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CASE NO.:

Appeal (civil) 1687 of 2006

PETITIONER:

Vinita Saxena

RESPONDENT:

Pankaj Pandit

DATE OF JUDGMENT: 21/03/2006

BENCH:

Ruma Pal & Dr. AR. Lakshmanan

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P.(C) No.26418 of 2004)

Dr. AR. Lakshmanan, J.

Leave granted.

The above appeal was filed by the appellant, wife of the respondent herein,

against the judgment and final order dated 10.9.2004 passed by the High Court of

Delhi in F.A.O. No. 235 of 2002 whereby the Civil Writ Petition filed by the appellant

was dismissed.

The short facts are as follows:

The marriage between the appellant-Vinita Saxena and the respondent-Pankaj

Pandit was soleminzed on 7.2.1993 as per Hindu rites and customs. No child was

born out of wedlock. The marriage, according to the appellant, lasted for five months

and was never consummated on account of the fact that the respondent was

incapable of performing his matrimonial obligations. According to the appellant, from

the first day of the marriage, the respondent's mother treated the appellant with utmost

cruelty both mental and physical and that the reason for cruelty was the respondent's

mental disorder. The respondent's case is a case of Paranoid Schizophrenia and the

appellant discovered only after the marriage that the respondent was under constant

treatment and observations of different doctors even prior to the marriage for the said

ailment. Though the appellant knew the respondent prior to her marriage, in fact, it is

only after the marriage, the appellant realised and discovered the mental disorder of

the respondent. The appellant was never told by the respondent nor his parents that

he was suffering from such serious mental disorder and that he was under the

treatment and used to take strong medicines before the marriage. According to Dr.

C.R. Samanta, who was a consultant psychiatrist at Aashlok Hospital, the respondent

was a case of Schizophrenia and depression. On 4.7.1993, the appellant tried to

discuss regarding the problems she was facing with the respondent and her mother-

in-law, who objected strongly and accused the appellant of defaming the respondent.

At her instance, the appellant was beaten mercilessly by the respondent, which made

him nervous to the extent that he consumed "Baygon Spray" to commit suicide. The

appellant and her brother immediately took the respondent to the hospital in order to

save the respondent's life. Again, Dr. C.R. Samantha prescribed certain medicines

i.e. (1) Triperidol (2) Pacitane (3) Prodep to the respondent. The respondent was

hospitalised for four days at Aashlok Hospital, Safdarjung Enclave and was

discharged after giving proper treatment on 7.7.1993. According to the appellant,

Triperidol is given in case of acute and chronic psychoses anxiety disorders, mania,

Schizophrenia as per the medical advise. The situation further became worse on

8.7.1993 and 9.7.1993. Again on the instigation of the respondent's mother, the

respondent slapped and abused the appellant mercilessly and she was not even

allowed to have food that day and the next day morning i.e. on 9.7.1993. On

9.7.1993, the appellant was pushed and kicked out of the matrimonial home by her

mother-in-law and the respondent and thereafter, the appellant was not permitted to

return again.

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The appellant filed H.M.A. Petition on 30.6.1994 against the respondent for

dissolution of marriage under Section 13(1)(1-a) and (iii) of the Hindu Marriage

Act,1955 hereinafter referred to as "the Act" on the grounds of mental and physical

cruelty and insanity before the Court of District Judge at Delhi.

The trial Court vide its order dated 15.5.1993, relying on the facts and

averments made by the parties as well as taking the medical documents placed on

record observed that a letter of request should be written to the Medical

Superintendent, L.N.J.P. Hospital to constitute a panel of doctors to examine the

respondent and to report about his mental state. However, this order was

subsequently set aside by the High Court in a Revision Petition filed by the

respondent. After the marriage had broken down the appellant pursued further

studies and completed M.S. (Structural Engineering) from IIT Delhi and in 1996, left

for her Ph.D. programme to U.S.A. Father of the appellant, J.S. Saxena, deposed as

PW-II and the appellant as PW-I and Dr. D.S. Arora, Medical Superintendent, Aashlok

Hospital and Dr Kuldeep Kumar of Safdarjung Hospital recorded their statement as

PW-III and PW-IV respectively supporting the case of the appellant.

