A. Pasayat, J.
1. Judgment passed by learned Subordinate Judge, Puri in O.S. No. 39/83 of 1986/82 is the subject matter of challenge in both the appeals though on different grounds. The suit was filed by Jagadananda Mishra, appellant in F.A. No. 70 of 1993 purportedly under Sections 13 and 14 of Hindu Marriage Act, 1955 (in short, the 'Act'), praying for dissolution of his marriage with Pravati, appellant. In F.A. No. 245 of 1991, by passing a decree of divorce, on the ground that Pravati was of subnormal state of mind which was incurable in nature. His case synoptically is as follows :
He married Pravati on 4-2-1982, according to Hindu customary rites. After marriage he discovered that Pravati was suffering continuously from mental disorder of such a kind and to such an extent that it would not be reasonably expected to live as husband and wife with her. She has incomplete development of mind and was suffering from psychopathic disorder of, mind, and, was possessed intelligence of a three year old child. This mental condition of Pravati was deliberately suppressed by Kamalakanta Mishra, her father who was other opposite party in the application filed by him. After marriage when Pravati came to his house at Puri, she behaved as a child and addressed him at Bhaina (brother) and she had no sexual urge and she used to move at times stark naked in the house. He suspected that something was wrong with her. Because of such abnormal mind of Pravati, he had no physical contact with her and there was no consumation of marriage and it had become impossible for him to live with her as husband and wife. Consequently, he was deprived of pleasures of marital life because of defective mental condition of Pravati There was no sexual intercourse between him and Pravati. She was also charged of being guilty of cruelty. After two months of marriage, he filed the suit for dissolution of marriage, and a petition was filed, in terms of Section 14 of the Act to allow for filing of a petition within a period of one year from the date of marriage.
2. A joint written statement was filed by Pravati and Kamalakanta. They denied the allegations regarding mental disorder of Pravati. It was averred that Pravati suffered from no mental disorder, but she has subnormal intelligence to a minor degree on account of the fact that she had no schooling in her childhood due to her affliction with a viral disease known as Encephalitis. Family members of Jagadananda knew about Pravati's subnormal state of mind as they had no several occasions visited the house of Kamalakanta, and had seen her many times. Question of suppressing Pravati's mental disorder did not arise. It was further stated that Pravati never refused to have sexual intercourse with Jagadananda, she was very much capable of having sexual intercourse, and in fact had it with Jagadananda on many occasions. There was no substance in the charge of cruelty, as alleged. It was alleged that with a view to extract dowry to the extent of rupees one lakh after marriage, which was not acceptable by Kamalakanta, the petition has been falsely filed. A prayer was made for return of certain articles as described in Schedule 'A' of the written statement, cash of Rs. 12,000/- which was paid, and other articles as described in schedule 'B'. A prayer for maintenance Rs. 500/- per month to Pravati, as she has no source of income.
3. Learned Subordinate Judge framed four issues. Vital issues are as follows :
1. Whether defendant No. 1 is a lunatic and not fit for marital life ?
2. Whether the plaintiff is entitled to a decree for divorce ?
On evaluation of evidence led by parties, learned Subordinate Judge came to hold that marriage of Jagadananda with Pravati had not been consummated due to mental disorder of Pravati, and therefore, the suit was maintainable, and Jagadananda was entitled to a decree for dissolution of marriage. It was further held that Jagadananda was liable to pay Rs. 1200/- per quarter to Pravati as maintenance.
4. In appeal filed by Pravati decree for dissolution is subject matter of challenge, while Jagadananda questions correctness of quantum of maintenance as awarded. In Pravati's appeal, main challenge is to the conclusions of learned Subordinate Judge regarding her mental disorder, and it being incurable in nature. Jagadananda's plea is that he being unemployed the quantum as fixed is irrational.
5. Section 13(1), Clause (iii) and Explanations (a) and (b) appended to the said clause relevant for the purpose of adjudicating Pravati's appeal read as follows:
'Section 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--
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(iii) 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.
Explanation.--In this clause.
(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 persistent disorder 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; or
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'Mental disorder' as appearing in Clause (iii) means mental illness, arrested or incomplete development of mind, or any other disorder or disability of mind and includes schizophrenia, 'psychopathic disorder' means a persistent disorder 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.
6. Expression 'incurably of unsound mind' cannot be so widely interpreted as to cover feeble minded persons or persons of weak and/or dull intellect who understand nature and consequences of their acts and are able to control themselves, their affairs, reactions in the normal way. Section 5(ii) of the Act lays down as one of the condition for a Hindu marriage that neither party must be incapable of giving valid consent in consequences of unsoundness of mind or has been suffering from mental disorder. Section 12(1)(b) renders at the instanced the other party a marriage voidable which is in contravention of this condition. Clause (iii) of Sub-section (1) of Section 13 deals with incurable unsoundness of mind which may occur even subsequent to the marriage. The onus of proving that the other party to the marriage is of incurably unsound mind or that he/she is suffering from mental disorder is the person alleging it. It must be proved by cogent and clear evidence. 'Mental' means pertaining to mind. 'Unsoundness of mind' has to be understood as lack of state of mind or capacity to understand one's affairs, or marital obligations, or, implications of marital relationship. Clause (iii) has been substituted by Marriage Laws (Amendment) Act, 1976 for the original Clause (iii) which was as under :
'has been incurably of unsound mind for a continuous period of not less than three yearsimmediately preceding the presentation of the petition.'
