Dr. Thomas Titus Vs. Mrs. Roja Titus and anr. - Court Judgment

Varghese Kalliath, J.

1. This is an appeal is a matrimonial cause. Husband is the appellant. He is a Doctor, having very high educational qualifications in medical science. He is a Lecturer in Cardiology in one of the most reputed medical institutions --Sree Chitra Tirunal Institute of Medical Science & Technology. 1st respondent herein is his wife.

2. Appellant filed a petition under Section 18 of the Indian Divorce not to declare the marriage between himself and 1st respondent null and void. According to him, there was only a form of marriage which took place on 10th May, 1979 at the Marthoma Syrian Church, Tatabcd, Coimbetore. Both of them belonged to Marthoma Syrian Christian Community. Their marriage was according to the rites of the Marthoma Syrian Church.

3. After the marriage, appellant and 1st respondent stayed together at Trivandrum till 10-1-1981. Thereafter in Delhi till 20-6-1983and again at Trivandrum till 19-9-1983. A male child was born to them on 28-5-1980.

4. The case of the appellant before the Court below and here is that the 1st respondent-wife was a lunatic at the time of marriage and she continued to be so even after marriage. He elaborates his case by saying that this crucial fact was not disclosed at the time of marriage by the 1 st respondent or her father, the 2nd respondent. Appellant narrates incidents and facts to substantiate his case that the wife was behaving in a manner which would justify his conclusions that she is a lunatic. Appellant also stated certain circumstances and facts to convince the Court that the wife was suffering from very serious mental disease even before her marriage. It is stated that the condition of the wife deteriorated after she has given birth to a child on 28-5-1980 and she required psychiatric consultation. She was treated by Dr. N. Prabhakaran, Superintendent of the Mental Hospital, Thiruvananthapuram. Further his positive case is that the 1st respondent had an earlier attack of mental disorder in 1976 before marriage. According to the appellant, the 1st respondent has been suffering from paranoid schizophrenia, a serious mental disorder and that she has been lunatic at the time of marriage and thereafter and so the marriage is to be declared null and void, under Section 18 of the Indian Divorce Act.

5. Respondents 1 and 2 have filed separate statements of objections. The 1st respondent denied the allegations that she is a lunatic. It is revealed in the objection that though their marriage' was an arranged one, appellant and the 1st respondent had occasion to exchange views and had occasion to unfold cockles of the heart before marriage. Appellant and 1st respondent lived together for the last time in Delhi. After completing his post-graduation in medicine, appellant returned to Thiruvananthapuram and set up residence in Sasthamangalam. But the 1st respondent was declined residence with him. At the time of delivery, 1st respondent developed some sort of mental disorder and so Dr. Prabhakaran was consulted. On treatment she came to normalcy. What hashappened was only temporary upset of the normal mental condition and there was no recurrence. Thereafter also, appellant and the 1st respondent stayed together in Delhi when residential quarters became available. The 1st respondent is a B.Com. degree holder and had distinguished herself in sports and athletics during her college days. For the case of the appellant that the 1st respondent had an episode in 1976, she has an answer. She had an accident in 1976 when she was a student. A motor vehicle knocked down the 1st respondent and she became unconscious for some time. The said accident upset her and a psychiatrist was consulted. No treatment for insanity was given. In the objection, she also said some instances of cruel, frenzied and short tempered behaviour on the part of the appellant and that she was deceived to part with the custody of the child. Appellant traversed the statements given by the 1st respondent. Of course, the 2nd respondent also supported the contentions of the 1st respondent. They were also traversed by the appellant by filing replication.

6. The learned District Judge considered the rival contentions, examined the evidence tendered in this case and come to the conclusion that the appellant has failed to establish a cause within the meaning of Section 18 of the Indian Divorce Act to declare the marriage between the appellant and 1 st respondent null and void. The learned District Judge dismissed the petition. The husband is aggrieved and he appeals.

