Gnanambal vs O.R. Selvaraj

Ramanujam, J.—The wife who has been unsuccessful O.P. No. 60 of 1965 on the file of the City Civil Court, Madras is the appellant

herein. The said O.P. had been filed by the respondent herein for dissolution of his marriage with the appellant under S.13(1)(iii) of the Hindu

Marriage Act, 1955 on the ground that the appellant has been incurably of unsound mind for a continuous period of three years prior to the filing of

the said petition. It was his case that they got married on 3rd February, 1949, that ever since the marriage, his wife had soma sort of mental

disorder which after the birth of her first child on 24th January, 1950 developed into unsoundness of mind despite continuous medical treatment,

that after the birth of the last child in 1959, it became of a violent type, that she underwent treatment in the Christian College Hospital at Vellore,

both as inpatient as well as out-patient from February 1961 till September, 1966, that the Doctors who attended on her pronounced her mental

disorder to be incurable, that as a result of her mental condition, she could not understand the obligations of matrimony and perform her normal

duties towards her children, a son and four daughters, and, that therefore, he is entitled to an order dissolving the marriage or in the alternative for

judicial separation. The appellant had resisted the petition contending that she is not of unsound mind and that in any event the mental disorder

complained of cannot be said to be incurable so as to attract the said S.13(1)(iii).

In support of his complaint that his wife was insane, the respondent has marked Ex.A-1, the case sheet maintained by the Christian College

Hospital at Vellore which contains the prior history of the patient, the details of the treatment given and the condition of the patient at various stages

of the treatment. The said history sheet showed that the mental disease of the appellant was diagnosed as paranoid Schizophrenia. He also

examined the Doctor who treated the appellant from September, 1961 to December, 1965 at the Vellore Hospital as P.W. 1. She is a Psychiatric

Specialist working in the Hospital at Vellore where the appellant admittedly underwent treatment. Her evidence is that she found the appellant

suffering from mental illness, that the mental illness could not be completely cured in spite of the treatment given for five years, and that the illness

was paranoid Schizophrenia. She has, however, admitted in cross-examination that some of the cases of Schizophrenia had been cured. Even at

the time when she gave evidence as P.W. 1 she was giving treatment to the appellant. She was, therefore, categoric that the appellant had not been

completely cured and that some of the initial ailments for which she came to her for treatment still persisted. The sum and substance of her evidence

is that though paranoid Schizophrenia is a curable disease, the appellant could not be cured completely in spite of the continued treatment by her

for five years. Mainly on the basis of the evidence of P.W. 1 and the history sheet, Ex. A-1, the trial court as well as the Appellate Court and

Palaniswamy, J., in Civil Miscellaneous Second Appeal held that the appellant has been proved to be incurably of unsound mind for a continuous

period of not less than three years immediately preceding the presentation of the petition and, therefore, the respondent is entitled to an order of

dissolution of marriage.

In this appeal under the Letters Patent, the learned Counsel for the appellant contends that on the facts found, it cannot be said that the appellant

was incurably of unsound mind and that too, for a continuous period of three years prior to the filing of the petition, that the history, sheet Ex.A-1,

showed that her mental condition had improved at the time of the discharge from the hospital, that the admission of P.W. 1 that paranoid

Schizophrenia is a curable mental disease and that the appellant can look after herself, clearly indicated that notwithstanding the persistence of the

initial ailments, the appellant was in a position to lead a normal life attending to the needs of the husband and the children. It is also contended by

the learned Counsel that the appellant has been examined as R.W.5 by the Court and the manner in which she answered all the questions showed

that her mental condition was all right. The question as to whether a person suffered at any time from a particular disease is essentially a question of

fact, and when concurrent findings had been recorded by all the three Courts on a consideration of the evidence on record and on the facts and

circumstances of the case, they are not normally open to challenge in a Letters Patent appeal. It has been pointed out in Veera Reddy v.

Krishnamma AIR 1969 Mad. 235; 81 L.W. 890 (D.B.) by Ramamurti and Ramaprasada Rao, JJ. that in a Letters Patent appeal, the Bench is

concerned with the correctness or otherwise of the conclusion of the learned single Judge, and if the latter was bound by certain limitations, the

Bench will be equally bound by the same and that, therefore, the Bench also cannot travel outside S. 100of the C.P.C. Though the jurisdiction and

power of the High Court under Cl.15 of the Letters Patent are wide and unqualified, the Court will be normally reluctant and does not lightly

interfere with the finding of the Single Judge dealing with the second appeal. We have to therefore proceed on the basis of the facts found by the

Courts below and consider whether those facts are sufficient to establish the ground alleged for dissolution of the marriage of the appellant with the

respondent. As a matter of fact, the facts as found by the Courts below have not been seriously challenged before us.