The respondent, however, got only his statement recorded and before his

cross-examination could be concluded, deliberately did not appear in the witness box

to complete his deposition. The trial Court, vide order dated 19.3.2001, dismissed the

petition filed by the appellant under Section 13(1)(1-a) and (iii) of the Act for the grant

of decree of divorce. Being aggrieved by the said order, the appellant filed an appeal

before the High Court. The High Court vide order dated 10.9.2004 dismissed the

appeal filed by the appellant holding that the respondent is not suffering from

Schizophrenia and that there is insufficient material on record to establish the cause of

cruelty and further held that the incidents of cruelty is not so grave which come within

the scope of concept of cruelty. The High Court also held that the testimonies of the

doctors examined by the appellant to prove that the respondent was suffering from

Schizophrenia cannot be looked into for the reason that the respondent was not under

the treatment of the above doctors. Aggrieved by the said order, the appellant filed

this appeal by way of special leave petition before this Court.

The respondent filed a counter affidavit. It is stated in the counter affidavit that

the special leave petition is devoid of any merit inasmuch as the Courts below have

given findings of fact in favour of the respondent and the Courts below have rejected

the pleas of the appellant on the ground that she has not made out any case for grant

of divorce. It was submitted that the appellant even before the marriage was having

intimacy with the respondent from 1986 to 1993 and she did not find any abnormality

in the behaviour of the respondent. It was also submitted that the appellant has not

made out any case seeking divorce on the ground of causing cruelty to her inasmuch

as she has failed to prove any instance leading to causing such cruelty to her by the

respondent. It was submitted that the respondent is willing to take the appellant and

keep her happy to the fullest and it is the desire of the respondent that the marriage

should not break on the ground that she is building up her career in America for the

past 12 years. Since concurrent findings of fact is in favour of the respondent, the

appellant ought not to be stated that the respondent and his mother were involved in

causing cruelty to her and that the Courts below have also disbelieved the version of

the appellant that the cruelty was caused by the respondent due to his mental

disorder. It was further contended that the appellant did not lead any evidence to

prove as a matter of fact that the respondent was suffering from Schizophrenia and

that the appellant has filed the petition deliberately and wilfully and with a view to

harass the respondent and his mother. It was also contended that the mere

branding of spouse as Schizophrenic is not sufficient and that the degree of mental

disorder of the spouse must be proved to be such that the appellant \026 spouse cannot

be reasonably be expected to live with the other. It was also submitted that from the

evidence and pleadings, it has clearly been stated that the appellant was having sex

with the respondent without any problem and there is no truth in the allegation made

by the appellant. The other allegations mentioned in the Divorce Petition have not

been proved at all and that the appeal filed by the appellant deserves to be rejected.

We heard Ms. Kamini Jaiswal, learned counsel appearing for the appellant-wife

and Mr. Dhruv Mehta, learned counsel appearing for the respondent-husband.

We have perused the pleadings, annexures filed along with the appeal and the

orders passed by the courts below and the grounds of appeal.

Learned counsel for the appellant while reiterating the averments made in the

appeal submitted the following grounds for granting divorce as prayed for by the

appellant-wife :

1) Non-consummation of the marriage itself would constitute mental cruelty to

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a married woman.

2) The respondent attempted to commit suicide also amounts to mental

cruelty and harassment.

3) The appellant has lived only for five months after the marriage and she was

mercilessly beaten by the respondent and his mother.

4) There was absolutely nothing to show that the documents and prescription

given by the doctors have been concocted. They are the official records of

the Hospital.