7. Before considering the facts alleged and the facts proved in this case, wefeel that it is better to understand the exact content, scope and width of the provisions under which the appellant has claimed his relief. In matrimonial cases particularly cases based on the state of mind of the spouses, the Court should examine the marrow, heart, soul and spirit of the mandate of the statute governing the situation. As said earlier, the petition is filed under Section 18 of the Indian Divorce Act. Section 18 of the Indian Divorce Act provides that any husband or wife may present a petition to the District Court or to the High Court, praying that his or hermarriage may be declared null and void, Section 19 of the Indian Divorce Act provides that such decree may be made on any of the following grounds: (1)......... (2)........ (3) thateither party was a lunatic or idiot at the time of the marriage. Only after having a close grip of the content of this provision, we can apply the provision to the facts of the case. The Indian Divorce Act did not give the essential conditions, requirements and ingredients for a valid marriage. Marriage is not defined in the Act. But there are precedents which admit of no doubt that for a valid marriage, it is very eminently required that the parties to the marriage must be in a position to given their consent for the marriage, free and voluntary consent of both the parties is absolutely essential. This is evident from the fact that there cannot be a valid marriage and even if the parties have gone through the formalities of a marriage, the Court can declare that marriage null and void, if either of the spouse is a lunatic or idiot. Certainly, this provision indicates that the party should have the capacity to give consent for the marriage. Consent of the parties is the pivotal ingredient which if non-existent will not make any kind of observation of rituals formalites or nuptial ceremonies of a marriage, a valid marriage. This is something written in the ancient law and even today, it is valid. The rule is nuptias consensus non concubitus facit. The canon law of Rome and later the English canon law have adopted this principle. In 1828-1 Hagg. Ecc. 355,359 (Countess of Portsmouth v. Earl of Portsmouth), Sir John Nicholl said thus:

'When a fact of marriage has been regularly solemnised, the presumption is in its favour; but then it must be solemnized between parties competent to contrect--capable of entering into that most important engagement, the very essence of which is consent: and without soundness of mind there can be no legal consent -- non binding in law : insanity vitiate all Acts.'

8. A marriage even if it is considered as a sacrament among certain communities it involves a simple contract. The comprehension required for the parties to enter into acontract of marriage is not of such a degree which requires for entering into contract of a different nature or to give testimony before Court or to execute a will or such other solemn documents. A mere comprehension of the words of the promises exchanged at a ceremony of marriage is not sufficient to establish capacity of the parties to consent to the marriage at the time of marriage. The parties must be capable of comprehending and understanding the nature of the contract into which they are entering. It must not be from the influence of morbid delusions on the subject. The essence of the contract of marriage is an engagement between a man and a woman to live together and to love one another to the exclusion of all others. What is asked for by the busband in this case is that the marriage is a nullity. He says that what has happened is only a shell of a marriage. If the consent is not there, the kernel of the marriage is absent.

