(Prayer: This appeal is filed under Section 19(1) of the Family Courts Act 1984, against the Judgment and Decree dated 30.11.2015, passed in Matrimonial Case No. 7/2015 on the file of the Principal Judge, Family Court, at Ballary, dismissing the petition filed under Section 13(1) (ia) and 1(iii) of Hindu Marriage Act.)
Rathnakala, J.
1. In this appeal, the appellant/husband is assailing the judgment of the Family Court dated 30.11.2015, whereby his divorce petition filed under Section 13(1)(ia) and Section 13(1)(iii) of the Hindu Marriage Act, (for short, the Act ), came to be dismissed.
2. Briefly stated, the appellant/husband filed a divorce petition with the facts that the parties were married on 05.05.2011 as per their custom. The respondent/wife joined him in the matrimonial home three months after the marriage; 1 months thereof, her abnormal behaviour was noticed, she used to walk out of the bed during night hours, spread her hairs, smile, hit her head on the wall and was found shaking her head etc.; if the husband alarmed her and asked what happened, she would come back to normal position. The matter was informed to her parents; her father admitted that she was behaving in the same manner earlier also and took his daughter with him to get her treatment, in the month of November, 2011. She stayed with her parents for three months and returned to matrimonial home during February, 2012, but her unnatural behaviour persisted. She was reluctant for physical and sexual contact with the husband, she was violent whenever her husband tried to have sex with her. During night hours, sometimes she would walk out from the bedroom and sleep in the bathroom, hall etc. In the month of August, 2013, she had handed over the gold and silver articles for cleaning to an unknown person and had gone to sleep. However, by the intervention of relatives, valuables could be saved. Once by keeping open all the doors of the house, she was found sleeping; when her mother-in-law enquired, she was assaulted.
She would stand staring by lighting gas stove; she was irresponsible. She was taken for treatment and was diagnosed as suffering with Schizophrenia. Even after treatment, there was no improvement; Panchayat was convened wherein, she admitted, suffering mental disorder from much earlier to the marriage. She was provided treatment at Manasa Nursing Home, Shivamogga and was treated as inpatient from 14.04.2014 to 18.04.2014. The doctors of Manasa Nursing Home informed that she is suffering with incurable mental disorder. The marriage was performed by suppressing her mental condition. The husband is put to mental stress and subjected to mental cruelty due to her abnormal behaviour. He can not reasonably be expected to live with her. Hence, he prayed for divorce petition.
3. The wife contested the petition denying the allegations leveled against her by the husband. Further, she contended that at the time of marriage, she was studying in 1st year B.Com. The marriage was duly consummated and they lived together for a period of one year. The husband and his parents subsequently, started ill-treating her to get additional dowry. She was also forced to do agricultural work and made to attend all the household work. The mother-in-law was also finding fault with her and used to taunt and abuse her in vulgar language. They used to compare her with her co-sister who hails from well to do family and teased her for not getting much wealth from the parental home. She conceived after two years of the marriage, but the pregnancy ended in miscarriage, because of which she became weak. Her father took her to get treatment with Dr. Srinivas at Ballari as per the direction of her husband and his family members. At that time, she was diagnosed for hypothyroidism and not for mental disorder. Intentionally, she was taken to Ballari and Shivamogga for treatment, only to create as if she is suffering from mental disorder. The husband assaulted her without any reason and threw her out of the matrimonial home along with her belongings. He is intending to get divorce to marry another woman. She is physically and mentally fit to continue her marital relationship.
On the above, she sought for rejection of divorce petition. That apart, she made counter claim for restitution of conjugal rights.
Enquiry was held.
The learned Family Court Judge, on consideration of entire matrix on hand dismissed the divorce petition and allowed the counter claim of restitution of conjugal rights.
