Saturday, November 21, 2015

divorce on ground of mental cruelty and schizophrenia.

Explanation - In this clause, -
(a) the expression "mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic 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 treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
Explanation - In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (I-A) Either party to a marriage, whether solemnized before or after the commencement of this Act may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
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Supreme Court of India
Vinita Saxena vs Pankaj Pandit on 21 March, 2006
Bench: Ruma Pal, Dr. Ar. Lakshmanan
           CASE NO.:
Appeal (civil)  1687 of 2006

PETITIONER:
Vinita Saxena                      

RESPONDENT:
Pankaj Pandit          

DATE OF JUDGMENT: 21/03/2006

BENCH:
Ruma Pal & Dr. AR. Lakshmanan

JUDGMENT:
J U D G M E N T (Arising out of S.L.P.(C) No.26418 of 2004) Dr. AR. Lakshmanan, J.
Leave granted.
The above appeal was filed by the appellant, wife of the respondent herein, against the judgment and final order dated 10.9.2004 passed by the High Court of Delhi in F.A.O. No. 235 of 2002 whereby the Civil Writ Petition filed by the appellant was dismissed.
The short facts are as follows:
The marriage between the appellant-Vinita Saxena and the respondent-Pankaj Pandit was soleminzed on 7.2.1993 as per Hindu rites and customs. No child was born out of wedlock. The marriage, according to the appellant, lasted for five months and was never consummated on account of the fact that the respondent was incapable of performing his matrimonial obligations. According to the appellant, from the first day of the marriage, the respondent's mother treated the appellant with utmost cruelty both mental and physical and that the reason for cruelty was the respondent's mental disorder. The respondent's case is a case of Paranoid Schizophrenia and the appellant discovered only after the marriage that the respondent was under constant treatment and observations of different doctors even prior to the marriage for the said ailment. Though the appellant knew the respondent prior to her marriage, in fact, it is only after the marriage, the appellant realised and discovered the mental disorder of the respondent. The appellant was never told by the respondent nor his parents that he was suffering from such serious mental disorder and that he was under the treatment and used to take strong medicines before the marriage. According to Dr. C.R. Samanta, who was a consultant psychiatrist at Aashlok Hospital, the respondent was a case of Schizophrenia and depression. On 4.7.1993, the appellant tried to discuss regarding the problems she was facing with the respondent and her mother- in-law, who objected strongly and accused the appellant of defaming the respondent. At her instance, the appellant was beaten mercilessly by the respondent, which made him nervous to the extent that he consumed "Baygon Spray" to commit suicide. The appellant and her brother immediately took the respondent to the hospital in order to save the respondent's life. Again, Dr. C.R. Samantha prescribed certain medicines i.e. (1) Triperidol (2) Pacitane (3) Prodep to the respondent. The respondent was hospitalised for four days at Aashlok Hospital, Safdarjung Enclave and was discharged after giving proper treatment on 7.7.1993. According to the appellant, Triperidol is given in case of acute and chronic psychoses anxiety disorders, mania, Schizophrenia as per the medical advise. The situation further became worse on 8.7.1993 and 9.7.1993. Again on the instigation of the respondent's mother, the respondent slapped and abused the appellant mercilessly and she was not even allowed to have food that day and the next day morning i.e. on 9.7.1993. On 9.7.1993, the appellant was pushed and kicked out of the matrimonial home by her mother-in-law and the respondent and thereafter, the appellant was not permitted to return again.
The appellant filed H.M.A. Petition on 30.6.1994 against the respondent for dissolution of marriage under Section 13(1)(1-a) and (iii) of the Hindu Marriage Act,1955 hereinafter referred to as "the Act" on the grounds of mental and physical cruelty and insanity before the Court of District Judge at Delhi. The trial Court vide its order dated 15.5.1993, relying on the facts and averments made by the parties as well as taking the medical documents placed on record observed that a letter of request should be written to the Medical Superintendent, L.N.J.P. Hospital to constitute a panel of doctors to examine the respondent and to report about his mental state. However, this order was subsequently set aside by the High Court in a Revision Petition filed by the respondent. After the marriage had broken down the appellant pursued further studies and completed M.S. (Structural Engineering) from IIT Delhi and in 1996, left for her Ph.D. programme to U.S.A. Father of the appellant, J.S. Saxena, deposed as PW-II and the appellant as PW-I and Dr. D.S. Arora, Medical Superintendent, Aashlok Hospital and Dr Kuldeep Kumar of Safdarjung Hospital recorded their statement as PW-III and PW-IV respectively supporting the case of the appellant. The respondent, however, got only his statement recorded and before his cross-examination could be concluded, deliberately did not appear in the witness box to complete his deposition. The trial Court, vide order dated 19.3.2001, dismissed the petition filed by the appellant under Section 13(1)(1-a) and (iii) of the Act for the grant of decree of divorce. Being aggrieved by the said order, the appellant filed an appeal before the High Court. The High Court vide order dated 10.9.2004 dismissed the appeal filed by the appellant holding that the respondent is not suffering from Schizophrenia and that there is insufficient material on record to establish the cause of cruelty and further held that the incidents of cruelty is not so grave which come within the scope of concept of cruelty. The High Court also held that the testimonies of the doctors examined by the appellant to prove that the respondent was suffering from Schizophrenia cannot be looked into for the reason that the respondent was not under the treatment of the above doctors. Aggrieved by the said order, the appellant filed this appeal by way of special leave petition before this Court. The respondent filed a counter affidavit. It is stated in the counter affidavit that the special leave petition is devoid of any merit inasmuch as the Courts below have given findings of fact in favour of the respondent and the Courts below have rejected the pleas of the appellant on the ground that she has not made out any case for grant of divorce. It was submitted that the appellant even before the marriage was having intimacy with the respondent from 1986 to 1993 and she did not find any abnormality in the behaviour of the respondent. It was also submitted that the appellant has not made out any case seeking divorce on the ground of causing cruelty to her inasmuch as she has failed to prove any instance leading to causing such cruelty to her by the respondent. It was submitted that the respondent is willing to take the appellant and keep her happy to the fullest and it is the desire of the respondent that the marriage should not break on the ground that she is building up her career in America for the past 12 years. Since concurrent findings of fact is in favour of the respondent, the appellant ought not to be stated that the respondent and his mother were involved in causing cruelty to her and that the Courts below have also disbelieved the version of the appellant that the cruelty was caused by the respondent due to his mental disorder. It was further contended that the appellant did not lead any evidence to prove as a matter of fact that the respondent was suffering from Schizophrenia and that the appellant has filed the petition deliberately and wilfully and with a view to harass the respondent and his mother. It was also contended that the mere branding of spouse as Schizophrenic is not sufficient and that the degree of mental disorder of the spouse must be proved to be such that the appellant spouse cannot be reasonably be expected to live with the other. It was also submitted that from the evidence and pleadings, it has clearly been stated that the appellant was having sex with the respondent without any problem and there is no truth in the allegation made by the appellant. The other allegations mentioned in the Divorce Petition have not been proved at all and that the appeal filed by the appellant deserves to be rejected. We heard Ms. Kamini Jaiswal, learned counsel appearing for the appellant-wife and Mr. Dhruv Mehta, learned counsel appearing for the respondent-husband. We have perused the pleadings, annexures filed along with the appeal and the orders passed by the courts below and the grounds of appeal. Learned counsel for the appellant while reiterating the averments made in the appeal submitted the following grounds for granting divorce as prayed for by the appellant-wife :
1) Non-consummation of the marriage itself would constitute mental cruelty to a married woman.
2) The respondent attempted to commit suicide also amounts to mental cruelty and harassment.
3) The appellant has lived only for five months after the marriage and she was mercilessly beaten by the respondent and his mother.
4) There was absolutely nothing to show that the documents and prescription given by the doctors have been concocted. They are the official records of the Hospital.
5) The medical prescriptions and the evidence of doctors clearly illustrate that the respondent was under the treatment of Dr. Samantha and was a case of Paranoid Schizophrenia.
6) The respondent, before his cross examination could be concluded, deliberately did not appear in the witness box to complete his deposition and his evidence had to be closed.
7) The appellant was denied the matrimonial bliss of physical relation by the respondent because of his incompetency which itself constitute cruelty for a married woman.
8) The threat to commit suicide by the respondent amounts to cruelty and the Courts below took cognizance of the fact that the respondent consumed "Baygon spray".
9) Because Dr. Samantha was not alive, the medical record authored by him can only be proved by secondary evidence though Dr. D.S. Arora, medical Superintendent who certified on oath that the respondent was admitted in Aashlok Hospital and stated that he had brought the records in respect of Pankaj Pandit. He also identified the signatures of Dr. Samantha and the medical prescriptions of his having treated the respondent have also been produced and proved by him where it had been categorically stated that the respondent is suffering from Paranoid Schizophrenia.
10) Likewise on the ground of non-availability of Dr. Abhyankar, who had authored the medical prescription as he was no more in service of the hospital cannot be fatal to disregard the evidence of the other doctor, who produced and proved the entire record.
11) The marriage between the appellant and the respondent hardly lasted for five months and both of them are living separately for the last 13 years. Learned counsel appearing for the appellant cited the following decisions:
1) Shrikant Anandrao Bhosale vs. State of Maharashtra, (2002) 7 SCC 748,
2) A. Jayachandra vs. Aneel Kaur, (2005) 2 SCC 22,
3) Smt. Uma Wanti vs. Arjan Dev , AIR 1995 P&H 312
4) Harbhajan Singh Monga vs. Amarjeet Kaur AIR 1986 MP 41
5) Mrs. Rita Nijhawan vs. Shri Balkishan Nijhawan, AIR 1973 Delhi
6) Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari, AIR 1970 SC
137.
7) Vijay Kumar Ramchandra Bhate vs. Neela vijaykumar Bhate, AIR 2003 SC 2462
8) B.N. Panduranga Shet vs. N. Vijaylaxmi, AIR 2003 Karnataka 357 Mr. Dhruv Mehta, learned counsel appearing for the respondent, per contra, after referring to the grounds of divorce and the findings recorded by the trial Court and the High Court which has affirmed the findings of the trial Court, submitted that in order to make out a ground for divorce under Section 13(1)(iii) of the Act, it is not necessary to establish that the respondent is suffering 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 be 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 which in the present case would include Schizophrenia by virtue of the Explanation to the said provision 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 with the respondent.
According to learned counsel for the respondent, the above contention finds support from a decision of this Court in Ram Narain Gupta vs. Smt. Rameshwari Gupta, 1988(4) SCC 247. For ready reference, the relevant paras from the said judgment are as under:
"20. The context in which the ideas of unsoundness of '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 that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised 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. xx xx xx