That the appellant was treated for mental illness from 1961 to 1966 in the hospital at Vellore, both as inpatient and as out-patient has not been

disputed. What is contended by the learned counsel for the appellant is that the unsoundness of mind of the appellant was not shown to have been

continuous for a period of three years before the presentation of the petition, nor was it incurable. In this case, we have the history sheet, Ex. A-1

and the evidence of the Doctor who attended on her for a continuous period of five years. We have also the evidence of P.W. 6, Professor for

mental diseases in Stanley Medical College, and Physician, Government Mental Hospital, Madras giving his opinion as to the nature of the mental

disease of the appellant on the basis of the history sheet, Ex.A-1. We have also the evidence of R.W.4, another Doctor who has been examined

on the side of the appellant. He has also given his opinion on the disease of the appellant on the basis of the history sheet of the patient.

P.W. 1 has stated that from September, 1961 to December, 1965 she had treated the appellant for mental ailment, that the said mental ailment

continued upto December, 1965 with variations, that the ailment was diagnosed as Schizophrenia and that in spite of the treatment for the said

period of five years, she could not be cured completely. Referring to the various entries found in the case sheet Exhibit A-1, P.W. 1 has deposed,

the appellant was admitted in the Hospital as an inpatient in September, 1961 for treatment of paranoid Schizophrenia, and for 71 days she was in

the hospital, that she was given 63 E.C.T. (Electro Convulsive Treatment) which is given only to advanced mental cases, that after the

administration of some electric shocks, some improvement was noticed, and therefore, she was discharged, that the appellant was next admitted in

December, 1962 and treated as an inpatient for a period of 18 days, and at that time, it was recorded that the appellant did not take care of herself

and refused to even brush her teeth or change her clothes. She was also found to be suffering from certain delusion and hallucination. She was

admitted as an inpatient for the third time in February, 1964 and was discharged after a stay of 40 days. During that time, as seen from Ex. A-1 the

appellant was confined to bed, and she had no initiative to do any work. She was suspicious that her food was poisoned and refused to take

personal attention to her cleanliness. She was shabbily dressed and her hair was undone. She used to weep saying ""I am a poor woman"", used to

Come out of the room often, she was reoriented to places and people, and was behaving like a child. Exhibit A-1 shows that in December, 1964

the appellant was staying in bed almost all the time and there was not much change in her mental condition. As against 12th July 1966, it has been

recorded that the appellant was found to be irritable and suspicious, and has been using abusive language. As against 13th September 1966 it is

recorded in the case-sheet that the appellant had poor orientation and could not remember things well. This is the state of the appellant''s mental

condition between the years 1961 and 1966.

P.W. 6, after referring to the case sheet of the appellant, Exhibit A-1, has deposed that the patient was suffering from paranoid Schizophrenia,

that the entries in the case sheet showed that the patient had lettered behaviour since 1963, that she was withdrawn and violent at times, that she

had been taken to Madras and given shock treatment six times. According to her, the history sheet does not show that the patient had completely

recovered, and it is evident there-from that the appellant was suffering from Schizophrenia of a chronic nature. Referring to the treatment given to

the appellant as found in the case sheet, P.W. 6, has stated that the patient had all powerful methods of treatment that were available and that in his

opinion, having regard to the condition of the appellant, even after such powerful methods of treatment, the chances of recovery are extremely

impossible. He is of the opinion that the appellant would not be in a position to share the responsibilities of the household. He has also identified

Exhibits A-3 and A-4, as the prescription slips given by the Mental expert, Dr. (sic) who was the Superintendent of the mental Hospital at Madras

in 1951 prescribing certain harmone preparations intended for mental cases, to the appellant.

