Smt. Sunita Sajnani vs Ratan Kumar

M.G. Mukherji, C.J.—This appeal is filed by Smt. Sunita Sajnani impugning an order dated 16th September, 1996 passed by the learned Judge, Family Court, Udaipur in Civil Misc. Case No. 58 /92 whereby the appellant was ultimately found to be not mentally healthy. There was however no specific finding given by the learned Judge, Family Court that the appellant was incapable, by reason of any mental infirmity, of protecting her interest when she has been against by her husband.

The parties were married according to Hindu rites on 15th December, 1990 at Udaipur. There was initially an advertisement given in the Rajasthan Patrika in June, 1990 by Ratan Kumar pursuant to which the father of Sunita corresponded with them and there was an engagement in September, 1990 at Jaipur. The marriage took place on 15th December, 1990. Soon after the marriage it was found that Smt. Sunita had an aversion to go to her husband at Udaipur where he was working as a Clerk-cum-Cashier in the State Bank of Bikaner and Jaipur, but ultimately at the instance of her husband she had to seek her transfer at Udaipur where they lived for sometime. It is her case that at the behest of her husband she had to suffer an abortion and she became somewhat physically weak. She was serving in the Bank for about 12 years and prior to her transfer to Udaipur on 2.5.1991 she was serving at Jaipur. She got Computer Certificate in 1987. The husband suspected her of mental illness and on 2.5.1992 filed a petition u/s 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955 seeking dissolution of marriage by a decree of divorce on the ground inter alia that she was suffering from Schizophrenia and therefore, she was a person of mental disorder or of unsound mind and she was guilty of cruelty. The wife Sunita was not impleaded through guardian despite the allegation made by the husband that she was a person of unsound mind. When notice of the petition went to Sunita, she pleaded of unsound mind and the allegation levelled against her by her husband was false. After some proceedings, the husband filed an application under Order 32, Rule 15, CPC for appointment of the guardian since according to him, his wife was a person of unsound mind. The wife contested the application and pleaded that she was a person of sound mind. While that application was being considered by the Family Court, the husband filed an application under Order 23, Rule 1(3) of the CPC for withdrawing the application with permission to file a fresh one on the same cause of action. The notice of the application was given for the same day in the afternoon for filing reply and for arguments. The wife could not file the reply and the time she sought for to file an objection having been declined, by the reply and order without giving reasons, the Family Court allowed the application without regarding the finding that there was a normal defect in the application for annulling the marriage and granted permission to the husband to file a fresh suit. The wife thereafter filed an appeal before this Court.

A Division Bench of this Court by a judgment and order dated 27th September, 1994 in D.B. Civil Misc. Appeal No. 65/93 observed inter alia that the appeal filed by the wife deserves to be allowed. Non-impleading of the guardian was not a formal defect, but that was a curable one and for that reason the Family Court gave an opportunity to the husband to move an application for appointment of guardian. The Division Bench observed that the question of appointment of guardian would arise only after the Court records a finding that the wife is a person of unsound mind and in making such a finding, an enquiry will have to be made. Admittedly, in this case at the relevant time the enquiry was made. The Division Bench accordingly set aside the order of the Family Court granting permission to the husband to withdraw the application for annulment of marriage and to file a fresh one and directed the earlier application to be restored and the Family Court Judge was asked to decide whether the wife is a person of sound mind and it was made clear that if the Family Court Judge records a finding that she is a person of unsound mind, only then a guardian could be appointed and not otherwise. When the apprehension was raised on behalf of the husband that if the finding is recorded that the wife is a person of sound mind, the main petition would have to be dismissed, the Division Bench answered the question to the effect that indeed that would be the result and he would be the inevitable result which will follow. The Division Bench accordingly asked both the parties to appear before the Family Court, on 24th October, 1994.

After the matter was remanded to the Family Court, it commenced enquiry. The husband Ratan Kumar was examined as A-DW 1. One Dr. D.M. Mathur was examined as A-DW 2 and Dr. Ved Prakash Sharma was examined as A-DW 3. The documents Exs. 1 to 25 were exhibited. The appellant Sunita was also examined as N A-DW 1. Ultimately, the Family Court came to a finding that the appellant-wife was not mentally healthy.