28. The reasoning of the High Court is that the requisite degree of the mental disorder which alone would justify dissolution of the marriage has not been established. This, it seems to us, to be not an unreasonable assessment of the situation - strong arguments of Shri Goel to the contrary notwithstanding.
xx xx xx
30. ..the burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.
33. This medical concern against too readily reducing a human being into a functional non entity and as a negative unit in family or society is law's concern also and is reflected, at least partially, in the requirements of Section 13(1)(iii). In the last analysis, the mere branding of a person as schizophrenic will not suffice. For purposes of Section 13(1)(iii) 'schizophrenia' is what schizophrenia does."
It was further submitted that the aforesaid judgment of this Court has been followed by the Karnataka High Court in the case of B.N. Panduranga Shet vs. N. Vijayalaxmi, (supra). Learned counsel also relied on the decision of the Calcutta High Court in the case of Rita Roy vs. Sitesh Chandra AIR 1982 Calcutta 138 and the decision of the Himachal Pradesh High Court reported in (1995) DMC 71 (DB). Learned counsel also cited the judgment of this Court in Rakesh K. Gupta vs. Ram Gopal Agarwala & Ors., AIR 2005 SC 2426 for the proposition that even in a custody dispute between the husband and wife wherein it was alleged by the husband that the wife is suffering from Paranoid Schizophrenia, this Court still awarded custody of the child to the mother.
According to the learned counsel, the evidence which has been brought on record by the appellant is wholly insufficient to infer that the respondent was suffering from the said mental disorder and the doctors who are alleged to have treated the respondent have not been examined as witnesses by the appellant and what has been brought on record are certain prescriptions made by the said doctors and the same are sought to be proved by examining the Medical Superintendent of Aashlok Hospital, Safdarjung Enclave. Therefore, he submitted that in view of the above fact, no inference can be drawn that the respondent was suffering from Paranoid Schizophrenia and that the appellant has not been discharged of the burden as required by the statutory provision. Learned counsel contended that the words used in sub-clause (iii) of Section 13(1) to the effect that "mental disorder of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent" must be given full effect as it is a well accepted principle of statutory interpretation that a Court must make every effort to give effect to all words in a statute since Parliament cannot be held to have been wasting its words or saying something in vain. Learned counsel, for this proposition, relied on the following two decisions of this Court:
(a) Shin Etsu Chemical Company Ltd. Vs. Aksh Optifibre Ltd., (2005) 7 SCC 234.
(b) Union of India vs. Popular Construction , (2001) 8 SCC 470 Concluding his submissions, learned counsel submitted that the appellant having failed to establish the aforementioned requirement of the statute, the appeal must fail on this ground.
In Re : Cruelty It was submitted that in order to make out a ground for divorce under Section 13(1)( i-a) of the Act, the conduct complained of should be grave and weighty so as to come to the conclusion that the appellant 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". For this proposition, he relied on the judgment of this Court in A. Jayachandra vs. Aneel Kaur (supra). Para 13 of the aforementioned judgment is as under:
"13. ..but before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it "
It was argued that the trial Court, after examining the evidence, has come to the conclusion that the acts complained of are not such as would constitute cruelty and in any event the ground for divorce under Section 13(1)(i-a) is not made out. It was submitted that the trial Court had occasioned to see the demeanour of witnesses and, therefore, the view taken by the trial Court unless it can be said to be perverse should not be faulted with. It was also contended that the approach in such cases should be to perverse the matrimonial home. The judgment in the case ofSavitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73 was relied on for this purpose. Answering the contention raised by the counsel for the appellant that the parties have not lived together for a long time and therefore, this is a fit case to pass a decree of divorce, learned counsel for the respondent, submitted that this is a wholly untenable argument and has to be rejected by this Court. For this, he relied on the ruling of this Court in the case of A. Jayachandra vs. Aneel Kaur (supra). Concluding his arguments, learned counsel appearing for the respondent submitted that both the trial Court and the High Court have recorded concurrent findings and have rejected the prayer of the appellant to grant decree of divorce under Section 13(1)(i-a) and (iii) of the Act and, therefore, this Court under Article 136 of the Constitution of India cannot interfere with the said findings unless it is established that the findings recorded by the trial Court and the High Court are perverse. Arguing further, he submitted that the findings of the trial Court are based on the consideration of the entire evidence and well reasoned and in similar circumstances, this Court refused to interfere with the concurrent findings of fact arrived at by the Courts in Savitri Pandey vs. Prem Chandra Pandey (supra).
We have given our thoughtful and anxious consideration for the rival submissions made by the respective counsel appearing on either side. The appellant filed a petition for divorce underSection 13(1)(i-a) and (iii) of the Act on the ground of mental and physical cruelty. It is also her case that on account of Paranoid Schizophrenia that the respondent was suffering from, the appellant could not be reasonably expected to live with the respondent. Section 13 (1)(i-a) and (iii) are reproduced hereunder:
"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-
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or * * * * *
(iii) 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.
Explanation - In this clause, -
(a) the expression "mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic 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 treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
Explanation - In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (I-A) Either party to a marriage, whether solemnized before or after the commencement of this Act may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground -
(i) in the case of any marriage solemnized before the commencement of this act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) , or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation - This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.
It is not in dispute that the marriage has lasted hardly for five months and was never consummated on account of the fact that the respondent was incapable of performing his matrimonial obligations. The appellant has examined herself as PW-1. She has specifically stated in her deposition that the marriage was not consummated at all. It has further come out in her deposition that she accompanied the respondent at AIIMS and met Prof. Dr. Prema Bali, Sexologist and Marriage Counsellor. In her deposition, it had also come out that the Doctor informed her that the respondent cannot perform the marital obligations. She was also informed by the said Doctor that the respondent was a Psychopathic case and he has no power of concentration. She was also informed that the disease is of incurable in nature. The appellant has further deposed that respondent kept on sleeping for three days immediately after solemnization of marriage and the appellant was told that she should not disturb him. It was further stated in her evidence that on 4.7.1993, the appellant was blamed for the respondent's illness and was mercilessly beaten up and on the same day the respondent consumed "Baygon Spray" to commit suicide and he was taken to Aashlok Hospital, Safdarjung Enclave by the appellant and her brother. In her cross-examination, the appellant has stated that though they were studying together in the Engineering College, however, there were no special meetings between them except meeting in the class. It has also come on record that there was no intimacy between the appellant and the respondent. The appellant has emphatically denied the allegation about the intimacy between the appellant and the respondent prior to marriage w.e.f. 1987. She also stated on oath that it was a marriage though of her choice but solemnized only after her parents had given the consent. In the cross- examination, the respondent has not been able to shake or destroy the case of the appellant.
In support of her case, PW-2, J.S. Saxena father of the appellant, was examined. He supported the appellant's case and corroborated her evidence. Even in the cross-examination of PW-2, there is no material change or inconsistency. With regard to the grant of cruelty, there is deposition of the appellant and her father on record which clearly establishes and proves that the appellant was treated with cruelty by the respondent and his mother. With regard to the plea of mental insanity i.e. Section 13(1)(iii), the appellant adduced the evidence of Dr. D.S. Arora, Medical Superintendent, Aashlok Hospital as well as Dr. Kuldeep Kumar of Safdarjung Hospital. Dr. D.S. Arora, a summoned witness produced the entire record pertaining to the respondent. He exhibited the case of the respondent maintained by Dr. C.R. Samantha. Dr. D.S. Arora identified the signatures of Dr. C.R. Samantha and proved Ex. PW-3/1. The original record of respondent was produced in the Court. Dr. D.S. Arora also proved the prescriptions Ex. PW-3/2 and Ex. PW-3/3. Ex. PW-3/5 was the prescription written by Dr. D.S. Arora and it was bearing his signatures. The entire medical history and record of the respondent pertaining to his medical illness, his visit and admission to Aashlok Hospital on 4.7.1993 and discharge on 7.7.1993 as well as the case history of the respondent maintained by Dr.C.R. Samantha were duly proved and exhibited. According to the medical record, the respondent was admitted with reference to a case of Psychopathic and depression for the last fortnight, now admitted for disturbed consciousness. He was suggested to take Triperidol medicine. The other prescription has been authored by Dr. D.S. Arora who stated that the respondent had consumed "Baygon Spray". It was also specified that the respondent is a known case of depression. Medicine 'Triperidol' was suggested to be administered to him. With regard to the consumption of "Baygon Spray", a stomach wash was carried out upon the respondent and he was administered injections 'Atropine', and 'Dextrose-1/V and PAM 1 to 1/V. The evidence of Dr. D.S. Arora and the record signed by Dr. C.R. Samantha are admissible in evidence and has been legally proved. The evidence of Dr. Kuldeep Kumar of Safdarjung Hospital also establishes the case of mental insanity and the fact that the respondent was a case of Paranoid Schizophrenia. The said Doctor produced the original record and made necessary deposition. He had brought the originals during his examination and it is recorded that the respondent had visited the Psychiatric Ward on 12.12.1992 along with his mother. Dr. Abhyankar also recorded about the history of respondent's illness. It was also recorded by the said Doctor that the respondent suffers from delusion of persecution and reference effect and on the physical examination it had been observed that the respondent has clear systematized delusion of persecution and reference and, therefore on the review it is clear that the respondent is suffering from Paranoid Schizophrenia. The medical record of the respondent maintained by the Safdarjung hospital (Outdoor Patient Department) has been established that the respondent visited Hospital on 21.12.1992 and was advised for psychological testing. It was observed in a medical sheet that the respondent was initially diagnosed for psychosis. However, on subsequent visits and after detailed examination it has been confirmed that he suffers from Paranoid Schizophrenia. The appellant has also produced on record a communication dated 9.5.1994 addressed by Professor Dr. Prema Bali, who was working in the Institute of Sexology and Marriage Counselling. Dr. Prema Bali is the relative of respondent and she has communicated to the appellant that the respondent has a psychiatric problem as his case is a case of Paranoid Schizophrenia.
