Shri Gopal Chandra Lekharu vs Smt. Hira Lekharu

S.N. Phukan, J.—This first appeal is directed against the judgment and decree dated 31.3.86 passed by the learned District and Sessions Judge, Kamrup, Gauhati, in Divorce Title Suit No. 16 of 1983. The appeal has been filed by the Petitioner as Appellant u/s 28 of the Hindu Marriage Act, 1955, for short ''the Act, read with Section 96 of the Code of Civil Procedure, 1908.

Both the Appellant and the Respondent got married on 9.5.81 according to Hindu rites and the parties are governed by Dayabhaga School of Hindu Law. It was a Negotiated marriage. It is alleged that shortly after the marriage Appellant saw the abnormal behaviour of the Respondent as she started talking incoherently and picked up quarrels with other members of the family of the Appellant and used to come out to the road talking to abusive and filthy languages about the Petitioner and other members of the family and she hid to be taken back home forcibly. The Respondent was medically examined through Psychiatrist who opined that she was suffering from Schizophrenia of incurable type. It is also alleged that on 28.2.83 the Respondent finally left the house of the Appellant and never returned. Other allegations against the behaviour of the Respondent have been made in the present petition for divorce u/s 13 of the Act. The petition was duly resisted by the Respondent denying all the allegations, It is not disputed that the negotiated marriage was solemnised according to Hindu rites on 9.5.81. It is stated that both the parties were living together at the house of the Appellant and their marriage was consummated. It is alleged that the Appellant caused miscarriage of the Respondent by forcing her to take , some tablets which affected her both physically and mentally, It is further alleged that in the Month of October, 1981 both the parties wept and stayed in the house of the Respondent during Durga Puja and the Appellant returned home earlier. But when the Respondent returned to her husband house, the Appellant and the other members of his family created her cruelly and rebuked her for not bringing sufficient articles as a dowry and also demanded a plot of land in the name of Appellant at Gauhati from the father of the Respondent. It is also stated that in the month of June, 1982 the Respondent was asked to sign a blank paper for her divorce with the Appellant which she refused. She was tortured to-such an extent that she was not allowed to take bath in the bathroom, not supplied with proper food and sometimes she had to go without meals. She was also not allowed to talk with her brothers and other members of her family when they visited her. It, is not disputed that the Appellant got the Respondent medically examined by three doctors including two Psychiatrist. On 1.3.83 after assaulting her the Respondent was sent to her brother''s house with the son of the elder brother of the father of the Appellant. The Respondent on three occasions went to the house of the Appellant, but was not allowed enter the house. It is alleged that there is no ground for ground for yorce or judicial separation.

The learned District Judge framed as many as seven cussues including the issue namely; whether the Respondent was suffering from Schizophrenia? The learned trial Court after considering the evidence on record came to the finding that the Appellant ''failed to prove beyond all reasonable doubt that the Respondent was suffering from Schizophrenia and even if she suffered so from October 1981 to February 1982 she became bright after that period and there gives no scope for the husband to deny marital life with her''. In view the above finding the learned trial Court dismissed the petition and hence the present appeal.

Admittedly, the present petition comes under Clause (iii) of Sub-section (1) of Section 13 of the Act which is reproduced below:

(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....

From the allegations made in the petition for divorce appears that only point which has to be determined in this appeal is whether, the, Respondent has been suffering intermittently on mental disorder of schizophrenia to such, fn extent that the Appellant/Petitioner cannot reasonably be expected to live with the Respondent.

Mr. Choudhury, learned Counsel for the Appellant/Petitioner has raised serious objection to the finding of the learned trial Court that the Petitioner/Appellant failed to prove beyond all reasonable doubt that Respondent was suffering from schizophrenia

(emphasis supplied)

In Dr. N.G. Dastane Vs. Mrs. S. Dastane, their Lordships considered Sections 10 and 23 of the Act and held that proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry in to issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a more preponderance of probabilities and it is wrong to import such considerations in trials of a purely civil nature. It was also held that neither Section 10 nor Section 23 of the Act requires that the Petitioner must prove his case beyond reasonable doubt and Section 23 confers on the Court the power to pass a decree if it is ''satisfied'' on matters mentioned in Clause. (a) to (e) of the section. It was further held that proceeding under the Act being essentially of a civil nature, the word ''satisfied'' in Section 23 must mean ''satisfied'' on a preponderance of probabilities'' and not ''satisfied'' beyond a reasonable doubt''. A Division Bench of this Court also in Smt. Gauri Dey Vs. Bidhu Bhusan Dey, held that the word ''satisfied'' means ''satisfied on preponderance of probabilities'' and not ''satisfied beyond a reasonable doubt''. In view of the above law laid down, the contention of Mr. Choudhury has considerable force. In the present proceeding being of civil nature the Court has to be satisfied. On preponderance of probabilities on the basis of evidence on record whether the Petitioner-Appellant has been able to prove the allegations made in his petition and the Petitioner need not prove the said allegations beyond all reasonable doubt. In the instant proceeding the burden must lie on the Petitioner to establish his allegations as these has been denied by the Respondent.

