P. Swaroop Reddy, J.
1. Both these appeals have been filed by the appellant, Dr. KollamPadma Latha, against the common judgment in O.P. Nos. 1 of 1999 and 203 of 2000 dated 29-8-2002 passed by the learned I Additional Senior Civil Judge, Kakinada, East Godavari District.
2. O.P. No. 1 of 1999 was filed by Dr. Kollam Padma Latha(hereinafter referred to as 'appellant') against her husband Dr. Kollam Chandrasekhar (hereinafter referred to as 'respondent') under Section 9 of Hindu Marriage Act (for short 'the Act') and Rule 6(f) of the Rules for restitution of conjugal rights where as O.P.No. 203 of 2000 was filed by the respondent against the appellant under Section 13(1)(iii) of the Act for divorce. Both the O.Ps. were disposed of by a common order dated 29-8-2002.
3. The facts in brief and relevant to decide the appeal as per the appellant are as under:
(i) The marriage of the parties was solemnized on 31-5-1995 at Kakinada as per Hindu Rites and the appellant joined the respondent and their marriage was consummated.
(ii)At the time of marriage, respondent was working as Senior Resident in All India Institute of Medical Sciences at New Delhi. After joining the respondent at New Delhi, appellant also secured employment there itself. While they were living at New Delhi, the brother of the respondent died in an accident. At that time, the respondent came to Yanam leaving the appellant at Delhi, by which time appellant gave birth to a female child on 7-7-1997.
(iii) Subsequently disputes arose between the respondent, his parents on one hand and the in-laws of the deceased brother of the respondent on the other. There were threats to kill the respondent. During that period, appellant's father stayed in the company of the respondent and his parents at Yanam. At that time, appellant and the respondent suffered tensions and were restless on account of the situation created by the in-laws of the respondent's deceased brother. Both of them received medical treatment also and due to depression, respondent submitted his resignation and also made the appellant to resign her job at AIIMS, New Delhi and he joined as Assistant Professor in Gandhi Hospital at Secunderabad, then his wife (appellant) and child also joined him at Hyderabad. While they were in Hyderabad, respondent used to receive threatening calls from the in-laws of his deceased brother, which used to create tension in their family. The appellant was treated for thyroid problem. After one year of the marriage, respondent and his parents started harassing the appellant by demanding to purchase colour television and refrigerator etc. The sister of the respondent also started harassing the appellant to meet their illegal demands and have developed hatred towards her and they used to ill-treat her saying that the respondent received good matrimonial alliances and they committed mistake in marrying her. She was cursed for giving birth to a female child. The father of the appellant died in May, 1998 and the respondent went on insulting the appellant to get the house situated at Rajahmundry registered in his name and when she refused, he tortured her. The appellant applied for postgraduate entrance examination, which was scheduled to be held on 13-8-1998, and the respondent was making arrangements to go to Madras on 12-8-1998 in connection with FRCS admission. On 11 -8-1998, respondent picked up a quarrel with the appellant insisting her to get the house at Rajahmundry registered in his name for which she did not agree. Appellant also made a request not to go to Madras leaving her and the child as she has to appear for the Post Graduate entrance examination on 13-8-1998 for which respondent badly tortured her both physically and mentally and got issued a telegram to her mother with false allegations only for creating evidence as he could as well have conveyed any message through telephone as there was telephone facility at the house of her parents. Her mother came and pacified the matter. As the respondent was intending to prepare to appear for F.R.C.S. examination and as he would be spending most of his time in the libraries and the appellant and their child would be left alone without help, he suggested the appellant to go to Rajahmundry and stay with her parents. In order to facilitate the respondent's request, she agreed for the same and went to Rajahmundry and joined in Chaitanya Nursing Home and Bhavani Nursing Home instead of sitting idle. In second week of November 1998, respondent came to Rajahmundry and asked the appellant to go to Yanam and stay with his parents saying that she can have the company of his parents and she can carry on the medical profession along with his father who was also Doctor for which she agreed and went to Yanam. Thereafter, respondent got issued a notice dated 25-11-1998 to the appellant with false allegations saying that she was suffering from Schizophrenia and suicidal tendencies etc. He did so with the object of marrying again for fat dowry. In fact she was quite hale and healthy. She never suffered from any schizophrenia or suicidal tendencies. During her delivery days and subsequently on account of the threats received from the in-laws of the respondent's deceased brother, there was some depression for which the appellant was treated and the respondent never allowed her to go through the prescriptions of her treatment at any time and she was also not allowed to see the medicines given to her as part of treatment for her depression. She believes that as part of the scheme, respondent might have administered some medicines to build up his case. The appellant got issued a reply notice dated 18-12-1998 mentioning the true facts. Thereafter, respondent never agreed to resume cohabitation with her and encouraged his parents to dislodge her from the family house. In those circumstances, she filed O.S. No. 53 of 1998 on the file of D.M.C. Yanam for permanent injunction against the parents of the respondent and filed I.A. No. 237 of 1998 for temporary injunction. Respondent has no right to withdraw from her society and demand divorce and that she is entitled to restitution of conjugal rights.