The simple expression' of incurably unsound mind' appearing in the original clause is replaced by a very complicated one with definition of two expressions therein. It is a pedantic rigmarole, meaning nothing except unsoundness of mind. The Section makes a distinction between 'unsound-ness of mind' and 'mental disorder'. Besides, mental disorder may be continuous or intermittent. But unsoundness of mind must be incurable which means continuous. A spouse is 'incurable of unsound mind' if he or she is of such mental incapacity as to make normal married life impossible and there is no prospect of any improvement in mental health which would make this possible in future. (Whysall v. Whyshall (1959) 3 All. E.R. 389). A person of unsound mind is either an idiot or lunatic in a more serious stage. Clause (ii) of Section 5 of the Act has also been substituted by the 1976 Amendment Act. Original clause reads as follows:--
'neither party is an idiot or lunatic at the time of marriage.'
The term 'unsound mind' is more comprehensive. Idiocy and lunancy are species of unsoundness of mind. Mental defectiveness falls chiefly under three grades known as idiocy, imbecility and feeble mindedness. Any state of mind which falls short of lunancy or idiocy cannot be a ground for annulment of marriage. Persons differ from one another in the degree of intelligence possessed by them, it would be a dire calamity if it could be said as a matter of law that a marriage entered into by a person who is neither a lunatic nor an idiot in a serious stage, because be or she lacks intelligence, although otherwise capable of understanding the nature of the bonds of matrimony into which he or she is a catering or has entered. 'Unsound mind' or in same memories, which all persons must understand to be a depravity of reason, or want of it 'per Hardwicke C., Barnsley's Case 2 Eq. Ca. Ab., 580).' There is an important difference between 'un-soundness of mind' and 'dullness of intellect'....Unsoundness of mind may arise from perversion of the mental powers and may exhibit itself by means of delusions or strong antipathies, which is called 'mania', or it may arise from what may be termed a defect of mind, as where the mind was originally incapable of directing itself to anything requiring judgment, which is 'idiocy'; or where a mind originally strong, has become weakened by illness or age though producing no such insanity as to amount to mania. 'Idiocy' in general is very easily proved. It is manifested in a variety of ways-by impropriety or indecency of conduct, dirtiness in the habits or by vacancy of aspect, though this last test can only be appreciated by those who have seen the party. Another test is by means of numbers, i.e. by showing that the party cannot understand the commonest rules of arithmetic' (per Wood V.C. Harrod v. Harrow 23 L.T.O.S. 243).
7. Sub-clause (b) of Clause (ii) of Section 5 provides for incapacity to give valid consent due to mental disorder of such a kind or to such an extent as to make a person unfit for marriage and the procreation of children. The opening words of Section 5 state that a marriage may be solemnised between and two Hindus if the conditions (i) to (v) thereof are fulfilled. By necessary implication it follows that a marriage which does not fulfil those conditions cannot be solemnised, and if solemnised would be illegal and void. In order to appreciate meaning of the expression 'incurably of unsound mind' and the test applicable in any such case, it has to be noticed that the state of mind envisaged is a degree of unsound-ness, or incapacity of mind properly called insanity. The question is to be determined not upon wiredrawn speculations but upon tangible and established facts. It is important to notice that to bring a case within the ambit of Clause (iii) of Sub-section (1) of Section 13, mental disorder should be of such a kind and to such an extent that the applicant cannot reasonably be expected to live with the respondent. The gravity and importance of the issue requires that the Court ought to form its own independent judgment on the point. Medical testimony can be of considerable assistance and even guidance but the question is one for the Court and not for the experts and evidence of experts does not relieve the Court from the obligation of satisfying itself on the point reasonable doubt. There should be strict enquiry into the matter. Court's duty in this regard is very sensitive. The institution of marriage is of vital importance to society. According to Bentham, under whatever point of view the institution of marriage is considered, nothing can be more striking than the utility of this noble contract, the tie of society and the basis of civilisation, and that to perceive its benefits, it is only necessary to imagine for a moment what men would be without that institution. Sick marital relations pose a problem not merely for the related spouse, they have much wider implication. They have their repercussions and impact upon society and the same give rise to social problems. Harmony in society is inconceivable, where there are dissatisfied parties that make a home which is one of the most crucial units in the hierarcy of social institutions. Emotional stability of the society is linked with the institutions of marriage concepts underlying matrimonial relations effect not only happiness of the individuals, they are also concerned with social norms and ethical mores.
