FAO No. M-123 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. M-123 of 2006 Date of decision: 06.08.2009 Dimple @ Kajal ....Appellant Versus Pankaj Mahajan ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. M.L. Sarin, Sr. Advocate, with Ms. Seema Jagpal, Advocate, for the appellant. Mr. Rajiv Atma Ram, Sr. Advocate, with Ms. Deepika, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This appeal, by the appellant-wife, is directed against the judgment and decree dated 29.4.2006 passed by the learned Additional District Judge (Ad-hoc)-cum-Presiding Officer, Fast Track Court, Ropar, vide which the petition filed by the respondent-husband for dissolution of marriage was ordered to be decreed. The respondent-husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage, on the FAO No. M-123 of 2006 -2- pleadings, that the marriage between the parties was solemnised on 2.10.2000 at Amritsar. After the marriage, the parties cohabited and resided together as husband and wife at Amritsar in the parents' house of the respondent, but later on shifted to a rented house in Tilak Nagar Shivala road Amritsar. A female child was born at Amritsar on 11.7.2001. The child is in the custody of the appellant-wife. The case set up by the respondent-husband was, that after the marriage he found that the appellant-wife was acting in very abnormal manner, as she used to abruptly get very aggressive, hostile and suspicious in nature and would hit anybody available in any company. In the fit of anger, she used to declare that she would bring an end to her life by committing suicide, and involve the respondent-husband and his family members in a criminal case, unless she was provided a separate residence. It was on account of the pressure that the respondent-husband took on rent a house, and started living with the appellant-wife in the house of Sh. Madan Lal @ Rs. 3,200 (Rupees three thousand two hundred only) per month, w.e.f. 28.11.2001. The case set up was, that even after separate residence was taken, the behaviour of the appellant- wife became more aggressive, and she repeated threats of suicide even in the rented house. On enquiry, it was revealed that the appellant-wife was suffering from acute mental depression coupled with schizophrenia. She became more and more violent and aggressive. On one occasion, she repeated the threat of suicide and attempted jumping from the house of her in-laws on 19/20.9.2001, but because of timely intervention of the respondent-husband she was saved. Respondent-husband came to know that even before her marriage, she was suffering from mental disorder, FAO No. M-123 of 2006 -3- and was getting treatment from various places. She had even brought a box containing medicines, required by a person of mental disorder. The respondent, however, hoped that the treatment may cure the appellant- wife. She was treated by the respondent-husband and her parents from various places for her mental illness. The treatment provided to her, included electric shock. The treatment did not improve her state of health. The appellant-wife was also treated as indoor and outdoor patient in Shri Guru Teg Bahadur Hospital at Amritsar, and Bhatia Neuro Psychiatric Hospital, but the treatment did not yield any fruit. She could not be cured of her mental illness. It was further pleaded, that under the fit of insanity, the appellant-wife pushed the respondent-husband from the staircase, leading to their residential portion, causing the respondent, fracture of right hand. She was also said to have slapped the respondent in the presence of her parents. The appellant-wife was also said to be not looking after their daughter properly. She ultimately, was taken away by her father on 17.4.2002, and thereafter did not return back to her matrimonial home. On the pleadings, referred to above, it was claimed that respondent-husband was treated with mental as well as physical cruelty by repeated threats of suicide. She even threatened to kill the respondent-husband. She was further said to be disrespectful to the respondent and his parents. It was the case of the respondent-husband, that even though he was the only son of his parents, he had to live separately due to the act and conduct of the appellant-wife. The state of her mental health was even brought to the notice of her parents, by way FAO No. M-123 of 2006 -4- of registered letters, but the father of the appellant-wife did not agree. The respondent-husband further claimed, that he was not accessory to, nor he connived and condoned the acts of the appellant-wife. The divorce was, thus, sought on the ground of cruelty and mental disorder of the appellant-wife. The petition was contested by the appellant-wife by filing written statement, wherein the factum of marriage and birth of female