(iv) Respondent filed a counter denying the allegations in the petition and further contending that the marriage was solemnized in a simple manner etc.
(v) The behaviour of the appellant even when they were staying at New Delhi was marked by emotional disturbances and she also received treatment from a psychiatrist there. He underwent severe mental stress due to irrational behavioural pattern of the appellant. Her erratic behaviour started increasing as time passed by. Symptoms of Schizophrenia like violent or aggressive behaviour, a tendency to be harsh and hostile towards other members of the family without any reason whatsoever which were not visible earlier were found. For that reason, she was kept with her family so that she can develop a sense of security required for patients suffering from Schizopherenia. She also started developing the symptoms like sudden withdrawal and being silent for long periods without any communication.
(vi) After securing job as Assistant Professor of Orthopaedics in Gandhi Medical College, Hyderabad, he brought his wife and child to Hyderabad within a few days after the death of his brother. The appellant never stayed at Yanam. The allegations that he resigned his job at New Delhi is false. As the tenure of the ad-hoc post expired he was relieved. The allegation that the appellant did a part-time job is false. The allegation that he used to receive threatening calls from the in-laws of his deceased brother and on account of the same tension developed in their family is false. Neither he nor his family members harassed the respondent demanding goods etc.
(vii) At the time of marriage, mental status of the appellant wasnot known to the respondent. All the symptoms manifested only after her arrival to live with him. He took every care to see that she enjoyed a sense of security and peace and for that purpose he allowed her to stay with her parents and when she was in Hyderabad with him, he took care to see that she was not subjected to any stress. He never insisted the appellant to get the house at Rajahmundry registered in his name. The appellant tried to evict his parents from their house at Yanam and when she failed in her attempt, she filed O.S. No. 53 of 1998 at District Munsif's Court, Yanam, which shows her erratic attitude. She also started criminal proceedings against his parents. He abandoned the idea of going to Madras on account of mental condition of the appellant. As the telephone lines were not working and the appellant was seriously ill, he gave telegram. The mother of the appellant did not come to attend her till four days after receiving the telegram. He sent the appellant to Rajahmundry at her request, by that time she already consulted some psychiatrists who also advised that it would be better for the appellant to live with her mother. After two weeks, he also went to Rajahmundry to see her. He never suggested that the appellant should go to Yanam to stay with her parents. At that time, he found her mental condition aggravated to such a point that it would be impossible for him to live with her afterwards. She showed all the classical symptoms of schizophrenia including violence, psychotic behaviour, suicidal tendency, withdrawal symptoms and abnormal and irrational behaviour including in the matter of speech and talk. She used to say that she would like to commit suicide. He was worried about her as well as their child. He narrated all her symptoms in his divorce petition. The appellant was continuously on psychiatric treatment. This stage of mental ill-health or unsound mind on her part made life impossible for him and he could not live or carry on married life with her, as such, he filed an application for divorce. It is a fact that he issued notice dated 25-11-1998. It is not possible for him to resume cohabitation with the appellant as he is afraid of danger to his life and also danger to the life of his daughter.
4. The learned trial Judge holding that the appellant-wife not only physically harassed the respondent, but also harassed through her men; she is suffering from the disease -schizophrenia, which is a dangerous one; that it was not disclosed to the respondent-husband prior to the marriage, allowed O.P.No. 203 of 2000 filed by the respondent-husband for divorce, while dismissing O.P. No. 1 of 1999 filed by the appellant-wife for restitution of conjugal rights.
5. Now the point for consideration is whether there are any grounds for allowing the appeals?
Point:
6. O.P. No. 203 of 2000 was filed by the respondent-husband for divorce under Section 13 of the Act, which reads as follows:
13. Divorce: (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(iii) has been incurably of unsoundmind, or has been sufferingcontinuously 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.
7. Now the main question that arises for consideration is whether the appellant-wife was suffering from any incurable mental disease.
8. On behalf of the respondent-husband, he, himself, was examined as R.W.1, R.Ws.2 and 3, Medical officers were examined to show that the appellant was suffering from schizophrenia and R.W.4 was examined to prove the incident that has allegedly taken place at Gandhi Hospital on 26-12-1998, on which date, appellant and her family members have allegedly attacked the respondent-husband, while he was on duty.
9. On behalf of the appellant-wife, she, herself, was examined as P.W. 1, her mother was examined as P.W. 2, P.W. 3 and P.W. 4, Medical Officers were examined. Apart from the above, documentary evidence was also adduced on both sides, in support of their contentions, in the shape of Exs.A-1 and 2; Exs.B-1 to B-29 and Exs.X-1 to X-14.