9. We will attempt to say few thoughts on the nature of marriage contract and matrimonial duties as understood by Christians since the parties are Christians and the marriage was solemnised as a Christian marriage before the altar of the church of the parties choice. The opinions which have divided the world, or writers at least, in this subject, are generally, two. One view is that marriage is a contract merely civil. The other, it is a sacred, religious and spiritual contract, and only so to be considered. The second is what is recognised as marriage in Christian world. The jurisdiction of the Ecclesiastical Court was founded on ideas of this last described nature. We may say that neither of these two views is all comprehensive and perfectly accurate. A Christian marriage is a combination of civil and religious concomitants which would perfect a contract. According to juster notions of the marriage contract, it is not merely either a civil or religious contract and at the present time, it is not to be considered as originally and simply one or the other. It has to be remembered that it existed as a contract crude according to law of nature, antecedent to civil institution; even in the case of aboriginals there exists some crude form of contract of marriage, coupledwith certain ceremonial observations. It can be said that marriage takes place to all intents and purposes, wherever two persons of two different sexes engaged by mutual contracts to live together. We believe at any rate one stage our first parents lived not in a political society, but as individuals, without the regulation of any institutions of that kind. It is difficult to say words of protest against the opinion, if any such opinion exists that a mere commerce between the sexes is itself marriage. But we hold that marriage is not a very casual commerce nor would it be so even in the law of nature. A mere casual commerce without the intention of cohabitation and bringing up of children would not constitute marriage under any supposition. But when two persons agree to have that commerce for the procreation and bringing up of children and for such lasting cohabitation -- That, in a state of nature, would be a marriage, and in the absence of all civil and religious institutes, might safely be presumed to be, as it is popularly called, a marriage in the sight of God. Perhaps it may be questioned how long the cohabitation must continue by the law of nature, whether to the end of life of one of the spouses. We feel that it is enough to say that it cannot be a mere casual and temporary commerce, but must be a contract at least extending to such purposes, of a more permanent nature and intention of the parties. This postulates that the contract of the greatest importance in civil institutions and it is charged with a vast variety of obligations, social and civil. It encompasses the rights of property, rights of inheritance and other civil rights and would create certain liabilities and may result in offences, which are called matrimonial offences. Rights of property are attached to marriage on different principles in different countries. In some there is a 'com-munio bonorum'. In some other countries each retain their separete property. Marriage may be good independent of any considerations of property and the vinculum fidei may well subsist without them. In most countries it is also closhed with religious rites, even in rude societies, as well as in those which are more distinguished for their civil and religious institutions. Yet in many of those societiesthey may be irregular, informal and discountenanced on that account -- yet not invalidated. The rule prevailed in all times as the rule of the canon law and is that a mutual engagement or betrothment is a good marriage, without consummation, according to the law of nature and binds the parties accordingly as the terms of other contracts would do, respecting the engagements which they purport to describe. If they agree and pledge their troth to resign to each other the use of their persons for the purpose of raising common offsprings by the law of natue that is complete. It is not necessary that actual use and possession should have intervened to complete the 'vinculum fidei'. The vinculum follows on the contract without consumma- tion, if expressed in present terms and the canon law itself with all its attachments to ecclesiastical forms, adopts this view of the subject, as is well described by Swinburne in his book on Espousals where he says 'that it is a present and perfect consent, which alone maketh matrimony, without either public solemnisation or carnal copulation, for neither is the one, nor the other, the essence of matrimony, but consent only' -- see Undo v. Balisario, (1795) I Hag. Con. 216.

10. 'Consensus non concubitus facit matrimonium, the maxim of the Roman civil law, is, in truth, the maxim of all law upon the subject; for the concubitus may take place, for the mere gratification of present appetite; without a view to anything further, but a ; marriage must be something more, it must be an agreement of the parties looking to the 'consortium vitae', an agreement indeed of parties capable of the concubitus, for though the concubitus itself will not constitute marriage, yet it is so far one of the essential duties, for which the parties stipulate, the incapacity of either party to satisfy that duty nullifies the contract' ---- vide Dalrymple v. Dalrymple, (1811)2 Hag. Con. 54. As per Sir William Scott 'Marriage, in its origin, is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind: It is the parent, not the child, of civil society....In civil society itbecomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilised countries, acting under a sense of the force of sacred obligations, it has had the sanctions of religion superadded: It then becomes a religious, as well as a natural, and civil contract; for it is a great mistake to suppose that, because it is the one, therefore, it may not likewise be the other. Heaven itself is made a party to the contract, and the consent of the individuals, pledged to each other, is ratified and consecrated by a vow to God'. 'Marriage has been well said to be something more than a contract, either religious or civil -- to be an institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status. The position or status of 'husband' and 'wife' is a recognised one throughout Christendom; the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite rights 'upon their offspring. What, then, is the nature of this institution as understood in Christendom Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must need (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others'-- see Hyde v..Hyde & Woodmansee, (1866) LRIP & D 130.

