IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 OP.No. 492 of 2001(H) --------------------- PETITIONER(S): --------------- PETER P.O. S/O. LATE OUSEPH, AGED 29 YEARS RESDING AT PADIKKAKUDI HOUSE, KOMBANADU P.O. KAIPPALLY, KURUPPAMPADY. BY ADV. SRI.D.ANIL KUMAR SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): --------------- SHEMEENA DEVASSY ( UNSOUND PERSON) D/O. M.P. DEVASSY, AGED 24 YEARS, RESIDING AT MALEKKUDY HOUSE, ELAMBAKAPPILLY P.O. AIMURI, KURUPPAMPADY, REPRESENTED BY HER GUARDIAN AND FATHER M.P. DEVASSY, RESIDING AT MALEKKUDY HOUSE, ELAMBAKAPPILLY P.O. AIMURI, KURUPPAMPADY. ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SMT.MOLY E.V.,-(ADV. COMMISSIONER) THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE,J. ------------------------ O.P.No.492 of 2001 ------------------------ Dated this the 4th day of November, 2008 JUDGMENT This Original Petition is filed under Section 18 and 19 of the Indian Divorce Act by a Christian husband seeking a decree declaring that his marriage with the respondent is null and void on the ground that the respondent was a mental patient having a disease by name Bipolar Disorder at the time of marriage and hence lunatic and that the petitioner's consent for the marriage with the respondent was obtained by fraud. The petitioner is a Christian belonging to the Jacobite Syrian community and the respondent is the wife of the petitioner and she belongs to Roam Catholic community. Their marriage was an arranged one and was solemnized at Markauma Church, Vengoor. 2. In the Original Petition the petitioner narrates various incidents after the marriage revealing what the petitioner describes as the respondent's abnormalities. The petitioner states that on the marriage day the respondent was taken to his house and in the night on the same day when dinner was served O.P.No.492/2001 2 the respondent started crying all of a sudden and ran to the courtyard. The respondent did not give any reason for her sadness. The petitioner and the members of his family thought that this may be because the respondent was staying away from her family for the first time. The petitioner alleges further that on the subsequent days, he could note certain abnormality in the behaviour pattern of the respondent. She was making contradictory statements to visiting neighbours. All of a sudden she would get up from the bed during sleep and would walk around for sometime. She would not give any answer on being enquired by the petitioner whether anything was wrong. The petitioner thought that everything will change once the respondent gets acclimatised with the new surroundings. On 12/10/2000 the petitioner and the respondent went over to the respondent's house. While staying there on the 15th October 2000, while the respondent's father was having his lunch, the respondent suddenly took away the plantain leaf on which the lunch was served even before the father and finished his lunch. Though the incident was surprising to the petitioner he did not want to create an issue on this incident since nobody in the O.P.No.492/2001 3 respondent's house uttered even a word against the respondent. The respondent was allowed to remain in her house till 18/10/2000 as the respondent's father wanted her to have sufficient physical training for ensuing physical exercise test for the post of police constable which she had to take on 19/10/2000. On 1/10/2000, the petitioner, the respondent and the respondent's father came over to the police ground at Kalammessery for the physical exercise test on time. While participating in the running test the respondent after running for some time stopped abruptly and took off the flag placed on the ground and openly declared herself that she had passed all the tests and therefore no further tests are necessary. Seeing this abnormal behaviour, the officials, who were conducting the test, came over to the petitioner and the respondent's father who were watching. The respondent's father requested the officials for an adjournment of the test and accordingly, the test for the respondent was adjourned to 27/10/2000. The matter was discussed with the members of the respondent's family and it was decided that the respondent shall be taken to a Psychiatrist. Accordingly, the respondent accompanied by her mother and O.P.No.492/2001 4 brother was taken to Dr.C.J.John, Psychiatrist of the Medical Trust Hospital, Ernakulam for consultation. Dr.C.J.John did not prescribe any medicine. But, he only advised that the patient be brought again when symptoms of the disease occurred more prominently. On 27/10/2000, the respondent was taken to the police ground, Kalamassery, for participating in the tests which had been adjourned to that date. High jump was one of the items to be participated. When the respondent reached high jump pit, she did not jump, but removed the cross bar from