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CASE NO.:

Appeal (civil) 5028 of 1999

PETITIONER:

R. LAKSHMI NARAYAN

Vs.

RESPONDENT:

SANTHI

DATE OF JUDGMENT: 01/05/2001

BENCH:

D.P. Mohapatra & U.C. Banerjee

JUDGMENT:

D.P.MOHAPATRA ,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

On analysis of the case of the parties and the

contentions raised by learned counsel on their behalf, the

question that arises for determination is whether the

appellant has established a case for declaring the marriage

null and void under section 12(1)(b) read with Section 5(ii)

of the Hindu Marriage Act, 1955 ?

The appellant is the husband of the respondent. They

were married according to Hindu rites and rituals on 1-11-

1987. It is relevant to note here that it was an arranged

marriage and the decision was taken after the appellant had

met the respondent and talked with her. After staying

together for about 25 days the couple parted company.

Thereafter the appellant filed a petition under section

5(ii) read with section 12(1)(b) on 12.2.1988 seeking a

declaration that the marriage is null and void as the

respondent suffers from chronic and incurable mental

disorder and is not in a fit mental state to lead a married

life. In support of his case the appellant alleged inter

alia that on the night of the marriage he found respondent

to be drowsy; she refused to have cohabitation; on being

questioned by him she said that she has been suffering from

mental disorder since her childhood; she did not want to

have any marriage relationship, but under pressure from her

parents the marriage with the appellant was performed. The

appellant further alleged that when father of the respondent

was informed about her physical and mental condition he

disclosed that his daughter has been under treatment for

some mental disease and gave the prescription given by the

doctor. The appellant pleaded that he and his father made

attempts for curing the respondent of the ailment suffered

by her but such attempts proved futile. Under such

compelling circumstances he filed the petition seeking the

declaration that the marriage was null and void.

Respondent in her written statement refuted the

allegations made in the petition/plaint. She denied that

she suffered from any mental disorder, far less of a chronic

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and incurable nature. She also denied that she had no

cohabitation with her husband or that she had expressed that

she was not interested in leading married life. She

asserted that immediately after the marriage she and her

husband lead a happy married life; they went to different

places and visited temples. She also asserted that she has

all along been ready and willing to lead a normal marital

life with the appellant; but the appellant is interested in

having a second marriage so that he may get more dowry.

According to the respondent the reason for which she has not

been able to lead a normal family life is on account of

refusal of the appellant to share the marital relationship

with her.

The trial court on assessing the evidence on record

dismissed the petition filed by the appellant holding, inter

alia, that he had failed to establish that the respondent

was suffering from any mental disorder or that there was no

cohabitation or that the respondent was not in a fit mental

state to lead a married life. The trial court which had the

privilege of observing the respondent as a witness and

watching her demeanor made the following observations in the

judgment:

The respondent was examined in this court from 11.25

a.m. to 1.25 p.m. During the enquiry, it did not appear

from her activities that her mental condition and activities

had been affected. She has given answer very clearly to the

questions posed by the petitioners advocate. This court is

not a medical expert. But there was an opportunity to watch

the activities and movements of the respondent. Since it is

not proved from the activities and the letters of the

respondent that she had incurable mental disease and since

the marital relationship is fulfilled by the cohabitation

between the petitioner and the respondent, it is decided

that the respondent is fit for marital relationship and she

is not affected by mental disease Since the petition is

filed within a year from 1.11.1987, the date of marriage,

this petition is not sustainable under law and it is decided

that this marriage is not fit to be declared null and void.

On appeal by the appellant the appellate court found

fault with the judgment of the trial court on the ground

that the trial judge had not considered the documentary

evidence in the case including the prescription issued by

Dr. Papa Kumari of Chennai. The Court held that within a

few days of the marriage the spouses had parted company and

thereafter there has been no meeting between them. The

appellate court accepted the case of the appellant that

there was no cohabitation between the parties to the

marriage. Taking note of certain statements made by the

respondent in her evidence the appellate court found that

she has admitted that she has been suffering from a mental

disorder from her childhood; that she was given injection

once in a month and used to take drugs whenever she had

headache. On such findings the appellate court reversed the

judgment of the trial court and allowed the petition filed

by the appellant.

The second appeal filed by the respondent was allowed by

the High Court, the judgment of the first appellate court

was reversed and the judgment of the trial court was

restored. The High Court, as appears on perusal of the

judgment, mainly considered the question whether the

appellant was aware of the physical and mental disorder of

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the respondent before the marriage. The High Court held

that the marriage was not vitiated by fraud or

misrepresentation. The appellant (husband) had opportunity

to meet the respondent (wife) and to know her physical and

mental condition. The Court did not accept the case of the

appellant that the respondent was suffering from chronic and

incurable mental disorder and that there was no cohabitation

between the parties.

The appellant husband has filed this appeal by special

leave under Article 136 of the Constitution, assailing the

judgment of the High Court.