It would be pertinent to observe that there is no evidence whatsoever adduced by the respondent or on his behalf. In fact, after recording of the examination-in-chief and part cross-examination, the respondent refused to come in the witness box and ran away. The observation has been made by the trial Court in the proceedings. A RESEARCH ON THE DISEASE "Schizophernia is one of the most damaging of all mental disorders. It causes its victims to lose touch with reality. They often begin to hear, see or feel things that aren't really there (hallucinations) or become convinced of things that simply aren't true (delusions). In the paranoid form of this disorder, they develop delusions of persecution or personal grandeur. The first signs of paranoid schizophrenia usually surface between the ages of 15 and 34. There is no cure, but the disorder can be controlled with medications. Severe attacks may require hospitalization.
The appellant has filed Annexures L,M,N,O,P and Q which are extracts about the aforesaid disease. The extracts are sum and substance of the disease and on a careful reading it would be well established that the evidence and documents on record clearly make out a case in favour of appellant and hence appellant was entitled to the relief prayed. In the memorandum and grounds of Appeal, some salient features of the disease have also been specified. Some of the relevant part of the extracts from various medical publications are reproduced herein below:
What is the disease and what one should know?
* A psychotic lacks insight, has the whole of his personality distorted by illness, and constructs a false environment out of his subjective experiences.
* It is customary to define 'delusion' more or less in the following way. A delusion is a false unshakeable belief, which is out of keeping with the patient's social and cultural background.' German psychiatrists tend to stress the morbid origin of the delusion, and quite rightly so. A delusion is the product of internal morbid processes and this is what makes it unamenable to external influences. * Apophanuous experiences which occur in acute schizophrenia and form the basis of delusions of persecution, but these delusions are also the result of auditory hallucinations, bodily hallucinations and experiences of passivity. Delusions of persecution can take many forms. In delusions of reference, the patient feels that people are talking about him, slandering him or spying on him. It may be difficult to be certain if the patient has delusions of self-reference or if he has self-reference hallucinosis. Ideas of delusions or reference are not confined to schizophrenia, but can occur in depressive illness and psychogenic reactions.
Causes The causes of schizophrenia are still under debate. A chemical imbalance in the brain seems to play a role, but the reason for the imbalance remains unclear. One is a bit more likely to become schizophrenic if he has a family member with the illness. Stress does not cause schizophrenia, but can make the symptoms worse. Risks Without medication and therapy, most paranoid schizophrenics are unable to function in the real world. If they fall victim to severe hallucinations and delusions, they can be a danger to themselves and those around them.
What is schizophrenia?
Schizophrenia is a chronic, disabling mental illness characterized by:
* Psychotic symptoms * Disordered thinking * Emotional blunting How does schizophrenia develop?
Schizophrenia generally develops in late adolescence or early adulthood, most often:
* In the late teens or early twenties in men * In the twenties to early thirties in women What are the symptoms of schizophrenia?
Although schizophrenia is chronic, symptoms may improve at times (periods of remission) and worsen at other times (acute episodes, or period of relapse).
Initial symptoms appear gradually and can include:
* Feeling tense * Difficulty concentrating * Difficulty sleeping * Social withdrawal What are psychotic symptoms?
Psychotic symptoms include:
* Hallucinations: hearing voices or seeing things * Delusions : bizarre beliefs with no basis in reality (for example, delusions of persecution or delusions of grandeur) These symptoms occur during acute or psychotic phases of the illness, but may improve during periods of remission. A patient may experience * A single psychotic episode during the course of the illness * Multiple psychotic episodes over a lifetime * Continuous psychotic episodes During a psychotic episode, the patient is not completely out of touch with reality. Nevertheless, he/she has difficulty distinguishing distorted perceptions of reality (hallucinations, delusions) from reality, contributing to feelings of fear, anxiety, and confusion. The disorder can prove dangerous for some - especially when symptoms of paranoia combine with the delusional symptoms of schizophrenia. In fact, doctors say paranoid schizophrenics are notorious for discontinuing the treatments which help control their symptoms.
The Indian Drug Review has specified the Drug Trifluoperidol as a sedative and tranquilizer. With regard to administration it has been suggested that it is given to patient suffering from Schizophrenia. Incidentally this drug was being administered on medical advice to the respondent."
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 suffering from mental disorder. Further ground for grant of divorce on the plea of mental insanity/mental 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 and at the behest of the respondent.
Learned single Judge of the High Court failed to appreciate that in the absence of any evidence led by the respondent, the appellant's evidence had to be relied upon and on the basis of the evidence, the decree for divorce was bound to be granted in favour of the appellant. The appellant had also given specific instances of cruelty which clearly establish that she had a reasonable apprehension that it will be harmful or injurious for her to live with the respondent.
LEGAL PROPOSITION ON THE ASPECT OF CRUELTY It is settled by catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the Section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
The word 'cruelty' has not been defined and it 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. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the 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.
The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance. Judged by standard of modern civilization in the background of the cultural heritage and traditions of our society, a young and well educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony. This view was taken by the Kerala High Court in the case reported in AIR 1991 Kerala 1.
In 1993 (2) Hindu L.R. 637, the Court had gone to the further extent of observing as follows:
"Sometime even a gesture, the angry look, a sugar coated joke, an ironic overlook may be more cruel than actual beating"
Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.
The legal concept of cruelty which is not defined by statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all question of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complains accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and abhorrence for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant's side, ought this appellant to be called on to endure the conduct? From the respondent's side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.
As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.
The modern view of cruelty of one spouse to another in the eye of law has been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of England Vol.12, 3rd edition page 270:-
"The general rule in all kinds of cruelty that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations of taunts. Before coming to a conclusion, the judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from the point of view. In determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status."
This Court in Dastane vs. Dastane AIR 1975 SC 1575 observed as under:-
"The Court has to deal not with an ideal husband and an ideal wife, (assuming any such exist) but with the particular man and women before it. The ideal couple or a mere ideal one will probably have no occasion to go to a matrimonial court or, even if they may not be able to drawn their differences, their ideal attitudes may help them overlook or gloss over mutual fault and failures.
Marriage without sex The Division Bench in the case of Rita Nijhawan vs. Balkrishan Nijhawan in AIR 1973 Delhi 200 at 209 observed as follows:
"Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman's mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifres woman's brain, develops her character and trebles her vitality. It must be recognized that nothing is more fatal to marriage than disappointment in sexual intercourse."Section 13(1)(iii) 'mental disorder' as a ground of divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible it may furnish a good ground for nullifying the marriage because to beget children from a Hindu wedlock is one of the principal aim of Hindu Marriage where sanskar of marriage is advised for progeny and offspring. This view was taken in AIR 1991 MP 205. This Court in Digvijay Singh vs. Pratap Kumari, AIR 1970 SC 137 has held as follows "A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings."
Lord Denning in Sheldon v. Sheldon (1966) 2 All ER 257, "The categories of cruelty are not disclosed. Each case may be different. We deal with the conduct of human being who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capability to tolerate the conduct complained of. Such is the wonderful realm of cruelty."
Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged.
We can also take note of the fact that the respondent had filed a revision against the order of the trial Court's direction for setting up of a medical Board to examine the respondent. At the time of hearing, this Court directed the counsel for the respondent to ascertain from the respondent as to whether he is willing to submit himself for medical examination. However, the respondent refused to submit himself for medical examination and go before the medical Board. This would but confirm the contention of the appellant that the respondent is suffering from Paranoid Schizophrenia and that this Court can draw adverse inference in view of the conduct of the respondent. In the case of Smt. Uma Rani vs. Arjan Devi (supra), it has been held that unsoundness of mind may be held to be cruelty.
In the case of Harbhajan Singh Monga vs. Amarjeet Kaur (Supra), it has been held that attempt to commit suicide by one spouse has been found to amount to cruelty to other.
The observation made by this Court in the case of Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121 can be reproduced to appreciate the facts and circumstances of the case on hand. It reads as follows:
"There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. The Judges and lawyers, therefore, should not import their own notions of life. Judges may not go in parallel with them. There may be a generation gap between the Judges and the parties. It would be better if the Judges keep aside their customs and manners. It would be also better if Judges less depend upon precedents."
Humane aspects which this Court should consider:
? The appellant was 24 years of age when she got married. ? The marriage lasted for four to five months only when she was compelled to leave the matrimonial home.
? The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation. ? The parties have been living separately since 1993. 13 years have passed they have never seen each other.
? Both the parties have crossed the point of no return. ? A workable solution is certainly not possible.
? Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream.
? Parties have been fighting the legal battle from the year 1994. ? The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wife's stay with the respondent is injurious to her health. ? The appellant has done her Ph.d. The respondent, according to the appellant, is not gainfully employed anywhere.
? As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial Court nor before the High Court.
The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.
In our view, the orders of the Courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a dead relationship for over 13 years. The resultant agony and injustice that has been caused to the appellant, it is a fit case for interference under Article 136 of the Constitution of India and reversal of findings of the Courts below which have resulted in grave miscarriage of justice. In the result, the civil appeal stands allowed. There will be a decree for divorce in favour of the appellant-wife and against the respondent-husband. The order of the trial Court as affirmed by the High Court, stands set aside. There will be no order as to costs.