10. It has to be mentioned here itself, that appellant was examined at (1) Institute of Mental Health, Sanjeeva Reddy Nagar, Hyderabad and (2) the National Institute of Mental Health & Neuro Sciences, (for short 'NIMHANS'), Bangalore, on being referred by this Court.
11. Now, it has to be seen as to whether there is material to show that the wife was suffering from schizophrenia of such a degree that respondent is entitled to divorce.
12. Respondent stated that their marriage was performed on31-5-1995, but denied about certain cash and gold ornaments being given at the time of marriage, as claimed by the appellant. However, this aspect is not that much relevant for the purpose of deciding these appeals. It is an undisputed fact that on the date of marriage, respondent was working as a Senior Resident at All India Institute of Medical Sciences (for short 'AIIMS'), New Delhi and was staying in hostel there and the appellant joined him there, in the hostel, itself. He has stated that after appellant joined him at New Delhi, there was abnormal behaviour from her, she used to talk to herself and used to threaten him by saying that she would consume bulk of medicines available at the residence; whenever she went for toilet, she used to come back frightened saying that something like ghost is there; that he took her to a psychiatrist at AIIMS and there she was treated; but, now-and-then, she used to suffer delusions; she became pregnant and gave birth to a child on 7-7-1996; her parents came to Delhi for delivery; during that period brother of the respondent died in an accident at Kamareddy in Andhra Pradesh; on 2-7-1996, he went to Yanam along with his father-in-law; three weeks after delivery of the appellant, she and her mother-P. W.2 came to Vijayawada and from there he dropped them at Rajahmundry and went back to Delhi in September, 1996; after completing his tenure as a Senior Resident at AIIMS, he returned back to Yanam and by then P.Ws. 1 (appellant) and 2 were at Rajahmundry; while he was at Rajahmundry also, the disease of the appellant was aggravated and in his absence, her parents took her to one Dr. Mallikarjuna Rao, a Psychiatrist, at Kakinada and got her treated. He was shown the old case history of the appellant, regarding psychiatric problems she suffered during 1992, 1993 and 1994; his enquiries with her colleagues at Kakinada revealed that she had similar delusions during her study period also, following failure in Final MBBS, she had depression for which, she was diagnosed as schizophrenic. During that period, she took treatment from Dr. Mallikarjuna Rao, Professor of Psychiatry at Kakinada Hospital. Before the marriage, parents of P.W. 1 did not reveal this fact to him; that he joined the job at Secunderabad on 21-12-1996; on that day appellant's condition was not good, he has taken her to Hyderabad and in February, 1997 her mother, P.W. 2 brought her to Hyderabad and dropped her with him; P.W. 2 stayed with them for two weeks and went to Rajahmundry. By the time, P.W. 2 brought and dropped the appellant at his house; her condition was in aggravated form. On enquiry with regard to medical treatment to appellant, P.W. 2 showed him the old records of treatment of the appellant along with prescriptions given by Dr. Mallikarjuna Rao; that himself and appellant's sister, Varalaxmi, in whose house, they were staying, got treated her by Dr. Pramod Kumar, who made home visits, as the condition of appellant was in aggravated form. As he was advised to take the appellant to a Neurologist, he has taken her to Neurologist, Dr. A. Krishnaveni. who examined and advised to take her to a Psychiatrist. Then they have taken her to Dr. Gowri Devi, a Psychiatrist, who examined her and gave prescription. Though she took medicines, there was not much relief. They made 2-3 trips to Dr. Gowri Devi, who gave different medicines. The Doctor suggested using of medicines, in case, suicidal tendency persists. On 11 -8-1998, as the condition of the appellant was serious, as she attempted to commit suicide, he informed the same to P.W. 2, by way of telegram; by 2-9-1998, appellant was in aggravated form of disease; P.W. 2 then suggested that she would take appellant with her, as she was suffering from suicidal tendency and in case R.W.1 goes to his job, nobody would be there to attend on her. He gave medicines and money and sent the appellant along with P.W. 2 to Rajahmundry. She continued to suffer without any improvement. She used to have delusions. His last visit to Rajahmundry was in November 1998, by which time also there was no improvement in the condition of the appellant. She was not in a fit condition to be taken and kept with him. He then got issued a legal notice.
13. Thus, what all R.W.1 stated in his chief examination was that appellant was suffering from delusions, and she was suffering from suicidal tendency. Even before the marriage also she was psychic, treatment was taken for the same and that was suppressed from him.
14. There is no dispute that appellant completed her medicine and after the marriage, she joined the respondent at AIIMS, Delhi where she worked as a junior Resident. According to him, she was terminated from that job, as she was irregular on account of medical problem. Ex.B-13 being her termination letter dated 29-10-1996. He admitted that in that order, it is mentioned that her services as a Junior Resident are terminated with effect from 10-6-1996 on account of her unauthorized absence. Thus, nothing is mentioned in the letter that she was terminated on account of any kind of medical problem she was suffering from. There is no dispute that on 7-7-1996 she gave birth to a female child that means that by 10-6-1996, she was in advanced pregnancy, may be for that reason, she was unable to attend to the job; as such, she abstained and was terminated. However, as already referred, there is no reference in Ex.B-13, the termination letter, that she was terminated as she was suffering from any medical problem.
