V.S. Deshpande, J.
(1) What is the meaning of 'an idiot' in section 5(ii) of the Hindu Marriage Act, 1955 (hereinafter called the Act) and how to determine whether a person is such an idito on the medical and other evidence in this case-are the two important questions for decision in this appeal by the husband whose petition under section 12(1)(b) of the Act for a decree of nullity against the respondent wife has been dismissed by the learned lower Court on the ground that the husband has failed to prove that wife, at the time of the marriage, was 'an idiot'.
(2) The two provisions of the Act to be considered are : Section 5(ii) :
'Amarriage may be solemnized between any two Hindus, if the following conditions are fulfillled, namely :
(I)..
(II)neither party is an idito or a lunatic at the time of the marriage.'
AND section 12(1) (b) :
12.(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :
(a)..
(B)That the marriage is in contravention of the condition sepeified in clause (ii) of section 5.'
(3) The key to the interpretation of Sections 5(ii) and 12(1)(b) will be found in the long title of the Act which is as follows :
'ANAct to amend and codify the law relating to marriage among Hindus'.
(4) The Act thus partly embodies the existing Hindu Law and partly amends it. In 1955, the Legislature, thereforee, in making this Act, drew upon two distinct sources, namely :
(A)the then existing Hindu Law and
(B)the English Common Law as modified by statutes.
(5) The concept of idiocy and/or lunacy as a ground of incapacity was nto unknown to Hindu Law. Idiocy was a ground of disqualification of a person from inheritance. In R. Muthammal v. S. Devasthanam (1) paragraphs 9 and 10, one Ramasami Pillai was held to be insane being a 'gloomy and sickly person with a vacant look' and unable to answer 'even the simple question about his name. On the evidence, the attempted distinction between a lunatic and a person of week intellect could nto be sustained in that case. The Supreme Court apparently based its finding of lunacy on the complete loss of reason and intellect.
(6) Persons of unsound mind, i.e. idiots and lunatics, though disqualified for civil purposes generally, were nto declared incompetant to marry under the ancident Hindu Law. But such marriages were reprehensible. The late Sir Gurudas Banerjee in his Tagore Law Lectures on Marriage and Stridhan, thereforee, expressed the view that 'an idito and a lunatic being, where the loss of reason is complete, incompetent to accept the gift of the bride which is a necessary part of the ceremony of marriage, it is nto easy to understand how their marriage in such cases can be regarded as marriage at all'. (Fifth Edition, page 41). In Mouji Lal v. Chandrabati Kumari (2), the Privy Council did nto consider the question whether unsoundness of mind could in any circumstances, invalidate a Hindu marriage. Acting, however, on the hypothesis that it might, they pointed out that the degree of unsoundness would always have to be considered and in the particular cases berore them the man whose marriage was in question was nto so insane that he could nto understand the ceremonies of the marriage and, thereforee, that particular marriage was nto invalid. The observations of the Privy Council were followed and Gurudas Banerjee's view cited above was approved by the Federal Court in R. N. Singh v. Bhagwati Saran Singh (3) paragraphs 94 and 153 to 155. The following observation of B. K. Mukherjee J. is particularly instructive :
'THEREare undoubtedly various degrees of insanity and the fact that a man has been adjudicated a lunatic may mean and imply that he is nto competent to manage his own affairs, but it does nto necessarily show that he suffers from complete mental aberration. He may have sufficient amount of reason still left in him which would enable him to understand the ceremonies of marriage'.
(7) There is a presumption that the Legislature does nto intend to change the law unless a statute clearly says so. It would be fair, thereforee, to conclude that the words 'idiot' and 'lunatic' in section 5(ii) of the Act were used to indicate the total loss of reason or the last degree of mental disorder which alone would incapacitate a person from marriage inasmuch as this was the state of Hindu Law in 1955 when the Act came on the statute book.