Since the decision in the case depends on interpretation

of sections 5(ii) (a) and (b) and section 12(1)(b) the said

sections are quoted hereunder for convenience of reference :

5. Conditions for a Hindu marriage A marriage may be

solemnized between any two Hindus, if the following

conditions are fulfilled, namely:-

(i) Xxx xxx xxx

(ii) at the time of the marriage,

neither party

(a) is incapable of giving a valid consent to it in

consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been

suffering from mental disorder of such a kind or to such an

extent as to be unfit for marriage and the procreation of

children;

12. Voidable Marriages (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

xxx xxx xxxx

(b)that the marriage is in contravention of the

conditions specified in clause (ii) of section 5.

Section 5 provides that a marriage may be solemnized

between any two Hindus if the conditions specified in the

section are fulfilled. Amongst the other conditions stated

therein in sub-section (ii) it is laid down that at the time

of marriage neither party is incapable of giving a valid

consent to it in consequence of unsoundness of mind or

though capable of giving a valid consent, has been suffering

from mental disorder of such a kind or to such an extent as

to be unfit for marriage and the procreation of children.

The clause lays down as one of the conditions for a Hindu

marriage that neither party must be suffering from

unsoundness of mind, mental disorder, insanity or epilepsy

and section 12(1)(b) refers that any marriage shall be

voidable and may be annulled if the marriage is in

contravention of the condition specified in clause (ii) of

section 5. On a plain reading of the said provision it is

manifest that the conditions prescribed in that section, if

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established, disentitles the party to a valid marriage. The

marriage is not per se void but voidable under the clause.

Such conditions in the very nature of things call for strict

standard of proof. The onus of proof is very heavy on the

party who approaches the Court for breaking a marriage

already solemnized.

An objection to a marriage on the ground of mental

incapacity must depend on a question of degree of the defect

in order to rebut the validity of a marriage which has in

fact taken place. As noted earlier, the onus of bringing a

case under this clause lies heavily on the petitioner who

seeks annulment of the marriage on the ground of unsoundness

of mind or mental disorder. The court will examine the

matter with all possible care and anxiety.

Bearing in mind the principles which flow from a fair

reading of the statutory provisions noted above we proceed

to examine whether the appellant has succeeded in

establishing the case for declaring the marriage null and

void on the ground of mental incapacity of his wife at the

time of marriage. Even accepting the findings recorded by

the first appellate court which decided the case in favour

of the appellant as correct then the position that emerges

is that the respondent has been under treatment for some

mental problem before the marriage; and that there was no

cohabitation between the parties during the period of about

one month during which they stayed together. On these

findings can it be held that a case for declaring the

marriage to be invalid under section 12(1)(b) read with

section 5 (ii)(b) has been established. It is not the case

of the appellant that the respondent was incapable of giving

valid consent to the marriage in consequence of unsoundness

of mind at the time of marriage. From the facts found by

the appellate court it cannot be held that the respondent

has been suffering from mental disorder of such a kind or to

such an extent as to be unfit for marriage and procreation

of children. To draw such an inference merely from the fact

that the spouses had no cohabitation for a short period of

about a month, is neither reasonable nor permissible. To

brand the wife as unfit for marriage and procreation of

children on account of the mental disorder it needs to be

established that the ailment suffered by her is of such a

kind or such an extent that it is impossible for her to lead

a normal married life. This is the requirement of the law

as appears on fair reading of the statutory provisions. The

appellate court has also not specifically given such a

finding. Merely giving a finding that the respondent was

suffering from some mental disorder and she did not have

cohabitation with her husband during the period they stayed

together is not sufficient to comply with the condition

prescribed under section 5(ii)(b) of the Act. We deem it

relevant to note here that the observations in the judgment

of the trial court about the physical and mental condition

of the respondent which have been noted earlier indicates

the position that the requirement of section 5(ii)(b) are

far from satisfied from the materials placed by the

appellant. In the circumstances the High Court cannot be

faulted for having dismissed the petition filed by the

appellant under section 12(1)(b) read with section 5(ii)(b)

of the Act. The judgment of the High Court is no doubt far

from satisfactory. The High Court has not formulated any

question of law in the judgment which is a mandatory

requirement under section 100 C.P.C. The High Court has

also not considered the relevant aspects of the matter other

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than fraud and misrepresentation about mental condition of

the respondent on the part of her parents at the time of the

marriage. We have considered the submission made by learned

counsel for the appellant to remit the matter to the High

Court for fresh disposal. We however, in the facts as

above, do not feel it expedient to do so.Our attention has

not been drawn to any material on record which, if

considered, would have tilted the balance in favour of the

appellant. It is our considered view that on the facts and

circumstances of the case and the materials placed on record

this is not a fit case for interfering with the judgment of

the High Court in exercise of jurisdiction under Article 136

of the Constitution.

Accordingly the appeal is dismissed, but in the

circumstances of the case without any order of costs.