11. Now, what is the nature of the marital duty. We feel to say most distinctly that persons who choose to enter the sacred bonds of marriage not only undertake to conduct themselves to one another so that they shall fulfil the vows which they have taken at the alter (one of the vows is that they will live together as husband and wife in prosperity and misfortune and in good health and ill-health, in plenty and poverty) but also take upon themselves a responsibility towards such children as they may have so to live that those children shall have that to which they are entitled, the benefit of the joint care andaffection of both father and mother, and neither of them is entitled so to act as to deprive the children of that which they have thus guaranteed to them -- vide Re Elderton, (1883) 25 Ch D 220, Pearson, J. To declare a marriage as invalid and non-est will have the inevitable and necessary consequence of stamping the child or the children born in that relationship as bastard/bastards. The children may not obtain their legitimate civil rights on account of the fact that they may be considered in law if no statute intervenes as illegitimate children. So when we consider the question of declaring a marriage as non-est in a case where it is alleged that there was only a stimulation of marriage but which resulted in consummation and giving birth to children should be of great moment and requires a very anxious exacting, and all eyes and ears examination of all relevant facts and circumstances placed before the Court.

12. According to the husband, the wife was incapable of giving free consent knowing the nature and consequences and the obligations of a marriage. We are considering the question of concept of consent in the light of the form of ceremonies which took place in the church and the undisputed fact that the appellant and 1 st respondent lived together as husband and wife for some years and a child was born to them. The centre of enquiry is that whether at the time of marriage, the 1st respondent was a lunatic and so in reality, whether she was capable of giving a free and voluntary consent to marry the appellant herein. When it is said that there was no marriage, it only means that the 1st respondent has net given the consent, since she was .incapable of giving consent for the marriage on account of her illness. It cannot be contended that the wife was incacitated to discharge the vital marital duty and so the marriage is invalid since she has given birth to a child. So the capacity to give consent for marriage is the relevant aspect which the Court has to consider.

13. As regards the burden of proof on this issue, we have to hold that the burden is on the husband to prove who claims that the 1st respondent was incapable of giving consent,since a marriage regular in form took place and the appellant and 1st respondent lived together as husband and wife and now the husband wants this Court to declare what has happened as a regular form of marriage before the ministers of the church is not in reality a marriage and it is invalid through the incapacity of the 1st respondent to give consent for marriage.

14. We have already referred to the principle as one of great antiquity and indeed derives from the Roman law and that it was embodied into the canon law of Rome -- see Esmein, Le Marriage en Droit Canonique, (1891) at p. 97. We have already referred to the fact that it was a principle adopted into the English canon law. Ayliffe, in his Parergon, at p. 362, states 'the principal thing required to a 'legal marriage, is the consent of the parties contracting; which is sufficient alone to establish sch a marriage'. In Turner v. Meyers (orse, Turner) (1808) 1 Hagg. Con. 414, Sir William Scott, later Lord Stowell, spoke of consent in marriage in the following terms: 'In more modern times it has been considered, in its proper light, as acivil contract, as well as a religious vow, and, like all civil contracts, will be invalidated by way of consent of capable persons.'