15. Respondent, stated that initially, after she joined him at Delhi, she was behaving abnormally, she used to talk to herself and used to threaten him to consume bulk of medicines available at the residence and when she went to toilet, she used to feel frightened saying that some thing like a ghost was there; that he took her to a psychiatrist there. But no material is filed to show that she was taken to a Psychiatrist, while they were at AIIMS. He has stated that by 11 -8-1998, her condition became serious and she attempted to commit suicide, he gave a telegram Ex.B-21. He did not state as to why the condition of the appellant became serious and how she attempted to commit suicide, whether it was by consuming any poison or by any other mode. This would show, probably, his (R.W.1 's) contention is incorrect. In Ex.B-21, it is simply stated that the condition of the appellant is serious. P.W. 2, received the telegram and came 4-5 days later. In case the condition of the appellant was serious and a telegram was received with regard to the same, obviously, P.W. 2, her mother, would have rushed to the daughter and might not have taken 4-5 days after receiving the telegram to reach the appellant. It is admitted by the respondent that there was telephone facility at his residence as well as at the residence of P.W. 2, at Kakinada. In case there was any problem, naturally he would have informed P.W. 2 over telephone. This telegram is obviously issued for creating some evidence. In cross-examination, respondent (R.W.1) stated that when he tried to contact P.W. 2 over telephone, nobody was lifting the telephone at the residence of P.W. 2, which obviously is false. What might have happened is that after receipt of the telegram, P.W. 2 might have contacted the respondent over telephone and as there was nothing serious, she must have come leisurely. According to the respondent, after he gave telegram. P.W. 2 came and they took her to Dr. Gowri Devi and Ex.B-20 is the prescription. This Ex.B-20 is dated 27-8-1998. In case P.W. 2 was in a serious condition on 11-8-1998, perhaps, she would have been taken to a Doctor much earlier to 27-8-1998 and not more than a fortnight later; that, too, after about more than ten days, after the arrival of P.W. 2. This Ex.B-20 shows the previous medical history of the appellant, as per which she suffered following her failure in final year MBBS examination orduring her final examination (it is not very clear); for second time, she suffered following her delivery. The history does not show that she suffered from any serious problem earlier or even during those periods. During her stay at AIIMS, in case, appellant was really suffering from any substantial mental problem, probably, there was no possibility of her joining as a Junior Resident and as, already referred, there is no material like prescriptions etc., to show that during that period she suffered from any mental problem and was treated for the same. In cross-examination, respondent (R.W.1), stated that the delivery of the appellant was a normal delivery, but he added that during delivery she developed aggressive symptoms, which fact is also evident from Ex.B-22. He further admitted that as seen from Ex.B-17 and B-22, appellant took treatment from Dr. Gowri Devi for one year and five months; Dr. Gowri Devi did not advise for the appellant being admitted in any hospital. He stated that his parents were not aware about his troubles with the appellant, as he did not inform them. In case really, appellant was suffering from any serious problem, perhaps, she would have been admitted as in-patient, at least, for some time. The fact that respondent did not even inform his parents about the illness of the appellant, shows that probably she was not suffering from such serious illness.
16. The evidence of the appellant who examined herself as P.W. 1 is that at Secunderabad where her husband joined as Medical Officer, she also joined as Junior Lecturer in Anatomy in International School of Medical Imaging, Secunderabad. She did medical practice at Priya Paediatric Clinic, Secunderabad. According to her, there is thyroid deficiency in the family of her parents and that she has taken medicines for that problem. While at Secunderabad, she was unable to walk due to severe hypothyroid problem. Her husband took her to Dr. Krishnaveni, Neurologist, for treatment. At that time, she was in depression and Dr. Krishnaveni advised her to take her to Dr. Gowri Devi, Psychiatrist. She examined her and referred her to Endocrinologist Dr. Sudhakara Reddy, who diagnosed her problem as hypothyroid and prescribed entroxin and by using the same she got relief and became normal. It all took about four months. During that period for two months, her parents-in-law were at their house and her husband along with them harassed her to get rid of her. In 1998, appellant was preparing to write postgraduate entrance examination. At that time, she was all-right but the respondent without informing her gave a telegram to her mother though she was not suffering from any ill health but was only having examination tension. During that period she went to Rajahmundry as he was preparing for F.R.C.S. examination and their child was causing disturbance. Then she worked as Junior Doctor in Bhavani Nursing Home and Chaitanya Nursing Home, Rajahmundry. In 1999, she got job as Assistant Civil Surgeon in Government Hospital, Deverapalli, West Godavari District and as on the date of her giving evidence, she was working in Government Hospital, Rowthalapudi and that she was in continuous Government service since April, 1999. She never suffered from acute schizophrenia and was never treated for it. She went to the extent of stating that she has not consulted psychiatrist which, in fact, is incorrect. In her cross-examination, she admitted that because of examinations, she felt mental tension in 1994. She denied that she has taken treatment with Dr. Mallikarjuna Rao, Psychiatrist. She denied that she used to take treatment secretly without the knowledge of her husband. She denied that while her husband and daughter were sleeping during nights, she used to wake up and stand near their beds and behave as if she was going to kill them. All this is not even spoken by the respondent (R. W. 1). It is not suggested to the appellant that when respondent gave Ex.B-21 telegram stating that she was in serious condition, she attempted to commit suicide. In her evidence, it is nowhere suggested to her that she ever attempted to commit suicide though it is vaguely suggested that she exhibited suicidal tendency. Appellant stated that she worked at Hyderabad and Rajahmundry in various Nursing Homes as referred to above. In her cross-examination, it is not even suggested that her above statement is incorrect. In case appellant was suffering from mental disorder, perhaps there was no possibility of her working as Medical Officer in Nursing homes and even her joining and continuing as Medical Officer in Government Hospitals which fact is not in dispute.
