondent wife was abnormal to such extent, which can be termed as mental disorder. 9. In the case of Vinita Saxena v. Pankaj Pandit, 2006 (3) SCC 778, the Supreme Court interpreting Section 13 (1) (iii) of the Hindu Marriage Act held that “mental disorder as a ground of divorce, can only be attracted, where it is of such a kind and degree that the husband cannot reasonably be expected to live with the wife.” It further held that where the parties are young and the mental disorder is of such type for which procreation of children is not possible, it may furnish a good ground for nullifying the marriage because to beget children from Hindu wedlock is one of the principal aim of Hindu marriage where sanskar of marriage is advised for progeny and offspring. The case relied upon by the learned lower appellate court, i.e., the case of Ram Narayan Gupta (supra) is also an authority where the Supreme Court laid down as follows :- “The context in which the ideas of unsoundness “mind” and “mental disorder” occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the “mental disorder”. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognized as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law. “Schizophrenia” it is true, is said to be difficult mental-affliction. It is said to be insidious in its onset and has hereditary predisposing factor. It is characterized by the 6 shallowness of emotions and is marked by a detachment from reality. In paranoid-states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. In its worst manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions. But the personality-disintegration that characterizes this illness may be of varying degrees. Not all schizophrenics are characterized by the same intensity of the decease. The mere branding of a person as schizophrenic therefore will not suffice. For purposes of S. 13 (1) (iii) “schizophrenia” is what schizophrenia does.” 10. On analysis of the materials, this Court finds that the learned courts below have rightly refused the prayer for dissolution of marriage and grant of decree of divorce by the appellant. 11. In the result, I find no merit in the Second Appeal, which is accordingly dismissed, but in the circumstances without cost. …………………… M.M. Das, J. Orissa High Court, Cuttack. January 7th, 2011/Biswal. 7 . 8 9 10