0 >^ "0,'C? sB a1 a HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT APPLICANT F.A.No. 179/2004 Mithilesh Shrivastava Versus RESPONDENT NON-APPLICANT Smt. Kiran Shrivastava Judginent Post for pronounceruent ofjudgment S^i -9-2011 Sd/- N.K. Agrawal Judge •:f» "^a n HIGH COURT OF CHHATTISGARH AT BILASPUR ,^:j|: ia|Sts5!> APPELLANT APPUCANT F.A. No. 179/2004 Mithilesh Shrivastava. Versus RESPONDENT Smt. Kiran Shrivastava NON-APPLICANT FIRST CIVIL APPEAL UNDER SECTION 28 OF THE HINDU MARRIAGE ACT 1955 READ WITH SECTION 96 OF THE CODE OF CIVIL PROCEDURE 1908 SB:- HON. SHRI N.K. AGARWAL, J. PRESENT:- Shri Anil Khare with Ms. Namrata Keshanvani, counsel for the appellant. Shri Pramod Kumar Verma, Senior Counsel with Shri Raghavendra Verma, counsel for the respondent. JUDGMENT (Delivered on2^> -09-2011) 1. This appeal, in a matrimonial case, is by the husband and is directed against the judgment and decree dated 22.09.2004 passed by 3rd Additional District Judge, Bilaspur in Civil Suit No.l4-A/2004 whereby the petition for dissolution of marriage filed under Section 5 (i) (b) read with Section 12, Section 13 (1) (iii) and Section 13 (ia) ofthe Hindu Marriage Act, 1955 (for short 'the Act') by the appellant/husband has been dismissed. 2. Facts of the case in brief are as under :- (i) The marriage between the appellant Mithilesh Shrivastava and the respondent Smt. Kiran Shrivastava was solemnized on 16.04.1998, as per Hindu Rites and Customs. No child was born from the wedlock. The .marriage, according to the appellarit, lasted upto 11.01.2000. IB'F (ii) According to the appellant, inimediately after marriage, the appellant noticed sorae abnormal behaviour of the respondent. He earlier informed Smt. Indu Verma, who was a mediator in the marriage, on telephone and then to the parents of the respondent and afterwards remained requesting the members of the in-laws family to sit together and discuss regarding abnormal behaviour and mental illness of the respondent but in vein. Ultimately, he consulted Dr. Prakash Narayan Shukla (P.W.2), a renowned Psychiatrist at Raipur, who advised to examine the patient with the previous prescriptions to facilitate the treatment. Neither the sittings were made by the in-laws nor the prescriptions were made available. Ultimately, Dr. Prakash Narayan Shukla (P.W.2) examined the respondent and diagnosed her case to be 'Paranoid Schizophrenia'. According to the appellant, the respondent was suffering from the above mental disorder at the time of marriage and the above fact has been concealed from him. As per Doctors advice, the child born out of above wedlock may suffer mental disorder, which the appellant does not want. (iii) When this fact was revealed, members of the in-laws family took respondent and did not hand over the prescriptions. The respondent, thereafter, lodged dowry harassment case against the appellant, as a result of which, the appellant had to suffer mental agony and financial crunch. (iv) The defendant/respondent denied all the allegations levelled against her. She specifically denied that she is suffering from 'Paranoid Schizophrenia' or any type of ^,.^. -;^ •*^f' raental disorder. According to the respondent, she did M.Sc. in Botany and was working as a Teacher in Maharshi Vidya Mandir. According to her, sister of the appellant is an origin of all disputes. The appellant, his mother and sister instigated her to bring raore raoney from her maternal home. Despite of niarriage with the appellant, she had to spend several years in her maternal home. Due to demand of dowry, the report was lodged by her. (v) She never took any medicine nor was under treatment of any Doctor. With an ulterior motive, the appellant had obtained a certificate from Dr. Prakash Narayan Shukla, who never examined her nor she was under his treatment. The above story was cooked up in order to procure decree of divorce, by hook or crook and the petition being devoid ofmerit is liable to be dismissed. 3. The trial Court framed the following issues: cIT? ^fVf [i}- vn. a\-i\^K*\ fi?^T ft<n? ^ ii'iRf<i> ^hT ^ 7r;RT aft. f^RT d»T f&41<<>'< qWr ^7? snt^q; %'< Rqis ^W^ WWIT? [2}- <FE[T. ai-ii^R*! ft^uT a.nttpl? <^ WST t^Rn^^) cfr'<d1 t? {3}- ^H. 31^1^*1 RI^OT ^CT S^ (T^ cTa.n. ^CT ^RT ^ ^ii-)Ri<t> ^t7T ^ ^i-iRi* f^Rr 'A 4tfe(T t. fia^ 4id'W'h4 3TT^Era> ^T ^SV^ WST ^SV VW '•fS t ? [4}- cprr? snt^? fi'iR,r^?T apT-ft qfisT 3l-1l^f^4><! ^ WST ^';?I1T{4?) iflclgK q^cff t, f&re^ qiRUT ^ IlRr ^ sic-fir ^s^ri Tre ^s t? [5}- T^ cipT? 4. The appellant examined himself and Dr. Prakash Narayan Shukla (A.W.2). The respondent, however, got only her statement recorded but her cross-examination could not '5S' be concluded as she did not appear in the witness box to complete his deposition. 