the high jump stand and started running around. The officials intervened and the respondent was declared failed. On the same day, the respondent told the petitioner's sister in her residence at Chambakkara that she had passed all the tests. The petitioner quoted other incidents of the respondent's abnormal behaviour. He states that on 29/10/2000, they visited the house of a friend at Kaddayiruppu. After the visit, the respondent walked straight into the house of a stranger claiming that it was her uncle's house. It was only after much persuasion that the respondent could be brought back. On 5/11/2000 when the respondent returned from her house it was seen that an anklet weighing one O.P.No.492/2001 5 sovereign was lost. When this was brought to the respondents' notice there was no serious response, she rather took it as something very casual. Once like incidents were recurring in the petitioner's house information was given to the respondent's parents who came over to the petitioner's residence. It was decided that the petitioner be taken to a Doctor. Accordingly, as requested by the respondent's father, the respondent was taken to Dr.Shalini Kurup, Psychiatrist, Lourds Hospital, Ernakulam on 10/11/2000. Dr.Shalini Kurup prescribed certain medicines. On 13/11/2000, the respondent's brother came to the petitioner's house. On that day, the respondent spoke in very vulgar language towards the members of the petitioner's family. When the petitioner enquired of the respondent's brother whether the respondent is having any mental problem, the respondent's brother would reply that his sister was having some psychiatric problems. On 16/11/2000 and on 23/11/2000, the respondent was taken to Dr.Shalini Kurup again. The treatment however did not result in any improvement. The petitioner states that on 27/11/2000, Dr.Shalini Kurup informed him that the respondent is having mental disease. It was also revealed to the petitioner O.P.No.492/2001 6 that the respondent is having this disease even prior to the marriage and that this disease is called bipolar disorder which is also known as maniac depressive psychosis, which is a serious mental disorder by which a patient behaves in a manner not knowing the consequences of her acts. Enquiries made by the petitioner in the neighbourhood of her place of residence revealed that the respondent was suffering from certain mental ailments and used to show abnormal behaviour even prior to the marriage. The petitioner complains that the fact that the respondent is having serious mental disorder prior to the marriage was suppressed from the petitioner. If the petitioner had been informed about the mental disorder of the respondent prior to the marriage, he would not have consented to the marriage. The petitioner's consent for the marriage was obtained by suppressing the information regarding the respondent's serious mental disorder from the petitioner and it is accordingly contended that the petitioner's consent for the marriage was thus obtained by fraud. 3. The respondent has filed a counter affidavit. Regarding the solemnization of the marriage between the parties on O.P.No.492/2001 7 8/10/2000 at Markauma Church, Vengoor, it is contended that the respondent belongs to Roman Catholic Community while the petitioner is a Pulaya Converted Christian. The statements in the Original Petition as to the happenings on the marriage day, the allegations regarding the abnormal behaviour of the respondent in making contradictory statements to the neighbour, getting up suddenly from sleep and walking around are all denied. As regards the incidents alleged to have taken place during the physical exercise test for selection of police constables, the contentions made in paragraph 5 of the counter affidavit are as follows; “Even though she participated in the physical test conducted on 19/10/2000 and 27/10/2000, the rest of the allegations made in paragraphs 6,7 and 8 of the original petition are false and are denied. “ 4. It is then contended that while staying together, the petitioner and the respondent were having happy and peaceful married life. While so the respondent came to know that the petitioner is a converted Christian from the Pulaya community. This fact had not been disclosed to the respondent before the O.P.No.492/2001 8 marriage. Moreover, the petitioner was having some inferiority complex while mingling with the respondent and her family members. When the respondent asked the petitioner as to why the fact that he was converted Christian was not disclosed to her earlier, the petitioner started behaving in a cruel manner towards the respondent and the respondent was taken to Dr.C.J.John. The respondent was taken to Dr.C.J.John all alone and the case that the respondent was accompanied by her mother and brother is described as false. As regards the incident at the Police Training