divorce within one year of marriage under hindu marriage act.

 The points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date ofmarriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:
"14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorcebefore the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year."
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition fordivorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
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 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20/11/2012

CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA

C.R.P.(PD)(MD)No.2265 of 2012
and
C.R.P.(PD)(MD)No.2266 of 2012
and
M.P.(MD)No.1 of 2012
in
C.R.P.(PD)(MD)No.2265 of 2012

C.R.P.(PD)(MD)No.2265 of 2012:

G.Ganesh Babu   ... Petitioner/Petitioner/
       Respondent
Vs.
A.P.Arthi ... Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
!For Petitioner ... Mr.K.K.Ramakrishnan ^For Respondent ... Mr.J.Barathan * * * * * C.R.P.(PD)(MD)No.2266 of 2012:
G.Ganesh Babu ... Petitioner/Petitioner/ Respondent Vs.
A.P.Arthi ... Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
For Petitioner ... Mr.K.K.Ramakrishnan For Respondent ... Mr.J.Barathan * * * * * :COMMON ORDER C.R.P(PD)(MD)No.2265 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
2. C.R.P(PD)(MD)No.2266 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
3. Heard both sides.
4. The petitioner herein namely G.Ganesh Babu and the respondent herein namely A.P.Arthi, are referred to hereunder as husband and wife respectively.
5. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these Civil Revision Petitions, would run thus:
(i) The wife filed the H.M.O.P.No.82 of 2011, during the month of June' 2011, so to say, within a period of one year from the date of marriage, invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking the following reliefs:
"(a) granting a decree of divorce, dissolving the marriage solemnized between the Petitioner and Respondent on 18.11.2010;
(b) directing the Respondent to pay the costs of this Petition;" however, without filing an application to obtain the leave citing the exceptional circumstances.
(ii) The husband after entering appearance, filed the application in I.A.No.184 of 2011 for rejection of the H.M.O.P.No.82 of 2011 on the main ground that it was presented within one year from the date of marriage and that too, without any application to obtain leave citing exceptional circumstances. The counter affidavit was filed by the husband.
(iii) Whereupon I.A.No.26 of 2012 was filed by the wife seeking virtually ex post facto leave underSection 14(1) of the Hindu Marriage Act, 1955.
(iv) The lower Court heard both the applications and passed a common order allowing the application filed by the wife and dismissing the application filed by the husband.
6. Being aggrieved by and dissatisfied with the same, the husband preferred these two Civil Revision Petitions challenging and impugning the orders passed by the lower Court.
7. The nutshell facts absolutely necessary for the disposal of these two Civil Revision Petitions would run thus:
The petitioner and the respondent got married as per Hindu rites and customs on 18.11.2010 at Aruppukottai. Subsequently, the wife during June' 2011, so to say, within one year, filed the petition seeking divorce.
8. The learned Counsel for the husband would put forth and set forth his arguments, the warp and woof of the same, would run thus: Obtaining the leave of the Court is sine quo non for filing the H.M.O.P., for divorce within one year and it is mandatory and it cannot be simply ignored as directory. The object of Section 14 of the Hindu Marriage Act, 1955, was not taken into consideration by the lower Court. If this sort of practice is allowed, then the sanctity attached to the marriages, would be set at naught. Over and above that, the reasons found stated for obtaining the said ex post facto leave is frivolous and there is nothing exceptional in it. The dowry demand is the pith and marrow of the alleged exceptional circumstances found set out in the affidavit accompanying the petition filed by the wife. Accordingly, the learned Counsel for the husband citing various precedents, would pray for allowing the I.A.No.184 of 2011 and for dismissal of H.M.O.P.No.82 of 2011.
9. Whereas in a bid to mince meat and torpedo and pulverise the arguments as put forth on the side of the husband, the learned Counsel for the wife, would pyramid his arguments, the pith and marrow of them would run thus: The entire reading of Section 14 of the Hindu Marriage Act, 1955, would connote and denote, project and portray that the obtention of such leave was not mandatory. So far this case is concerned, it is not that wilfully the H.M.O.P.No.82 of 2011 was filed within one year without obtaining leave and unwittingly alone, the petition for divorce was filed without filing the application under Section 14 of the Hindu Marriage Act, 1955, narrating the exceptional circumstances. As such, the lower Court taking into consideration the pro et contra, thought that it would be a mere waste of time to reject the H.M.O.P., and thereby paving the way for the wife to file a fresh petition for divorce on the same grounds.
10. The learned Counsel for the wife also cited various decisions in support of his arguments.
11. The points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date of marriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
Point Nos.(i) and (ii)
12. At the outset itself, I would like to fumigate my mind with the decisions cited by both sides.
13. The learned Counsel for the husband placed reliance on the following decisions:
(i) Swamidoss Joseph v. Miss Edward reported in A.I.R. 1955 MADRAS 341.
(ii) Vinod v. Manju reported in AIR 1982 DELHI 592.
(iii) Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC).
(iv) Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
14. The learned Counsel for the wife relied on the following precedents:
(i) Rabindra Nath Mukherjee v. ITI Mukherjee alias Chatterjee reported in CDJ 1991 Cal HC 017.
(ii) Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435.
(iii) Manisha Jha (Smt). v. Kunal Kanti Jha reported in CDJ 1998 Cal HC
019.
(iv) Kailash v. Nanhku and others reported in (2005) 4 Supreme Court Cases
480.
(v) R.N.Jadi and Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(vi) Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140.
(vii) Gijoosh Gopi, Alappuzha v. S.Sruthi, Alappuzha reported in CDJ 2012 Ker HC 832.
15. A mere running of the eye over the aforesaid precedents would highlight and spotlight the fact that the Division Bench of the Calcutta High Court in Rabindra Nath Mukherjee v. ITI Mukherjeealias Chatterjee reported in CDJ 1991 Cal HC 017, held that seeking leave of the Court within one year to file the petition for divorce from the date of marriage, was only directory and not mandatory and the said decision was followed by the learned Single Judge of this Court inIndumathi v. Krishnamurthy reported in 1998 (III) MLJ 435. The aforesaid decision of this Court is also followed by the learned Single Judge of the Calcutta High Court in Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140. However, the Division Bench of the Karnataka High Court took a different view of the matter in Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
16. As such, the decision of the learned Single Judge of this Court following the decision of the Division Bench of the Calcutta High Court, is very much available before me. Normally, the decisions rendered by the learned Single Judge of this Court should be followed by another learned Single Judge of this Court and the judicial discipline warrants such a procedure.
17. However, the learned Counsel for the husband would place reliance on the decision of the Division Bench of the Karnataka High Court, which is against the decision of the learned Single Judge of this Court as well as the Division Bench of the Calcutta High Court Simply because, a subsequent Division Bench of Karnataka High Court is in variance with the decision of the learned Single Judge of this Court and the Division Bench of the Calcutta High Court, I am not bound to simply follow the said judgment of the Karnataka High Court. The learned Single Judge of this Court placed reliance on the decision of the Division Bench of Calcutta High Court. As such, two Division Benches of two different High Courts have two different views and the learned Single Judge of this Court followed the view of one of such decisions of the Division Benches and wherefore, I am justified in following the decision of the learned Single Judge of this Court and consequently, the decision of the Division Bench of the Calcutta High Court.
18. Over and above that, I would also like to independently furnish my own views in this matter.
19. My mind is redolent and reminiscent of the following legal maxims:
(i) "Verba generalia generaliter sunt intelligenda". [General words are to be understood generally.]
(ii) "Verba ita sunt intelligenda, ut res magis valeat quam pereat." [Words are to be so understood that the matter may have effect rather than fail.]
(iii) "Maledicta expositio quae corrumpit textum". [It is a cursed construction that corrupts the text.]
(iv) "Absoluta sententia non indiget expositore". [A simple proposition needs no expositor.]
20. I would also like to extract hereunder the relevant excerpt from the famous treatise "Maxwell on The Interpretation of Statutes [Twelfth Edition by P. St. J. Langan]":
Chapter 5 - Restrictive Construction:
"Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended."
One other excerpt from the same treatise would run thus: "Section 12 (3) of the Matrimonial Causes Act 1950 provided that if the spouse obtaining a decree nisi of divorce did not make an application for it to be made absolute six months after the trial, then the other spouse could make application within a further period of three months and, if the circumstances warranted, obtain a decree absolute. The Court of Appeal held that this did not oust the jurisdiction of the court to substitute a decree of judicial separation for a decree nisi: "had it been the intention of the legislature to revoke this jurisdiction, it would have been done in a clearer way than by inference from the subsection."
21. On a mere running of the eye over those legal maxims and the principles found enshrined in the aforesaid famous treatise, I am of the view that generally, the time limit prescribed in the procedural laws are directory and not mandatory and further that they are only by way of taking a cue that the time limit prescribed under Section 14 of the Hindu Marriage Act, 1955, will not cut at the jurisdiction of the Court. However, the learned Counsel for the husband placing reliance on the decision of the Honourable Apex Court in Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC), would submit that so far Marriage Laws are concerned, time stipulated cannot be taken as directory, but it should be taken as mandatory.