(8) The concept of nullity of marriage was unknown to Hindu Law before the amendment made by sections 11 and 12 read with section 5 of the Act. Section 19 of the Indian Divorce Act, 1869, however, already existed on the Indian statute book outside the Hindu Law. It was in pari materia to sections 11 and 12 read
(9) In its turn section 19 of the Indian Divorce Act, 1869, derived the meaning of the word 'idiot' from the English Common Law on which it was based. As shown by section 22 of the Matrimonial Causes Act, 1857, the' Courts were to give relief of nullity of marriage on the same principles and rules on which the Ecclesiastical Court had done so before. Historically and prior to the Reformation, marriage in England was also regarded by the Church as a sacrament which could nto be dissolved by a decree of divorce avinculo mafrimonii. This doctrine of indissolubility came to be evaded in course of time by the evolution of decree annulling the marriage on the ground that due to the lack of certain essential conditions, the marriage itself could nto be validly performed. One such condition was the mental capacity of a party to the marriage. When a party was unable to consent to the marriage because of mental incapacity, there could be no marriage at all and the marriage which might have been gone through was void ipso jure. In Durham (5) , Sir James Hannen (President) said that the contract of marriage is a very simple one which does nto require a high degree of intelligence to comprehend.' In Marrod v. Harrod (6) a dumb and deaf lady of extremely dull intellect who could nto comprehend anything, could nto read or write, was never allowed to leave her home alone and Was unable to tell the value of money or how to give change, was still held to be capable of marriage. In Park v. Park (7) upheld in appeal in 1954 Probate Division 112, the marriage of a 78 year old man was held to be valid though his mind had been found to be impaired after a stroke and hardening of the arteries and was incapable of full recovery, but was capable of understanding what marriage was.
(10) The definition of 'an idiot' given in Stroud's Judicial Dictionary, Third Edition, Volume 2, page 1357, based on old decisions is as follows :
'IDIOT'is he that is a focl natural from his birth, and knoweth nto how to account or number twenty pence, or cannto name his father or mother, nor of what age himself is, or such like easie and common matters'.
'IDIOTS'were defined in the Menial Deficiency Act, 1913 as 'persons so defective in mind from birth or from an early age as to be unabie to guard themselves against common physical dangers'. Under the Marriage of Lunatics Act, 1811, a person who has been found to be of insane mind by inquisition was disqualified from marriage. But a person nto so found by inquisition was nto disqualified if at the time of the marriage he or she was capable of understanding the nature of the contract and the duties and responsibilities thereby created, and was free from the influence of insane delusions on the subject. (19, Halsbury's Laws of England 780, para 1250, Rayden on Divorce, Tenth Edition 101 and Tolstoy on the law and Practice of Divorce, Fifth Edition 109).
(11) It is clear from the above decisions that a very low degree of intellect did nto by itself amount to idiocy under the Common Law prior to the enactment of section 19 of the Indian Divorce Act, 1869. There is thus a continuity of meaning given to the word 'idiot' in the Common Law, in section 19 of the Indian Divorce Act. 1869, and in section 5(ii) of the Act. This meaning also accords with the sense in which the word 'idiot' was understood in the Hindu Law. The conclusion is, thereforee, irresistible that the word 'idiot' was used by the Legislature with the same meaning in the Act.
(12) The evidence of 'idiocy' in the present case consists of three types, namely :
(1)the depositions of the husband and his witnesses countered by the depositions of the witnesses examined on behalf of the wife;
(2)the medical evidence of Dr. S. Dutta Ray and
(3)the evidence given by the wife herself in the witnessbox on 6-3-1961, 13-2-1962, 9-5-1962 and 10-5-62 before the learned lower Court who had the opportunity to observe whether the wife was rational in her conduct in the Court and in answering the questions put to her.
(13) Little importance can be attached to the general evidence of witnesses given on either side. Firstly, they are biased in favor of the party for whom they are deposing. Secondly, these witnesses are nto aware of the correct stand-point by which idiocy or otherwise of the wife has to bejudged.