Ground on 27-10-2000 it is conceded that she failed in the test but all the other allegations in the Original Petition in that context are denied. As regards the averments made in the context of the lost golden anklet it is contended that it was the respondent who informed the petitioner and members of his family about the loss of anklet. Re-action of the petitioner and his mother was to curse and abuse to the respondent in a very vulgar language. The petitioner and members of his family started saying that there should be something wrong with the respondent since otherwise the respondent will not be given in marriage to a Pulaya converted Christian. The respondent O.P.No.492/2001 9 contends that though the fact that the petitioner was a Pulaya Converted Christian had not been disclosed to her and her family members, she was ready and willing to live with him as a dutiful and responsible wife. But the statements of the petitioner and his family members upset the respondent terribly. She became very tired and started shivering and crying. The petitioner informed the matter to the respondent's parents and the petitioner also insisted that the respondent should be taken to a Psychiatrist. This was how the respondent was taken to Dr.Shalini Kurup on 10-11-2000. It is due to the inferiority cum caste complex of the petitioner that he is raising allegations against the respondent who belongs to a upper caste than his. The counter affidavit proceeds to deny the averments in the original petition regarding the visit by the respondent's brother who it is contended had no occasion to say that his sister had Psychiatric problems. While denying those averments it is contended that the petitioner is put to strict proof of those allegations. The counter affidavit concludes by contending that the only problem in the marriage life of the petitioner and the respondent was the inferiority complex of the petitioner that he O.P.No.492/2001 10 belongs to a lower caste. The respondent has not played any fraud on the petitioner at all for obtaining his consent for the marriage. Having married the petitioner and having become pregnant from him, the respondent is ready and willing to co-operate for a peaceful and happy married life. 5. All probabilities for rapprochement between the parties were unsuccessfully explored and accordingly the case was posted for evidence. During the course of the examination of PW1 it was noticed that the following issues were to be formulated for trial: 1. Is the petition maintainable ? 2. Has the petitioner established pleaded grounds? 3. Is the petitioner entitled to a decree for declaration of the marriage between him and the respondent null and void? 6. Thereafter the case was posted for further evidence. On the basis of the proof affidavit filed by the petitioner he was cross examined. He was cross examined in part in court and thereafter his further evidence on the side of the petitioner consists of testimonies of Dr.Shalini Kurup PW-2 and that of PW3 Smt.M.K.Chandrika, the Circle Inspector of Police who was O.P.No.492/2001 11 present at the police ground at Kalamassery while the respondent was participating in the physical fitness test for selection as Police Constable. Ext.A1 marked in evidence is the outpatient ticket issued by the Medical Trust Hospital Ernakulam. Ext.A2 is the bill issued for consulting Dr.C.J.John of Medical Trust Hospital, Ernakulam. Ext.A3 is the outpatient bill issued by the Lourdes Hospital, Ernakulam. Ext.A4 is the Pharmacy bill issued by the Lourdes Hospital. Ext.X1 is the treatment record of the respondent produced from Lourdes Hospital, Ernakulam. On the side of the respondent she herself has examined as DW-1. She was examined in chief in this court while her further evidence was recorded by an Advocate Commissioner. 7. Very elaborate submissions were addressed before me by the learned counsel appearing for the parties, viz., Sri.D.Anilkumar, the learned counsel for the petitioner and Sri.George Varghese Kizhakkambalam the learned counsel for the respondent. Sri.Anilkumar would submit that there is no proper denial in the counter affidavit submitted by the respondent regarding the petitioner's allegations in the context of the abnormal behaviour of the respondent, the details of which are in O.P.No.492/2001 12 paragraphs 3, 4, 5, 7, 11 and 14 of the original petition. The learned counsel submitted that in paragraphs 18, 19 and 20 of the original petition it is specifically pleaded that the respondent was suffering from mental disorder by name MDP. The answer to that plea is that the petitioner must be put to strict proof. Such a pleading will not amount to denial. The provisions of the Code of Civil Procedure are applicable to these proceedings under Section 45 of the Indian Divorce Act. The counsel relied on the judgment of this court in 1972 KLT 744 to