To prove that the Respondent is suffering from schizophrenia the Petitioner has examined Dr. Das P.W. 2. who is as Assistant Professor of Psychiatric, Gauhati Medical College, Before considering his evidence on record it is necessary to examine the law regarding appreciation of evidence of an expert. Mr. Sarma, learned Counsel for the Respondent has placed reliance in Mt. Titli Vs. Alfred Robert Jones and Ajitrai Shivprasad Mehta Vs. Bai Vasumati, Mojito, Titli (supra) a Division Bench of the Allahabad High Court held that the opinion of an expert by itself may be relevant out would carry little weight with a Court unless it supported by a clear statement of what be noticed and on be based his opinion. The expert should, if he expects his opinion to be accepted, put before the Court all the mate(sic) which induced him to some to his conclusion, so that the Court although not expert, may from its own judgment on those materials. The above law was also followed in A.S. Mehta (supra). I respectfully agree with the above law laid by the Allahabad and Gujrat High Courts and therefore I am of the opinion that the expert, namely; Dr. Das. P.W.2 should put before the Court all the materials which induced him to coma to the conclusion that the Respondent was suffering from schizophrenia so that the Court although not expert, may from its own independent judgment on those materials.

According to Stedman''s Medical Dictionary, 23rd Indian Edition, scbizopherenia means the most common type of psychosis, characterized by a disorder in the thinking processes such as delusions and haiucinations, and extensive withdrawal of the individual''s interest from other people and the outside world, and the investment of it in his own. According to the said Dictionary there are following types of schizophrenia, namely ambulatory, catatonic, latent, hebephrenic, paranoid, process, pseudoneurotic, reactive and simple.

In Smt. Rita Roy Vs. Sitesh Chandra Bhadra Roy, by following an earlier decision of the said Court in Gobinda Prosad Mukherjee Vs. Sujit Bhowmick and Another, it was held that schizophrenia has to be considered on its own merits and is an illness of slow insidious onset developing over years and that there may be report of strange odd inappropriate behaviour. It was further held that there would be progressive deterioration in the level of performance at work and socially; school report, examination results and employment record will provide objective and usually reliable indices of intellectual performance, its maintenance or decline.

In Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane, it was held that the question as to whether a person suffered at any time from schizophrenia is essentially a question of fact. In Prithvi Pal Singh v. Jogender Kaur 1 (1983) DMC 457, the Delhi High Court held that to diagnosis schizophrenia simply on the presence of delusions and hallucianations is like making diagnosis of b coronary disease only on the basis of pain in the chest or the diagnosis of typhoid fever only on the presence of a sustained pyrexia, It is also held that simple symptom should certainly suggest the diagnosis of conditions in which such symptoms frequently occur. But unless there are specific conclusive tests for the existence of certain disease processes, a final differential diagnosis must be based ON the whole clinical picture. Mi. Chowdhury has placed before me Davidson''s Principles and Practice of Medicine (13th Edition low-priced edition) regarding this disease (at page 759) I do not get much assistance from this book wherein the symptom of disease and the treatment have been prescribed.

11 A. Situated thus, I hold that diagnosis of the disease schizophrenia is not simple and the expert must produce all the relevant records before the Court to come to the conclusion that a patient is suffering from the said disease, it must be proved by symptoms and other examinations by the expert that the patient was suffering from mental disorder in the thinking process and extensive withdrawal of interest from other people and he outside world and that the said disease was developing over years. It must also be proved that there was a deterioration in the level of the performance of a patient at work and socially.