A casual look at the judgment would reveal that the learned Family Court Judge has not given any finding regarding capability of the appellant in protecting her rights in defending the petition filed against her u/s 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce. The learned Family Court Judge has not considered the provisionsofOrder32, Rule 15, CPC in the proper perspective, A-DW 1-respondent Ratan Kumar has nowhere stated any thing regarding the incapability of the appellant-Sunita that she is unable to protect her interest and that is why an appointment of guardian is necessary. It is an admitted fact that both the husband and the wife are serving in the same Bank. The appellant-wife is posted at State Bank of Bikaner and Jaipur, Regional Office-1, Udaipur as a Clerk-cum-Typist, whereas the respondent-husband is working as a Clerk-cum-Cashier in the same Bank at Chetak Circle Branch, Udaipur. It was stated by the husband Ratan Kumar that after six months of the marriage they went to Bombay and Mahableshwaram just for outing and they were living under the same roof and they continued to live under the same roof for near about one year. It has also been admitted by him that the wife Sunita drives moped and regularly goes to the Bank. In support of his contention no neighbours or colleagues have been examined on his behalf and he failed to prove that the appellant-Sunita is a person of unsound mind and unable to protect her rights so as to properly defend herself in a suit of a matrimonial nature where a decree for dissolution of marriage has been claimed against her on the ground of her mental disorder of an intermittent nature of such a kind and to such an extent that the husband cannot be reasonably expected to live with the wife who is said to be suffering from mental disorder or psychopathic disorder.

We have gone through the testimony of A-DW 2 Dr. D.M. Mathur, who frankly conceded that he could not identify Sunita as to whether she was the same patient whose name had been mentioned in Ex. 18 or not. Ex. 18 was of the year 1984, a prescription of the doctor. He stated that on 9.11.1991 he examined the appellant Sunita, but he cannot say what was the nature and type of schizophrenia. He merely states that he has interviewed the patient only for 15 minutes. He cannot say with certainty whether her disease is curable or not. He further testified that he could only tell whether the disease has been cured or not, only after examination of the patient. He admitted that previously a report Ex. A. 1 was issued by the Medical Board consisting of three doctors of which he was one and there was no pressure or influence or any other extraneous factor on any person in issuance of such Certificate. It is to be pointed out in this context that Ex. A.1 is a report of the Medical Board showing that there was no mental infirmity in the appellant-Sunita but it was observed that; (1) she is well clad, kumpt, cooperative; (2) Psychomoler actively-average; (3) Mood-appropriate; (4) she talks coherent, relevant; (5) she is well for time, place and person; (6) she does not have any hallucination, delusions, obsessions, hysterical features; (7) She has bright impression - No psychiatric abnormality observed. Her marks of identification (1) Brown mole on right angle of jaw, (2) Brown mole on cheek right side. It is thus clear that the statement of A-DW 2 Dr. D.M. Mathur does not support the contention of the respondent that the appellant Sunita is mentally ill.

Insofar as the testimony of A-DW 3 Dr. Ved Prakash Sharma is concerned, it is clear enough that he never examined the appellant-Sunita. He states that on 23rd August, 1993 Ratan Kumar submitted an application before him Ex. 13 and has followed comments and a second Medical Board was formed vide Ex. 24, but he admitted that the second Medical Board was not formed on the direction of the Court. The appellant-Sunita also did not appear before the so-called second Medical Board. It is thus clear enough that the testimony of A-DW 3 has no relevance whatsoever so as to assess the degree of psychopathic disorder or mental illness of the appellant-Sunita.

On the contrary we find that N A-DW 1 Sunita gave out the testimony before the Family Court that she lived with her husband for about one year and due to her abortion she became somewhat physically weak, but she is mentally alright. She is serving in the State Bank of Bikaner and Jaipur for several years past and prior to her transfer to Udaipur on 2.5.1991 she was serving at Jaipur. She got a Computer Certificate in 1987. Ex. A5 and Ex. A2 to Ex. A4 are the Certificates issued by her higher Authorities showing her efficiency in the work. Ex. A6 is the Certificate of her general knowledge. Ex. A7 to Ex. A10 clearly shows that she was also good in performance to her work. She is living all alone at Udaipur City. She was also examined by the Medical Board in which experts in psychiatry were there and they found her mentally quite healthy. She vouched that she was never examined by Dr. K.G. Thanvi. She also stated that she was working as a Clerk-cum-Typist. She is also doing the work of audit in the Bank. She cooks food for herself independently. Her behaviour is good with neighbours and with landlord. She has also got staff training, namely, General Banking Phase-II. She fond of games like Volley-ball, Basket-ball, Badminton, etc. She goes to Bank on TVS Moped. Even while coming to the Court on Moped she showed no abnormality. Her work and presence in the Bank was quite regular. She can live with her husband in a proper manner and can serve him being a wife. All these averments and testimony go to show that it cannot be said in any manner whatsoever that he is not capable to protect her own interests in the matrimonial suit.

