THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY and THE HON'BLE SRI JUSTICE M.S.K.JAISWAL FCA No.222 of 2011 28-01-2014 Kukatlapalli Meri Rani... Appellant Kukatlapalli Paul Prakash...Respondent Counsel for petitioner: Sri B. Devanand. Counsel for respondents: Sri Srinivas Rao Ravulapati HEAD NOTE: ?.CASES REFERRED :1. (2014) 1 SCC2252. AIR1990Ker.262 THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY and THE HON'BLE SRI JUSTICE M.S.K.JAISWAL FCA. No.222 of 2011 And FCA. No.47 of 2013 COMMON JUDGMENT
: (Per the Hon'ble Sri Justice L. Narasimha Reddy) These two appeals are filed against a common order dt. 07.07.2011 passed by the Family Court-cum-Additional District Judge, Guntur in DOP Nos. 66 & 98 of 2009.
2. The relevant facts are as under: The appellant is the wife of the respondent. Their marriage took place on 12.09.1995 at Brodipet, Guntur, according to the Christian customs and rites. The respondent filed DOP No.66 of 2009 under Sec.10(1)(vii)(ix) and 19(3) of Divorce Act (for short 'the Act') for declaring his marriage with the appellant as null and void. He pleaded that the parents of the appellant concealed the fact that the appellant is a lunatic and when he came to know about the same after the marriage, she was taken to a Dr.Phani Bhushan, Psychiatrist at Guntur (PW-4), and that after conducting relevant medical tests, it was opined that the appellant suffers from psychosis. He stated that every effort was made by him to save the marriage, such as getting treatment for the appellant, or by setting up a separate residence, though his financial condition did not permit the same, proved to be futile. He stated that though they lived together for sometime, their marriage itself deserved to be declared as null and void.
3. The appellant filed a counter opposing the O.P. She denied the allegations made in the O.P. According to her, she studied up to Degree and she completed typewriting courses in English, Hindi and Telugu. She pleaded that her conduct was never abnormal, much less she is a lunatic or an idiot. She alleged that the O.P., was filed by the respondent against the wishes, even of his mother and the same is liable to be dismissed.
4. The appellant, on the other hand, filed O.P.No.98 of 2009 for restitution of conjugal rights.
5. The trial Court clubbed both the O.Ps., and recorded common evidence. Through the order under appeal, the trial Court allowed O.P.No.66 of 2009 and dismissed O.P.No.98 of 2009. Hence these two appeals by the appellant.
6. Sri B. Devanand, learned counsel for the appellant submits that the trial Court decreed the O.P.66 of 2009 and granted decree without there being any evidence. He contends that to plead a ground, referable to Sec.10 of the Act, it was obligatory on the part of the respondent to prove beyond any doubt that the appellant was a lunatic or an idiot, as on the date of marriage, and the evidence of PW-3, the doctor appointed by the trial Court clearly demonstrate that the appellant was not possessing those characteristics at all. Learned counsel further submits that the evidence of PW-4 cannot be taken into account, since he was not appointed by any Court and his deposition is contrary to the professional ethics. He further submits that assuming that the respondent was able to prove the characteristics pleaded by him, he can be said to have waived his right to seek remedy under Sec.10 of the Act, once he has lived with the appellant for quite a considerable time after noticing the alleged infirmity. Another contention is that if the appellant is in fact a lunatic or idiot, the form of O.P., filed by the respondent is defective.
7. Sri Srinivas Rao Ravulapati, learned counsel for the respondent, on the other hand, submits that the evidence on record clearly discloses that the conduct and behaviour of the appellant was extraordinary and the same is sufficient to prove that she was suffering from lunacy. He submits that the respondent has no evil mind or hatred towards the appellant, but the O.P., was filed only when it clearly emerged that the appellant had extraordinary behaviour, rendering the family life impossible. He submits that the order passed by the trial Court does not warrant interference.
8. The only ground pleaded by the respondent against the appellant is that she is of extraordinary behaviour and conduct, leading to an inference that she is a lunatic or an idiot. The appellant, on the other hand, pleaded that she is a normal person and she has obtained not only a Bachelor's Degree but also passed typewriting examinations in three languages.
9. The trial Court framed one issue each, in relation to both the O.Ps., filed before it. On behalf of the respondent, PWs.1 to 4 were examined and Exs.A.1 to A-12 were filed. On behalf of the appellant, RWs.1 and 2 were examined, and Exs.B-1 to B-7 were filed. The trial Court decreed the O.P., filed by the respondent under Sec.10 of the Act, and dismissed the one filed by the appellant for restitution of conjugal rights.
