T.R. Rajagopalan vs Usha Rajagopalan

Sathasivam, J.—The husband who obtained a decree for divorce in M.O.P. No. 167 of 1983 on the file of VI Assistant Judge, City Civil

Court, Madras u/s 13(1)(iii), Hindu Marriage Act and lost before the lower appellate Court in C.A. No. 153 of 1987 on the file of the XI

Additional Judge, City Civil Court, Madras, has filed the present Second Appeal before this Court.

The case of the appellant as seen from the petition filed by him before the trial Court is briefly stated hereunder:-The petitioner (husband) and

the respondent (wife) were married on 14.5.1967 at Sirkazhi. The respondent was very aggressive and at times violent, both with the petitioner

and the members of his family, and the attitude of the respondent increased day by day causing embarrassing to the petitioner and the members of

his family. The petitioner came to know that the respondent had attack of epilepsy and was not of sound mind even at the time of her marriage.

The petitioner lived with the respondent inspite of the abovesaid disease and she had given birth to a still born child on 7.11.1975. Thereafter the

life of the petitioner had become hell. The respondent will loose her mental balance and will also run away from the abusing and threatening the

people of the time of such attack. The petitioner was informed that giving birth to a child may cure her disease and, therefore, the petitioner

managed to live with her. The respondent gave birth to a female child Selvi Deepa on 10.11.1977. Even after the birth of the female child, the

unsound mind or disorderly mind of the petitioner did not improve. The respondent had severe attack of epilepsy followed by phychomotor effects

on 14.4.1978 and became very violent, aggressive and abusive. The respondent had also attack of fits and also lost her mental equilibrium. The

respondent was taken to Dr. Gnanaseelan and he diagnosed the disease as mental disorder due to epileptic attack. She was also given treatment

by 11 other imminent factors. The petitioner has to protect the respondent from destroying herself and destroying the others at the time of attack of

fits. In fact the respondent has attempted to commit suicide by taking 20 guardinal tablets, leaving a suicide note in Madras in petitioner''s mother''s

residence since she had a severe attack of epilepsy followed by psychomotor on the night of 14.1.1982. The respondent was kept at her sister''s

house at Madras and after discharging her from hospital she was sent along with the brother of the petitioner. The petitioner and the respondent

resided from 12.1.1982 to 15.1.1982 at the residence of his mother in T. Nagar, Madras. It is the further case of the petitioner that he cannot live

with the respondent since she is suffering from unrecoverable mental disorder followed by psychomotor from 1978 onwards. The petitioner has

been sending a sum of Rs. 150 per month for the maintenance of the respondent. With these averments, the petitioner prayed for a decree for

dissolution of the marriage.

The case of the respondent (wife) as seen in the counter is briefly stated hereunder:-From the date of marriage, she was discharging her duties

as house-wife by being affectionate with all members of the family of the petitioner. The respondent has denied the allegations that she was

antagonistic, aggressive either with the petitioner or with the members of the petitioner'' family. The respondent gave birth to a still born child by

means of scissarian operation on 7.11.1985 and again gave birth to a female child on 10.11.1977. After the birth of Selvi Deepa the petitioner was

transferred to Madras as Lecturer and the respondent along with Deepa was living with him for three years in Madras leading a happy normal life.

The petitioner had developed his attitude to marry another woman and started ill-treating the respondent. The respondent had fits in April, 1978

after delivering the child Selvi Deepa and the same was diagnosed by the doctors as due to injury on the head of the respondent in which was

caused by the beating given by the petitioner. The respondent had not been affected by any mental disorder at any time before her marriage. No

doctor had diagnosised her to be unsound mind or having psychomotor effects. The respondent had one attack on 14.1.1982. She was allowed to

stay with her sister at Gopalapuram and thereafter taken to Coimbatore on 22.1.1982 and then she was sent to Thirunelveli on 23.1.1982 and she

is concentrating her studies in Hindi. The life of the petitioner has not become miserable due to the act of the respondent as contended by him. The

petitioner is not entitled to ask for the divorce and the petition is not maintainable and the same is liable to be dismissed.