15. As regards degree of capacity required to contract the marriage and to give consent of marriage, eminent Judges have bestowed their thoughts in many decisions. Sir James Hannen, P. in Boughton v. Knight, (1873) LR 3 P & D 64 stated the proposition in the following terms : 'whatever degree of mental soundness is required for any one of these things -- responsibility for crime, capacity to marry, capacity to contract, apacity to give evidence as a witness -- I must tell you, without fear of contradiction, that the highest degree of all, if degrees there be, is required in order to constitute capacity to make a testamentary disposition. And you will easily see why. Because it involves a larger and wider survey of facts and things than any One of those matters to which I have drawn your attention'. In Durham v. Durham, (1885) 10 PD 80, 82, it is stated thus: 'The contract of marriage is a very simple one,which does not require a high degree of intelligence to comprehend. It is an engagement between a man and a woman to live together, and love one another as husband and wife, to the exclusion of all others. This is expanded in the promises of the marriage ceremony by words having reference to the natural relations which spring from that engagement, such as protection on the part of the man, and submission on the part of the woman'. It is possible to prove by evidence that the mind of one of the parties may be capable of understanding the language used by the celebrant (the officiating priest) in a Christian marriage, but may yet be affected by such delusions, or other symptoms of insanity, as may satisfy the tribunal that there was not a real appreciation of the engagement apparently entered into. In Durham v. Durham, a strong body of evidence including that of two archbishops was called to show that the respondent was of apparently sound mind in the period immediately preceding the ceremony of marriage, though she was described as being a lady of no great intellectual powers and exceptionally shy and reserved in her manner. The court found on the facts that at the time of the marriage ceremony, she was capable of, and did in fact, give her consent to the marriage and dismissed husband's petition.

16. It is significant to note that the provision in Section 19 of the Indian Divorce Act emphasises the cause linked to the time of marriage when lunacy or the mental derangement or mental disorder or unsound-ness of mind to be proved. We have used mental disorder, unsoundness and mental derangement since there is no clear cut definition of a lunatic in the Act. We will be considering the question of the effect of the evidence adduced to show that the first respondent was a paranoid schizophrenia patient. It has to be remembered that an attack of insanity resulting in mania or schizophrenia after marrige is of no moment to establish the ground under Section 19 of the Indian Divorce Act. What is of significance is the mental condition at the time of marriage which is the crucial time for determining the question of annulment of marriage. If lunacysupervenes subsequent to marriage, certainly the marriage cannot be annulled. We are of opinion that where a party had suffered from an occasional derangement of mind prior to marriage but the mental state at the time of marriage was not indicative of unsoundness of mind such a marriage cannot be annulled. Courts used to draw a distinction between a sudden occurrence of insanity in contradistinction to cases where unsoundness of mind has been of progressive growth. The condition of the mind of a party at other times before or after marriage will not have any importance to decide the question of validity of the marriage and the question of passing a decree of annulment of marriage. Of course, it may provide evidence for holding that at the time of marriage, there is a probability of the condition of the state of mind continued or existed. There also, we have to consider the nature of the previous stage of mind of the party concerned before marriage, the seriousness of the illness and its progress or deterioration of the mind on account of the illness. There can be a case where the marriage was contracted while he or she was in the period of a lucid interval despite the occurrence and recurrence of insanity before or subsequent to marriage. We discuss this aspect only to highlight the emphasis given by the statute, viz., the annulment of marriage requires a state of mind which can be considered as the stage of mind of a lunatic who is incapable of understanding the essence of a marriage at the time when the contract of marriage is entered into, in this case, at the time when the marriage was solemnised. Another aspect is that every form or degree of insanity or lunacy at the time of marriage would invalidate a marriage. The mental derangement must be such as to adversely affect the capacity to solemnise marriage, since the test applied is that a person should have the capacity to understand the nature of contract of marriage and the duties and responsibilities entailed by it (vide AIR 1963 Punjab 449 (Munishwar Datt Vashisht v. Smt. Indra Kumar).

17. Before considering how the appellant has discharged this burden of proof, we think that it is obligatory on our part to examinecarefully how the medical evidence has been discussed and considered by the learned Judge. A set rule applicable to all circumstances to deduce a conclusion is not possible. In certain cases, medical evidence may not always be given. But that may not be a positive defect to establish the ground. Similarly medical evidence in all circumstances cannot be a determining factor though it is of the most important element of evidence. Even in a case of intermittent insanity there will be lucid periods, we think many factors have to be considered including both pre-nuptial and post-nuptial physical and mental state of the party concerned, to determine whether he or she suffered from lunacy at the time of marriage. In AIR 1934 Allahabad 273 (Titli v. Alfred Robert Jones) it was held amongst other things following the principle laid down in Danial Mcnaughten's case that the medical science might have a long category of various degrees of abnormality considered to be insanity but that is not the legal view. 'The law has set up a very high standard and the only test which has been laid down is as to whether the person was by reason of unsoundness of mind incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law'. With these preliminary discussions, we now turn to the facts of the case.