22. I would like to point out that in the aforesaid decision of the Honourable Apex Court relating to Section 13-B of the Hindu Marriage Act, 1955, what was found stressed is that the consent of both sides should be essential at both stages, viz., at the time of jointly presenting the petition and at the time of obtention of divorce after the prescribed period of six months. There could be no quarrel over such a proposition. However, Section 14 of the Hindu Marriage Act, 1955, is on a different footing.
23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:
"14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year."
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
25. At this juncture, I would like to recollect the following decisions:
(i) Kailash v. Nanhku reported in 2005 (3) CTC 355.
(ii) Rani Kusum v. Kanchan Devi reported in (2005) 6 Supreme Court Cases
705.
(iii) Salem Advocate Bar Association v. Union of India reported in (2005) 6 Supreme Court Cases 344.
(iv) R.N.Jadi & Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(v) Zolba v. Keshao and others reported in (2008) 11 Supreme Court Cases
769.
26. The pith and marrow, the gist and kernel of the aforesaid precedents is that whenever any condition is stipulated in law in negative language, then that itself is not sufficient to hold that the law contemplated the said provision as mandatory, but the consequences of such non-adhering to the time limit also should be found spelt out in the statutory provision. Under Order VIII Rule 1 of the Code of Civil Procedure, even though in negative language, the provisions are found spelt out, the consequences were not found spelt out. Hence, the Honourable Apex Court consistently held that such time stipulated cannot be taken as mandatory, so much so also, here under Section 14 of the Hindu Marriage Act, 1955, the legislators in their wisdom thought not to impose any consequences of such non-adherence to the time limit.
27. On the other hand, as correctly held by the learned Single Judge of this Court earlier, in the decision cited supra, even a person who got leave by misrepresentation was given the benefit of divorce, but that would take effect after one year from the date of marriage. Hence, I am of the considered view that the decision of the learned Single Judge of this Court in Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435 with great respect is the binding precedent on the point concerned.
28. The learned Counsel for the husband also referred to the Halsbury's Laws of England - Fourth Edition - by Lord Mackay of Clashfern - Volume 29(3) - 2001.
29. I am of the view that when the earlier decision of this Court is clear and unambiguous on the point, I need not dilate further on that issue.
30. On factual basis, the learned Counsel for the husband would try to canvass his case by pointing out that so far the exceptional circumstances mandated in the affidavit of the wife, are not really exceptional circumstances, but they are only relating to alleged dowry harassment and cruelty. Whereas the learned Counsel for the wife would submit that the allegations found spelt out in the affidavit accompanying the application filed by the wife seeking ex post facto leave were of such a nature that they were so horrible for the wife who is a Doctor by profession.
31. The wife in her affidavit accompanying the application in I.A.No.26 of 2012, set out thus:
"4. I submit that even before the solemnization of marriage, the respondent and his family members demanded 120 sovereign of golden jewels, Rs.8,00,000/- cash and stridhan articles worth about Rs.2,00,000/- from my parents. My parents were put under severe strain and mental agony as they had to arrange the above dowry before the solemnization of marriage. Only after receiving the cash amount of Rs.8,00,000/- on hand one day prior to the marriage, the respondent has agreed to perform the marriage.
5. I submit that after marriage, the conjugal home was set up at Arupukkotai in the house of respondent. At the time of living at Arupukkottai, the respondent has demanded a further dowry of Rs.60,00,000/- from me by saying that his father has borrowed huge amounts from outer sources as a loan to get higher education for him and hence, he has to settle those amounts by getting dowry amount from me. The respondent added that he had married me for money alone. The respondent's father, and his father's brother namely, Gunasekaran, the respondent's brother and sister have often harassed and tortured me to get money to the tune of Rupees Sixty lakhs and a Honda city car from me.
6. The Respondent and his family members often threatened me that they will not allow me to live peacefully, unless I brought the above said dowry amount from my parents I lived at Hosur under unsafe condition under threat to life from the respondent. I submit that the respondent used to demand dowry continuously without any basis, and hence, because of the above said attitudes of the respondent, I could not lead a peaceful family life.
7. I submit that I am living separately till date. Even though my parents conducted peace talks with the respondent and his family, all the efforts made by them had gone on vain and the respondent firmly states that unless his additional dowry demand of Rupees Sixty Lakhs and Honda city car and a house at Arupukkottai is fulfilled, there is no possibility of unite with the petitioner.
8. It is submitted that finally on 10.3.2011, a peace talk was arranged by the respondent with caste leaders, relatives and elders. In that peace talks, the respondent and his family members told that unless, their additional dowry demands are fulfilled, there is no other way except to dissolve the marriage by way of divorce. Hence, we filed a divorce petition by mutual consent before this Hon'ble Court without any prior condition. More over, a divorce agreement was executed between me and the respondent on 10.3.2011 itself, before the competent witnesses and the respondent has put his left hand thumb impression in the said agreement engrossed in Rs.50/- Stamp paper. On the same date itself, the respondent has got the signatures of me and my parents in several blank papers and unfilled stamp papers. Even though the respondent has agreed to return the stridhan articles and cash amount in the Court. The respondent has got back his "Thali" tied to me and all the formalities were done before the above said competent witnesses on 10.3.2011.
9. I submit that myself and respondent has filed a divorce petition under mutual consent before this Hon'ble Court in H.M.O.P.No.50 of 2011. To my shock and surprise, the respondent told me that unless the house property at Arupukkottai is purchased and given in his name for the tune of Rs.40,00,000/-, he will not accept for mutual divorce. As the respondent's illegal demand could not be fulfilled by me, I filed the present H.M.O.P.No.82/2011."
(extracted as such.)
32. As such, based on the above narration of facts, she contended that because of exceptional circumstances found set out therein, she was constrained to file the H.M.O.P.No.82 of 2011, within a period of one year from the date of marriage. No doubt, those allegations are only allegations and they were not proved. But, in my considered opinion, those are all serious allegations of exceptional nature and the lower Court also treated as exceptional circumstances, warranting no interference by this Court.
33. It is a singularly singular case wherein the husband and the wife both happened to be Doctors in medical profession and from the view point of the wife, the conduct of the husband in treating her constituted the exceptional circumstances and utmost hardship and discomfiture. The lower Court being the first Court of facts, after considering the allegations and counter allegations, thought fit to virtually grant ex post facto leave and this Court being the revisional Court is having no reason to interfere with the same.
34. As suggested by the learned Counsel for the husband, if the H.M.O.P., has to be dismissed, it would not be for anything, but for the wife to file a fresh H.M.O.P., on the same grounds. As such, the same process already underwent would enure. The multiplicity of proceedings should be avoided and obliterated. No doubt, the sanctity of the marriage should be preserved. Soon after the marriage, without taking steps for reconciliation, etc, and having sufficient time for reflection, they should not be allowed to approach the Court for divorce and in the meantime, one other aspect, this Court has to see. Unwittingly, if a person filed a petition for divorce without seeking leave and much water has already flown under the bridge in dealing with the said petition, it would not be proper to dismiss that petition on the technical ground after lapse of two years as in this case and it would amount to throwing the baby along with the bathe water.
35. While holding so, I am of the view that exceptions should be exceptional and it should not become the rule. So far this case is concerned, I would like to find fault with the lower Court for numbering the H.M.O.P., without insisting for an application seeking leave under Section 14 of the Hindu Marriage Act, 1955.
36. My mind is redolent of the following legal maxims:
(i) "Actus curiae neminem gravabit". [An act of the court will prejudice no one.]
(ii) "Quod fieri non debet, factum valet." [What ought not to be done, when done, is valid.]
37. The lower Court should have returned the petition for divorce when it was presented well within one year from the date of marriage, but it has not been done so and it is only the fault of the Court. Because of the fault of the Court, the party concerned at a later date should not suffer.
38. In this connection, I could also fruitfully refer to the following legal maxims:
(i) "Nul prendra advantage de son tort demesne". [No one shall take advantage of his own wrong.]
(ii) "Nullus commodum capere potest de injuria sua propria". [No one can obtain an advantage by his own wrong.]
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition for divorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
40. I take it as an opportunity to mandate all the Courts below concerned that hereafter whenever any petition for divorce is filed within a period of one year from the date of marriage, the Courts should invariably return that petition without numbering it and unless leave is obtained, such petition for divorce should not be entertained. Point Nos.(i) and (ii) are answered accordingly.
41. In the result, both the Civil Revision Petitions are dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
42. On hearing the order pronounced, the learned Counsel for the husband would seek oral leave of this Court so as to enable his client to prefer appeal to the Honourable Apex Court. I am of the considered view that since the order is passed based on the earlier decision of the learned Single Judge of this Court which is based on the decision of the Division Bench of Calcutta High Court, no leave is required.
rsb To
1.The Sub Court, Aruppukottai.