R.W. 4 who is a Civil Assistant Surgeon in the Kilpauk Mental Hospital, after going through the case (sic) Exhibit A-1, has deposed that the

disease mentioned in Exhibit A-1 is paranoid Schizcrhrenic type and that the said disease is curable. He has however, admitted in cross-

examination that Exhibits A-3 and A-4 of the year 195(sic) are prescriptions given by the late Dr. (sic) and that those prescriptions are for Mantel

cases, that he was not a specialist in mental diseases but that P.W. 6 is a mental expert. He has also stated that shock treatment are given only for

advanced mental cases and that Exhibit A-1 showed that 63 shocks have been given to the appellant and that it could have been only an extreme

mental case. He has further deposed that the patient preferred to in Ex. A-1, having regard to the history of the illness, will require further treatment

and observation after what has been note in the last entry on 13th September 1966.

It has to be considered whether the above evidence is sufficient to show that the appellant was incurably of unsound mind for a period of there

years preceding the filing of the petition.

In Stroud''s Judicial Dictionary at page 2141, ""unsoundness of mind"" is stated to be a depravity of reason or wants of it"", and it is said to arise

from perversion of the mental powers, and (sic) exhibit itself by means of delusions or storing antipathies which are called ''Mania'' or it (sic) arise

from what may be termed as defect of mind, as where the mind was originally incapable of directing itself to anything requiring judgment which is

''idiocy'', or where a mind originally strong, has become weakened by illness or age, though producing no such insanity as to amount to mania. It

cannot be disputed that the appellant in this case, has been suffering from paranoid schizophrenia. The term ""schizophrenia"" generally refers to a

ground of mental illnesses characterised by specific psychological symptoms and leading, in the majority of cases to a disorganization of the

personality of the patient, and the symptoms interfere with the patient''s thinking, emotions, conation and motor behaviour and with each in a

characteristic way. The deorganisation of personality often results in chronic invalidism and life-long hospitalization in spite of the absence of gross

physical signs or symptoms.

Harrison and others in their book ""Principles of Internal Medicine"" (fourth edition) at page 362 stated:

Schizophrenia is a disease or group of diseases in which there is a slow, steady deterioration of the personality, beginning usually during

adolescence, and early adult life and involving particularly the effective life, thinking conduct and the depth of insight. The cause is unknown and no

definable neuropathology changes have been established. A hereditary factor operates in certain proportion of cases.

It has been indicated by the authors that the primary signs and unique characteristics of the disease ""Schizophrenia"" are: (1) disturbances in effect,

disturbances in thought processes and associations, and (2) disturbances in attention, and that the secondary signs of the said disease are delusions,

hallucinations, rigidity, resistiveness, negativism and mannerisms. Dealing with the special types of the said disease, they referred to ""Paranoid"" type

which consists in autistic, unrealistic thinking, delusions of persecution and grandeur ideas of reference, and often hallucinations and unpredictable

behaviour. In the opinion of the authors as seen at page 370, Schizophrenia is a serious disease and one for which there is no specific therapy.

In Taylor''s Principles and Practice of Medical Jurisprudence (11th edition) Volume 1, at page 587 it has been observed:

There have been a number of murder cases in recent years where juries have returned verdicts of guilty but insane, upon evidence that the accused

was suffering from Schizophrenia at the time of committing the act.

This shows that persons suffering from Schizophrenia are also prone to commit serious crimes, like murder, etc.

In Henderson and Gillespie''s Text Book of Psychiatry (9th edition, at page 250, it is observed that Schizophrenia consists in a slow

deterioration of the entire personality, which often manifests itself at the period of adolescence and expresses itself in disorder of feelings, of

conduct, and of thought, and in an increasing withdrawal of interest from the environment, that there is no specific and effective treatment of the

said mental illness and that any treatment given can only assist in arresting the disease process and limit the degree of deterioration, and that

complete success cannot be claimed for treatment, as the treatments are empirical and limited in their effects. In their view, Schizophrenia still

accounts for about two-third of those who require long term care in our mental hospitals, and is thus one of the major unsolved problems in the

whole field of medicine.

In his book entitled ""Psychological Medicine--An introduction to Psychiatry"" by Desmond Curran, 6th edition at page 193, dealing with

Schizophrenia, it is said:

Course and Prognosis: Schizophrenia is a grave illness. It used to be said that its course could be crudely compared with that of a switchback

downhill, but that the gradient was difficult to predict since the downfall course might stop or spontaneous remissions occur.

At page the author dealing as to how Schizophrenia will be a ground for divorce says:

Insanity can be a reason for divorce and for nullification of marriage. A petition for divorce may be presented on the ground that the respondent is

incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the

presentation of the petition"" (Matrimonial Causes Act, 1937). Undercare and treatment"" means either compulsory detention or informal stay,

provided the latter follows directly on a period of compulsory detention. An important amplification of what is meant by being incurably of unsound

mind was given in a recent judicial decision Whysall v. Whysall (1953) 3 All. E.R. 389.