Though Respondent was examined by 3 Doctors, only Doctors Das, P.W. 2 has been examined before the learned trial Court. From his evidence I find that the Respondent was under his treatment from 30.10.81 to February 1982. In cross-examination he has stated that he did not keep any record regarding the symptoms which be observed and what questions were put to the Respondent at the time of examination and that he was deposing before the learned trial Court from his memory. From this evidence I find that though be examined the Respondent from 30.10.81 to February, 1982 the certificate was issued only on 7.4.83 on case of the prescription of medicine issued by him. He has admitted that such patients can be rehabilitated after due treatment and according to him which patient can continue the marital life depending on the temperarnent of the other spouse. Nowhere in his evidence this witness has stated that the condition of the Respondent pas such that it was impossible to lead such life with the Petitioner/Appellant. So from the evidence of the expert, P.W. 2, it cannot be held that the Respondent was suffering disordered in her thinking process, that there was extensive withdrawal of her interest from other people of the outside world and this illness was developing over years with deterioration in the level of her performance of work. I cannot lose sight of the fact that the Respondent passed by B.A. examination and at present the Respondent is working as a Government servant in the capacity of Female Extension Officer in the Office of the Block Development Officer. D.W. 4 is a co-villager of the Respondent and he is a teacher of the local High School, the Respondent was a student and as such he knows her since her childhood. This witness has categorically stated that he mows the Respondent not only as a student but as a co-villager and that she never suffered from any mental disease. I see o reason to disbelieve the School teacher. From what has been stated above, I am of the opinion that the Petitioner/Appellant has failed to prove that the Respondent has been is suffering from schizophrenia

The Petitioner/Appellant has examined three more witnesses to prove the abnormal behaviour of the Respondent P.W. 3 who is related to the Petitioner/Appellant resides at lichar and be used to visit his house at the interval of 2/3 Months, He has narrated the incident which occurred in the 1993 to show that the Respondent behaved abnormally, I am unable to accept this statement and also from this incident (sic) cannot come ,to any conclusive finding that the Respondent as suffering from the above disease as alleged. P.W. 4 is stamp Vendor and he stays one furlong away from the sense of, the Petitioner/Appellant. He has also narrated the incident which took place at about 9.30 A.M. and from the evidence 1 find that be was only a chance witness. Ho has stated that on that date the Respondent became violent and some women of the neighbouring houses came and saw the occurrence bunone has been examined. He also cannot remember the date and month when the occurrence took place but only stated that it was in the year 1983. He has admitted categorically that except that incident be bad no knowledge of any abnormal behaviour of the Respondent on any other occasion. P.W. 5 is another witness who stated that about two years ago Bapdhan, P.W. 3 took the Respondent to his house wherein she started having altercation and quarrel with the maternal aunt of the Petitioner/Appellant and in the midst of the quarrel she became violent. These are the two incidents which the Petitioner tried to prove to show , that the Respondent used to become violent which has been denied. Only from these two incidents I cannot come to the finding that the Respondent was suffering from schizophrenia. It may be that there may be valid and sufficient reason for becoming violent on the above two dates which have not been brought out in evidence.

Most important thing about a person suffering from schizophrenia is her behaviour in the house. Unfortunately the Petitioner/Appellant has not examined any inmates of his house and no explanation whatsoever has been given for their non- examination.

From what has been stated above, I hold that the Petitioner/Appellant has failed to prove that the Respondent has been suffering or is suffering from schizophrenia or that she was behaving abnormally as alleged in the petition.

In order to obtain a decree u/s 13 of the Act, the Appellant in addition to the allegations that the Respondent was suffering from mental disorder has also to prove that such disease was of such a kind and to such an extent that the Appellant could not reasonably be expected to live with her. As stated earlier, Dr. Das, P.W. 2 has admitted that the Respondent can be rehabilitated after due treatment and can continue the marital life. There is also no other convincing evidence to prove this point. So, the present appeal is liable to be dismissed.

Mr. Choudhury has drawn my attention to Section 13A. of the Act and submits that even if a decree for divorce is not granted this Court has jurisdiction to pass instead a decree for judicial separation,

In Angrez Kaur Vs. Baldev Singh, Section 13A came up for consideration and it was held that Section 13A of the Act vests a discretion in the Court only to grant the alternative lesser relief of judicial separation in a petition for divorce provided the requisite ground therefore prescribed by Section 13 of the Act, has been established, respectfully agree with the above views and I am therefore of the opinion that law maker did not intend by introducing the said Section to the Code a total carte blanche to grant II decree for judicial separation where no ground whatsoever for a decree for divorce has been established. This Section 13A gives a discretion to the Court only to give alternative Easier relief of judicial separation even when ground for divorce made out. In the instant proceeding as no ground for divorce, has been made out as required u/s 13 of the Act, no decree for judicial separation can be granted u/s 13A of the Act.

For the foregoing reasons, I hold that the present appeal is liable to be dismissed, which I hereby do.

In the result, appeal is dismissed. Considering the facts Bind circumstances of the case, I leave the parties to bear heir own costs.