divorce on the ground of adultery.

The prayer of the appellant for divorce on the ground of adultery cannot be allowed as he has not disclosed the name of the person with whom the respondent is having illicit relations nor such person has been made party in the petition filed by him. Rule 10 of the Hindu Marriage (Punjab). Rules, 1956 provides that if a petition is presented by husband for divorce on the ground of adultery, then he is required to implead the alleged adulterer, a co-respondent. It has been held in Parvati v. Shiv Ram 1988 Civil Court Cases 539 (H.P.) and Mirapala Venkataramana v. Mirapala Peddiraga II(2000) Divorce and Matrimonial Cases 40 that in a petition for divorce filed by the husband on the ground of adultery, it is necessary for the petitioner to implead the alleged adulterer as co-respondent. In case the husband has not impleaded the alleged adulterer, the petition filed by him is not maintainable being non joining of the necessary party.

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Punjab-Haryana High Court

Pawan Kumar vs Aruna Rani on 6 November, 2007
Equivalent citations: (2009) 149 PLR 628
Author: R Madan
Bench: R Madan
JUDGMENT R.S. Madan, J.
1. This is a husband's appeal filed against the judgment and decree dated 28.8.2001 passed by Shri K.C.Puri, the then Additional District Judge, Amritsar, in a Petition being No. 195/1992, under Section 13(1) of the Hindu Marriage Act, 1955, as amended for dissolution of marriage by a decree of divorce, which was dismissed.
2. In brief the facts of the case are that the appellant-husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce against the respondent-wife on the ground of desertion and cruelty. But later on by way of amendment, ground of adultery was also added after about a period of four years of filing of the divorce petition.
3. The marriage between the parties was solemnized on 11.5.1981 according to Hindu rites and ceremonies at Sujanpur, District Gurdaspur. Both the parties resided together as husband and wife and cohabited with each other at Amritsar. Out of this wedlock, two children, namely, Rachna and Raghurai were born. The case of the appellant that right from the inception of marriage , the conduct of the respondent was very cruel. She always used to insult and abuse him in front of his friends and relatives. Despite this, he had been tolerating the act of the respondent with a hope that better sense would prevail upon her with the passage of time and she would improve herself but all in vain. While highlighting the acts of cruelty, the appellant alleged that the respondent has been frequent visitor to her parents' house soon after the inception of the marriage and without the consent of the appellant which was not to the liking of the appellant. It was also alleged that the respondent left the house of the appellant in January 1985 and continuously remained at her parent's house for a period of 3-1/2 years. The appellant was also hurt by he respondent by her unbearable words who used to state that she was married against her wishes and she does not like to keep martial relationship with him. It was alleged that the respondent stayed for 7/8 days soon after the marriage with the appellant and then went back to her parents' house from where she returned after 1-1/2 months.
4. On 8.7.1988 the father and brother of the respondent gave a writing in which it was mentioned that she had left the house of the appellant 3-1/2 years back leaving behind the children at the mercy of the appellant. During this period, her attitude and conduct was worst then before and she refused to share bed with him. The appellant had failed a petition for divorce on 13.2.1990 in the court of Additional District Judge, Amritsar and notice was given to the respondent for 4.4.1990. However, during the pendency of this petition, a panchayat was convened on 26.5.1990 in which an agreement was effected between the parties that the respondent should be provided a separate accommodation as well as Rs. 900/- per month as maintenance as she refused to live with him. She was given residence in House No. 3429/1, Gali Kakezian, Katra Baghian, Amritsar. The divorce petition was dismissed as withdrawn having been compromised.
5. The appellant started suspecting Ashok Kumar and Sarwan Singh employees of the police department having illicit relations with the respondent. According to the appellant, on 2.8.1992 he caught red handed Ashok Kumar with the help of his friends, namely, Sunil Kumar, Gurdial and Billa etc. and inhabitants of the Mohalla. Due to this act of the respondent, the appellant had received acute mental shock and agony on his mind. He, thus, pleaded that this incident is an act of mental cruelty as well as that the respondent is living in adultery.
6. The respondent-wife on receipt of notice of divorce petition, contested the same by filing written statement and denied all the allegations made therein. She, however, submitted that she was forced to go to her parents' house for delivery of child as the appellant and his family members were not willing to take the responsibility for delivery charges and other expenses. She also submitted that after the birth of second child, she was thrown out of the house on the pretext of not bringing sufficient gifts. It was pleaded that all these allegations have been made against the respondent just to defame her and to create a ground for divorce. The appellant and his family members right from the inception of marriage were not happy with the dowry articles. As her parents were unable to meet their illegal demands of dowry, she was not allowed to come to the matrimonial home. It was on account of these facts that she was forced to live at the house of her parents. She also denied that the appellant ever visited the house of the respondents parents. She also denied the allegations of adultery levelled against her. Rather she submitted that Ashok Kumar is friendly to the appellant and they have shops adjacent to each other. She also denied that on 2.8.1992, Ashok Kumar was caught red handed by the petitioner, his friends and inhabitants of the mohalla with her. At the end, she pleaded that the appellant cannot be allowed to take a advantage of his own wrongs.
7. Replication was filed by the appellant and controverted the averments made in the written statement and reiterated the facts set out in the divorce petition.
The trial Court framed the following issues:
1. Whether the marriage between the parties is liable to be dissolved on the grounds mentioned in the divorce petition? OPP
2. Relief.
8. In order to prove his case, the appellant examined AW1 Rajesh Sehgal, AW2 Gurdial Billa, AW3 Krishan Lal, AW4 Sunil Kumar, AW5 Kuldip Rai and himself appeared as AW6. The respondent examined RW1 Amar Nath, RW2 Tilak Raj Gupta, RW3 Varinder Kumar, RW4 Darbari Lal, RW5 Yashpal, and herself appeared as RW6. Exhibit AX/1 is a statement of Amar Nath, AX/2 is the copy of the statement of Aruna Kumari made in the complaint filed by her on 12.8.1992 under Sections 354/452 I.P.C. etc against her husband (appellant). AX/3 is a compromise arrived at between Aruna Kumari and Pawan Kumar on 26.3.1990 with respect to providing maintenance at the rate of Rs. 900/- per month and separate accommodation. Mark A to E are the receipts with regarding to receipt of maintenance. Exhibit AX/7 is the undertaking given by the respondent that she will not file petition under Section 125 C.P.C. to claim maintenance in case the appellant sent money order and she will not harass him by summoning him for non-payment of maintenance. Exhibit AX/9 is the copy of the complaint filed by the respondent under Sections 354/452 I.P.C. Exhibit AZ is the order of framing charges against the appellant. Exhibit RX is a deed of pardon written by Pawan Kumar wherein he has given assurance that he will not file false complaints against Yashpal. Exhibit RW6/1 is the order passed in a petition filed by the appellant against the respondent which was the result of compromise arrived at between the parties. Exhibit RW6/5 is the copy of statement given by Aruna Kumari respondent in a petition under Section 125 Cr.P.C. Exhibit RW6/6 is the copy of statement of Aruna Kumar made during examination-in-chief and RW6/7 is her cross-examination.
After due analysis and appreciation of evidence led by the parties, the trial court dismissed the petition, holding that the appellant had failed to prove all the three grounds i.e. cruelty, desertion and adultery on which the decree of divorce against the respondent was sought. He, thereafter, came up in appeal to this Court.
I have heard the learned Counsel for the parties and have carefully gone through the record.
9. Learned Counsel for the appellant contended that entire averments made in the petition with respect to acts of cruelty, desertion and adultery have been proved against the respondent. The learned trial Court ignored the evidence led by the appellant in this regard and has not appreciated the same. It is admitted by the respondent that she remained at her parent's house for about 3-1/2 years and the appellant was not allowed to visit the house of his in-laws. In this way, the husband was deprived of his right to enjoy the matrimonial life by causing mental cruelty and desertion. In this connection, learned Counsel referred to Kanwaljit Singh Pannu. v. Smt. Parveen 2006(1) Civil Court Cases 212 (P&H), wherein it was held that, "desertion means withdrawing from the matrimonial obligation i.e. not permitting or allowing co-habitation between the parties."
10. Learned Counsel for the appellant submitted that due to cruel behaviour and attitude of the respondent, who used to insult and abuse the appellant, her brother admitted all her guilt and gave it in writing on 8.7.1988. When she refused to live with the appellant a panchayat was convened for resolving the dispute and an agreement was effected before the panchayat between the parties that she will live separately and will be given Rs. 900/- per month as maintenance by the appellant. This act of the respondent for not living with the appellant is itself a ground for desertion.