18. The Court below has adverted to every significant and relevant facts and their impact on the question of the capacity of the wife to enter into a contract of marriage. The Court below rightly focussed statutory condition to apply the correct principle which we have already discussed. We would say that the Court below has rendered a very correct decision applying the correct principles and appreciating the facts bearing in mind the correct norms to be applied in reaching the conclusions on the assessment of evidence. It is a well written judgment of a very high standard, exhibiting a thorough grasp of the law on the subject and a careful and meticulous examination of all facts and circumstances of the case. We shall now briefly discuss the evidence just to show why we fully agree with the conclusions of the learned Judge.

19. It has to be remembered that the marriage between the appellant and the 1st respondent was on 10th May, 1979. Even before actual solemnisation of marriage, parties had occasion to meet together and naturally should have talked about the solemnisation of their promised marriage.

20. Application for annulment o marriage was filed only in 1984. It is an admitted case that after the marriage, the couple stayed together in Trivandrum. While so, the 1st respondent became pregnant. She gave birth to a male child on 26-5-1980. From January, 1981 to June, 1983 appellant was in Delhi for his post-graduate studies in medicine. During that time also the 1st respondent lived with him. Appellant returned to Trivandrum in June, 1983. In Trivandrum also the 1st respondent lived with her husband till 19-9-1983. Thereafter the couples did not live together and the petition was filed on 20-2-1984.

21. Appellant wants to establish that the wife, the 1st respondent, had been schizophrenic even prior to the marriage and at the time of marriage and afterwards also. According to him, what has happened after delivery was only an exasperation (worsening of the condition). To justify this, in his evidence he has stated instances of certain abnormal behaviour on the part of the 1st respondent when they were staying together. One of the instances stated is that the 1st respondent left the house locking the house when the husband had gone to hospital. It gave the husband a lot of difficulty to find out the 1st respondent and get the key of the house. It has to be noted that this happened in October, 1979. The 1st respondent was pregnant at that time. The 1st respondent has denied the incident in the witness box. The 1 st respondent has got a case that she was treated cruelly by her husband. It is alleged that the appellant developed some sort of detachment and aversion for the 1st respondent from the time she became pregnant. These instances attempted to be proved by the husband and wife have not been taken serious note of by the Court below stating that these instances are not proved by acceptable evidence.

22. Appellant has given some instances of abnormal behaviour by the 1st respondent while they were in Delhi. It is stated that on 25-3-1981 when the appellant returned home from the All India Institute of Medical Sciences he found that their servant women Meenakshi Amma, aged about 65 had been assaulted by the 1st respondent causing profused bleeding injuries. It was done without any provocation. The only evidence to prove this instance is the evidence of the appellant. Meenakshi Amma has not been examined. The 1st respondent has denied it. Another incident mentioned by the appellant took place on 5-10-1982. It is stated that the 1st respondent left locking the house and stayed with a friend of her relations of more than a week and thereafter left for Ernakulam without informing the appellant or obtaining his permission. This allegation is also denied by the 1st respondent. According to the 1st respondent, she was ill-treated and sent out of the house with the child once and then she stayed with Kurian. Kurian was not arelative, Appellant further said that on 22-9-1982 himself and 1st respondent had been to a movie in Archana Theatre, New Delhi. During the interval time, the 1st respondent went out as if going toilet and disappeared. The case of the appellant is that she could be located only past mid-night in the quarters of a neighbour. These instances are denied by the 1st respondent. We do not want to discuss the evidence in depth for the reasons that all these instances were after the marriage and there is no reliable evidence to prove these instances.

