1 R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE20H DAY OF JULY2016PRESENT THE HON’BLE MR.JUSTICE H.G.RAMESH AND THE HON’BLE MRS. JUSTICE RATHNAKALA MISC.FIRST APPEAL NO.103381/2014 (FC) BETWEEN: Smt.Shilpa W/o Praveen S.R. D/o D.M.Shivakumar Sharma 27 years, Presently at Door No.253 Ward No.1, N.S.Murthy Compound, Sandur Bellary District. (By Ms.V.Vidya Iyer, Adv.) AND: Praveen S.R. S/o S.P.Rameshwaraiah 32 years Software Engineer R/a Door No.505/A20h Ward, Moka Road Gandhinagar Bellary. (By Sri.S.S.Yadrami, Adv.) .. APPELLANT .. RESPONDENT2This appeal is filed under Section 19(1) of the Family judgment and decree Courts Act, 1984, against the dt.30.10.2014 passed in Matrimonial Case No.221/2013 on the file of the Principal Judge, Family Court, at Bellary, allowing the petition filed under Section 13 of the Hindu Marriage Act. This appeal having been heard and reserved for judgment on 12.7.2016 and coming on for Pronouncement of judgment this day, Rathnakala J., delivered the following:
JUDGMENT
The appellant/wife is aggrieved by the decree of divorce granted by the Principal Judge, Family Court, Bellary (for short ‘the Family Court’) on his file in Matrimonial Case No.221/2013 dated 30.10.2014 thereby dissolving her marriage with the respondent/husband.
2. Succinctly stated, the husband filed a petition for divorce before the Family Court under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’), alleging that the parties were married as per their customs on 1.12.2011 at Bellary. At the relevant point of time, he was working as Software Engineer at 3 Bangalore and wife had M.C.A. graduation. Marriage was consummated and wife joined him at his parents’ house at Bellary. They went out on a honeymoon from 12.12.2011 to 16.12.2011 and stayed at Munnar and Alleppi. On 15.12.2011, husband told the wife to stay at her parents’ place for a period of three months, so that he can look out for a house for their stay at Bangalore. Immediately the wife became wild, locked the door from inside and did not open it for more than two hours. When he tried to open the door forcibly, she threatened him to commit suicide. Immediately he contacted her father and only after her father advised her over phone, the wife regained her normal senses. They returned to Bellary on 17.12.2011 via Bangalore. At the Bangalore Bus Stand, the wife started walking with bare feet like a drunken person leaving behind the luggage and footwear. She regained senses only after the husband alerted by shaking her vigorously. After returning to Bellary, at her instance only, she was taken 4 to a lady Doctor since she complained that she has become pregnant but the test for pregnancy proved negative. She was reluctant for sexual intercourse under the pretext that somebody is watching them through the windows. If the windows were closed, then she would start telling that somebody is knocking the door. If he tried to convince her that there is nobody to knock the door, she would start telling that she is hearing some voice asking her not to have sex, as it is sin. She used to behave indifferently in an unusual and irresponsible way. During the first week of January 2012, once she was found standing in front of gas stove by turning on the knob and without lighting the gas. He was working at Bangalore and was visiting Bellary during weekends and Government holidays. When he came to Bellary on 14.1.2012, she expressed her desire to accompany him to Bangalore. When he expressed his inability to shift the house immediately to Bangalore since he did not get a house at Bangalore, she started 5 complaining of his extra-marital relationship with others. She used to get up late in the morning and was not doing any household works. She was expressing that, she has not come to their house to serve as a maidservant. Sometimes she will sleep without taking food in the night but get up in the midnight complaining hunger. On 30.1.2012, in their native village without any provocation, she started throwing vessels, and his mother suffered injury to her eyes during the incident. On 1.2.2012, her father took her to Dr.Chandra’s Neuro and Epilepsy Centre, Bellary, where she was diagnosed of “adjustment disorder”. She was given medication and advised to observe her behaviour for another 20 days. On 12.2.2013, he took her to the same Hospital and the medication was continued for another 20 days. In the last week of March 2012, she suddenly woke up, closed his nose and mouth with her hands tightly and he had to escape from her clutches with great difficulty. When he informed the incident to her father, he came over to 6 Bellary on 2.4.2012 and disclosed that she is suffering with “Bipolar Adjustment Disorder” and is under treatment since 2002 with Dr.C.Y.Sudarshan, Professor of Psychiatrist, J.J.M.Medical College, Davangere. On 3.4.2012, she was diagnosed with the symptoms of “Auditory Hallucinations” and she was taken to Dr.Sampath Kumar, Psychiatrist, Bellary and then referred to Dr.Y.C.Janardhan Reddy at NIMHANS, Bangalore, for specialized treatment. It was finally revealed that she is suffering with incurable mental disorder and the marriage was performed without disclosing her mental condition and it was performed against the advise of the consulting Doctor. The wife and her family members committed fraud on him by performing her marriage without disclosing her mental disorder. The life of the petitioner has become totally miserable for no fault of him. He has suffered mental cruelty due to her attitude and he is not in a position to 7 continue his marital relationship with her because of her mental disorder.