It is really a sad state of affairs that the Family Court had not done its duty properly and merely relied upon certain statements which were not clearly proved in any manner whatsoever by the respondent. Ex. A1 to Ex. 14 could only be proved by producing Dr. Thanvi in the witness-box. However, all these documents are not related in any manner in respect of present enquiry. These documents are of the years 1985 to 1990 and they show at best that Sunita had suffered from some mental disease or mental infirmity or at least was treated for some psychiatric disease in between the years 1985 and 1990. The contents of the documents have also not been proved by either producing the writers of the documents or letters or such persons who know the writing of the so-called writers. Even assuming that Ex. A1 was not be seen as it was prepared after the decision of this Court or if it was not prepared according to Rules, but it is very much clear that Ex. A1 supports the contention of Sunita. Apart from that, there is no other evidence in support of the respondent''s case that Sunita is so infirm that she is not capable of protecting her own interest and she cannot defend her case without guardian. It is to be pointed out that when the respondent filed a subsequent petition for divorce on the basis of the order of withdrawal, in that Suit No. 30/93, the learned Family Court Judge observed in the order sheet dated 30.8.1993 that having conducted an interview of Sunita, the learned Family Court did not find any mental infirmity in her. The observation regarding the interview of Sunita by the learned Family Court Judge has also some considered significance and it goes a long way in establishing the contention that a case under Order 32, Rule 15, CPC has been dearly proved.

We are of the considered view that on the basis of the findings as arrived at, the respondent-Ratan Kumar has not been able to make out case for appointment of a guardian for the appellant-Sunita under Order 32, Rule 15 of the Code of Civil Procedure. The learned Family Court Judge has made observations exceeding the scope of enquiry and the finding given by the learned Family Court Judge to the effect that Sunita is not mentally healthy is erroneous. The order can adversely affect her career and prejudicially affect her present job which she is occupying under the State Bank of Bikaner and Jaipur. Mere branding of a person that she is suffering from schizophrenia is not sufficient to get a decree of divorce on ground of cruelty or mental disorder or psychopathic disorder/no is it sufficient to invoke the provisions of Order 32, Rule 15, Code of Civil Procedure. No sufficient evidence has really come to prove that Sunita really behaved in an odd and inappropriate manner, that there has been any deterioration in the level of her performance at work with her employer, the State Bank of Bikaner and Jaipur.

We have interviewed Sunita and Ratan Kumar to effect reconciliation in between the parties. We have closely examined Sunita and put her very many questions. We have no iota of doubt that even though she did suffer from mental depression in the past, she cannot be said to be a person of unsound mind or suffering from mental disorder far less a person incapable, by reason of her mental infirmily of protecting her interest when she has been sued against by her husband. She frankly admitted before us that in times of mental depression she was advised by her doctors to take some sedative drugs or tranquilisers, about which her mother appearing before us also made a clear admission, but that itself does not prove that Sunita is really suffering from any mental infirmity so as to be taken as incapable of protecting her own interest. It is a fit case for application of Order 32, Rule 15, Civil Procedure Code, far less for appointment of a guardian for safeguarding the interest of the appellant-Sunita.

It is in the fitness of things that not only the findings as arrived at by the learned Family Court Judge should stand set aside but the application under Order 32, Rule 15 of the CPC should in the fitness of things be held not to have been properly proved and should stand rejected. This finding will not result in the dismissal of the suit. The husband-Ratan Kumar can still pursue this suit of his own and bring insufficient evidence to prove his case, if he is otherwise competent to do so.

With these findings, the appeal stands allowed. In the facts and circumstances of the present case, the appellant-wife would be entitled to a cost of Rs. 2,000/- (Rupees Two Thousand) against her husband-Ratan Kumar.