5) The medical prescriptions and the evidence of doctors clearly illustrate that

the respondent was under the treatment of Dr. Samantha and was a case

of Paranoid Schizophrenia.

6) The respondent, before his cross examination could be concluded,

deliberately did not appear in the witness box to complete his deposition

and his evidence had to be closed.

7) The appellant was denied the matrimonial bliss of physical relation by the

respondent because of his incompetency which itself constitute cruelty for a

married woman.

8) The threat to commit suicide by the respondent amounts to cruelty and the

Courts below took cognizance of the fact that the respondent consumed

"Baygon spray".

9) Because Dr. Samantha was not alive, the medical record authored by him

can only be proved by secondary evidence though Dr. D.S. Arora, medical

Superintendent who certified on oath that the respondent was admitted in

Aashlok Hospital and stated that he had brought the records in respect of

Pankaj Pandit. He also identified the signatures of Dr. Samantha and the

medical prescriptions of his having treated the respondent have also been

produced and proved by him where it had been categorically stated that the

respondent is suffering from Paranoid Schizophrenia.

10) Likewise on the ground of non-availability of Dr. Abhyankar, who had

authored the medical prescription as he was no more in service of the

hospital cannot be fatal to disregard the evidence of the other doctor, who

produced and proved the entire record.

11) The marriage between the appellant and the respondent hardly lasted for

five months and both of them are living separately for the last 13 years.

Learned counsel appearing for the appellant cited the following decisions:

1) Shrikant Anandrao Bhosale vs. State of Maharashtra, (2002) 7

SCC 748,

2) A. Jayachandra vs. Aneel Kaur, (2005) 2 SCC 22,

3) Smt. Uma Wanti vs. Arjan Dev , AIR 1995 P&H 312

4) Harbhajan Singh Monga vs. Amarjeet Kaur AIR 1986 MP 41

5) Mrs. Rita Nijhawan vs. Shri Balkishan Nijhawan, AIR 1973 Delhi

200

6) Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari, AIR 1970 SC

137.

7) Vijay Kumar Ramchandra Bhate vs. Neela vijaykumar Bhate,

AIR 2003 SC 2462

8) B.N. Panduranga Shet vs. N. Vijaylaxmi, AIR 2003 Karnataka 357

Mr. Dhruv Mehta, learned counsel appearing for the respondent, per contra,

after referring to the grounds of divorce and the findings recorded by the trial Court

and the High Court which has affirmed the findings of the trial Court, submitted that in

order to make out a ground for divorce under Section 13(1)(iii) of the Act, it is not

necessary to establish that the respondent is suffering continuously or intermittently

from mental disorder but it must further be established that it is of such a kind and to

such an extent that the appellant cannot be reasonably be expected to live with the

respondent. In other words, the burden is not discharged by merely establishing that

the respondent is suffering from mental disorder which in the present case would

include Schizophrenia by virtue of the Explanation to the said provision but the

appellant must further lead evidence to establish that the mental disorder is of such a

kind and to such an extent that the appellant cannot reasonably be expected to live

with the respondent.

According to learned counsel for the respondent, the above contention finds

support from a decision of this Court in Ram Narain Gupta vs. Smt. Rameshwari

Gupta, 1988(4) SCC 247. For ready reference, the relevant paras from the said

judgment are as under:

"20. The context in which the ideas of unsoundness of

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'mind' and 'mental disorder' occur in the section as grounds for

dissolution of a marriage, require the assessment of the degree of the

'mental disorder'. Its degree must be such that 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.

xx xx xx

28. The reasoning of the High Court is that the requisite

degree of the mental disorder which alone would justify dissolution of

the marriage has not been established. This, it seems to us, to be not

an unreasonable assessment of the situation - strong arguments of

Shri Goel to the contrary notwithstanding.

xx xx xx

30. \005..the burden of proof of the existence of the requisite

degree of mental disorder is on the spouse basing the claim on that

state of facts.

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."

