Sunil Kumar vs Smt. Jyoti alias Meena

J.V. Gupta, J.—This is husband''s appeal whose petition for the grant of decree of divorce and for the annulment of his marriage with the Respondent wife, has been dismissed by the trial Court.

The marriage between the parties was solemnised on Aug.28, 1984. According to the husband, the wife lived with him only for a short period of 13 or 14 days whereas according to the wife, she left the matrimonial home in April, 1985, when the petition was filed in the trial Court on April 11, 1985. The husband filed the petition seeking a decree for annulment of the marriage u/s 12(1)(c) of the Hindu Marriage Act, (hereinafter called the Act), on the ground of fraud or in the alternative, for a decree of dissolution of marriage by a decree of divorce, as envisaged u/s 13(1)(iii) of the Act. According to the Appellant-husband, soon after the marriage, he discovered that his wife, the Respondent, was suffering from mental disorder of a type to the extent as to render her unfit for marriage. She was suffering from disability of mind of various kinds and these facts were not disclosed either to him or to his parents by the parents or the relations of the wife. According to him, he and his family members came to know that prior to her marriage with'' him, she was under constant treatment of private doctor as well as in the Ram Manohar Lohia Hospital, New Delhi, for a sufficiently long time. These material facts were wilfully concealed by the parents of the wife. It was alleged that by reason of her mental condition, she was not capable of managing herself and her affairs. Even on the first night of marriage, she shouted and yelled, her face had become distorted and eye-balls had gone in different directions. She had cramping of the body and that she was foaming from her mouth. She regained consciousness after some time. Thereafter, the husband and the family members found that the wife was suffering from fits of alarming nature and that she was subject to recurrent attacks of insanity. According to the husband, after the marriage, the wife was constantly using drugs for her mental disorder and that the drugs were being secretly sent to her by her parental family members. When these facts were brought to the notice of her parents and other near relations and when they were asked to get her medically examined, they flatly refused to do so. Instead, they informed the husband and his parents that the wife could not be cured despite medical treatment. In the written statement, the wife contested the petition and accused the husband as being guilty of cruelty and desertion towards her. She pleaded that she was maltreated on account of having brought insufficient dowry. She denied positively that she was suffering from any mental disorder or any disability of the mind. She also denied having remained under treatment of private doctor as well as in Ram Manohar Lohia Hospital, New Delhi, before the marriage. It was also denied that those facts were wilfully concealed. According to her, she had a distinguished academic career as she had passed B.A., B.Ed, and before marriage she had been in service with La. Montessory School - an English Medium public school in Karol Bagh, New Delhi. She also offered to undergo any medical test in this regard. She also denied having suffered from any fits on the first night after marriage. According to her, the parties had gone to Simla on honeymoon trip after three days of their marriage and stayed there for a week. She also denied having taken any drugs munch less secretly. She maintained that the husband wanted to get rid of her on account of her having brought insufficient dowry. She also alleged that an attempt to kill her was made by the husband on April 13, 1985, when she was taken to Yamuna River, Delhi, by the husband on a motorcycle. In the replication, the husband denied the story of going to Yamuna River, Delhi, on Apr. 13, 1985. He also pleaded that he went twice or thrice to the house of the parents of the wife to enquire about her health and there he happened to lay hands on the OPD tickets, in respect of the wife, issued by the Ram Manohar Lohia Hospital, which he was able to bring secretly to Gurgaon. He also pleaded that he was informed by the doctors that the wife was suffering continuously from mental disorder of a serious type for quite a long period and that she had been given electric shocks on Oct.27, 1984, also. On the pleadings of the parties, the trial Court framed the following issues:

Whether the Respondent suffered from mental disorder and disability as alleged?

In case issue No. 1 is proved, whether the fact of mental disorder of Respondent was concealed by the parents of the Respondent, as alleged? If so, what effect?

Whether the Petitioner is entitled to the decree of annulment of marriage or divorce?

Whether the Petitioner is estopped from filing the present petition by his acts, conduct, omission, acquiescence, laches, admissions and waiver? If so, to what effect?

Whether any legal mandatory requirement has not been incorporated in the petition as alleged? if so, to what effect?

