Baldev Parshad vs Smt. Chanchal Kumari

S.P. Goyal, J.—This appeal arises out of a matrimonial cause instituted by the husband for a decree of divorce or in the alternative for judicial separation.

The parties were married on September 18, 1969 at Amritsar and lived together only for about three months when the respondent left with her brother to her parents home. She came back to the matrimonial home for a week on January 13, 1970 and thereafter remained away for a year and three months. It was only on the intervention of some friends that she was brought back to the matrimonial home on April 23, 1971. In the month of May, 1971, the appellant became a mental case and according to him it was because of the cruel treatment of the respondent that he developed this trouble.

Daring this ailment, the respondent again left the matrimonial home and never returned thereafter. The appellant was for the time being cured of his mental ailment and got employment in the Electricity Department of the Municipal Committee, Amritsar. In 1972, he again got attacks of insanity and proceeded on long leave. He was ultimately removed from service as he had become a permanent victim of schizophrenia and was declared unfit to remain in service by the Medical Officer. On these facts, the appellant moved the present petition for divorce and in the alternative for judicial separation on the grounds of desertion and cruelty on the part of the wife.

The petition was contested by the respondent who admitted the marriage between the parties and the factum of her living separately from the appellant in her parental home. She further pleaded that it was the appellant who treated her with cruelty because of insufficiency of dowry brought by her and turned her out of the matrimonial home. She further stated that in spite of her efforts through the employer of the appellat, Istri Sabha and other relations to rehabilitate her, the husband and his parents refused to do so. A plea of inordinate delay in moving the petition was also raised by way of preliminary objection.

In the trial Court, the controversy between the parties centred round mainly on the following three issues :--

Whether there has been an inordinate delay in filing of the petition?

Whether the respondent has deserted the petitioner for a continuous period of more than two years before the presentation of this petition?

Whether the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in his mind that it was harmful or injurious for him to live with her?

The learned Additional District Judge, after recording evidence of the parties, answered all the three issues against the appellant and dismissed the petition vide judgment dated November 14, 1979 which led to the filing of the present appeal.

So far as the plea of inordinate delay is concerned, the finding of the trial Court cannot be sustained and has to be reversed. No doubt, the respondent controverted the fact that the appellant was suffering from schizophrenia but this fact stands proved from the statements of Dr. Baldev Kishore P.W. 4, Dr. R.P. Arora P.W. 5 and Dr. Mrs. Vinod Sharma P.W. 1-2 who deposed that he had developed mental ailment in the month of May 1971 and after a temporary relief for a couple of months his health continued to deteriorate and now he was suffering from a serious type of mental ailment medically termed as schizophrenia. As the record of the Mental Hospital Amritsar had not been proved and its copies brought on the record, I referred the appellant to the Post Graduate Institute, Chandigarh for a fresh examination. He was examined thereby Dr. V.K. Verma, Associate Professor and Head of Psychiatry Department and after thorough examination, he reported that the appellant had been suffering from a serious mental illness. Dr. V.K. Verma was also examined in Court and his report is Exhibited as "C-1". No evidence, in rebuttal, whatsoever has been produced by the respondent to controvert this evidence. It is, therefore, amply proved from the medical evidence on the record that the appellant had developed mental ailment in the month of May, 1971 and has been a continuous patient of schizophrenia since the year 1972. It was because of this reason that even the present petition was filed by the appellant through his brother as guardian adlitem. The appellant was thus incapable of taking a rational decision and, therefore, cannot be blamed for the inordinate delay in moving this petition.

As the pleas and the evidence on both the remaining issues are mostly common, these issues would be discussed together. Admittedly, the respondent is living away from the matrimonial home since June 17, 1971. The learned counsel for the appellant, therefore, contended that it was for her to show sufficient cause for her living apart. The argument, however, has no merit because to claim a decree for judicial separation it is not enough for the appellant to prove that the other spouse is living separately but he has also further to prove animus deserendi on the part of the other spouse i.e. an intention to severe relationship permanently. In the present case, however, this question is not of much importance because according to the very statement of the guardian of the appellant it is proved that she started suspecting the fidelity of the wife in the month of June 1971 and she was alleged to be having illicit relationship with the husband of her elder sister. As the appellat has miserably failed to prove this allegation, the respondent would have a reasonable excuse to live apart on this score alone. Consequently no fault can be found with the finding on desertion and the same is hereby affirmed.

It was the third issue upon which the learned counsel for the appellant mainly laid stress. He argued that the appellant prior to his marriage was absolutely healthy and suffered from no disease. It was after the marriage that because of the cruel treatment of the wife and her instance on living separately from other family members which led to his mental ailment ultimately diagonised as schizophrenia. The argument is too presumptuous to be accepted. None of the doctors examined by the appellant or the one examined by me as Court witness could say that the mental ailment of the appellant had developed because of any maltreatment or misbehaviour on the part of the wife. The only evidence relied upon by the learned counsel for the appellant in this respect was the initial history of the patient recorded by Dr. Mrs. Vinod Sharma P.W. 12 who admitted that the facts mentioned therein were recorded on the information given by the attendant of the patient. The facts mentioned in the history-sheet, therefore, are in the nature of self-serving admissions and no reliance on this evidence can be placed. Apart from the averment in the history-sheet, the allegation of maltreatment made against the wife were of extremely vague nature. The only specific misbehaviour alleged to the wife was that she was prossing the appellant for having a separate residence from other members of his family but it is difficult to accept that the appellant could develop any mental ailment because of this reason. The appellant, therefore, has miserably failed to prove any misbehoviour or maltreatment on the part of the wife which could constitute mental or physical cruelty or could be the cause of his mental illness. The finding of the trial Court on the third issue is also, therefore, confirmed.

In the result, this appeal fails and the same is hereby dismissed but without any order as to costs.