child was admitted. The other averments were denied. It was the case of the appellant-wife, that she never wanted separation from the respondent or his family, but it was forced by him and his family members. The appellant-wife alleged, that she was subjected to mental and physical torture by the respondent-husband and his parents. The stand was taken by the appellant-wife, that the respondent-husband used to give vaccination to her through different doctors, on the pretext of curing the weakness of the appellant. She was admitted to Guru Teg Bahadur Hospital, Amritsar, in December, 2001 without any information to her parents. Even prior to that, the respondent-husband and his parents were forcing her to get her medically examined, it was due to their pressure that the appellant was taken to Bhatia Neuro Psychiatric Hospital, Amritsar, where she was found fit and healthy. It was on account of birth of female child, that she did not command respect from the respondent-husband and his parents. They tortured her in one way or the other. The medical treatment before marriage was denied. It was claimed by the appellant-wife, that marriage was love-cum-arranged marriage at the instance of the respondent-husband, as he used to visit the residence of the appellant-wife and her parents. Her father was FAO No. M-123 of 2006 -5- Marketing Manager of LIC, where the respondent-husband was an employee. It was claimed, that she was mentally sound and never attempted to commit suicide nor made any threat in this regard. She further denied having treated the respondent-husband with cruelty. It was also pleaded case of the appellant-wife, that the respondent-husband and his parents gave her inhuman treatment, for not bringing diamond and heavy gold set for the mother of the respondent-husband. She was being compelled to bring Rs.1 crore (Rupees one crore only) from her parents. In view of the stand taken in the written statement, it was prayed that the petition be dismissed. In replication, the averments made in the written statement were denied and those made in the petition were re-asserted. From the pleadings of the parties, the learned Matrimonial Court framed the following issues: - “1. Whether the respondent has treated the petitioner with cruelty? OPA. 2. Whether the respondent is abnormal in her behaviour towards the petitioner and suffering from incurable disease as mentioned in the petition? OPP. 3. Relief.” In support of the case, the respondent-husband examined Dr. Paramjit Singh, Professor and Head Psychiatry Department, Medical College, Amritsar, as PW-1. Dr. Ravinder Mohan Sharma, Senior Medical Officer, Punjab Mental Hospital, Amritsar, as PW-2. Dr. Varinder Mohan, M.D. Psychiatry as PW-3. He appeared as his own FAO No. M-123 of 2006 -6- witness as PW-4 and examined Sh. Madan Lal as PW-5 and Jaspal Singh as PW-6. He also examined Dr. Gurpreet Inder Singh, Associate Professor and Incharge, Department of Psychiatry, Guru Ram Dass Medical Hospital, Amritsar, as PW-7, and proved Ex. P1 i.e. certificate qua the admission of the appellant in Government Medical College, Amritsar, discharge slip of Guru Teg Bahadur Hospital Ex. P2, case history of appellant P3, bed head tickets again marked as Ex. P3, receipts of hospital Ex. P4 to P8, the medical receipts of Institute of Mental Health, Amritsar, Ex. P9, medical history of hospital as Ex. P10, outdoor patient ticket Ex. P11 and P12, affidavit filed by the father of the appellant as Ex. PW6/B. Two letters were produced on record as Ex. PX and Ex. PY. The affidavit of the appellant was also proved on record as Ex. PZ. Copy of the rent note was placed on record as mark 'A', whereas medical record of the appellant was produced as Ex. PW3/A and PW3/B and thereafter the respondent/husband closed the evidence. The appellant on the other hand examined her father Prem Kumar as RW-1, and herself appeared in the witness box as RW-2. Surinderpal Singh was examined as RW-3, whereas Dr. Harjit Singh, Consultant Psychiatrist as RW-4. Ex. R-1 was also placed on record i.e. letter written by the respondent to SSP as also letters written to her parents Ex. R-2 and R-3, and thereafter she closed her evidence. The learned Matrimonial Court on issue No. 1 held, that the instances of cruelty, and threats to commit suicide were proved with specific time and place. The respondent had also stated that he was pushed from the staircase, whereby he received fracture, for which he was later on treated medically. The learned Matrimonial Court also held, FAO No. M-123 of 2006 -7- that it was proved on record, that the appellant had given threats to commit suicide, as this fact was supported by evidence by Sh. Madan Lal, landlord of the respondent-husband. It was Sthus held that the respondent-husband was treated with