10. Therefore, it needs to be seen as to (a) whether the respondent has proved that the appellant herein was a lunatic or an idiot as on the date of their marriage?. (b) Whether the respondent is entitled for a decree of nullity of their marriage?. and (c) Whether the appellant is entitled for a decree for restitution of conjugal rights?.
11. It is the expectation of everyone to interact with the persons with ordinary tendency and behaviour. It is particularly so in the context of marriage. No one would wish to have a life-partner, whose conduct or behaviour is different from the one expected from ordinary human beings. Obviously, for that reason, law recognizes the extraordinary conduct or behaviour of a party to the marriage, as a ground for the other, to seek divorce or nullification. Though the concept cuts across the various religions and faiths, the degree to which it is required to be proved, differs from one religion to another. For example, Section 13(1)(iii) of the Hindu Marriage Act provides that a spouse can seek divorce against the other spouse, if the latter 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 explanation to this provision enlists the disorders of different intensity or category.
12. Section 10(1)(iii) of the Indian Divorce Act enables a party to the marriage to seek a decree of nullity against the other spouse, if the latter was a lunatic or idiot 'as on the date of marriage'. The said provision reads as under: ".Sec.10.Grounds for dissolution of marriage: (1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent - (i) ... (ii) ... (iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or ... ... ... ... (vii) has willfully refused to consummate the marriage and the marriage has not therefore been consummated; or ... ... (ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition;".
13. The expression used in the Indian Divorce Act, the 'lunacy or other mental disorder' is dealt with under two separate provisions. In case a party to the marriage was lunatic or idiot as on the date of the marriage, Section 19 read with Sec.18 of the Act enables the other spouse to seek a decree of nullity of marriage. Section 19 (3) reads as under: ".19. Grounds of decree - Such decree may be made on any of the following grounds : - (1) ... (2) ... (3) that either party was a lunatic or idiot at the time of the marriage". If, on the other hand, such disability or disorder has occurred at a later point of time and remained for a period of not less than two years, the aggrieved party can file a petition under Section 10 of the Act for dissolution of the marriage.
14. In the instant case, the respondent invoked both the provisions. It only means that he was not clear as to whether the appellant was a lunatic or an idiot, as on the date of marriage, or that the same has occurred to the appellant immediately two years preceding to filing of the O.P. This uncertainty would certainly have its own impact upon the merits of the O.P.
15. A person can be said to be lunatic if he is virtually a mad person and is insane for all practical purposes. It is only when the person exhibits extreme characteristics that he can be categorized or called as lunatic. The word 'idiot' is explained in the Chambers Dictionary as connoting ".a foolish or unwise person; a person afflicted with the severest degree of intellectual sub- normality, and having low intelligence quotient"..
16. If it was established by the respondent that the appellant possessed the characteristics referred to above, the decree passed by the trial Court can certainly be sustained. Therefore, it needs to be seen as to whether the evidence on record would lead to such a conclusion.
17. The respondent deposed as PW-1. In the chief-examination he repeated the contents of O.P. In addition to that, he stated that the appellant is possessed of extraordinary behaviour and his marriage was not consummated at all. He is said to have returned in November 1995 from Saudi Arabia and at that time his father-in-law is said to have informed him that the appellant has been admitted to Vishnu Priya Hospital at Guntur. He stated that he could not return to Saudi Arabia since he was required to attend upon the appellant. Another allegation was that though he has set up a separate family, the residence had to be changed frequently on account of the extraordinary behaviour of the appellant with the neighbours. It was suggested to him in the cross-examination that both the parties lived together not only in the house of his parents but also in a separate residence. PW-2 is the mother of the respondent. Her evidence is not of much help to either of the parties.
18. The trial Court passed an order directing that the appellant be examined by a qualified Doctor in the Government Medical College, Guntur. Accordingly, PW-3, Assistant Professor of Psychiatry, Guntur Medical College, examined the appellant. His evidence is to the effect that though he found some abnormalities in the behaviour of the appellant, his observation is not sufficient to conclude that she was suffering from psychosis. This witness was not cross-examined by the appellant. PW-4 is the Superintendent of Government Hospital, Guntur. It is important to note that the alleged examination of the appellant by this witness was not on the basis of any order passed by the Court.