5. The trial Court, vide judgment and decree impugned, dismissed the divorce petition filed by the appellant/husband inter alia on the ground; appellant failed to prove respondent is suffering from T'aranoid Schizophrenia' prior to marriage or subsequent thereto and also failed to prove, he was subjected to niental cruelty by the respondent. 6. Shri Anil Khare with Ms. Namrata Keshwarwani, leamed counsel appearing for the appellant would subruit: evidence of Dr. Prakash Narayan Shukla (A.W.2) clearly illustrates that the respondent was a case of 'Paranoid Schizophrenia'; the respondent before her cross-examination could be concluded, deliberately did not appear in the witness box to complete his deposition and in the absence of any evidence led by the respondent, the appellant s evidence had to be relied upon; the appellant was denied the matrimonial bliss of physical relation by the respondent because of her incompetence which itself constitutes cruelty for a married man; filing of false case of dowry harassment against the appellant itself constitutes cruelty; and the appellant and respondent are living separately for a sufficient length of time, marriage has broken down irretrievably, there is no chance of their living together, therefore, the appellant is also entitled for grant of decree of divorce on the ground of irretrievable breakdown of marriage. Learned counsel for the appellant cited the following decisions: 1. Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558 2. A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22 3. Vinita Saxena v. PankaJ Pandit, (2006) 3 SCC 778 4. Dev Dds Darsena v. Smt. Qirija Darsena, 2010 (2) C.G.L.J. 142 -"/ {^ 7. On the other hand, Shri Pramod Verma, learned Senior Advocate for the respondent, after referring to the ground of divorce and the findings recorded by the trial Court, submitted that the appellant utterly failed to prove, respondent is suffering from mental disorder of such a kind or to such an extent, as to be unfit for marriage and procreation of children or has been subjected recurrent attacks of insanity. 8. It was further contended fhat in order to raake out a ground for divorce under Section 13(l)(iii) of the Act, it is not sufficient to establish that the respondent is suffering from continuously or intermittently from mental disorder but it must further be established that it is of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent. In other words, the burden is not discharged by merely establishing that the respondent is suffering from mental disorder i.e. Schizophrenia but the appellant must further lead evidence to establish that the mental disorder is of such a kind and to such an extent that the appellant cannot reasonably be expected to live wifh the respondent. 9. According to Mr. Pramod Verma, leamed Senior Advocate, there is no evidence to prove respondent is suffering from Paranoid Schizophrenia and is taking medicines for it or was, at any point of time, under treatment for above mental disorder. The certiBcate issued by Dr. Prakash Narayan Shukla, after half an hour friendly sitting with the respondent has been rightly disbelieved by the trial Court. "•--? 10. Institution of criminal proceedings by the respondent would not by itself constitute cruelty. The criminal case is still pending consideration. 11. Even in the absence of any evidence on the part of respondent, the heayy burden lies upon the appellant to prove his case, in which, he utterly failed. The trial Court, on a due and proper appreciation of facts and material of the case, has dismissed the petition and the appeal deserves to be dismissed. 12. I have heard learned counsel for the parties and perused the record of the trial Court including judgment and decree impugned. 13. The relevant statutory provisions of Sections 5, 12 (1) (b) (c), 13(ia) and 13 (1) (iii) ofthe Act for adjudication ofthis case are outlined as follows: "5. Conditions for a Hindu inarriage.—A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:— (i) neither party has a spouse living at the time of marriage; (ii) at the time ofmarriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness ofmind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or ^K~~s% yy^ ~% r?f ^-fSS v\ ;; ^-fy^ :| '^f./ -^,'sl^ <.-^'^ (c) has been subject to recurrent attacks of insanity. (iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marnage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them. perraits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a inarriage between the two; "12. Voidable marriages.