Under issue No. 1, the ld. Additional District Judge concluded that husband had failed to prove that the wife was suffering from any mental disorder. Under issues Nos. 2 and 3 discussed together, the Court found that the husband was not entitled to a decree of annulment of marriage u/s 12(1)(c) of the Act. Consequently, the petition was dismissed.

The ld. Counsel for the Appellant submitted that from the statement of Dr. S. Dayal, PW3 read with the OPD tickets, Exhibits P1, P2 and P3, it was amply proved that the wife was suffering from schizophrenia. Thus, argued the ld. Counsel, the finding of the ld. Additional District Judge in this behalf was wrong. The ld. Counsel also submitted that the wife was suffering from mental disorder of such a type and to such an extent that the husband cannot reasonably be expected to live with her. Therefore, he was entitled to the decree of divorce. In support of the contention, the ld. Counsel relied upon Tarlochan Singh v. Jit Kaur (1986) PLR 542; Vinod Kumari v. Major Surinder Mohan 1984 HLR 508 and Gumam Singh v. Chand Kaur Hindu Law Reporter 134.

On the other hand, the ld. Counsel for the Respondent wife submitted that the case of the husband was falsified from the evidence on the record; particularly the statement of Dr. S. Dayal, PW3, when he stated that the husband had accompanied his wife when she was examined whereas the husband stated that he was able to get the OPD ticket from the house of his wife secretly. He also contended that if on the first night, i.e. August 28, 1984, the husband found the wife in an abnormal condition, there was no occasion for them to go to Simla for honeymoon; ather reither the wife should have been got examined the very next day from the doctor or immediately thereafter, the petition should have been filed for annulment of the marriage. The parties lived to get her and parted company according to the wife, in April, 1985, Even she had conceived a child which was aborted on Dec.4, 1984, at the instance of the husband. Thus, argued the ld. Counsel, there was no legal evidence to connect the OPD tickets with the wife as there was no disease mentioned therein from which the patient was suffering. No history of the case was recorded by the doctor, nor any test was performed.

I have heard the ld. Counsel for the parties and have also gone through the relevant evidence on the record.

From the statement of Dr. S. Dayal, PW3, the trial Court concluded:

The testimony of Dr. S. Dayal, PW3, falls for short of the standard to record a conclusion that the Respondent was suffering from schizophrenia because without proof of the history or other record of the patient, the testimony of Dr. S. Dayal, cannot, legally be attached any value in the face of the provisions of Section 64 of the Evidence Act.

Moreover, the Respondent-wife categorically stated that she was willing to undergo any medical test and examination. This was stated by her even in her written statement. In spite of that, the husband never took the risk of getting her medically examined at any point of time during these proceedings either in the trial Court or in this Court.

Section 13(1)(iii) provides that if either of the spouses 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, the marriage may be dissolved on a petition presented by the aggrieved party by a decree of divorce. In other words, it must be proved in the first instance that the Respondent was suffering from mental disorder and after proving the same, it is further required to be proved that the mental disorder was of such a kind and to such an extent that the husband could not reasonably be expected to live with the Respondent. The question of proving the second ingredient will only arise if the first ingredient is proved by the party who alleges the mental disorder on the part of other spouse. From the evidence on the record, in the present case, the husband has miserably failed to prove the same by any cogent evidence. Not only that, the offer made to husband during the proceedings that she was prepared to undergo any medical test and examination further proves her bona fides. The husband is also falsified when he states that he got the OPD tickets secretly from the dining table when he happened to visit his wife at her parents, place. Dr. S. Dayal PW3, categorically stated that the husband was accompanied by the wife once or twice in connection with her treatment. In these circumstances, the whole story put up by the husband was false. Not only that, the abortion was suggested by Dr. S. Dayal, PW, himself and unless the husband was a consenting party thereto, no abortion could take place. It is not the case of the husband that the abortion was without his consent. Thus, the husband has failed to prove the ingredients of Section 12(1)(c) and Section 13(1)(iii) of the Act. The judgments referred to above, have no applicability whatsoever to the facts of the present case. As observed earlier, in this case, the husband has failed to prove any sort of mental disorder of which the wife could be said to be suffering.

Consequently, this appeal fails and is dismissed.