(14) This is why the medical evidence in such a case ought to be of central importance. A medical witness must, however, remember that the law does nto presume to define idiocy or lunacy. That is accepted as a medical question. But it is for the law to consider what are the conditions which have to be satisfied in order that a person may be regarded as having a capacity to marry. The division of functions between law and medicine is somewhat as follows :
THEmedical witness must confine himself to the elucidation of the facts for the guidance of the Court.
(15) The interpretation of the law rests with the Court.
(16) It is no function of the medical expert to argue against the law as it stands however stong he may feel against it. The medical evidence, thereforee, must give with integrity and objectivity the state of mind of the person alleged to be idito while it is finally for the Court to decide the degree of the impairment of the mind arising there from. The question whether the person alleged to be an idito had the capacity to enter in to a valid marriage after understanding what marriage meant is for the Court to decide. Fortunately, in the perent case, we are nto concerned about any pathological distrubances of emotion of the alleged idito on her conduct. thereforee, the fact of her idiocy has to be judged by the test of rational conduct alone.
(17) The evidence of Dr. S. Dutta Ray to whom the wife was taken for examination by the husband and her relations was based partly on the information given to him by the husband's relations who were interested in showing that the wife was an idito and partly on the Doctor's own observations. Unfortunately, Dr. Ray has nto kept these two bases of his opinion separate with the result that the value of his opinion has been gravely reduced by the non-verification of the information obtained by him from the husband's relations. For instance, in Exhibit PW.2/B dated 25-3-1960, Dr. Ray has stated that the wife was suffering from 'secondary mental deficiency. She is an idiot. Her symptoms started about 5 years ago after an ttack of Febrile illness (Typhoid). Her mental defect is incurable'. Clearly, the information regarding the past illness of the wife was nto within the personal knowledge of the Doctor nor could it be based on his observation. Similarly, in Exhibit PW.2/C which according to Dr. Dutta Ray 'contains all the grounds on which I have come to the conclusion mentioned by me in examination-in-chief', the same confusion is apparent. The very first ground given by him for his opinion that the wife was an idito is that the wife was incapable of protecting herself from common physical dangers (crossing the street, cooking etc.). Obviously the Doctor had neither seen the wife crossing the street nor cooking. In the absence of personal observation, the learned Doctor should never have based his conclusion on this ground. The second ground given by the Doctor was that the wife could nto take care of her person and had no sense of modesty. This opinion was supported by him by pointing out that the wife underssed in the clinic and had some difficulty in dressing herself again. Apparently the wife was asked to undress. She may have had a lesser degree of modesty than an ordinary perosn. But the very fact that she was dressed before she was asked to undress and she also redressed afterwards would show that the wife was nto without the sense of modesty. It also does nto show that she does nto take care of her person. Lastly, the learned Doctor has stated that the wife could nto recognize her husband and some other relatives. This opinion is completely contradicted by the ability of the wife in the witness-box before the learned lower Court to recognize her own husband and also some other relatives.
(18) What is then to be understood from the bald statement of Dr. Ray that the wife is an idito Firstly, Dr. Ray was deposing as a medical witness and nto as a legal expert. As observed by the Report of the Royal Commission which led to the enactment of the Mental Health Act, 1959, in the United Kingdom, 'disorders of the mind are illnesses which need medical treatment'. The standpoint from which Dr. Ray should have examined and observed the wife was whether the disorder of her mind was an illness which needed medical treatment. We may, thereforee, at the most regard Dr. Ray's opinion to mean that the mental condition of the wife needed medical treatment. What is more important is the criterion which governed the assessment of such medical opinion by the Court. This criterion can best be stated in the authoritative words of Taylor on Medical Jurisprudence 1965 Edition, pages 432-433 as follows:
'PERHAPSthe essential feature of mental illness from a medico-legal point of view is the failure, through incapacity of the individual, to maintain normal contact with external reality, and to appreciate the distinction between what is going on solely in his own mind, and what is going on beyond it in the external world, and is thereforee common to his own experience and that of others. The older term 'alienation of the mind', despite its disagreeable implication that mentally ill patients were a race apart, certainly owed something of its force to just this characteristic of mental illness in general: that the mentally ill person is separated from common experience and appreciation of external reality, and to a greater or lesser degree, is compelled by his illness to live in a world different from that inhabited by his fellow men.'