3. The wife contested the petition. Her defence was, subsequent to the marriage, she was made to stay along with the parents of the husband at Bellary with an assurance by the husband that he will take her to Bangalore within a short period. Her further defence was, her parents-in-law were not looking after her well and treated her as a maidservant and as a slave, she was made to work without rest. Her mother-in-law used to abuse her and cause mental stress, which was intolerable for her. The allegation of the husband that she is suffering from mental disorder is false and it is only because of the workload and the mental stress caused by his parents, she is put to untold mental stress. To reach his goal, husband has picked up a cock and bull story to take divorce from her. 8 4. During the trial, the husband examined himself as PW-1 and two Doctors, who had treated the wife, as PW-2 and PW-3 and his mother as PW-4; documents Exs.P1 to P16 were marked. The wife led rebuttal evidence of herself. After completion of trial, she was referred to NIMHANS for evaluation and a report was also received by the Court.
5. The Family Court on overall evaluation of the evidentiary material allowed the petition both on the ground of mental cruelty and also on the ground of incurable unsoundness of mind.
6. Ms.V.Vidya Iyer, learned Counsel appearing for the appellant/wife assailing the impugned judgment submits, subsequent to the marriage, the wife cohabited with the husband only for three months; admitting for a while the entire medical evidence on record as true and correct, then also the husband failed to make out a case of incurable mental disorder, which is the basic 9 requirement of Section 13(1)(iii) of the Act. The wife has passed M.C.A. Degree with distinction and she was boarding in a Ladies’ Hostel for six years while prosecuting her studies. If at all she was afflicted with any such mental disorder, she could not have prosecuted her studies and come out with distinction. All the while she is ready and willing to perform her matrimonial obligation. Even the Doctor/PW-3 has stated in his evidence that there is no problem for her to lead her marital life if she takes medicine regularly and has the support of her family. Even the report of the NIMHANS is to the effect that when she was examined during February 2013, she did not have any psychotic symptoms and mood symptoms. Her Paranoid Schizophrenia was in remission. Learned Counsel while placing her reliance on the judgment of the Apex Court in the matter of Kollam Chandra Sekhar –vs- Kollam Padma Latha reported 10 in (2014) 1 SCC225submits that the husband has failed to prove the existence of serious mental disorder, which would come in the way of the couple leading a normal marital life. The Family Court has overlooked this aspect of the matter and on technical grounds has held that the wife is suffering with incurable mental disorder and has allowed the petition. The wife during the trial before the Family Court had filed an application under Section 24 of the Act. Without passing any order on her application, the Family Court hurried to adjudicate the case on its merits, that has resulted in serious miscarriage of justice. Not granting permanent alimony at the time of granting decree of divorce is another lacuna in the impugned judgment. Hence, same is liable to be set aside in the appellate jurisdiction of this Court.
7. In reply, Sri.S.S.Yadrami, learned Counsel appearing for the respondent/husband while sustaining 11 the judgment of the Family Court submits that PW- 3/Doctor, who had treated the wife ever since 2002, had testified that the mental disorder she is suffering is not curable and can be controlled only with treatment. During her short stay in the marital home, she has inflicted cruelty both physical and mental on her husband and also the mother-in-law. The Apex Court in an identical situation in the matter of Pankaj Mahajan –vs- Dimple Alias Kajal reported in (2011) 12 SCC1held that, the acts of the wife amount to cruelty as to create reasonable apprehension in the mind of the husband that it would be harmful or injurious for him to lead life with her, thereby dissolved the marriage with a decree of divorce in favour of the aggrieved husband. Learned Counsel further continues that, this Court in M.F.A.No.8062/2004 D.D. 11.9.2009 in the matter of Ravikumar –vs- Hema Deshpande, has also 12 taken a similar view where the allegation was, the wife was suffering from Paranoid Schizophrenia. In the present case also, the wife was identified with the ailment of Paranoid Schizophrenia. Under the circumstance, the Family Court has rightly allowed the petition both on the ground of cruelty and also incurable mental disorder and the appeal is liable to be rejected.
