HONOURABLE SRI JUSTICE B.PRAKASH RAO AND HONOURABLE SRI JUSTICE G.V.SEETHAPATHY FAMILY COURT APPEAL Nos.99 and 101 of 2005 COMMON JUDGMENT: (per the Hon’ble Sri Justice G.V.Seethapathy) F.C.A.No.99 of 2005 is directed against the order dated 13/06/2005 in F.C.O.P.No.49 of 2004 on the file of the Family Court, Secunderabad, wherein the said application filed by the appellant/husband under Section 11 and 13 (1) (ia) of Hindu Marriage Act, 1955 (for brevity ‘the Act’) for declaring the marriage as null and void or in the alternative for dissolving the marriage by a decree of divorce, was dismissed. F.C.A.No.101 of 2005 is directed against the order dated 13/06/2005 in F.C.O.P.No.144 of 2004 on the file of the Family Court, Secunderabad, wherein the said application filed by the respondent herein, the wife, under Section 9 of the Act for restitution of conjugal rights was allowed. Heard the argument of the learned counsel for the appellant and the learned counsel for the respondent in both the matters. As the parties to both the matters are one and the same and the issues involved are interlinked, both the matters are heard together and are being disposed of by this common judgment. The appellant in F.C.A.No.99 of 2005, the husband, seeks declaration that the marriage between himself and the respondent is null and void and in the alternative for dissolution of the same by decree of divorce on the grounds that even by the date of marriage, which took place on 23/05/1993, the wife was suffering from mental disorder and also undergoing treatment for the same but the said fact was suppressed and fraud was played on him and the marriage was performed. He further pleads that the wife continued the acts of mental disorder and attempted to commit suicide on more than one occasion and also started running around and abusing people and indulging in similar such acts of a mentally challenged person. The wife denies that she was suffering from any mental disorder at any time or that any fraud was played in performing the marriage with the appellant. She would further contend that subsequent to the marriage, she passed intermediate and also Hindi Pandit and Vidvan examination and she worked as a teacher and that she was sent out of the house for no valid or justifiable reason. She has therefore filed F.C.O.P.No.144 of 2004 for restitution of conjugal rights. During the enquiry, P.Ws.1 and 2 were examined and Exs.A-1 to A-14 were marked on behalf of the husband and R.W.1 was examined and Exs.B-1 to B-9 were marked on behalf of the wife in O.P.No.49 of 2004, petition filed for divorce. In O.P.No.144 of 2004 filed by the wife for restitution of conjugal rights, P.W.1 was examined and Exs.A-1 to A-11 were marked on behalf of the wife and R.Ws.1 and 2 were examined and no documents were marked on behalf of the husband. On a consideration of the evidence available on record, the learned Judge, Family Court, Secunderabad, held that the husband failed to establish the ground that the wife was suffering from any mental disorder and no evidence was adduced by the husband to prove the same. Accordingly, the petition filed by the husband for declaring the marriage as a nullity or alternatively for dissolution of the marriage by grant of divorce was dismissed. Consequently, the other petition filed by the wife for restitution of conjugal rights was allowed on the ground that there was no valid or justifiable reason for the husband to deny the wife the conjugal society. Aggrieved by the same, the husband filed the present appeals. Learned counsel for the husband would vehemently contend that the appellant/husband has filed certain documents including the medical reports issued by the mind clinic where the wife had undergone treatment for the mental disorder and they are marked as Exs.A-3, A-4 and A-14, but the trial Court has failed to consider the impact of the said documents and erroneously concluded that the wife was not suffering from any mental disorder by merely observing her at the time of her appearance before the Court during the trial. She would further contend that the various acts of cruelty alleged by the husband on the part of the wife have not been considered by the trial Court and no specific finding is also recorded as to whether the said acts which are duly established by evidence amount to cruelty or not. As seen from the impugned order and also the material available on record, the respondent/wife was examined at mind clinic on 27/02/1993 which was even prior to the date of the marriage, and subsequent to the marriage also she underwent treatment at the said mind clinic on several dates as borne out by Exs.A-3 and A-4. The learned Judge, Family Court, has not discussed as to the impact of the entries made in the said medical reports Exs.A-3 and A-4 and the bearing they have over the rival contentions of the parties regarding the alleged mental disorder suffered by the wife. The medical experts concerned, who have examined the wife at the mind clinic and made the notings in Exs.A-3 and A-4 and the prescriptions or the medical advices are also not examined before the trial Court. Section 13 (1) (iii) of the Act contemplates grant of divorce among other things on the ground that 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 extent that the petitioner cannot reasonably be expected to live with the respondent. The explanation to the above provision defines the expressions ‘mental disorder’ and ‘psychopathic disorder’. Before recording the finding as to whether or not the wife is suffering from such incurable unsoundness of mind or such mental disorder as contemplated under Section 13 (1) (iii) of the Act so as to afford the ground for divorce or not the matter has to be considered based on necessary medical evidence adduced in that regard by either of the parties in support of their respective contentions. In the present case, except filing the documents Exs.A-3, A-4 and A-14, the medical experts concerned, who furnished or issued the said documents, have not been examined to prove the contents thereof and also to speak as to the nature and extent of the mental disorder, if any, suffered by the wife. It is, therefore, considered hazardous to record any finding conclusively as to the mental state and condition of the wife, vis-à- vis the alleged mental illness in the absence of any such medical evidence either proving or disproving the same. Further, the impugned order does not also show that the other ground of cruelty alleged by the husband has been duly considered by the trial Court and no specific finding is also recorded as to whether the alleged acts of cruelty would afford any valid ground for grant of relief of dissolution of marriage. In the circumstances, it is conceded that as the impugned order does not deal with all the aspects of the matter in its completeness and comprehensiveness and also to enable the parties to have an opportunity of adducing necessary medical evidence in support of their respective contentions, it is considered just and necessary to remit the matter to the trial Court. The learned Judge, Family Court, shall afford an opportunity to both sides to adduce such further evidence including medical evidence as they may choose to let in, in support of their respective contentions and record specific findings on all issues and dispose of the petition afresh in accordance with law, within a period of four months from the date of receipt of a copy of this order. In the result, both the appeals are allowed. The impugned order dated 13/06/2005 in F.C.O.P.No.49 of 2004 is set aside and the matter is remitted to the learned Judge, Family Court, Secunderabad, for fresh disposal according to law without being influenced by the observations made hereinabove. Consequently, the impugned order dated 13/06/2005 in F.C.O.P.No.144 of 2004 is also set aside and the matter is also remitted back to the Family Court, Secunderabad, for fresh disposal according to law and on merits clubbing the same with F.C.O.P.No.49 of 2004. No order as to costs. _________________ B.PRAKASH RAO, J ___________________ G.V.SEETHAPATHY, J 21st January, 2010 SKM