17. P.W. 2 stated that on receipt of a telegram from the respondent asking her to come to Hyderabad stating that the appellant was in serious condition, she went to Hyderabad and found appellant to be not in serious condition and when she enquired about the telegram with the appellant, she told her that she was not aware of that telegram. Whereas respondent told that he was preparing for F.R.C.S. entrance examination and their daughter was causing disturbance to his studies, therefore asked her to take the appellant and the child to Rajahmundry, accordingly she has taken them to Rajahmundry.
18. Thus, oral evidence does not throw much light about the appellant suffering from any acute form of schizphrenia.
19. Coming to previous medical history of the appellant, in Ex.B-14 dated 20-8-1996, name of the patient is not found and no diagnosis is written. Thus, it is not of any use. Ex.B-15 is of the year 1997 pertaining to the appellant. Some medicines are mentioned in this prescription but it would not show the magnitude of the problem. Ex.B-16 dated 10-4-1997 is a prescription on the name of the appellant by Dr. Krishnaveni, Neurophysician, Gandhi Hospital. It shows that appellant was treated for depression and slurring of speech etc. and that she was advised to consult psychiatrist. Ex.B-17 is the prescription dated 10-4-1997 of Dr. Gowri Devi, Psychiatrist, as per which appellant had three earlier episodes, the details of which are not mentioned. Ex.B-18 is another prescription of Dr. Gowri Devi dated 9-8-1997. Here also, no diagnosis is written, only certain medicines are noted. Ex.B-22 is another prescription of Dr. Gowri Devi dated 27-8-1998 as per which the previous history was of suffering of the appellant because of failure in M.B.B.S. final year examinations and during delivery. Thus, there is some material to show that appellant has taken treatment for some psychological problem but nowhere it is found that she suffered from schizophrenia. None of those Doctors who treated her earlier were examined in the Court.
20. The burden of proof lies on the respondent and as he failed to examine the Doctors concerned, an adverse inference can be drawn against him.
21. Ex.X-1 is letter dated 18-10-1999 from NIMHANS, Bangalore to this Court in connection with the examination of the appellant. As per which, the mental status of the appellant was normal. Ex.X-2 is a narration in the handwriting of the appellant herself. Exs.X-3 and X-4 are letters of Doctor Kama Raju, Hyderabad. According to them, appellant was suffering from hypothyroidism. There are certain other prescriptions etc., which are not much important to show that appellant was suffering from acute form of schizophrenia.