4. Sri. Gurubasavaraj S.M., learned counsel for the appellant/husband while assailing the judgment of the Court below submits that it is established by the evidence that the wife exhibited unnatural and queer behaviour and was suffering from incurable mental disorder, even prior to the marriage also, but said fact was suppressed. The doctor who treated her has categorically stated that she was suffering from Schizophrenia. It is not possible for the husband to lead marital life with such a patient wife. Though marriage was not consummated, she has falsely stated that she had conceived and named her doctor as Srinivasa. Said doctor was not a Gynecologist but a Neuropsychiatrist. In the given circumstances, the husband cannot be reasonably expected to co-habit with the wife who exhibits Schizophrenic symptoms. He is entitled for divorce on both counts of cruelty and incurable mental disorder of the wife.
5. In reply, Sri. T. Basavanagouda, learned counsel for respondent/wife submits that the husband has not challenged the judgment of the Court below whereby counter claim set-up by the wife for restitution of conjugal rights came to be decreed. In that view of the matter, the appeal is not maintainable and liable to be rejected on that count itself. The evidence of the husband and his witnesses is nothing but exaggeration only to make out a case for divorce. Neither the evidence of the doctor nor the documents produced by the husband would indicate that she is suffering from incurable mental disorder, which would entitle the husband for decree of divorce. Even now the wife is at saving her marriage and she has not executed the decree of conjugal rights, though she could have done so. The evidence on record is sufficient to infer that her health deteriorated, because of the thyroid hormones problems. Now she is healthy and fit to resume her martial life. Hence, the appeal is liable to be dismissed inlimine.
6. Learned counsel for the appellant/husband placed reliance on the judgment of the Apex Court in the matter of Pankaj Mahajan Vs. Dimple @ Kajal reported in (2011) 12 SCC 1 and a judgment of the co-ordinate Bench of this Court in Ravikumar Vs. Hema Deshpande (MFA No. 8062/2004) dated 11.09.2009 whereby divorce petitions were allowed on the ground of incurable schizophrenia of the respondent/wife.
7. In the backdrop of the above observations, we have gone through the impugned judgment and the evidence placed before the Trial Court.
During Trial, the husband apart from examining four witnesses to corroborate his case examined a Doctor from the Hospital where the wife was treated. Though nothing was brought-forth from mouth of the doctor/witness that wife was suffering from incurable mental disorder, he gave general symptoms of schizophrenia. Further, stated that when the wife was brought to the hospital her schizophrenic symptom was on a higher side. During the course of cross-examination, he admitted that when examined on 04.02.2015 her mental condition was normal, her thought process and relevance etc. was normal. From the earlier medical records, he admitted that she was diagnosed for hypothyroidism symptom and such patient suffers from mental and physical problems.
The wife countered the evidence of the husband, by examining her father and relatives to establish that she is a normal person except for hypothyroidism.
8. Decree of divorce is sought by the husband on two grounds i.e., Section 13(1) (ia) and Section 13(1) (iii) i.e. cruelty and incurable mental disorder. Section 13(1) (iii) reads thus:
Section 13(1) (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 of incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) xxxxxxxxxxxxxxxxxxx
9. Cruelty since not defined in the Act, one has to fall back on judicial interpretations as to what amounts to cruelty in the eye of law. To prove physical cruelty absolutely there won t be any problem for an aggrieved spouse. But when it comes to the question of mental cruelty, it is dependent on individual s perception, understanding, social and cultural setup, his or her up bringing so on so forth. From the evidence as brought on record, we have noticed, there is no positive evidence that the wife exhibiting uncontrollable violent behaviour, thereby made husband s impossible. The tone and tune of the case made out by him is, cohabitation with a wife who is suffering from mental disorder is causing cruelty for him. But his own witness/doctor admits that when she was lastly examined, she was a normal person. That being so the case goes away from the spectrum of Section 13(1)(ia) of the Act. It is the evidence of the doctor to the effect that when schizophrenics are properly treated and with patients family members co-operation, there will not be any problem for such person to lead normal marital life.