Mayes-Gross Slater and Roth in their book ""Clinical Psychiatry"", at page 237, dealing with Schizophrenia says:

The term schizophrenia is used here for a group of mental illness characterized by specific psychological symptoms, and leading, in the majority of

cases, to a disorganization of the personality of the patient. The symptoms interfere with the patient''s thinking, emotion, conation and mother

behaviour, and with each in a characteristic way. The disorganization Of personality often results in chronic invalidism and life long hospitalization

inspite of the absence of gross physical signs or symptoms.

At page 287, dealing with paranoid type of Schizophrenia the authors say:

The paranoid form of schizophrenia, however is relatively distinct from the others and often persists true to type throughout its course. Primary

delusions followed by secondary delusional interpretations are the leading symptoms, and together with hallucination can, remain almost the only

disorder in a chronic psychosis lasting for years. Disturbances of thinking, feeling and volition etc., those symptoms which lead to deterioration of

the personality, may be absent or inconspicuous, or only revealed under special circumstances.

In a case reported in Whysall v. Whysaill 1959 All. E.R. 389 which is similar to this case, the Court had held that a wife is entitled to get an

order of dissolution of her marriage with her husband on the ground of incurably of unsound mind for a period of more than 5 years immediately

preceding the petition. In that case, the husband entered a mental hospital in 1952 and he was found to be suffering from paranoid schizophrenia.

The wife filed a petition for divorce in 1958. He had undergone electro-convulsive treatment without any lasting improvement in his condition. But,

just before the filing of the petition he had shown much improvement as a result of treatment with drugs. The medical evidence was to the effect

that though there was no prospect of full clinical recovery there was possibility of some degree of social recovery, that the husband might be

discharged from the hospital in about 6 months if suitable living conditions could be found for him, but that even after his discharge he would still

have to continue taking drugs to maintain his recovery. The Court found on the evidence that the husband''s disease was a chronic case and there

was no hope of more than a partial recovery such as would enable him to live life where he had the benefit of sympathetic supervision and care and

that, therefore, he was incurably, of unsound mind within the meaning of S. 1(1)(d) of the Matrimonial Causes Act, 1950. Phillimore, J., (sic) dealt

with the question as to when a person can be said to be of unsound mind. He felt that it was always dangerous to attempt to (sic) the phrase ""of

unsound mind"" used in the statute, for, there is a great risk that in attempting to define the words used by the Parliament fresh difficulties will be

created, the rest may be to make confusion worse confounded. Then, the learned Judge states:

It seems to me that the intention of Parliament was (sic) enable one spouse to obtain a dissolution of the marriage when the mental incapacity of the

other, despite five years'' treatment, was such as to make it impossible for them to live (sic) normal married life together and when there was no

prospect of any improvement in mental health which would make it positive for them to do so in the future. The state of mind envisaged was

accordingly a degree of unsoundness or incapacity of mind properly called insanity. If a practical test of the degree is required, I think it is to be

found in the phrase used in S.90 of the (sic) Act, 1890--""incapable of managing himself and his affairs"", provided it is remembered that ""affairs

include the problems of society and of married life and that the test of ability to manage affairs is that to be required of the reasonable man.

Then, the learned Judge proceeds to consider as to when unsoundness of mind can be said to be incapable and states:

In my judgment, the test to be applied to the word ""(sic)"" is to be applied with common sense (sic) with regard to the popular understanding (sic)

the term. In a sense, no doubt, anyone (sic) has suffered a severe disease, mental or physical cannot be cured in that be cannot expect to enjoy a

mind or body as robust or healthy as before. Nevertheless, we regard such person cured when he has left hospital and resumed a normal life. The

mere fact that he (sic) have to take prophylactic measures to preserve his cure does not in ordinary language class him as an invalid. In the physical

sphere, injections in the case of a diabetic provide a parallel to the Largactit which the schizophrenic must always take even after he (sic)

discharged as clinically ""recovered"". There will always be borderline cases, such as cases where there is a real prospect, of (sic) at an early date,

but if these cases are to be properly assessed and the interests of the mentally affected are to be protected, a practical test must be found--a lest

which enables a doctor to say with some confidence on which side of the line the particular patient falls. If a man can hope to r�sum� a normal

married life and to manage himself and his affairs, no ordinary person would describe him as incurably of unsound mind or insane, because, he has

to take a drug once a week or a day. Equally, however, if in the light of medical knowledge at the time of the inquiry it is said that the patient''s

mental state is such that the best can be hoped for his discharge to conditions where he will not be required to manage himself or his affairs, but will

live an artificial existence protected from the normal incidents and problems of life, be will properly be termed incurable. A parallel in the physical

sphere is the patient who can go home, but will always be bedridden, whom we would term a permanent invalid.