22. Now we have to consider the evidence of medical experts who examined the appellant on being referred by this Court.
23. Firstly, appellant was examined at Hyderabad at Institute of Mental Health, Sanjeeva Reddy Nagar, Hyderabad.
24. R.W.2, Dr. K. Krishna Murthy, Superintendent of Institute ofMental Health, Sanjeeva Reddy Nagar stated that appellant appeared before him on 17-4-1999 and a team of three doctors and one clinical psychiatrist was constituted to examine her and to submit a report. That under Ex.X-13 case sheet some findings are recorded. Her examination was conducted from 17-4-1999 to 23-04-1999. He also stated that respondent came to the Hospital on his own and gave details of history of the appellant in writing to Dr. Sharband Raj, Assistant Professor. To a question as to whether appellant was suffering from any mental disorder, he answered that she was found to be suffering from mental disorder. For question No. 2, he stated that she had major mental disorder. He also stated that there was no suicidal tendency at the time of examination and added that that may be due to medical treatment during the examination. To the question as to whether generally in schizophrenia patients, there would be suicidal tendency, he answered that suicidal tendency would be more in patients of schizophrenia than general population. To the question as to whether, schizophrenia is not a curable disease, he answered that in the past schizophrenia was chronic disease, however at present with the advent of many psychiatric drugs, the illness of schizophrenia has become eminently treatable and many patients of schizophrenia are able to lead near normal life with medication. He stated that schizophrenia patients need long-term medication and in case of stoppage of medication, there is possibility of relapse. To the question that schizophrenia is not curable, he answered that like diabetes and hypertension, schizophrenia is also not curable in medical science, however it is eminently treatable. To the question as to whether schizophrenia is dangerous, he answered that it can be dangerous because there is likelihood of patients harming themselves or others. All this is what he has stated in his chief-examination, which reveals that schizophrenia is curable and treatable and it is on par with the diseases like diabetes and hypertension etc. with regard to curability and treatability. He stated that patients of schizophrenia can harm themselves or others. In this case, there is no evidence at all about appellant harming herself or others, as the respondent never spoke about any such specific instance. In the cross-examination, R.W.2 admitted that Dr. Gowri Devi who examined the appellant initially did not note that she found any suicidal tendencies in her. He admitted that in Ex.X-12, it is reported that the patient has responded well to the treatment from acute phases and symptoms are fairly under control with maintenance medication. He stated that they have given general observation as to the seriousness of the disease saying that it is a major mental disorder, but also stated that 'however, in this particular case, the response of the patient (appellant) to the treatment has been good with minimal impairment during the periods of remissions, presently as she is on maintenance medication, she has little difficulty in carrying out routine activities'. Thus, R.W.2 stated that 'hypothyroidism can produce depression and can affect the patient mentally and that there is no organic brain involvement in schizophrenia'. His evidence also reveals that even by 1993 when Dr. Mallikarjuna Rao treated the appellant, her mental illness has started, but he did not speak about the gravity of such mental illness. He has answered that 'there is no organic brain deterioration in this case to suggest that it is a physical illness which cause the mental problem; the psychological test does not reveal any organic problem'.
25. Thus, the evidence of R.W.2 do not reveal that appellant was suffering from any serious form of schizophrenia. Though, it cannot be disputed that she was suffering from some mental problem/depression etc., which can be on account of hypothyroidism also.
26. The evidence of P.W. 4 who subsequently examined the appellant at NIMHANS, Bangalore shows that she was admitted in that institution on 7-10-1999 and discharged on 18-10-1999. Panel of Doctors including him examined her. Ex.X-1 certificate was issued by them. He stated that the team could find no evidence suggesting schizophrenia at the time of their examining the appellant or in the past based on available information as noted in Ex.X-1. In cross-examination, he stated that no treatment including drugs were given to herat NIMHANS, as they did not find any abnormality in her. It is also revealed that in case any suicidal tendencies are found, they would not have said that the mental status is normal and no abnormality was found in her. That they did not find any psychiatric symptoms in the appellant on the day of examination by the team of Doctors. They gave her a certificate based on the absence of any abnormal findings including psychiatric features in the past history and psychological tests.
27. Thus, the evidence of team of experts revealed that appellant never suffered any serious form of schizophrenia nor she suffered any suicidal tendencies. As already referred, the oral evidence of the respondent-R.W.1 himself does not reveal any positive material with regard to appellant suffering from any suicidal tendency or details of her attempting to commit suicide.
28. The material on record, particularly, the past history would reveal that even prior to the marriage, appellant suffered from mental problems, may be depression on account of pressure of M.B.B.S. examinations, but there is absolutely no positive material to show that she suffered from any serious mental disorder like serious form of schizophrenia.
29. Section 13(1)(iii)(a) and (b) of Hindu Marriage Act, 1955 says divorce can be granted in case the spouse 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.
(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 persistentdisorder 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;
30. Thus, what is required is incurable unsound mind, continuous or intermittent mental disorder of such kind and to such extent that the spouse cannot reasonably be expected to live with the suffering spouse. There has to be things like abnormality, aggressiveness or seriously irresponsible conduct on the part of suffering spouse. In the case on hand, there is not even an allegation of abnormal aggressive or serious irresponsible conduct on the part of the appellant. Undisputedly, she suffered from some mental disorder. It is not disputed that just before starting of this litigation or after starting of the litigation, she did her postgraduate diploma in medicine and has been continuously working as a Government Medical Officer. In case, she was suffering from serious mental disorder and has abnormal aggressive or serious irresponsible conduct, there is no possibility of her working as a Medical Officer continuously.
31. May be appellant suffered some depressions and slight mental disorder on account of examination tensions and in the post-delivery period, but it cannot be said that she suffered from any kind of incurable or serious form of mental disorder.
32. Learned counsel for the respondent-husband contended that before going for treatment at Institute of Mental Health, Erragadda, Hyderabad and at NIMHANS, Bangalore, she took medicines for her illness of schizophrenia and for that reason concrete material could not be revealed during her examination at both the places. There is no material for the same; even assuming it to be correct also, it cannot be said that she suffered from incurable mental disorder.