11. Learned Counsel for the appellant further submitted that on 2.8.1992, the respondent was found in the company of Ashok Kumar son of Satpal and Sarwan Kumar in the presence of his friends Sunil Kumar, Gurdial Billa and inhabitants of the mohalla. The appellant had received acute shock and mental agony due to this incident which is sufficient for grant of divorce on the ground of adultery. Instead of feeling ashamed of her this act, the respondent filed complaint under Sections 354/452 I.P.C. etc. against him in the court of JMIC levelling allegations of tress-pass, molestation, etc. It is not disputed that the parties are residing in the same vicinity but in the different house. The appellant thereby deprived of his matrimonial rights. He has been a victim of cruel behaviour right from the date of inception of marriage. He submitted that once a wife filed a false criminal complaint against his husband, this itself means cruelty and the husband is entitled to the decree of divorce. Reference was made to G.V.N. Kameswara Rao v. G. Jabilli 2002(2) Supreme Court Cases 296, wherein it was held that, "traumatic experiences suffered by complainant spouse as a result of the persistent non-cooperation and hostile attitude of the respondent spouse, can be included in the' expression "cruelty". It was also held that, "false police complaint and consequent loss of reputation and standing in society at the instance of one's spouse, would amount to cruelty."
12. Learned Counsel for the appellant further submitted that the parties are living separately from each other which means that there is an irretrievable breakdown of marriage. In this connection he placed reliance on Durga Prasanna Tripathy v. Arundhati Tripathy A.I.R. 2005 S.C. 3297:(2005)7 S.C.C. 353, wherein it was held that, "parties living separately for 14 years means that there is an irretrievable breakdown of marriage and it has been rendered a complete dead wood."
13. Learned Counsel for the appellant further contended that once it is proved on the record that wife is living separately for the last so many years, the marriage is a broken marriage and it should be a statutory ground for divorce. He relied upon Naveen Kohli v. Neelu Kohli , wherein it was observed, "when parties are living separately for a sufficient length of time and one of them brings a petition for divorce decree, it can be presumed that marriage has broken down irretrievably. It will be against the interest of both the parties as well as against interest of the society to refuse to grant decree for divorce in such cases. Parliament recommended to pass such an amendment."
14. Learned Counsel for the appellant submitted that it has come on the record that she had left the house of the appellant in the year 1985 and returned on 8.7.1988 when her brother gave in writing that she had left the matrimonial house as the misunderstanding cropped up between the parties and the factum of her absence from the matrimonial house for a period of three years stand admitted in this writing. It was on account of this compromise that the respondent started living with the appellant but she refused to share bed with him. This act of the respondent, according to the counsel for the appellant, even though living under the same roof and not sharing bed with the appellant, amounts to desertion.
15. On the other hand, learned Counsel for the respondent contended that it is a case where the appellant has miserably failed to prove all the three grounds for divorce i.e. cruelty, desertion and adultery. In support of his arguments, he submitted that the appellant cannot be allowed to take advantage of his own wrongs. Even if it is admitted that respondent-wife stayed at her parents' house for a period of 3-1/2 years but the appellant never visited there to enquire about her welfare. It was on 8.7.1988 that a compromise was arrived at between the parties and the respondent started living at the house of the respondent. Therefore, the act of desertion if any stands condoned and it cannot, by any stretch of interpretation, be termed a case of desertion on the part of the respondent.
16. Learned Counsel for the respondent also submitted that previously the appellant has filed a petition for divorce against the respondent, despite the fact that she was residing at his house. A compromise was effected on 26.3.1990, as a result of which the petition was withdrawn on 4.4.1990. Thereafter, the appellant filed the present petition against the respondent on 18.11.1992 and sought amendment in the main petition in the year 1996 for incorporating the ground of adultery. As per the Rule 10 of the Hindu ' Marriage (Punjab) Rules 1956, the adulterer is a necessary party and petition filed on the ground of adultery cannot proceed without impleading him as a party. Reference was made to D. Thomas v. Tara , wherein it was held that, "In fact, the prescription in Section 11 is a mandate which cannot be avoided by a husband seeking divorce on the ground of adultery. Where no such person, though known to the plaintiff, is made a party, the suit for dissolution is not maintainable in law. "Reference was also made to Ram Kumar @ Ramender Kumar v. Smt. Raksha @ Galabo , wherein it has been held as under:
Even otherwise, the prayer of the appellant for divorce on the ground of adultery cannot be allowed as he has not disclosed the name of the person with whom the respondent is having illicit relations nor such person has been made party in the petition filed by him. Rule 10 of the Hindu Marriage (Punjab). Rules, 1956 provides that if a petition is presented by husband for divorce on the ground of adultery, then he is required to implead the alleged adulterer, a co-respondent. It has been held in Parvati v. Shiv Ram 1988 Civil Court Cases 539 (H.P.) and Mirapala Venkataramana v. Mirapala Peddiraga II(2000) Divorce and Matrimonial Cases 40 that in a petition for divorce filed by the husband on the ground of adultery, it is necessary for the petitioner to implead the alleged adulterer as co-respondent. In case the husband has not impleaded the alleged adulterer, the petition filed by him is not maintainable being non joining of the necessary party.
17. In the instant case, Ashok Kumar the alleged adulterer, was not impleaded as a co-respondent by the appellant. The allegations of adultery given were not proved on the file. Rather the respondent has taken a specific stand that said Ashok Kumar is a friend of the appellant who was forcibly pushed in the room of the respondent to defame her in the society and to. create a ground of divorce. Due to this incident, she had filed a complaint under Sections 354/452 IPC against the appellant in which the charges were framed against him and the case has not so far been disposed of. Therefore, the appellant cannot take advantage of the fact that the respondent has filed a false complaint against him. Even according to the appellant himself, the respondent was still residing in his house when compromise was effected between them. AW1 Rajesh Sehgal categorically stated that when he visited the house of the appellant, his mother was ill and when the appellant asked the respondent to prepare tea, to which she refused to do so and there was exchange of words between the parties. This kind of incident cannot be termed as cruelty because the respondent wife was looking after her ailing mother-in-law, it is not possible that she would adopt hostile attitude towards the appellant. All the witnesses produced by the appellant are his friends. It is very easy for the witnesses of the appellant to toe the line of the appellant as per his wishes. In order to know the wear and tear in the family life, it is the members of the family who could be the best witnesses to throw light on the matrimonial relationship of the parties. But not a single witness of the family was examined by the appellant. The respondent was serving her mother-in-law in the year 1989 and even thereafter she was residing with the appellant upto 1990 in a joint house. Therefore, it cannot be said to be a case of desertion.
18. It is a case where the respondent was forced to live separately by the appellant by way of a compromise effected on 26.3.1990 in panchayat which was consented by him, therefore, it does not lie in the mouth of the appellant to state that she has withdrawn herself from the matrimonial obligations or society of the appellant. It is the appellant who was responsible for taking advantage of his own wrongs. Throughout the matrimonial life of the parties, the appellant was trying to get rid of the respondent by levelling false allegations against her. It is not disputed that the appellant is residing in the same vicinity where the respondent is residing and paying a sum of Rs. 900/-per month as maintenance as per the consented arrangement.
19. The appellant has duly proved on the file the agreement dated 26.3.1990 vide which the earlier petition for divorce was withdrawn. It was, thereafter, that the present petition for divorce was filed on 18.11.1992 on the grounds of desertion and cruelty but the allegation of adultery was not found mentioned therein. As per his own case, the appellant caught the respondent on 2.8.1992 in the company of Ashok Kumar with the help of his friends Sunil Kumar, Gurdial and Billa. This ground was available to him on the date of filing of the petition i.e. on 18.11.1992 but he added the same by way of amendment in the petition in the year 1996 as a counter-blast to the criminal complaint filed by the respondent-wife under Sections 354/452 I.P.C. on 12.8.1992. This ground was taken to put pressure on the respondent to withdraw the complaint filed against him.
20. It is a case where the parties are living separately on account of their mutual consent and agreement and it would not amount that the marriage of the parties has broken down and decree of divorce could be granted to the appellant on the grounds of desertion and cruelty. Reliance was placed to Balwinder Pal v. Anita Kumari (2007-1)145 P.L.R. 832, wherein it was held as under:
In the instant case, it has been found from the evidence on record that the appellant-husband is not willing at all to live with the respondent-wife any more. On the other hand, respondent-wife is still willing to live with her husband. In this background, in the facts enumerated above, the appellant-husband cannot get decree of divorce relying on the theory that the marriage between the parties has irretrievably broken down. Emphasis is from the case of Dipak Kumar Sarkar v. Smt. Sima Sarkar 2005(1) H.L.R. 730. In Birbal Goswami v. Indra Devi 1997 Marriage Law Journal 415, it was found that the wife is willing to live with the husband and the husband levelled false charges to get rid of her and it was held that he cannot seek divorce on that ground and dismissal of the divorce petition was upheld. In Rupinder Kaur v. G.S. Sandhu , it was held that assuming that the marriage had broken irretrievably, breakdown of marriage is no ground to dissolve the marriage.
21. In Naveen Kohli's case (supra), the Apex Court has recommended to the Parliament to enact the ground of irretrievable broken-down marriage as a ground for divorce. This ground at present has not so far been available in the statute. It is a case where the husband has been found guilty of levelling false allegations against the respondent but miserably failed to prove any of the three grounds on which the dissolution of marriage was sought. The case of the appellant is also hit bySection 23 of the Hindu Marriage Act and he cannot be allowed to take advantage of his own wrongs.