In Dastana v. Dastane AIR 1970 Bom. 812, relied on by the appellant, a husband had applied for annulling the marriage that took place in

1956 under S. 12(1)(c) on the ground that the consent of the husband for the marriage was obtained by fraud without disclosing the fact that the

wife was suffering from schizophrenia and that she was treated in a mental hospital in the year 1954. The wife denied that she was suffering from

schizophrenia. Vaidya, J. who dealt with that question in a second appeal held that the question as to whether the respondent suffered at any time

from schizophrenia is essentially a question of fact, and in view of the concurrent findings recorded by the two lower Courts, it is not open to the

husband to challenge those findings. Before him, a pamphlet issued in 1961 by an organization known as ""the Mental Health Research Fund,

London"" was relied on in support of the husband''s plea that schizophrenia is a chronic disease and that it is incurable. The learned Judge was not

inclined to rely on the said pamphlet as authoritative and even if the position stated in the pamphlet is correct, the evidence in the case did not

establish that the wife was, in fact, suffering from schizophrenia. Ultimately, the Court held that the husband is not entitled to seek a nullity of the

marriage. That decision is, therefore to be confined to the facts of that case.

We will now consider the facts of this case in the light of what has been stated above as to the nature and the treatment for the disease

paranoid schizophrenia. Admittedly, the appellant was suffering from paranoid schizophrenia from 1961 to 1966. It is in evidence that even in the

year 1981 she has been taking medicines for mental illness from Dr. Dhyriam, a mental expert. P.W.1 who treated the appellant in the mental

hospital at Vellore till 1965 clearly says that the disease was not completely cured. After perusing the appellant''s case record Ex. A-1, the

Doctors, P.W.1, P.W. 6. and R.W. 4 are of uniform opinion, from the treatment given to the appellant during the period when she was in the

mental hospital that the disease she was suffering could have been only an extreme mental case. Though P.W. 1 and R.W. 4 have stated that

paranoid Schizophrenia is generally curable, the fact is that the appellant was not completely cured even after continued treatment from 1961 to

1965. It is true the case sheet, Ex. A-1 shows that the appellant''s conditional the time of the discharge from the mental hospital on various

occasions was found slightly improved as a result of the treatment given in the hospital. Having regard to the nature of the disease as spoken to by

P.Ws. 1 and 6, as also the various authorities referred to above, it is clear that the appellant would never be free from the latent disease although

one symptom might be suppressed and others would appear. The appellant is continuing to show lack of interest, activity, and emotional

responsibility. In this condition she may not be able to look after her own affairs and attend to the needs of the husband as well as children. The

medical evidence also makes it clear that the appellant is an extreme mental case, that there was no hope of more than a partial recovery and that

she has always to be under treatment, sympathetic supervision and care. It is not, therefore, possible for us to hold that the appellant will be able to

lead a normal married life, where she would be able to manage herself and her affairs, as well attend to the needs of the husband and children.

Even after the medical treatment and care, the mental disease from which the appellant was suffering is persisting from 1961 to 1965 for a period

of four years before the petition for divorce was filed in 1965. Therefore, the condition requisite in S.13(1) (iii) is satisfied and the respondent

husband is entitled to succeed. It is contended by the learned counsel for the appellant that having regard to the fact that the appellant is found to

suffer from the mental disease, she would naturally require the attention, and affection of the husband more now, and that any decision in the case

in favour of the husband would aggravate the mental illness of the appellant. It is also (sic) that the children are to be married now, (sic) if the

marriage the between the parents is (sic) an end to at this stage, the interests of the children will suffer. But, these are not matters which can be

taken into account by the Court. If the respondent is found to have established his case, the Court cannot refuse the relief claimed by the

respondent on the ground that the decision in favour of the husband will be against the interests of the wife and children. We, therefore, entirely

agree with the view taken by Palaniswamy, J. and dismiss the Letters Patent Appeal. However, there will be no order as to costs.