argue that in the absence of specific denial of the averments in the writ petition should be deemed to have been admitted. The answer of the respondent to the petitioner's case that the respondent is having mental ailment which was suppressed so as to obtain the petitioner's consent for the marriage is that the fact that the petitioner was a Pulaya converted Christian was suppressed from the respondent and that once the respondent came to know about this, the petitioner came to have inferiority feelings and therefore attributed mental ailments to the respondent without any basis. The above defence of the respondent according to the learned Counsel has fallen to the ground on the basis of the evidence which are come on record O.P.No.492/2001 13 in the case. PW2 Dr.Shalini Kurup has given evidence to the effect that she had not told the petitioner that the respondent was suffering from MDP prior to the marriage and to that extent PW2's evidence does not support the petitioner's claim in the Original Petition. The learned counsel points out that PW2 also stated that only if the patient or her relations tell the details of prior incidents will there be possibility of the Doctor to know about them. But what is stated in Ext.X1 and by PW2 in her evidence is that the respondent sustained a fall from two weeks prior to the marriage and thereafter showed abnormal behaviour. It is stated that there was no head injury. The respondent also during her cross examination stated about the fall but what was stated was that there was contusion The counsel submitted that it was significant to note that such a case did not have any foundation in pleadings. By no stretch of imagination can it be said in that because of mere fall of a person will come to have a mental disease called MDP. The counsel would highlight various circumstances emerging from the pleadings and the evidence and submit that the respondent is a person who has no respect for truth. The circumstances brought out in evidence and the O.P.No.492/2001 14 pleadings raised by the parties according to the learned counsel will lead to the conclusion that the respondent shall actually be suffering from mental diseases prior to the marriage. If that be so, fraud alleged by the petitioner in the matter of obtaining his consent to the marriage stands established. Absolute proof is not be insisted upon any matters like this and the learned counsel relied on various decisions in support of the above propositions. The judgments of the Supreme Court in Dr.N.G.Dastane v. Mrs. S.Dastane (AIR 1975 SC 1534), A.Jayachandra v. Aneel Kaur (JT. 2004(10) SC 235), Earnist John White v. Mrs. Kathleen Olive White (Nee Meade) and others (AIR 1958 SC 441), Durga Prasanna Tripathy v. Arundhati Tripathy (JT 2005(7) SC 596), judgment of the Madras High Court in Subbarama Reddiar v. Saraswathi Amma, (AIR 1967 Madras 85) Pasumpon Gandhi v. Shirely Gandhi (2003 (3) KLT Short Note 76 page 56) and the judgment of this Court in R v. P (1967 KLT 695) were among the decisions cited at the Bar by Sri.Anilkumar. Sri. Anilkumar would also submit on the authority of this court's judgment in Mariamma v. Kurien (1982 (1) ILR (Kerala Series) 445 that if this court finds that the marriage is O.P.No.492/2001 15 liable to be declared null and void on the ground of fraud in obtaining consent, then there is no necessity for passing a decree nisi. Absolute decree can be passed in the first instance itself. Counsel concluded his submissions by pointing out that the marriage relationship lasted for only less than two months. Proceedings under Section 498 A were initiated at the instance of the respondent against the petitioner and members of his family. These proceedings have ended in acquittal. Marital relationship has broken down irretrievably. The counsel also relied on the judgment of this court in Rosamma Mathew v. Sunny Thomas ( 2000 (2) KLT short notes Case No. 92), which was a case wherein the Division Bench held that nondisclosure of the fact that the father and the brother of the husband were having mental disease will amount to play of fraud on the wife for obtaining wife's consent for the marriage. 