19. Here itself, it needs to be mentioned that Sections 18 & 19 of the Indian Lunacy Act prescribes detailed procedure to be followed in the context of issuing medical certificates in respect of persons, who are said to be suffering from lunacy. The certificate is required to be issued in Form-3 appended to the said Act. The two sections referred to above stipulate the manner in which the medical practitioner must examine and the nature of precautions to be taken by him before issuing certificate. The provisions read as under: ".Sec.18.Medical Certificates.- (1) Every medical certificate under this Act shall be made and signed by a medical practitioner or a medical officer, as the case may be, and shall be in the form prescribed. (2) Every medical certificate shall state the facts upon which the persons certifying has formed his opinion that the alleged lunatic is a lunatic, distinguishing facts observed by himself from facts communicated by others, and no reception order on petition shall be made upon a certificate founded only upon facts communicated by others. (3) Every medical certificate made under this Act shall be evidence of the facts therein appearing and of the judgment therein stated to have been formed by the persons certifying on such facts, as if the matters therein appearing had been verified on oath. Sec.19. Time and manner of medical examination of lunatic.- (1) A reception order required to be founded on a medical certificate shall not be made unless the persons who signs the medical certificate, or, whether two certificates are required, each person who signs a certificate has personally examined the alleged lunatic, in the case of an order upon petition, not more that seven clear days before the date of the presentation of the petition, and, in all other cases not more than seven clear days before the date of the order. (2) Where two medical certificates are required, a reception order shall not be made unless each person signing a certificate has examined the alleged lunatic separately from the other.
20. Admittedly, no precautions as provided under Sections 18 & 19 of Indian Lunacy Act were taken by PW-4, nor any certificate was issued by him in Form-3 appended to the said Act.
21. It is not without reason that the Parliament has prescribed a detailed procedure in this behalf. Once a person is branded as a lunatic, he would virtually forego several civil rights, such as capacity to contract, right to take independent decisions. He loses respect in the society, which, a man with the ordinary traits can expect.
22. Another aspect is that if a person is declared as lunatic, he cannot figure as an independent person in any proceedings before a Court. He is required to be assisted by a person that may be appointed by the concerned Court, that too under a specific legal regime.
23. The case on hand presents a typical contradiction. If the appellant is, in fact, a lunatic, the question of her being shown as independent party in the O.P., does not arise. It was only through a guardian or other representative as provided for in law, that she could have been shown as a party. Hence, there is a serious defect in the very form of framing the O.P., instituted by the respondent.
24. On merits also, we find that the conclusion arrived at by the trial Court cannot be sustained. A perusal of the deposition of appellant as RW-1 discloses that nothing extraordinary was noticed by the trial Court at any stage. Added to that, the appellant, who just completed Intermediate by the date of her marriage, has passed a Bachelor's Degree thereafter. If at all there is something extraordinary with her, it is in the context of passing typewriting examinations in three different languages, namely Telugu, Hindu and English. Even for ordinary persons, it is difficult to pass the typewriting examinations in two languages. When such is the brilliance and sharpness of the appellant, it is nave to plead that she is a lunatic or for that matter 'idiot'. Something should be seriously wrong with a person, who calls the appellant an idiot or lunatic.
25. It may be true that some typical characteristics may have been noticed on the part of the appellant. One has to recognize the fact that no two citizens are endowed with the same kind of intelligence to such a degree that both react to the situation in the same manner. It is only when the extraordinary behaviour of a person is such that his or her spouse just cannot lead normal life; that it can constitute a ground for divorce. The likes or dislikes of a party hardly matter.
26. It is apt to refer to the judgment of the Supreme Court in Kollam Chandra Shekar vs. Kollam Padma Latha1 wherein their Lordships held that every mental abnormality cannot be recognized as a ground for grant of a decree of divorce and mere existence thereof cannot justify dissolution of the marriage. That was the observation made in the context of a petition filed under Sec. 13(1)(iii) of the Hindu Marriage Act. It is also important to mention that the standard of proof prescribed under Sections 18 & 19 of Indian Divorce Act in this context is far vigorous. Reference in this context is made to the judgment of the Kerala High Court in Joykutty Mathew vs. Valsamma Kuruvill2.
27. On a close scrutiny of the judgment under appeal, we find that none of the aspects discussed above were taken into account by the trial Court and the decree was passed almost as a matter of course.
28. We therefore allow both the appeals and set aside the decree of divorce passed by the trial Court. As a result, the DOP No.66 of 2009 shall stands dismissed and the DOP No.98 of 2009 is allowed. There shall be no orders as to costs. Consequently, the miscellaneous petitions, if any pending, shall stand disposed of accordingly. _____________________ L. NARASIMHA REDDY, J ______________ M.S.K. JAISWAL,J Dt. 28..01..2014