8. The expression in the sub-clause 'reasonably expected to live with the respondent' is to be liberally construed. At the same time, any over-libelisation is likely to destroy sanctity of the institution of marriage. In the home, the consideration that really obtains is the natural love and affection which counts for so little in these cold Courts. Atkin L.J. in a famous judgment said: 'The parties themselves are Advocates, Judges, Court, Shariff's Officer and Reporter. In respect of these promises, each house is a domain into which the King's writ does not seek to run and to which his officers do not seek to be admitted'. It takes two to make marriage a success and only one a failure (per Herbert Louis Samuel). If one does not find it reasonably impossible to like with the other on account of mental disorder, Clause (iii) of Sub-section (1) of Section 13 comes into operation.
9. In the written statement filed by Prayati and Kamalakanta, it was specifically admitted the Pravati's intelligence is subnormal to a minor degree on account of the fact that she had no schooling in her childhood due to her affliction with a viral disease called 'Encephalitis'. The same is a disease which concerns human brain. It involves inflamation of the brain. Learned trial Judge has referred to the evidence of P.Ws. 2 and 3 about abnormal behaviour of Pravati, and as to how move around naked. It has been accepted that Pravati was under treatment of Specialists and Psychiatrists. Dr. Gopal Ch. Kar (P.W. 1) who was Asstt. Professor of S.C.B. Medical College, Cuttack, has stated that on 10-4-1982 he had examined Pravati in the Out Patient Department of mental patients and on examination he found her to be imbecil. Pravati was subjected to I.Q. test, and when some questions were put regarding her marriage and past marital responsibilities, she could not answer anything which is abnormal. He was of the opinion that Pravati's I.Q. was below 50% after the age of 21, and her mental disorder is incurable. His further opinion was that a person, more particularly one belonging to middle class cannot manage with such a wife, as such a wife is not capable of rearing children. Pravati herself was examined as P.W. 2. She claimed that she had read upto Class VIII. Strangely she stated that she did not know by what number 125 is bigger than 115. She did not even know name of the village to which her father belonged. Learned Trial Judge concluded that the marriage remained unconsummated because Pravati accepted that she was sleeping in a room separate from that of Jagadananda, and her husband was not sleeping with her. The learned Trial Judge found it extremely unusual that Pravati had practically no schooling even though her father Kamalakanta was himself a Doctor. This dearly established that Pravati suffered from mental disorder and in view of evidence of P.W. 1 that the same is incurable, learned Trial Judge was justified in his conclusion that Pravati was of subnormal mind suffering from mental disorder and the same was incurable in nature. In view of almost unrebutted evidence of P.W. 1 about mental disorder and of P.Ws. 2 and 3 about abnormal behaviour of Pravati, conclusions of learned Subordinate Judge cannot be faulted. He has rightly concluded that Jagadananda is entitled to a decree for divorce. Inevitable result is dismissal of appeal filed by Pravati, which I direct.
10. Coming to appeal filed by Jagadananda, the only dispute relates to quantum of maintenance. Grievance is made that there is no evidence about his income and properties and therefore, quantum awarded is without any basis. From the evidence of Jagadananda and his father, P.W. 2 it is clear that he belongs to a respectable family and his father is a retired Principal, and Reader in Physics. Unrebutted evidence of Kamlakanta is that Jagadananda was doing business in cattle fodder. Every able-bodied husband is obligated to maintain his wife. Section 25 of the Act deals with permanent alimony and maintenance, and Court's jurisdiction to order for such payment at the time of passing a decree. No arithmetical rule can be adopted as a matter of course in fixing the amount. Several relevant aspects, depending on facts of each case, have to be considered, e.g. income and properties of the husband, and income of the wife etc. Although Section 25 recognises the right of the wife and husband to be in equali jura in the matter of maintenance when a decree is passed granting relief in any matrimonial cause, it is primarily intended to secure maintenance and support for the wife in whose favour decree is made granting any of the reliefs under the Act. The provision is unique in the history of matrimonial legislation. It introduces an unusual and some what grotesque feature in this branch of law, and even a destitute husband can be granted relief. The quantum, as laid down in the Section itself, must have regard to the respondent's own income and property and the income and property of the applicant and the amount has to be such as seems just to the Court. No rigid rule or yardstick or fixed criteria can be laid down, for fixation and assessment of quantum. Means of the parties and their conduct are the guiding factors. Court has to consider them including everything having legitimate bearing on present or prospective matters affecting lives of both parties, which obviously cannot be susceptible of proper enumeration. In the exercise of its discretion the Court has to select or emphasize such of the factors as are appropriate to the facts of the particular case, in addition to the prime factors which touch the means and conduct of the parties. It is out of a great category of circumstances, many of them, small in themselves that a reasonable induction is to be made by the Court in arriving at the quantum. I find no scope for interference in the appeal filed by Jagadananda. It is submitted by the learned Counsel for Jagadananda that he may persuade Pravati to accept a fixed sum of money in lieu of periodic payments as directed. It is open to him to make that offer and in case of agreement to move Trial Court for passing necessary order in that regard.
Both the appeals fail and are dismissed. Parties are directed to bear their respective costs.