cruelty, specially when medical evidence was also led in support. Issue No. 1 was accordingly decided in favour of the respondent-husband. On issue No. 2, the learned Matrimonial Court held, that the respondent-husband had failed to plead the ingredients of Section13(1) (iii) of the Hindu Marriage Act, nor any evidence was led to prove the ingredients, and, decided issue No. 2 against the respondent-husband by holding that the medical evidence produced was not such to reach to a conclusion, that it was dangerous for the respondent to live with the appellant. In view of the finding recorded on issue No. 1, decree of divorce was passed in favour of the respondent-husband and against the appellant-wife. The respondent-husband was, however, directed to pay a sum of Rs.2 lac (Rupees two lac only) as permanent alimony to the appellant. He was further directed to deposit an amount of Rs.1 lac (Rupees one lac only) in the name of the minor daughter, in the shape of FDR. During the pendency of this appeal, repeated attempts were made for re-conciliation between the parties. In one of the hearings, this Court was pleased to record the following order: - “Maintenance amount paid by the husband has been received by the wife. The case was kept for negotiation. The wife is still very keenly waiting for her to go back but the husband is totally reluctant. His attitude, to say the least, is not reasonable. He has no concern for the FAO No. M-123 of 2006 -8- small child also. Adjourned to 21.5.2008 for arguments.” Mr. M.L. Sarin, learned senior counsel, appearing on behalf of the appellant, has challenged the finding of the learned Matrimonial Court on issue No. 1, on the plea that the finding recorded cannot be sustained. It is contended that there was no evidence to prove the allegation of cruelty. He referred to the cross-examination of the respondent-husband where he admitted, that he had accepted marriage, as he wanted his transfer from Gurdaspur to Amritsar. In the cross- examination, he further stated, that he had disclosed, about the abnormal behaviour of the appellant-wife to his neighbours i.e. Satpal and Satish. He further stated, that abnormal behaviour of the appellant-wife came to his notice about 1 ½ /2 months after the marriage, and disclosed to the father of the appellant. He, however, admitted, that he stayed with the appellant for one year and four months. He also admitted that he did not lodge any FIR/DDR with the police regarding attempt of suicide. He, however, said that complaint was made to SSP, Amritsar. Four months thereafter, petition for divorce was filed. He alleged that the appellant had mis-behaved with Sunil Kumar, Deepak, Mr. S.K. Sodhi and many more, but none was produced as witness. He denied the suggestion that the appellant was suffering from curable disease. The medical witness led by the respondent-husband would be discussed while dealing with issue No. 2. It was pointed out by the learned senior counsel, that the statement of PW-5 i.e. Madan Lal, on which reliance has been placed by the learned Matrimonial Court, cannot be accepted, as his statement was FAO No. M-123 of 2006 -9- based on hearsay, and he had no personal knowledge about the conduct of the appellant as alleged. In the cross-examination PW-5 Madan Lal admitted as under: - “The respondent usually remained sitting in my house during the day time in the portion where I am residing with my family, unless and until her husband come. Pankaj Mahajan when went to attend his duty then in his absence the respondent usually remained sitting with my daughter and daughter-in-law in my house. The respondent used to remain talking with my daughter and daughter-in-law. The respondent also quarrel with my wife and daughter due to the use of telephone. The child of the parties also used to play in my house. Voltd. the respondent put in dyper on her child which caused un-easiness to the child, then my daughter-in-law changed the dyper of the child. The respondent did not commit attempt in my presence to suicide. Voltd. my daughter and daughter-in-law told me that the respondent was giving threat to commit suicide. The petitioner used to return to the house at 1 p.m. 2 p.m. The petitioner used to take respondent to the market for taking meal as they were not preparing meal in the house and some time she took the respondent at 8 p.m. and returned at 10 p.m. Other witness PW-6 was mainly produced to prove the affidavit PW-6/A. However, he in cross-examination admitted that the affidavit was not attested in his presence. He also admitted, that he did not share work with, person attesting. It is pertinent to mention here, that the affidavit was denied by the appellant. It is also pertinent to mention here, that PW-5 nowhere FAO No. M-123 of 2006 -10- stated