8. With above submissions and also on perusal of the evidence placed on record by the parties before the Family Court so also the impugned judgment, it emerges that, the parties were married as per their customs on 1.12.2011. Since the husband was working at Bangalore, he did not take the wife with him to Bangalore since he had not yet set up a rented house and left her in his parents’ place at Bellary. However, he was visiting his parents’ house but their cohabitation was short lived till 4.4.2012 on which date, she was 13 taken by her father to his place. It is also established by the evidence of the Doctor/PW-3 that the wife was taken to him for treatment in the year 2002 on her complaint of hearing voices and feeling suspicious and she was treated for Schizophrenia form psychosis. After medication, her condition improved. In the year 2005, when she discontinued the medicine, her problems had aggravated. Again she continued with the medication. After the marriage also, she was under constant treatment with PW-3/Dr.C.Y.Sudarshan, Professor of Psychiatry, J.J.M.Medical College, Davangere. In the meanwhile, she was examined as inpatient for five days by PW-2, a private Neuro Psychiatric Medical Practitioner at Bellary. She was taken by her husband to PW-2 for a report. But even after putting her on test for 5 days, the Doctor could not give conclusive report of her condition since it requires long term observation and also examination of both spouses. The husband had not tendered himself for examination. As per the 14 testimony of PW-3 (the Doctor who has been treating her since the year 2002) she has Bipolar affective disorder i.e., disturbances of mood episodically. While under depressed mood, she has decreased appetite and sleep, poor concentration and fearful; during happy mood, she has mild anger and irritability in her behaviour. In his opinion, if she is put on regular check-up and regular treatment, the disease that she is suffering with, can be controlled, but it is not curable.
9. As per the report of the NIMHANS dated 1.4.2014, on her mental state examination, she was found to be asymptomatic. Her diagnosis is “Paranoid Schizophrenia”. If she remains symptom-free, she may be able to discharge marital responsibilities. At the end, the report refers PW-3/Dr.C.Y.Sudarshan, Psychiatrist of Davangere, her treating Doctor as the most appropriate person to provide additional information since he has seen her for over a decade. 15 10. The petition is filed under Section 13 of Hindu Marriage Act without specifically quoting the sub-sections, which deal with various grounds for divorce. However, the pleading would go to make out the following grounds : (1) Cruelty; (2) Incurable mental disorder and (3) Suppression of material fact. However, marriage having consummated, since the relief is for dissolution of marriage under Section 13 of the Act, the Family Court raised points of consideration in respect of first two items of the above and answered both against the wife.
11. The marriage was celebrated on 01.12.2011. After a short honeymoon trip, the husband returned to his work at Bangalore and the wife stayed with the in- laws at Bellary. He was shuttling between Bellary to Bangalore during weekends, with this limited co- habitation with his wife, he has come up with story of 16 his encounter with the acts of cruelty exhibited by his wife.
12. The term ‘cruelty’ more particularly, ‘mental cruelty’ in reference to matrimonial cases has been the subject matter of judicial interpretations ever since the landmark judgment of the Apex Court in Narayan Ganesh Dastane –vs- Sucheta Narayan Dastane (AIR1975SC1534. In V. Bhagat –vs- D. Bhagat (Mrs.) [(1994) 1 SCC337, the observation was “‘mental cruelty’ as contemplated in Section 13(1)(ia) of the Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. To put it differently, the mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together”.
13. The judgment in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC511 (Larger Bench) listed 17 illustrations (i) to (xiv) of human behaviour which may be relevant in dealing with the cases of ‘cruelty’. It was the prologue before the commencement of list of illustrations that they are not exhaustive but illustrative. Out of those illustrations, it suffices for the present to gather that the ill-conduct alleged must be persisted for a long period. It needs to be a sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. It needs to be a sustained unjustifiable conduct and behaviour of one spouse affecting physical and mental health of the other spouse or leading to apprehension which is grave, substantial and weighty. In the case on hand, alleged acts of cruelty that reflected during the limited cohabitation of the couple since perceived by the husband as a result of incurable mental disorder of the wife, entire weight is on the ground of divorce contemplated under Section 13(1)(iii) of the Act. 18 14. PW-2/Dr.Srinivas is the Neuro-Psychiatrist from Bellary with whom the husband himself had taken treatment for depression. The wife was taken by the husband not for any treatment but for evaluation of her mental condition. For that purpose, she was admitted as inpatient for five days. But he could not find out with certainty the specific disease she was suffering. As per his sworn testimony to detect the nature of mental ailment it requires a long time observation and also examination of both of them. But the husband did not tender himself for examination. Thus, this Doctor could not come to any conclusion.
