Smt. Roshni Sharma vs S.K. Sharma

Hon''ble Shri Prashant Kumar Mishra, J.—The present appeal u/s 19 (1) of the Family Courts Act 1984 (henceforth ''the Act, 1984'') has been preferred by the appellant/wife challenging the judgment and decree passed by the 1st Additional Principal Judge Family Court, Raipur allowing respondent/husband''s application u/s 5 read with Sections 11 and 12 of the Hindu Marriage Act, 1955 (henceforth ''the Act, 1955'') and thereby declaring the marriage between the parties solemnized on 15-2-2002 as void.

The respondent/husband preferred the subject application u/s 5 read with Sections 11 and 12 of the Act, 1955 on the pleadings inter alia that the parties were married at Raipur on 15-2-2002 and after completion of the ceremony and departure of the relatives, the husband did not get any opportunity to have intimacy with the wife. They went to Devbhog to his sister''s house and there because the house was big a separate room was made available for them. The husband tried to initiate physical relation, however, the wife behaved abnormally and refused to have sexual intercourse. Her brother, or being informed, came to their house and gave severe beatings to his sister (the appellant/wife). Narrating other incidents, the respondent/husband, in substance, pleaded that the wife is suffering from schizophrenia and has a ''CYST'' and is not able to procreate.

It is further stated in the application that the appellant/wife left her marital house and went to her parental house without informing the respondents husband and since thereafter she has not returned to her marital house. The subject application for declaring the marriage as void was filed on 11-2-2003. The appellant/wife submitted her reply and denied the allegations made in the application filed by the respondent/husband. It was stated in the reply that the respondent/husband has administered some medicines and because of that the appellant has fallen ill and that she is not suffering from any disease which may be termed as schizophrenia or mental disorder.

On the basis of the pleadings made by the parties, the family Court framed issues as to whether the appellant/wife suffers from recurrent attack of insanity and has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the applicant/husband cannot reasonably be expected to live with the non-applicant/wife and also that the non-applicant is incurably of unsound mind. Issue regarding non-consummation of marriage due to impotence of the wife was also framed. After discussing the evidence available on record, the family Court has decided all the issues in favour of the respondent/husband and against the appellant/wife.

Before proceeding to deal with the evidence and the correctness of the findings recorded by the family Court, this Court shall address itself to the relevant provisions of law under which the relief has been sought for by the respondent/husband.

Since the decision in the case depends on interpretation of Section 5(ii)(a) and (b) and Section 12 (1)(b) of the Act, 1955, the said sections are quoted hereunder for convenience of reference:

Conditions for a Hindu marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

(i) xxx xxx xxx xxx

(ii) at the time of the marriage, neither party -

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children;

Voidable Marriages - (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely -

xxx xxx xxx xxx

(b) that the marriage is in contravention of the conditions specified in Clause (ii) of Section 5.

Section 5 of the Act, 1955 provides that a marriage may be solemnized between any two Hindus if the conditions specified in the section are fulfilled. Amongst the other conditions stated therein, in sub-section (ii) it is laid down that at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and Section 12 (1)(b) of the Act, 1955 refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in Clause (ii) of Section 5 of the Act, 1955. On a plain reading of the said provision, it is manifest that the conditions prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is not per se void but voidable under the clause.

Shri H.B.Agrawal, learned Senior Advocate appearing for the appellant/wife has vehemently argued that the evidence on record does not satisfy the requirement of law as enshrined u/s 5(ii)(b) of the Act, 1955 and that the findings recorded by the family Court are absolutely perverse.

Per contra, Shri B.P.Sharma, learned counsel appearing for the respondent/husband has argued that the respondent/husband has proved the necessary ingredients and pre-requisites of law for annulment of the marriage as void as contained in Section 12 (1)(b) read with Section 5(ii)(b) of the Act, 1955. He would also submit that the appellant/wife is suffering from mental disorder of such a kind that she is unfit for marriage as also for procreation of children.

The law with respect to the construction, impact and sweep of Sections 5(ii)(b) and 12 (1)(b) of the Act, 1955 has been lucidly dealt with in a judgment of Madhya Pradesh High Court in Smt. Alka Sharma Vs. Abhinesh Chandra Sharma, . In the said matter, after elaborately considering the relevant legal provisions, its legislative history, harmonizing of the provision vis-a-vis rights of the husband and wife under the Act, 1955, the Court has, thus, summarized its judgment in paragraphs 12, 13 and 14 thereof, which read thus:

In interpreting the provisions of S. 5(ii)(b) of the Act such interpretation should be placed and be accepted which would have way for a smooth marital relationship. As has been noticed above S. 5(ii)(b) as it originally stood before amendment, contained one of the conditions of a valid marriage that ''neither party is an idiot or lunatic at the time of marriage.'' The above expression was used in the light of the provisions of Indian Lunacy Act, 1912 where a lunatic under S. 3 (5) has been defined as a person who is idiot or of unsound mind. The Amendment Act 68 of 1967 introducing drastic amendment to S. 5(ii)(b) substitutes the words ''suffering from mental disorder of such a kind and/or to such an extent as to be unfit for marriage and for procreation of children'', and is a clear intention of the legislature that a person who is mentally not sound although he may not be idiot or lunatic, is disqualified from contracting a valid marriage. A party cannot be compelled to suffer marital life with a marriage partner who is not mentally sound and is only fit for procreation of children. It would be absurd to hold that it is only such a mentally ill spouse, who is both unfit for marriage as also unfit for procreation of children, is disqualified to marry. To me, it appears that liberalized provisions of S. 5(ii)(b), as exist, after the Amendment Act 68 of 1976, make any one of the two conditions found wanting in a spouse due to mental disorder, a. disqualification for contracting a valid marriage. In my opinion, the word ''and'' between the expression ''unfit for marriage'' and ''procreation of children'' should be read ''and/or'' meaning thereby that they may both co-exist or any one of them may exist as a pre-condition of a valid marriage. Reading the provision in the manner aforesaid, it becomes more intelligible and practicable in the marriage situations obtaining in individual cases. To say that a marriage partner that is, the wife or the husband is fit for marriage although mentally unsound, only because he/she has capacity to produce children is to force one of the parties to the marriage to lead all his/her married life with a seriously abnormal or mentally unsound life partner ''procreation of children'' is one of the principal aims for going through a marriage ceremony, but it is not all and the only aim of it. A married fife may be successful where one or both the parties to the marriage are unable to procreate children, but mental fitness must be taken to be a principal precondition for a valid marriage. The word ''and'', therefore, cannot be read only conjunctively, as is sought, to be done by the counsel for the wife. It is true that ''and'' can, under given circumstances, keeping in view the subject and intention of the legislature, be read as ''or'' and vice versa, but I do not find any objection in reading ''and'' as ''and/or''. According to me, if ''and'' is read only as ''or'' the legislative intent cannot be fulfilled. If the word ''and'' is read as ''or'', a spouse suffering from such a mental disorder as would make her/him incapable of giving birth to children would be disqualified for marriage irrespective of the fact that he or she is otherwise fit for leading a life of a marriage partner with the other party. It may be noticed that under S. 13 (1)(iii) of the Act ''mental disorder'' as a ground of divorce is only where it is of such a kind and degree that ''the petitioner cannot reasonably be expected to live with the respondent''. Assistance, according to me, can be taken of the above provision for understanding the expression ''unfit for marriage'' used in S. 5(ii)(b) of the Act, that is unfitness of the party suffering from mental disorder should be of such a type that the petitioner cannot reasonably be expected to run the risk of married life with the respondent. Understanding the word ''unfit for marriage'' in the above manner and in the light of the provisions of S 13 (1)(iii) of the Act. I am, therefore, of the opinion that mental disorder merely disabling ''procreation of children'' may not be, in a given case, a good ground for nullifying the marriage. We can envisage a spouse marrying at late age or a mental disorder of such a type where he or she is unable to complete a sexual act or a man or woman having no sexual organ for procreation of children but he or she may be otherwise completely fit as a marriage partner irrespective of a mental disorder disabling her/ him from procreating children. In such a case permitting dissolution or nullification of marriage would break the marriage tie on an unsubstantial ground. In a given situation 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 wedlock is one of the principal aims of Hindu marriage where Sanskar of marriage is advised for progeny and offsprings. The word ''and'', therefore, should be read as ''and/or'' permitting the matrimonial Court in a given situation and given case of mental disorder to nullify a marriage if either of them or both the conditions exist making living of the parties together highly unhappy if not impossible. In my considered view, therefore, the word ''and'' should not only be read as ''or'' but should be read as ''and/or'' meaning ''either or both''.

There can be another angle or looking at the same provision to give it effective meaning. In interpreting the provisions of S. 5(ii)(b), the order ''procreation'' has, in my opinion, should be construed to have a wider legal meaning. The literal or dictionary meaning of the word ''procreate'' or ''procreation'' is as under:-

(1) According to Shorter Oxford English Dictionary the word ''procreate'' is explained thus: To beget, generate, to produce offspring, engender.

(2) According to Longman Synonym Dictionary, Procreate: v. 1.-

beget, engender, generate, create, conceive, father, sire give birth to, get; bread, propagate, reproduce, spawn.

Cause, produce, effect effectuate, make happen, bring about, bring to pass, give rise to, occasion, begin, originate, initiate, sow the seeds of.

In the context of S. 5 of the Act and the subject dealt with therein, namely to lay down conditions for a valid Hindu marriage, the word ''procreate'' has to be assigned a wider legal meaning that is, according to me, capacity of a spouse ''to give birth as also to rear up and bring up children.'' A spouse although not sterile and medically fit to give birth to children may still be unfit, due to his or her mental disorder, to look after and bring up children. It may be noted that under S. 5(ii)(b) of the Act a reasonable degree of sound mental state is a precondition of marriage for both the parties that is the man and the woman. The word ''procreation'', therefore, implies within it not only capacity to give birth to children but also to look after them as well-so as to bring them up. The entire expression ''mental disorder of such a kind or to such an extent as to be unfit for marriage and for procreation of children'', therefore, conveys that if one of the spouses suffers from such mental