10. The judgments of the Apex Court in Pankaj Mahazan (supra) and Division Bench of this Court in Ravikumar (supra) relied for the husband stand distinguished on facts. The Family Court on meticulous examination of pleading and evidence was unable to trace either the element of cruelty or incurable mental disorder and unsoundness of mind with the wife. Per contra, the Trial Court finds the husband himself at wrong for not taking the wife to his matrimonial fold, which bars him under Section 23of the Act for decree of Divorce.
11. A co-ordinate Bench of this Court in the matter of B.N. Panduranga Shet Vs. S.N. Vijayalaxmi reported in AIR 2003 KARNATAKA 357 at paras 24 and 29 observed thus:
24. We have given our serious consideration to the submissions urged on behalf of the appellant and the material relied upon by them. In so far as the ground of mental disorder is concerned what is required under law and as indicated in Section 13(1)(iii) is that a person should be suffering from such mental disorder and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. It is not the mere mental disorder in itself that entitles for relief under Section 13(1)(iii) of the Act. Mental disorder of such a degree that it is impossible to lead normal marital life or it is unreasonable to expect a person to put up with a spouse with such condition.
29. In so far as granting the relief of divorce under Section 13(1)(iii) of the Act is concerned, the nature and the degree of mental disorder which meets the requirements, has been clearly discussed and spelt out in the leading decision of the Supreme Court in Ram Narain Gupta Vs. Smt. Rameshwari gupta, reported in AIR 1988 SC 2260. The Supreme Court had occasion to observe in this regard as under:
The context in which the ideas of unsoundness of mind and mental disorder occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the mental disorder . Its degree must be such as that the 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. Schizophrenia it is true, is said to be difficult mental-affliction. It is said to be insidious in its onset and has hereditary pre-disposing factor. It is characterised 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 kind-ness and of expressions 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. But, the personality-disintegration that characterizes by the same intensity of the decease. The mere branding of a person as schizophrenic therefore will not suffice. For purpose of S. 13(1)(iii) schizophrenia is what schizophrenia does. 1987 All LJ 483, Affirmed.
12. Reverting back to the material on hand assuming that entire evidence led by the husband and his witness was gospel truth then also the case falls short of requirement of Section 13(1) (ia) or Section 13(1)(iii) of the Act. He has failed to demonstrate that wife is suffering from mental disorder of such a degree that it is impossible to lead normal life with her and he cannot be reasonably expected to put with her in such condition. The following are the authenticated startling statistics about mental illness:
i) More than 450 million across the globe suffer from mental illnesses (World Health Organization).
ii) Schizophrenia, depression, epilepsy, dementia, alcohol dependence and other mental, neurological and substance-use disorders make up 13% of the global disease burden, surpassing both cardiovascular disease and cancer. (National Institute of Health, USA)
iii) By 2030, depression will be the second highest cause of disease burden in middle-income countries and the third highest in low-income countries (WHO).
If that is so, could it be said that such sufferers are to be discarded and eliminated from the main stream?
Enormous progress is achieved in the field of medicine, with cake cut medical treatment made available for mental ailment, easily accessible to public at large. As a matter of fact, co-operation, compassion and support of family and friends is the vitalizer in addition to medication for convalescence. But here is the husband who is for abandoning his wife for no fault of her. In all probability, this altitude will have adverse effect on her mental health. While rejecting divorce on the ground of unsoundness of mind and mental disorder including schizophrenia, it was observed in Kollam Chandra Sekhar Vs. Kollam Padma Latha reported in (2014) 1 SCC 225, at para 42 reads thus:
42. Marriage is highly revered in India and we are a nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and bad time can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control........
13. The decree of the Family Court on the prayer of the wife under Section 9 of the Act directing him to take the wife to the matrimonial home is operating and has become final without challenge. The impugned judgment is well reasoned and not calling for interference.
For the foregoing reasons, the appeal is dismissed.
The appellant/husband is directed to deposit a sum of Rs. 10,000/- towards cost of litigation in the Registry within three weeks. On such deposit, the respondent entitled to withdraw the amount. If this order is not complied with, the wife is entitled to execute the order before the Trial Court by instituting execution proceedings.
Appeal dismissed.