33. Now we have to see as to what is the legal position on the question.
34. In Sharada v. Dharampal : [2003]3SCR106 , the Apex Court observed as under:
The decisions rendered by various Courts of this country including this Court lead to a conclusion that a decree for divorce in terms of Section 13(1)(iii) of the Act can be granted in the event the unsoundness of mind is held to be not curable. A party may behave strangely or oddly inappropriate and progressive in deterioration in the level of work may lead to a conclusion that he or she suffers from an illness of slow growing developing over years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. A few strong instances indicating a short temper and somewhat erratic behaviour on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder.
35. But, in the above case, the question that came for predominant consideration was whether a party to divorce can be compelled to medical examination and incidentally the question as to what kind of mental disability is required to satisfy the provisions of Section 13(1)(iii) of the Act was also discussed.
36. Now it has to be seen as to what is schizophrenia?
37. In a Medical Dictionary, schizophrenia is referred as follows:
A term, coined by Bleuler, Synonymous with and replacing demantia precox; the most common type of psychosis, characterized by a disorder in the thinking processes, such as delusions and hallucinations, and extensive withdrawal of the individual's interest from other people and the outside world, and the investment of in his own. Schizophrenia is now considered a group of mental disorders rather than as a single entity and distinction is made between process and reactive. Ambulatory schizophrenia, a milder form of schizophrenia in which the patient is capable of maintaining himself in society and need not be hospitalized.
38. In Ram Narain v. Rameshwari : AIR1988SC2260 , an extensive discussion is made on the question of schizophrenia and related mental problems. The following observations in the above decision are relevant:
11-12. 'Schizophrenia', it is true, is said to be difficult mental-affliction. It is said to be insidious in its onset and has hereditary predisposing factor. It is characterized by the shallowness of emotions and is marked by a detachment from reality. In paranoid-states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. In its worst manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions.
Schizophrenia' is described thus:
A severe mental disorder (or group of disorders) characterized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becomes socially withdrawn and loses energy and initiative. The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic, which starts in adolescence or young adulthood (see hebephrenia); paranoid characterized by prominent delusion; and catatonic, with marked motor disturbances (See catatonia).
Schizophrenia commonly - but not inevitably - runs a progressive course, the prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong genetic factors in the causation, and environmental stress can precipitate illness.' (See: Concise Medical Dictionary at page 566: Oxford Medical Publications, 1980)
But the point to note and emphasise is that the personality-disintegration that characterizes this illness may be of varying degrees. Not all schizophrenics are characterized by the same intensity of the decease (Sic). F.C. Redlich and Daniel X. Freedman in 'The Theory and Practice of Psychiatry' (1966 Edn.) say:. Some schizophrenic reactions. which we call psychoses, may be relatively mild and transient: others may not interfere too seriously with many aspects of everyday living....Are the characteristic remissions and relapses expressions ofendogenous processes, or are they responses to psychosocial variables, or both? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission. The term need not imply an independent endegenous process; it is just as likely that the spontaneous remission is a response to non-deliberate but nonetheless favourable psychosocial stimuli other than specific therapeutic activity...(p.465)
(Emphasis supplied)
39. In Pronab Kumar v. Krishna : AIR1975Cal109 , a Division Bench of the Calcutta High Court made a reference about schizophrenia depending on certain authorities which is as under:
In the text book of Psychiatry by Handerson and Gillespies (Tenth edition) at page 279, Schizophrenia has been described as an illness of slow, insidious on-set developing overyears... The patient's relatives may report strange, odd, inappropriate behaviour. One should find out always if there has been progressive deterioration in the level of performance at work and socially (sic); school reports, examination results at University or college and the employment record will provide objective and usually reliable indices of intellectual performance its maintenance of decline. Dr. A.K. Deb (D.W.4) in his book 'An Outline of Psychiatry' has dealt with this subject at p.73 of that book. According to that doctor Schizophrenia usually starts about puberty and adolescence or shortly afterwards; this disorder usually appears in the teenagers or in early twenties. In the opinion of that author collateral inheritance, with a recessive character is frequently found in this disease, brothers and sisters being afflicted. While dealing with the symptoms Dr. Deb mentioned some of them, the patient sits or stands motionless in various attitudes; he has no spontaneous activity, he is mute and is highly resistive to all attention. In Handerson and Gilespie's text book at p. 280. Some of such symptoms have been mentioned. It has been observed that one or two questions may be sufficient to elicit the fact that the listless Schizophrenic does not have any subjective feeling of sadness, but on the other hand, often feels contented and prefers to be left alone. Some of the medicines suggested in that text book at page 286 is as follows: 'E.C.T. is often of value in alleviating depressive symptoms and in disrupting acute hallucinatory states. Tranquillizing drugs, in particular chlopromozine and trifluoperazine are useful in allaying turmoil and tension and in allowing the patient to become more accessible to other therapeutic influences. Dr. Dey also in his book at page 84, suggested these medicines in such cases. The malady is very dangerous in nature. Doctors in such cases always advise patient not to marry and even if he marries, he is allowed to marry with the proviso that parenthood is inadvisable. The above subject has fully been dealt with at pages 50 and 283 by Handerson and Gillespie, already referred.