(19) Dr. Ray has significantly failed to show that the mind of the wife was alienated from reality in any way. He has also nto shown that the conduct of the wife was in any way other than rational. Unfortunately, thereforee, his opinion is of practically no value to the Court.
(20) The wife was examined by the learned lower Court on four occasions. At first, the learned lower Court had to decide whether she was capable of defending the suit herself or needed a guardian ad litem. The learned lower Court concluded that she needed a guardian ad litem. This finding in no way shows that the wife was incapable of entering into a valid marriage on account of idiocy. The standards of the mental ability for these two purposes are entirely different. Maturity and full understanding of pleadings and evidence would be necessary before a person can be said to be capable of defending a suit. On the other hand, even a country bumpkin who is illiterate and uninformed but has the essential biological instincts and elementary understanding would be capable of entering into a valid marriage. Any other conclusion would lead to the disaster of annulling millions of marriages of illiterate, uninformed and benighted persons in a country like India.
(21) The evidence given by the wife and the observation of the rationality of her conduct in Court and the answers given by her is alone sufficient to demolish the husband's plea that the wife was an idito at the time of the marriage. The wife identified her husband in Court and said that she was nto willing to go and stay with him as he did nto call her (Bulate Nahi Hai). She said her father's name was Roop Narain, that she was nto insane, that she could protect her interest, that she wanted to defend the case, that she could cook meals, could dress herself, comb her hair and wash her clothes. She said that she closed the door when she went to answer the call of nature, she took her bath behind cover and nto on the open. She could not, however, understand the nature of the suit filed against her and could nto defend herself against it. She identified a ten paise coin and a five paise coin correctly but she could nto make a total of three ten paise coins or of two coins of two paise each and one coin of one paisa. She called her mother 'Bhabi'. She knew the various pulses such as, massoor, moong, harhar, gram etc. She also identified a kharbooza, radish, potato, a sugar-cane piece and the vegetable lady's-finger. Among the fruits, she picked up a chikoo but did nto know the names of other fruits. She could nto describe relationships such as a brother's wife, a grand mother or a maternal uncle though she knew such persons by their names. My conclusion on her evidence is that she is a woman of very elementary and limited intelligence and information. She can identify certain food stuffs etc., which are known to her but she is nto capable of abstract thought even of an elementary nature. thereforee, while she knows a man by his name, she does nto know that his relationship with her is, for instace, that of a maternal uncle. The wife was not, thereforee, an idito within the meaning of section 5(ii) of the Act.
(22) The learned counsel for the appellant Shri S.S. Chadha made a strong plea that in the interest of genetic reform and family planning, the Court should take a liberal view of the meaning of idiocy and lunacy and grant a decree of nullity when a a spouse is dull-witted as the wife in the present case. The answer to this argument is two-fold. Firstly, the clear intention of the Legislature in introducing the remedy of nullity of marriage in the Hindu Law by enacting sections 11 and 12 read with section 5 of the Act was to provide for the same degree of idiocy or lunacy to nullify a Hindu marriage as would have been sufficient to nullify a marriage in the unamended Hindu Law on the one hand and under section 19 of the Indian Divorce Act, 1869 and in the Common Law. There is nothing to show that the Legislature wanted to grant nullity of marriage where the degree of idiocy was lesser. After all, as was observed long ago, in a wide ranging survey of this subject by Sir J. Hannen in Boughtson v. Knight 'unsoundness of mind is a question of degree'. The conception of the Legislature as to the degree of idiocy which would incapacitate a party from entering into a valid marriage was the same as the definition of an idito in the Oxford Dictionary, namely, 'a person so deficient in mind as to the be permanently incapable of rational conduct'. This conclusion is arrived at essentially in the context of incapacity to marry leading to a decree of nullity of marriage. As observed in Taylor's Medical Jurisprudence, cited above, at page 464, 'Mental disorder is an impendiment to marriage, because a mentally disordered person cannto give that rational consent which is necessary to the validity of a contract.'. ....... 'The marriage of a person of unsound mind will be invalidated where there exists sufficient incapacity, by reason of this unsoundness, either to comprehend the nature or fulfill the physical conditions of the marraiage contract'. There is absolutely no evidence in the present case to show that the wife is unable to comprehend the nature or fulfill the physical conditions of the marriage contract. At times, idiots are physically malformed. But the wife in this case is physically a completely normal person. She has shown herself to behave and answer questions with a degree of reason which cannto be said to be insufficient for her being capable of entering into a valid marriage.