8. Sri. George Varghese learned counsel for the respondent would make very sincere endeavour to meet the submissions of Sri.Anil Kumar. According to the learned counsel there was absolutely no evidence in this case regarding the mental illness for the respondent prior to her marriage. The O.P.No.492/2001 16 allegations in that context have been denied by the respondent through her counter affidavit. The claim of the petitioner that it was revealed to him by Dr.Shalini Kurup that the respondent was suffering from mental illness even prior to the marriage stands. Repudiated by the testimonies of PW2. Doctor has clearly stated that she has not stated to the husband of the patient that she was suffering from mental disorder even prior to the marriage. Counsel would also highlight the Doctor's statement as PW2 that the respondent is capable of leading normal married life. Counsel would then highlight the contradictions between the petitioner's version in his proof affidavit regarding the loss of anklet by the respondent and his own oral evidence in cross examination. The counsel submitted that going by the proof affidavit the petitioner came to know about the loss of anklets when the respondent returning from the house. While going by evidence he came to know about that when he was in the house of the respondent and that too through the respondents' mother. The learned counsel would highlight similar contradictions between the petitioner's version in his proof affidavit and evidence in cross examination as to what happened on 13-11-2000 when the respondent's brother O.P.No.492/2001 17 came to the petitioner's house. Going by the cross examination the very coming of the brother was after the respondent left the house along with her father in which case there is no occasion for the respondent to speak in vulgar language in the house. The learned counsel also submitted on the basis of apparent contradiction between the averments in the proof affidavit and the evidence that the petitioner's case that he enquired about the past of the respondent was not trustworthy. Then counsel would further submit that even if it is found by this court that respondent was suffering from mental disorder prior to the marriage decree for divorce cannot be granted unless it is established by the petitioner that the respondent was aware of her illness and she deliberately suppressed it from the petitioner. There is no pleadings in this case to the effect that the respondents are aware of her mental illness cannot be blamed for having suppressed for that fact from anybody. Sri.George Varghese also did not lag behind in citing judicial authorities in support of his submissions. Fraud is much more serious than mere concealment of facts. The counsel would submit on the authority of the judgment of this court in George Sebastian v. O.P.No.492/2001 18 Molly Joseph ( 1994(2)KLT 387) and Benny Mathew v. Philomina (2001(1)KLT 597). On account of rearrangement of mind will not fall under the defence lunacy. The learned counsel would submit on the authority of the judgment of this court in Raju Skariya v. Sheela ( 1999 (2) KLT 810) this court should be concerned only about the mental stage of the petitioner at the time of marriage and should be totally known about the respondent's mental stage at the time of filing of this petition or at the time of trial. The counsel would refer in this context the judgment of this court in Lissy v. Jaison ( 2000 (1) KLT 589) and highlights the petitioner's testimony that at the time of marriage no abnormalities were noticed in the behaviour of the respondent. The counsel also refers to the judgment of this court in Princy v. Dominic ( 2005(4) KLT 306(SC) to fortify his submissions that mere mental disorders will not constitute grounds for declaration of nullity. The counsel also relied on the judgment of this court in Jacob v. Usha ( 1984 KLT Short Note Case No. 69) to submit the plea that consent for the marriage was obtained by fraud is not a ground available for the petitioner in a petition under Section 19 of the Act. Even though the O.P.No.492/2001 19 parents of the respondent were aware of the mental and intellectual deficiency of their daughter it may well be that they had a hope that her condition will improve after some time especially after marriage. It cannot be said that they owed a duty to tell the prospective bridegroom that the girl proposed for marriage to him is deficient in mental and intellectual capacity. 9. Prayer in the Original Petition is that the marriage between the petitioner and the respondent be declared null and void on the ground that at the time of the marriage the respondent was a lunatic, she having been suffering from serious mental disorder by name Maniac Depressive Psychosis (MDP) and that the above fact was suppressed from the petitioner and that the consent of the petitioner to the marriage was obtained by fraud. It has to be noticed that the pleadings raised by the respondents do not contain specific denial as envisaged under Order 8 Rule 10 of the Code of Civil Procedure. Various instances of abnormality of the respondent which are detailed by the petitioner in paragraphs 3, 4, 5, 7, 11 and 14 that the defence statements lacks in specific denial certainly has force when it comes to the petitioner's averment regarding the happenings on O.P.No.492/2001 20 the police ground at Kalamassery. The specific defence of the respondent seen raised through the counter is that the petitioner is a Pulaya converted to Christianity and that the above fact was not disclosed to