15. PW-3/Dr.C.Y.Sudarshan, Professor of Psychiatry, J.J.M.Medical College, Davangere, has given the nature of ailment suffered by the wife ever since she was brought to him for treatment for the first time in 2002. Her symptoms were “hearing voices” and “feeling suspicion”. In December 2002, since dosage of 19 medicine was reduced, there was increase in her symptoms. She felt sad, used to cry and had decreased sleep. After restarting the medicines, she improved. Again during March 2005, the symptoms recurred when she discontinued medicine. Again with treatment, she recovered. In September 2006, medicine was to be re- adjusted, due to mild increase in symptoms. During her symptoms, she confides her experience with others. Her behaviour is not disturbing others. His statement “…………………… the illness the respondent is having can only be controlled only with regular treatment. The disease which respondent is suffering is not curable” weighed more than anything in the mind of the Court, and also played decisive role in dissolving the marriage. On the application moved by the husband to refer the wife for evaluation of her mental condition at NIMHANS, the wife volunteered to submit for evaluation and she is found asymptomatic. 20 16. Now the question for our consideration is, “whether the evidence of PW.3 testified as supra is sufficient to make out a case under Section 13(1)(iii) of the Act?.” Our firm answer is “No”, for the foregoing discussion.
17. Fortunately for the wife she falls within the category of those whose schizophrenic condition can be kept under control with regular medication. Her situation is not a “out of control situation”. During her symptoms also, she is not wild nor offensive or harmful.
18. The Apex Court in Ramanarayana Gupta Vs. Rameshwari Gupta (1988) 4 SCC247 interpreting the provision of Section 13(1)(iii) of the Act laid down the law regarding the mental disorder or unsoundness of mind as a ground available for dissolution of marriage. Paras-20 and 33 relevant for the present case read thus: “20. The context in which the ideas of unsoundness of 'mind' and 'mental-disorder' occur in the section as grounds for dissolution 21 of a marriage, require the assessment of the degree of the 'mental-dis-order. Its degree must be such as PG NO922that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised 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. * * * * * * 33. This medical concern against too readily reducing a human being into a functional non-entity and as a negative unit in family or society is law’s concern also and is reflected, at least partially, in the requirements of Section 13(1) (iii). In the last analysis, the mere branding of a person as schizophrenic will not suffice. For purposes of Section 13(1)(iii) ‘schizophrenia’ is what schizophrenia does.” 19. As held by the High Court of Judicature of Calcutta in Pramatha Kumar Maity Vs. Ashima Maity, AIR1991Cal 123, mental disorder of the wife even if proved cannot by itself warrant a decree of divorce and it must be further proved that it is of such a 22 nature as the husband could not be expected to live with the wife.
20. In Mt.Titli –vs- Alfred Robert Jones (AIR1934ALLAHABAD273, on observing that the wife prosecuted her further education, was cooking and looking after children, the Allahabad High Court did not see merit in the apprehension of the husband that there is danger to his life or his children’s life. In Kollam Chandra Sekhar’s case (supra), on noticing that the respondent/wife completed her MBBS Degree and Post Graduation and was serving as a Govt. Medical Officer, it was opined that if she was suffering with serious kind of mental disorder/acute type of schizophrenia, it would have been impossible for her to work in that place.
21. Reliance placed for the husband on Pankaj Mahajan’s case (supra) stands distinguished from the present case on facts though the complaint was, mental illness of the wife. There was ample evidence before the 23 Court about persistent and grave acts of cruelty inflicted by the wife on the husband. They had lived together under same roof for about 10 months. From the matrix before it, the Apex Court was convinced that the wife was suffering from “mental disorder” and due to her acts and conduct, she caused grave mental cruelty to him and it is not possible for the parties to live with each other. But the parties before us are set apart even before they could settle together for a while and give a try, to work out marital life, the culprit being the fact that she had been under treatment for metal disorder for a long time. As per Ex.P13/the case summary of NIMHANS dated 1.2.2013, she does not have any psychotic symptom/mood symptom. Relevant portion of the letter dated 1.4.2014 addressed by Dr.Y.C.JanardhanReddy, Professor of Psychiatry of NIMHANS to the Family Court reads thus: “On mental state examination, she is now asymptomatic. Her daignosis is paranoid 24 schizophrenia. In view of frequent relapses, she has to take medications indefinitely and may be life-long. If she remains symptom-free, she may be able to discharge marital responsibilities. Regular medication and supportive family environment may substantially reduce the risk of a relapse, but it cannot be guaranteed that she will never relapse if she is on regular medication.” 22. The acts of cruelty alleged against the wife since do not qualify as cruelty in the eye of law (for our discussions supra), how to sustain the Decree of Divorce on the possibility of relapse of schizophrenic symptoms?.