The petitioner examined himself as P.W. I and one Dr. Ramani was examined as P.W. 2. The petitioner has also marked Exhibits A. 1 to A. 38

in support of his contention. Likewise the respondent (wife) was examined as R.W. I and her father was examined as R.W. 2. She also marked

Exhibits B. 1 to B. 16 in support of her defence. Learned VI Assistant City Civil Judge, on the basis of the oral and documentary evidence, after

holding that the petitioner has proved his case, allowed the petition and granted decree for divorce.

Aggrieved against the decree of divorce, the respondent-wife has filed an appeal in C.M.A. No. 153 of 1987 before the Additional Judge, City

Civil Court who in turn, after reappraising the whole evidence and in the light of several documents filed by both the sides, disagreed with the

conclusion arrived by the trial Court, allowed the appeal and dismissed the petition filed by the husband. Against the decree of the appellants Court

dismissing his petition for divorce, the unsuccessful husband has file the present appeal before this Court.

I have heard Mr. N.D. Bahaty, learned Counsel appearing for the appellant-husband and Mr. P. Seshadri, learned Counsel appearing for the

respondent-wife.

For the convenience, I refer the husband as petitioner and the wife as respondent in this appeal also.

The fact that the petitioner and the respondent were married on 14.5.1967 as per the Hindu rites at Sirkazhi, is not disputed. The wife had given

to a still born child on 7.11.1975 and there was scissarian operation for her on that occasion. It is also an admitted fact that the wife had given birth

to a female child Selvi Deepa on 10.11.1977. Even according to the wife, she is suffering due to epileptic attack and is undergoing treatment for

the same. However, according to the petitioner, his wife should have such ailment from the date of her birth. While it is the case of the respondent-

wife that she had such an attack only due to the beating of her husband or her head after giving birth to Selvi Deepa on 14.11.1977. Exhibit Al is

the prescription given by Dr. K. Jaganathan, Professor of Neurology, Madras Medical College, dated 1.12.1979 in connection with the ailment of

the appellant. At this juncture it is to be mentioned that the marriage took place on 14.5.1967. Exhibit A-2 is the E.C.G. report taken on 3.8.1978

with regard to the ailment of the appellant. Exhibit A. 3 is the Blood Test report dated 19.12.1979 of the respondent prepared at T. Nagar Clinical

Laboratory, Madras. Exhibit A. 4 is the letter dated 29.12.1979 given by Dr. Jeevankumar addressing to Dr. Pranesh, the Neurologist telling the

details about the ailment of the respondent-wife. A perusal of above exhibits, more particularly, Exhibit A. 4 clearly shows that the respondent was

suffering due to epilepsy for the past one and half years. Exhibits A. 5 to A. 11 are various medical prescriptions and chits given by respective

doctors. Exhibits A. 12 to A. 25, 27, 29, 31 and 32 as the letters between the petitioner and the respondent and also the father of the respondent.

In view of the controversy involved in this case after hearing the arguments of both the counsel. I have carefully perused the abovesaid letters which

disclose that the respondent is suffering due to her ailment, probably after giving birth to a female child Deepa and not earlier as contended by the

petitioner. The above conclusion is also further strengthened by perusing Exhibits A. 33 to A. 38 which are letters notices, reply notice etc.

between the petitioner and the respondent. There is also no definite and positive evidence on the side of the petitioner to show that the respondent

was having such ailment in the year 1977, that is, prior to giving birth to female child Selvi Deepa. I also carefully perused the oral evidence of

P.W. 2 Dr. Ramani and the connected prescription and medical chits which show that the respondent is suffering due to psychomotor epilepsy,

more particularly, the evidence in this case would show that the respondent was suffering from the said ailment after the birth of second female

child in the year 1977 through the marriage took place in the year 1967 through the marriage took place in the year 1967 that is on 14.5.1967.

Now we have to consider whether the said ailment, namely, psychomotor epilepsy can make the respondent of unsound mind continuously in

order to attract Section 13(1)(iii) of the Hindu Marriage Act. As rightly observed by the lower appellate Court the evidence of P.W. 2 who is

competent to speak about the ailment has deposed that a person who is suffering due to Psychomotor cannot said to be in unsound mind always,

but it can be said that such persons will be in unsound mind only during the time of attack. Apart from referring the experts evidence namely. P.W.