In the light of the above discussion, the appeal fails and is dismissed, leaving the parties to bear their own costs.

Divorce on ground of mental disorder.

 Section 13(1)(iii) provides that, the respondent suffers from incurably 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. Therefore, it is clear that mere unsound mind is not a ground for divorce. It should be incurably unsound mind. Similarly, if a person is suffering from a mental disorder, that by itself is not a ground for divorce. The mental disorder should be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation to the said proviso explains the meaning of mental disorder. The expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder of disability of mind and includes schizophrenia. It is in this background when he look at the material on record, the respondent for about 15 days did not have sleep, she was dull and depressed, she was not feeling happy, she was not active as before and she was getting fearful dreams. Once, the psychiatrist gave treatment, in a span of 15 days she attained normality. Therefore, she is not suffering from any mental disorder which justifies to grant a decree for divorce.

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
           Dated this the 25th day of March 2014
                         PRESENT
            The Hon'ble Mr. Justice N. KUMAR
                            AND
         The Hon'ble Mrs. Justice B.S. INDRAKALA
       Miscellaneous First Appeal No.3224/2012 (FC)

BETWEEN:

Shivajigouda,
S/o Nagappgouda, Aged about 43 years,
R/at Hosahalli Village, Anavatti - Hobli,
Taluk: Sorab - 577 413.                     ... Appellant

                (By Sri S.V.Desai, Advocate.)

AND:

Smt.Sunitha,
W/o Shivajigouda, Aged about 34 years,
C/o Kotrappagouda, Ground Floor,
Katavi Village, Telagadde-Post,
Jade-Hobli, Sorab Taluk - 577 419.              ... Respondent

      This Miscellaneous First Appeal is filed under Section
28 of Hindu Marriage Act against the judgment and decree
dated:15.06.2011 passed in M.C.No.36/2009 on the file of
Senior Civil Judge, JMFC, Soraba, dismissing the petition
filed under Section 13(1)(ia)(3) of Hindu Marriage Act for
dissolution of marriage.

       This appeal coming on for orders this day, N.Kumar J.,
delivered the following:
                                2


                        JUDGMENT
This is a husband's appeal challenging the order passed by the Civil Judge (Sr.Dn.) & JMFC, Sorab dismissing his petition for divorce.
2. The appellant/petitioner married the respondent on 14.03.1998 according to the Hindu Custom. After marriage they resided together happily. Two sons by name Sanjay and Sandeep are born. The grievance of the petitioner/husband is that the respondent is suffering from mental disease. Because of her mental illness, she quarrels with him, attempts to assault him and hates him. This behaviour was brought to the notice of her parents. They took her back to their house and they assured that she would be alright. Before marriage itself, she was suffering from these ailments. Suppressing the same, they have performed the marriage. Petitioner also got her treated by a Psychiatrist at Shimoga. Inspite of the same, she is not as before. Thereafter, he took care of his wife with all love and affection, but because of her behaviour, it caused both mental and physical cruelty to him and therefore, he filed a petition for divorce under Section 13(1), (1a) and (3) of the Hindu Marriage Act, 1955. After service of notice, she entered appearance and filed her statement of objections. She admitted the marriage, birth of two sons, she denied that she is suffering from any mental disease. Her younger son Sandeep was not well; he was suffering for months and therefore, he was taken to her parents house and treated at Sirsi and now, he has recovered. She is in no way caused any trouble to the petitioner. Petitioner has not taken her back to his house because he has an illicit relationship with another woman. Petitioner is the head of the family. He was the chairman of the Grama Panchayat. It is he who is suffering from mental pressure. On account of the same, he has treated the respondent with mental and physical cruelty. It is the petitioner who needs treatment from a psychiatrist. For the last one year, they are living separately. Petitioner is addicted to bad habits. He has kept the eldest son away from the respondent. She is ready and willing to live with the petitioner for the sake of the children and therefore, she sought for dismissal of the petition.
3. On the aforesaid pleadings, the trial Court framed the following two issues:
(1) Whether the petitioner is entitled for divorce as prayed for in the petition?
(2) What order?
4. The petitioner in order to substantiate his claim examined himself as PW1. He also examined three witnesses as PWs 2 to 4 and produced 9 documents which are marked as Exs.P.1 to P.9. The respondent was examined as RW1. She also examined 4 witnesses as RWs 2 to 5 and produced 17 documents which are marked as Ex.R.1 to R.17.
5. The trial court on consideration of the aforesaid oral and documentary evidence on record held that the petitioner has failed to establish the cruelty as well as the mental illness of the respondent and therefore, he is not entitled to a decree for divorce. Accordingly, the petition came to be dismissed.
6. Aggrieved by the said order, the petitioner is in appeal before this Court.
7. Learned counsel appearing for the appellant assailing the impugned order contended that the documentary evidence produced by the petitioner coupled with the evidence of the doctor who treated the respondent clearly establishes the unsound mind of the respondent and therefore, the order passed by the trial Court dismissing the petition for divorce requires to be interfered with.
8. We do not find any substance in the said contention. The undisputed evidence on record discloses that after the marriage the husband and wife lived happily and two sons were born i.e., from 1998 till 2008. The first son was born in 2001 and the second son was born in 2004. Though in the pleadings the petitioner accused the respondent of attempting to assault him, in the evidence he has not spoken about the said fact. The evidence on record shows the respondent was treated in Sridhar Nursing Home. The record issued by Sridhar Nursing Home which is marked as Exs.P. 8 and 9 shows that, on 15.07.2009 she was sleepless for 15 days, she was said to be dull and depressed, she did not feel happy, she talks less, she was not active as before, she got fearful dreams. Though the doctor who treated her was not examined, the doctor in the nursing home was examined, who on the basis of the record has deposed that after her examination in the hospital, she was given medicine and she was asked to come back after 15 days. Then when she came on 15.12.2009 she was examined and it was found that she had become normal. Therefore, no further treatment was prescribed. The doctor has also given a brief description of her physical condition, mental condition and the said evidence shows she is not suffering from any mental or physical ailment. Relying on the said legal evidence on record, the learned trial Judge rightly held that, neither the case of cruelty nor case of mental illness is made out by the petitioner/husband and therefore, he dismissed the petition. As the said finding is based on legal evidence, it cannot be found fault with. In fact, the Apex Court in the case of RAM NARAIN GUPTA vs RAMESWARI GUPTA reported in 1988 AIR 2260 has observed as under:
"10. The context in which the ideas of unsoundness of 'mind' and 'mental-disorder' occur in the section as grounds for dissolution of a marriage, require the assessment of the decree of the 'mental- disorder'. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the order. 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."
9. Section 13(1)(iii) provides that, the respondent suffers from incurably 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. Therefore, it is clear that mere unsound mind is not a ground for divorce. It should be incurably unsound mind. Similarly, if a person is suffering from a mental disorder, that by itself is not a ground for divorce. The mental disorder should be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation to the said proviso explains the meaning of mental disorder. The expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder of disability of mind and includes schizophrenia. It is in this background when he look at the material on record, the respondent for about 15 days did not have sleep, she was dull and depressed, she was not feeling happy, she was not active as before and she was getting fearful dreams. Once, the psychiatrist gave treatment, in a span of 15 days she attained normality. Therefore, she is not suffering from any mental disorder which justifies to grant a decree for divorce.
10. In the light of the aforesaid law declared by the Apex Court and the statutory provisions, the learned Judge of the Court below on proper appreciation of the evidence on record, rightly held that the petitioner has not made out a ground for divorce.
11. We do not see any ground to interfere with the well considered order of the Court below. Accordingly, appeal is dismissed.
Sd/-
JUDGE Sd/-