—(1)Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:— (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5: or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the comniencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance conceming the respondent; or" \ 13. Divorce.—(1)Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (iii) has been incurably of unsound raind, 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 fhe respondent. Explanation .—Inthis clause,— (a) the expression "mental disorder" meeins mental illness, arrested or incomplete development of raind, psychopafhic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression "psychopathic disorder means a persistent disorder or disability of mind (whether or not including 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 ta-eat; or" » K. ^••,) 14. Clause (ii) (b) of Section 5 of the Act provides for one of the conditions for a valid Hindu marriage that neither party must be suffering fron-i unsoundness of mind, mental disorder or insanity. In terms of Section 12 (a) (b) of the Act, a marriage may be annulled if the other party was suffering from mental disorder or insanity at the time of marriage. Section 13 (1) (iii) of the Act provides that a party to the marriage may present a petition for dissolution of marriage by a decree of divorce inter alia 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 that the petitioner cannot reasonably be expected to live with the respondent. It is beyond any cavil that a raarriage in conta-avention of the aforesaid provisions of fhe Act is per se not void but is inerely voidable. 15. A sound mind, indisputably, is a key to a happy married life. A party to the marriage must, thus, have normal and sound mind so as to live a happy marital life. A disorder of thought, behaviour and mind leading to unsoundness of raind may give rise to the cause of action for filing an application under Section 13 (1) (iii) ofthe Act. The burden ofproofofthe existence of requisite degrees of mental disorder is on the spouse making the claim on that state of fact. 16. A decree for divorce in terms of Section 13 (1) (iii) of the Act can be granted in the event of unsoundness of mind is held to be incurable. A party may behave strangely or oddly, inappropriate, and progressive, in deterioration, in the level of work, raay lead to a conclusion that he or she suffers from an illness of slow growing developing over the years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. 10 ^-. 17. A few strong instances indicating a short temper and somewhat erratic behaviour on the part of the spouse raay not amount to his/her suffering continuously or intermittently from mental disorder, as held by the Supreme Court in the case of Sharda v. Dhannpal, (2003) 4 SCC 493. 18. The Supreme Court, in the case of Ram. Narain Gupta v. Smt. Rameshwari Gupta, (1988) 4 SCC 247, while dealing with a case of similar mental disorder, i.e. Schizophrenia, has observed in paragraphs 24,25,26,27,28 and 29 as under: 24. But the illnesses that are called raental' are kept distinguishedfrom those that ail the 'body' in a fundamental way. In Philosophy and Medicine", Vol. 5 at page-X, the learned Editor refers to what distinguishes the two qualitatively: "Undoubtedly, mental illness is so disvalued because it strikes at the very roots of our personhood. It visits us with uncontrollable fears, obsessions, compulsions, and anxieties .." " .... This is captured in part by the language we use in describing the mentally ill. One is an hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic-depressive. On the other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox ...." (emphasis supplied) 25. 'Schizophrenia', it is true, is said to be difficult mental-affliction. It is said to be insidious in its onset and has hereditary pre-disposing factor. It is characterized by the shallowness of emotions and is marked by a detachraent from reality. In paranoid-states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by halluci- nations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. In its worst mani- festation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions. .