(23) Secondly, it is nto necessary in this case to consider whether idiocy or lunacy constituting incapacity to marry and leading to a decree of nullity is capable of being distinguished from 'unsoundness of mind' which may lead to judicial separation under section 10(1)(e) of the Act or to divorce under section 13(1)(iii) of the Act inasmuch as a different expression 'unsound mind' has been used therein and the remedies of judicial separation and divorce are also different from the remedy of nullity. Remedy of nullity of marriage is based on incapacity to marry while the true purpose of divorce or judicial separation is to protect and relieve a spouse from misery or malaise as the outcome of cruelty or hardship. Nor are we concerned here with the meaning of the words 'incurably of unsound mind' as being a ground for divorce in section l(i) (d) of the Matrimonial Causes Act, 1950, dealt with in Whysall v. Whysall (9) Chapman v. Chapman and Robinson v. Robinson . The test adopted therein is whether a person could manage himself and his own affairs. A similar test would appear to have been adopted in section 38 of the Indian Lunacy Act, 1912. But the purpose of the Lunacy Act, 1912 as also of the English Mental Health Act, 1959, is the care and protction of a person of unsound mind. Unsoundness of mind is a general expression in which various degrees of mental derangement may be comprised. For the treatment of mental illness the legal definitions of idoicy or lunacy would nto be sufficient. thereforee, as observed in Taylor op cit, (page 433), in. section 4(2) of the Mental Health Act, 1959, a new concept of 'severe subnormality' has been adopted to include different degrees of unsound mind, e.g. 'idiots' 'imbeciles' and the lower grades of the 'feeble minded' while the concept of 'subnormality' in section 4(3) thereof includes the majority of the 'feeble minded'. This shows that for the medical purposes, the approach to the subject of unsoundness of mind is likely to be different from the approach for the purposes of law. Unsoundness of mind may become relevant even for the purposes of law in different contexts such as responsibility for cirminal act (section 84 of the Indian and Code based on the McNaghten Rules) entering into ordinary contracts (saction 12 of the Contract Act) and mangement of property (Lunancy Act). It would nto perhaps be possible to regard unsoundness of mind for all these purposes to be the same thing. Even in the Law of -Marriage, the Hindu Marriage Act, 1955, has used different expressions indicating mental abnormality as a ground for nullity due to incapacity to marry on the one hand and as a ground for judicial separation or divorce on the other hand. Two rules of statutory construction may be borne in mind in this connection. Firstly, expressions used in different statutes which are nto in pari materia do nto necessarily mean the same thing. Secondly, different expressions used in the same statute are nto ordinarily meant to convey the same meaning.
(24) As instances in which the above-mentioned rules of statutory construction do nto seem to have been taken into account, reference may be made to two recent decisions, one dealing with idiocy, namely, Ajitrai v. Bai Vasumati (12) and the other dealing with lunacy, namely, Anima Roy v. Probodh Mohan Roy It is nto necessary however to consider in the present case, whether a part of the reasoning in these two decisions is vulnerable due to this lacuna.
(25) As the evidence in the present case does nto indicate want of rational conduct on the part of the wife, she cannto be regarded as having been an idito at the time of the marriage. The petition for annulment of the marriage was, thereforee, rightly dismissed by the learned lower Court. In view of the further consideration given to the question by me above, the appeal is also dismissed with costs.