2 it is useful to ascertain the exact meaning for the ailment namely psychomotor epilepsy as found in ''Pishbeing''s Illustrated Medical and Health

Encyclopedia at page 546 which is extracted hereunder:

In psychomotor epilepsy the victim experiences a brief clouding of consciousness during which he repeatedly performs some meaningless act, or

babbles incomprehensibly. Attempts at physical restraint may provoke aggressiveness. These attacks last a few minutes, and when the person

comes to his senses"" he has no memory of the occurrence.

The perusal of expert evidence coupled with the meaning given by the abovesaid author clearly discloses that the said psychomotor epilepsy

will given an experience of a brief clouding of consciousness during the time of which some meaningless act may be performed by the affected

person but it cannot be said that such person was under unsound mind even during such attack which will be available only for few minutes during

which the attack will exist. As observed and quoted by the lower appellate Court from the Medical Code Pharmacology and

Phyarmacctherapouties by R.S. Satoskar and S.D. Bhandarkar that epilepsy should be considered as an illness and not a social stigma and that

marriage may be permitted, provided, the other partner is not an epileptic and has a normal E.E.G. In those circumstances it is not safe to come to

the conclusion that ailment of psychomotor epilepsy due to which the respondent is suffering can be termed as continuous unsound mind as per the

provisions referred above in the Act. A further reading of Sub Clause 13(1)(iii) of the Hindu Marriage Act discloses that any marriage solemnized

whether before or after the commencement of the abovesaid Act, on a petition presented by either the husband or the wife, he dissolved by a

decree of divorce on the ground that the other party has been incurable of unsound mind or has been suffering continuously or intermittently from

mental disorder of such kind and for that the petitioner cannot object to live with the respondent. As stated earlier even though she had such

ailment I am of the opinion that considering the oral and documentary evidence available in this case, it is not safe to come to the conclusion that

the petitioner-husband had proved his case for divorce as per Section 13(1)(iii) of the Hindu Marriage Act.

It is also relevant to mention that various letters written by the petitioner husband to his wife prior to the filing of the said petition which have

been marked as Exhibits B. 1 to B. 11. As rightly pointed out by the Lower appellate Court in some of the correspondence the petitioner himself

has admitted that the respondent will be alright in 4 years, if she is given treatment. As stated earlier, some of the letters written by the petitioner

which were marked as Exhibits B. 1 to B. 10, clearly show the intention of the petitioner that he wants to marry another girl. Exhibit B. 2 is relevant

and the same is extracted below in order to ascertain the truth behind the filing of the present divorce petition.

I have decided to marry the girl whom I loved. She has also given her consent. Hence I would like to have all relationships out with you. If you

want to have this done according to law well I am prepared to face that. You know that I am living only for her. If you want me to be alive, allow

me to go on with my proposal. May God bless you, and me to have my endeavour successfully finished which is my ultimate aim. I don''t want to

have anybody to meet me and negotiate in this matter.

In Exhibit B. 3 dated 22.1.1976 the petitioner has threatened the respondent for not sending consent letter for divorce. Again in Exhibits B. 5

dated 31.1.1976 the petitioner has threatened the respondent for not sending consent letter. In Exhibit B. 7 dated 28.2.1978 the petitioner has also

threatened the respondent in the following manner.

... How many times have I to tell you that you are not wanted here. If you come here I will just end my life. That is certain... I want you to

understand clearly that I don''t want to live with you. I am not afraid of anything. Though I am not going to marry anybody else I am not going to

live with you. That is certain.

The above Ex. B. 7 coupled with the conclusion reached by the petitioner on the ailment of the respondent and the conduct of the petitioner as

seen from the above referred letters, I am in entire agreement with the conclusion reached by the lower appellate Court that the petitioner has not

make out a case for divorce u/s 13(1)(iii) of the Hindu Marriage Act. As rightly pointed out by the lower appellate Court it is the duty of the

husband to bear with the circumstances by giving adequate treatment and by showing affection to her. In those circumstances, I am in entire

agreement with the conclusion reached by the lower appellate Court and I an unable to accept any of the arguments advanced by the learned

Counsel for the petitioner-husband; consequently this appeal is liable to be dismissed.

In the result, the appeal is dismissed. However, there will be no order as to costs.