^s»s~ '^> 11 26. "Schizophrenia" is described thus: "A severe mental disorder (or group of disorders) characterized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becoraes socially withdrawn and loses energy and initiative. The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid, characterized by prominent delusion; and catatonic, with marked motor disturbances (See catatonia). Schizophrenia commonly—butnot inevitably—runs a progressive course. The prognosis has been iraproved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong genetic factors in the causation, and environniental stress can precipitate illness." (See Concise Medical Dictionary at page 566: Oxford Medical Publications, 1980) 27. But the point to note and emphasise is that the personality-disintegration that characterises this illness may be of varying degrees. Not all schizophrenics are characterised by the same intensity of the disease. F.C.Redlich 8s Daniel X. Freedman in "The Theory and Practice of Psychiatay" ( 1966 Edn.) say: "............... Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient; others may not interfere too seriously with many aspects ofeveryday living ......." (p.252) "Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission. The 12 term. need not imply an independent endogenous process; it is just as likely that the spontaneous remission is a response to nondeliberate but none-the-less favourable psychosocial stimuli other than speciGc therapeutic activity . ......" (p. 465) (Emphasis Supplied). 28. The reasoning oftheHigh Court is that the requisite degree of the mental disorder which alone wouldjustify dissolution of the marriage has not been established. This, it seems to us, to be not an unreasonable assessment of the situation—strongarguments of Shri Goel to the contrary notwithstanding. 29. The High Court referred to and relied upon the decision of the Calcutta High Court in Smt. Rita Roy v. Sitesh Chandra, AIR 1982 (Cal.) 138. In; that case the Division Bench of the Calcutta High Court observed: " ...each case of schizophrenia has to be considered on its own merits ......" ".........According to the aforesaid clause (iii), two elements are necessary to get a decree. The party concerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder. At the same time that disease must be of such a kind and of such an extent that fhe other party cannot reasonably be expected to live with her. So only one element of that clause is insufficient to grant a decree." 19. The Supreme Court, in the case of A. Jayachandra v. Aneel Kaur (supra) while interpreting the expression "cruelty" has held in paragraphs 10 to 12 as under: "10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the nonns of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental 13 •7 c y cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If frora the conduct of the spouse saine is established and/or an inference can be legitimately drawn that the treatraent of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate huinan relationship like matrimony, one has to see the probabilities ofthe case. The concept, proofbeyond the shadow of doubt, is to be applied to criminal trials and not to civil raatters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or oniissions of the other. Cruelty may be physical or corporeal or may be raental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe in to the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. 11. The expression "cruelty" has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiiy must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or .^SSa'-^ASSs- -^ /'^s. sr .<4®: >i %»,-^s^ 14 illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. (See Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105. 12. To constitute cruelty, the conduct coniplained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, takin? into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of ainounts to cruelty in the mata-iinonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and niental conditions, customs and ta-aditions. It is difficult to lay down a precise deBnition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable raental agony and torture raay well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by usin^ filthy and abusive language leading to constant disturbance ofmental peace ofthe other party." 20. The Supreme Court, in the case of Vinita Scixena v. PankaJ Pandit (supra), has held in paragraph 29 as under: "29. In our view, the trial court failed to appreciate the uncontroverted evidence of the appellant who had proved the case on every count. It has been established beyond doubt by the medical doctors who had deposed as witnesses and brought the original medical record of the respondent that the respondent is 15 1^' suffering frora mental disorder. Further ground for grant of divorce on the plea of mental insanity/raental disorder is different than cruelty. The appellant, in our view, had proved beyond doubt that the respondent suffered from mental disorder and that the appellant suffered cruelty by