23. For a while let us leave behind the discussion made in preceding paras and go to the relevant provisions of Section 13(1)(iii) of the Act, which reads thus: “13. Divorce.- (1) Any marriage solemnised, 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 25 decree of divorce on the ground that the other party- (i) . . . . . . . (ii) . . . . . . . (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) Thus, the statute demands two elements to be proved to make a ground of divorce:- (a) Incurable unsoundness of mind (in the present case, Schizophrenia) and (b) to the extent of which the petitioner cannot be reasonably expected to live with her. Both factors are missing in the case brought to the Court. Her Schizophrenia condition is under remission. Without giving a 26 breathing time for the relationship to settle and crystallize, husband has hurried to the Court.
24. At this stage, we are reminded of a story of success portrayed by Sylvia Nasar in the Biography, ‘A Beautiful Mind’ (published by Simon & Schuster, as well as a Film of the same name) of John Forbes Nash Jr., an American Mathematician, born on June 13, 1928. He started showing symptoms of mental illness and spent several years at Psychiatric Hospitals and was treated for paranoid schizophrenia. After 1970, he refused further medication and his condition improved. Thereafter he was never committed to Hospital again. He recovered gradually with the love and care of his divorced wife whom he remarried in 2001. He gradually returned to academic work by mid-1980s. He was awarded the 1994 Nobel Memorial Prize in Economic Sciences for the thesis, which earned him Ph.D. Degree in 1950. He was both a Mathematician and Economist. 27 He made groundbreaking work in the area of real algebraic geometry. He published number of theorems to his credit and was awarded prestigious Abel Prize in 2015.
25. In our considered opinion, the Court below was insensitive in branding the wife as suffering with completely incurable paranoid schizophrenia. Very same medical evidence, on which the Family Court was acting upon at the same time, was indicating the possibility of such patients leading normal life with regular medication and family support. We have living examples of lot many victims of such ailment in our society, who are leading life with the support of regular medication like any other normal members of the society. The appellant/wife, who was present before this Court, looked like any other person present in the Court hall, she is a M.C.A. graduate with 1st class with distinction and it is also the submission at the Bar, she 28 was employed prior to her marriage, even if there is any apprehension of recurring of schizophrenic symptoms, the answer is in re-modeling the medicine, but not in amputing her marital/emotional life itself.
26. We are taken aback by the endeavour made by the Family Court in taking the case to one of violation of Section 5 of the Act, which stipulates conditions of a valid marriage. Without there being any pleading or proof by the husband, the court below comprehends that the wife is unfit either for marriage or procreation of children. The Family Court, we are certain, was unmindful of the untenable and perverse finding it so recorded. In its enthusiasm to grant relief to the aggrieved husband, the Family Court has condemned the wife. The Family Court has transgressed its propriety and jurisdiction. Our concern is, the negative impact, the finding of the Family Court may have on the sentiments of the young lady before us. She has a long 29 way to go yet in her life. The finding drawn against her is likely to have caustic effect on her psyche, who is already in struggle with life. We deem it in the fitness of things, to caution the Courts dealing with family matters to be more alive or alert to each case before them. Each case differs on its facts and circumstances. The endeavour of the Court must be to see, whether the case made out flows into the relief sought?. If so, under what provision of law?. If the Judge sits with a preoccupied mind, he has to extract reasonings from the void, when the record before him is bereft of legal evidence, as in the present case.
27. Having held that the husband has failed to make out a case under Section 13(1)(iii) of the Act on the ground of wife suffering with incurable form of Schizophrenia, to the extent that he cannot be reasonably expected to cohabit with her, the impugned judgment and decree needs to be set aside. 30 The appeal is allowed. The judgment and decree dated 30th October 2014 passed in Matrimonial Case No.221/2013 by the Principal Judge, Family Court, Bellary, is set aside. No order as to costs. Sd/- JUDGE Sd/- JUDGE KNM/-