40. Thus, in schizophrenia, patientsuffers from disorders like delusions and hallucinations, external withdrawal of individual's interest from other people. It is characterized by shallowness of emotions and is marked by detachment from reality and at sometimes, a severe mental disorder with increasing withdrawal social withdrawal and personal ineffectiveness or major changes. That there might be strange, odd and inappropriate behaviour. There would be progressive deterioration in the level of performance at work and socially.
41. Thus, schizophrenia generally not appears to be such dangerous disease and it can be controlled with drugs.
42. In the present case, respondent has not made any reference to any of the acts of the appellant that can constitute schizophrenia.
43. First of all, there is no positive evidence to show that the appellant has suffered schizophrenia and even in case she suffered from some form of schizophrenia, it cannot be said that she was suffering from such a serious form of schizophrenia that would attract the requirements of Section 13(1)(iii) of the Act.
44. In T. Hari Kumar Naidu v. Smt. Prameela : 2000(6)ALD97 , on which reliance has been placed by the learned counsel for the respondent, wife who was alleged to have suffered from schizophrenia, initially agreed for medical examination to show that she was not suffering from any mental disorder but ultimately did not co-operate for subjecting herself to medical examination. In such circumstances, adverse inference was drawn and in that case she (wife) admitted of having written on the letter pad of her husband about her earlier mental disorder and the names of the medicines used.
45. We feel that the above decision is not applicable to the facts of the present case since in the case on hand, appellant got herself subjected to medical examination in two hospitals viz., (1) Institute of Mental Health at Erragadda, Sanjeeva Reddy Nagar, Hyderabad and (2) NIMHANS at Bangalore.
46. In Ram Narain's case (supra 2), Apex Court held that toconstitute mental disorder as required under Section 13(1)(iii) of the Act, its degree must be 'such as that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognized as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law'.
47. Apex Court cautioned that Sec. 13(1)(iii) of the Act does not make a mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of a marriage.
48. Thus, first of all Section 13(1)(iii) of the Act does not say schizophrenia can be a ground for divorce and schizophrenia is not that serious mental illness, it can be of different degrees and most importantly it is curable. As already referred in the case on hand, there is absolutely no evidence to show that appellant was suffering from any serious form of schizophrenia or any other mental disorder of such a nature that would make life of the respondent so miserable that he cannot live with her.
49. As already referred during the periods, the appellant was allegedly suffering from schizophrenia, she has not only completed M.B.B.S but also did a post-graduate diploma in medicine and is continuously working as a Government Medical Officer. In case, she was suffering from any serious kind of mental disorder particularly acute kind of schizophrenia, it would have been impossible for her to do all this particularly to work as a Government Medical Officer continuously.
50. Husband cannot simply abandon his wife because she is suffering from sickness. R.W.2 stated that schizophrenia can be put on par with the diseases like hypertension and diabetes on the question of treatability, thereby meaning that constant medication is required, in which event, disease would be under control. In this case, first of all, there is no positive material to show that appellant was suffering from any kind of schizophrenia as already referred. No doubt, there is no dispute that she was suffering from slight mental disorder like depression. For that reason, respondent-husband cannot divorce appellant-wife. Can a husband divorce his wife suffering from diabetes or hypertension? Certainly not. No doubt, mental disorder cannot be equated with diabetes or hypertension. When schizophrenia is not of such a serious nature and particularly when it is treatable, it cannot be a ground for divorce under Section 13(1)(iii) of the Act.
51. Learned trial Judge has taken into consideration the incident that has taken place in Gandhi Hospital where the people of the appellant created a scene by attacking the respondent at Gandhi Hospital stating that he was not only subjected to mental harassment but also physical as well as cruelty. We feel that it is too trivial circumstance to grant divorce.
52. R.W.4, a medical officer of Gandhi Hospital, was present at the time of the alleged incident. He simply spoken about the same as some galata taking place and about the presence of the appellant, her sisters, brothers-in-law and mother etc. May be they went to Gandhi Hospital to question the respondent about his behaviour in abandoning the appellant. Even according to the respondent, P.W. 2 and her men came to Gandhi Hospital, Secunderabad and by that time he was at emergency duty as O.P. Surgical Officer. P.W. 2 and her men physically harassed him and threatened him of dire consequences. He did not specifically speak about any attack on him. He did not say that he was beaten up. May be some incident has taken place.
53. In all the circumstances, both the C.M.As. are liable to be allowed and are accordingly allowed.
54. Accordingly, O.P. No. 203 of 2000 filed by the respondent-husband for divorce against the appellant is dismissed and O.P. No. 1 of 1999 filed by the appellant for restitution of conjugal rights against the respondent is allowed granting decree of restitution of conjugal rights.