23. Apart from the instances cited to establish the case that the 1st respondent continued to be a lunatic (on an assumption without clear evidence that she was a lunatic even before marriage), appellant very much relied on the medical evidence to show that the 1st respondent was lunatic on the date of marriage. The Court below has stated thus:--'As noticed earlier the peititoner's case is that he found the 1st respondent to be abnormal within a week after marriage, but he felt that she had insanity only after the delivery of the child'. This observation of the Court below isvery important, which leads to the inference that though the appellant was a doctor, he did not even suspect the insanity till the 1st respondent gave birth to a child. This knocks the bottom of the case of the appellant that the 1st respondent was a lunatic before marriage and at the time of marriage. The Court below has discussed the evidence of Dr. Prabhakaran, Superintendent of the Mental Hospital, New Delhi in great detail. He is PW 2. The Court below rightly found that his evidence will not be of much help. Dr. Prabhakaran has deposed that he happened to see the patient with a post partum paychosis case. According to this doctor, she had paranoid schizophrenic. This doctor has written a letter to the appellant on 31st August, 1981. This letter is marked Ext. A2. This letter is very much relied on by counsel for the appellant, since in the letter there is reference to a past episode before marriage. In the letter, counsel submitted that this witness has said that the 1st respondent had a similar breakdown in 1976 during convalescence in hospital following a road accident. The contents of the letter seem to be a little out of context. According to the appellant, the doctor was treating the 1st respondent for some time and he was writing a letter to the husband reminding of a certain episode which happened prior to the marriage, as if by that time the appellant had no occasion to know about it, It has to be remembered that this doctor had occasion to treat her before marriage at the instance of the husband; it is preposterous to believe that this doctor alone had the information of 1976 episode and that the doctor thought that the husband had no knowledge of the episode and so it has to be conveyed by writing the letter produced in the case. We feel strongly that witnees -- the doctor -- has obliged the husband doctor to have the letter as a piece of evidence. The letter was read to us and we find it difficult even to accept the credibility of the letter. We find no reason for the doctor to say in the letter the episode that was happened in 1976. We impose a self-restraint on us not to comment the evidence of PW 2 and the letter he has written Ext. A2 any further. Less said is better. Assuming that the letter is of someimportance and even if we accept everything that has been said in the letter as true, it will not establish the ground under Section 19 of the Indian Divorce Act. The breakdown referred is of the year 1976. It is only a breakdown and we must remember that the marriage was in 1979. The facts revealed in the case would indicate that even after 1976 the 1st respondent continued her studies. It is proved that she was a good sports woman and she had obtained laurels in swimming while she was a student. The crucial fact of lunacy that has to be proved, as we said earlier, must be linked to the time of marriage and something happened which is said to be a breakdown on account of a road accident in 1976 cannot be taken as a case of lunacy which persisted till 1979 and at the time of marriage. It has to be noted that Ext. A2 letter is of the year 1981. Application for nullity of the marriage was filed only in 1984.

24. We see the deplorable lack of kindness and consideration on the part of the appellant for his wife and his son in spite of his high status in society and the great position and reputation in the medical world. It has to be remembered that the husband has begotten a child. He had the temerity to allege that his wife was a lunatic at the time of marriage, after living with her for about five years. It is impossible to believe that a well qualified doctor taking five years to know about the past condition of his wife at the time of marriage as that she was a lunatic. The case put forward by the appellant is totally unbelievable as found by the Court below. Of course, being a well reputed doctor perhaps he was able to get some medical evidence in this case. The medical evidence also would not satisfy the requirement under Indian Divorce Act. It is discussed very neatly and cleanly by the learned Judge and we do not want to repeat it. We fully agree with him.

25. We are of opinion that the evidence adduced in this case is quite unsatisfactory to prove that the 1st respondent was under a mental condition of such a degree of insanity or lunacy at the time of marriage that would be sufficient to declare the marriage between the appellant and 1st respondent a nullity. Weagree with the conclusions reached by the court below and we find no merit in this appeal and the appeal is only to be dismissed. We do so.