about the fracture said to have been caused to the respondent- husband due to pushing, by appellant. The contention of the learned senior counsel for the appellant, therefore, was that the finding recorded by the learned Matrimonial Court deserved to be set aside. It may be pertinent to mention here, that no medical evidence in support of her treatment was placed on record. Mr. Rajiv Atma Ram, learned senior counsel, appearing on behalf of the respondent-husband, however, contended that the respondent-husband had given the specific instances regarding threat to commit suicide and implicate the family members. It was contended, that PW-5 had supported his version. Therefore, the finding recorded by the learned Matrimonial Court deserved to be upheld. In support of the case, the learned senior counsel contended, that under provisions of Order 41 Rule 22 of the Code of Civil Procedure, the respondent-husband is also entitled to challenge the finding on issue No. 2, as it was wrongly decided against him. The contention of the learned senior counsel for the respondent further was, that the medical evidence led, coupled with the fact of the threats of suicide and the abnormal behaviour of the appellant-wife, proved cruelty. It was the contention that there can be no other conclusion, but to hold that the respondent-husband was treated with cruelty, and it was not safe for him to live with the appellant. In support of the contention, the learned senior counsel placed reliance on the judgment of this Court in Gurdip Kaur Vs. Balbir Singh, 1990(2) HLR 109, wherein this Court held, that when wife consistently FAO No. M-123 of 2006 -11- gives threats to commit suicide, to entangle her husband and his relations, it amounted to creation of circumstances, where it become impossible for the husband to live with her, without endangering his health and life and the act of the wife constitutes cruelty. The learned senior counsel for the respondent placed reliance on the judgment of this Court in Asha Rani Vs. Raj Kumar, 1994(2) HLR 114 to contend, that evidence led on record shows that the appellant is mentally sick. Therefore, it is impossible for the respondent- husband to live with his wife, which besides being a case of unsoundness of mind, also amounts to cruelty. The contention of the learned senior counsel for the respondent was, that in order to succeed, the intention of the wife to cause cruelty is immaterial. It is only the act, which is required to be seen. In support of contention, the learned senior counsel placed reliance on the judgment of the Hon'ble Bombay High Court in Smt. Nirmala Manohar Jagesha Vs. Manohar Shivram Jagesha, AIR 1991 Bombay 259(1). It was also contended that in order to prove the mental disorder, the party is required to prove, that a reasonable man cannot live with the other spouse, because of mental sickness, which the evidence led positively proved. The finding on issue No. 1, therefore, deserved to be upheld. On consideration, I find force in the contentions raised by the learned senior counsel appearing on behalf of the appellant. In order to succeed, it was for the respondent-husband to have proved the allegations. In the present case, except for his own statement regarding threats of suicide and abnormal behaviour, no other independent FAO No. M-123 of 2006 -12- evidence was led. The evidence of PW-5 was merely hearsay, as he deposed qua threats on basis of information from his daughter and daughter-in-law, but they were not produced in witness box for the reasons best known to the respondent. Once the evidence of PW-5 is left out of consideration, then except for the bald statement of the respondent-husband, there is no other evidence to prove that the appellant-wife had given threats of suicide. It is rather admitted, that they had normal cohabitation, and a child was also born out of the wedlock. The allegations of the appellant, are not that, the disease developed later, but according to the evidence led, she was in the same state of mind even prior to marriage. The birth of child, and the fact that the wife is looking after her child, who is five years old now, leaves no manner of doubt, that the respondent miserably failed to prove his allegation, qua mental cruelty. The finding on issue No. 1 is reversed, and is decided against the respondent-husband. Learned senior counsel for the respondent, thereafter contended that the finding of the learned Matrimonial Court on issue No. 2, on the face of it is perverse. The learned Matrimonial Court has ignored the medical evidence, by recording that the ingredients of Section 13(1)(iii) were not impleaded. The contention of the learned senior counsel for the respondent was, that the finding is outcome of mis-reading of pleading. He referred to para 4 of the petition, which reads as under: “That the petitioner shortly after his marriage found the respondent to be acting in a very abnormal FAO No. M-123 of 2006 -13- manner. She would abruptly get very aggressive, hostile and suspicious in nature to hit anybody available in her company and her suspicion would go to such an extent that she should not like to take food without some other member of the family consuming the same. The respondent would also in fit of anger declare that she will bring an end of her life by committing suicide, would have the petitioner and all the family members involved in a false criminal case unless she was provided with separate place of residence. Succumbing to her pressure tactics, the petitioner took on rent alongwith the respondent the first floor of Kothi No. 62 in Tilak Nagar, Shivala Bhaiyan, Amritsar from Shri Madan Lal son of Shri Hira Lal on an exhorbitant rent of Rs.3200/- per month with effect from 28.11.2001 on the terms enshrined in rent note dated 1.12.2001 but the things did not cool down therewith but instead thereof the respondent started pressing her demand and repeaing her behaviour in more aggressive manner and repeated threats of suicide even at the said rented house. Enquiries made in the meantime revealed that the respondent has been suffering from acute mental depression coupled with Schizophrenia, a mental dis- order and illness at intervals with Psychopathic di- order since developed into mania, which prompted her to become more and more violent and aggressive and on one such occasion she repeated threat of suicide and attempted jumping from house of her in- laws on 19/20.9.2001 but could not succeed in her attempt due to timely intervention of her husband, who is the petitioner and after having calmed down later on confessed having threatened and attempted commission of suicide. Enquiries made in the back FAO No. M-123 of 2006 -14- ground of all these events transpired that even before her marriage, the respondent was suffering from mental dis-order and was getting treatment in respect thereof from various places and had even brought with her a box containing all the medicines required to be consumed by a person of mental dis-order stealthly at the time of her marriage. All the same, hoping that treatment may cure the respondent, she was got treated by the petitioner and her parents from various places in connection with her mental illness but such treatment provided to her including administering her electric shocks, did not improve the state of affairs. She was so treated as indoor and out- door patient in Siri Guru Teg Bahadur Hospital, Amritsar in Psychiatric Department, in Dr. Vidya Sagar Institute of Mental Health and in Bhatia Neuro Psychiatric Hospital till the end of the year 2001 but all the intensive and costly treatment did not yield fruit and she could not be cured of her mental sickness. The respondent is, therefore, suffering from major mental dis-order in which she has suicidal tendency and becomes aggressive and violent in her behaviour for which she was getting treatment, as referred above, before as well as after the marriage. She has been given anti-psydeatic treatment and even electric therapy at four occasions atleast to the knowledge of the petitioner but the things did not improve therewith. The respondent has, therefore, been suffering incurably from unsoundness of mind and has been so suffering continuously or intermittently from mental dis-order of such a kind and such an extent that the petitioner cannot reasonably be expected to live with the respondent.” Learned senior counsel for the respondent, thereafter referred FAO No. M-123 of 2006 -15- to the medical evidence to contend, that the appellant-wife has been incurably of unsound mind, and has been suffering intermittently from mental disorder, of such a kind, and to such an extent that the respondent-husband cannot reasonably be expected to live with her. PW-1 Dr. Paramjit Singh in his statement proved the treatment of the appellant, and termed the disease to be bipolar affective disorder. He further stated that he had treated the appellant by giving electric shocks. It was stated by him, that the disease was treatable but not curable. In the cross-examination, he stated that the appellant was discharged from the hospital, but at that time she was not perfectly treated. However, he admitted that during the treatment, he did not notice any abnormal behaviour of the appellant. PW-2 Dr. Ravinder Mohan Sharma, stated that the appellant was brought for treatment by Nirmal Kirpal mother, and the respondent. He also diagnosed the case to be bipolar affective disorder. He also stated, that there was a mention of suicide idea and threats, and that she had attempted suicide once, but this statement