It was further submitted that the aforesaid judgment of this Court has been

followed by the Karnataka High Court in the case of B.N. Panduranga Shet vs. N.

Vijayalaxmi, (supra). Learned counsel also relied on the decision of the Calcutta

High Court in the case of Rita Roy vs. Sitesh Chandra AIR 1982 Calcutta 138 and

the decision of the Himachal Pradesh High Court reported in (1995) DMC 71 (DB).

Learned counsel also cited the judgment of this Court in Rakesh K. Gupta vs.

Ram Gopal Agarwala & Ors., AIR 2005 SC 2426 for the proposition that even in a

custody dispute between the husband and wife wherein it was alleged by the husband

that the wife is suffering from Paranoid Schizophrenia, this Court still awarded custody

of the child to the mother.

According to the learned counsel, the evidence which has been brought on

record by the appellant is wholly insufficient to infer that the respondent was suffering

from the said mental disorder and the doctors who are alleged to have treated the

respondent have not been examined as witnesses by the appellant and what has

been brought on record are certain prescriptions made by the said doctors and the

same are sought to be proved by examining the Medical Superintendent of Aashlok

Hospital, Safdarjung Enclave. Therefore, he submitted that in view of the above fact,

no inference can be drawn that the respondent was suffering from Paranoid

Schizophrenia and that the appellant has not been discharged of the burden as

required by the statutory provision. Learned counsel contended that the words used

in sub-clause (iii) of Section 13(1) to the effect that "mental disorder of such a kind and

to such an extent that the appellant cannot reasonably be expected to live with the

respondent" must be given full effect as it is a well accepted principle of statutory

interpretation that a Court must make every effort to give effect to all words in a statute

since Parliament cannot be held to have been wasting its words or saying something

in vain. Learned counsel, for this proposition, relied on the following two decisions of

this Court:

(a) Shin Etsu Chemical Company Ltd. Vs. Aksh Optifibre Ltd.,

(2005) 7 SCC 234.

(b) Union of India vs. Popular Construction , (2001) 8 SCC 470

Concluding his submissions, learned counsel submitted that the appellant

having failed to establish the aforementioned requirement of the statute, the appeal

must fail on this ground.

In Re : Cruelty

It was submitted that in order to make out a ground for divorce under Section

13(1)( i-a) of the Act, the conduct complained of should be grave and weighty so as to

come to the conclusion that the appellant spouse cannot be reasonably expected to

live with the other spouse. It must be something more serious than "ordinary wear

and tear of married life". For this proposition, he relied on the judgment of this Court in

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A. Jayachandra vs. Aneel Kaur (supra). Para 13 of the aforementioned judgment is

as under:

"13. \005..but before the conduct can be called cruelty, it must touch a

certain pitch of severity. It is for the Court to weigh the gravity. It has

to be seen whether the conduct was such that no reasonable person

would tolerate it\005\005\005"

It was argued that the trial Court, after examining the evidence, has come to the

conclusion that the acts complained of are not such as would constitute cruelty and in

any event the ground for divorce under Section 13(1)(i-a) is not made out. It was

submitted that the trial Court had occasioned to see the demeanour of witnesses and,

therefore, the view taken by the trial Court unless it can be said to be perverse should

not be faulted with. It was also contended that the approach in such cases should be to

perverse the matrimonial home. The judgment in the case of Savitri Pandey vs.

Prem Chandra Pandey, (2002) 2 SCC 73 was relied on for this purpose.

Answering the contention raised by the counsel for the appellant that the parties

have not lived together for a long time and therefore, this is a fit case to pass a decree

of divorce, learned counsel for the respondent, submitted that this is a wholly untenable

argument and has to be rejected by this Court. For this, he relied on the ruling of this

Court in the case of A. Jayachandra vs. Aneel Kaur (supra).

Concluding his arguments, learned counsel appearing for the respondent

submitted that both the trial Court and the High Court have recorded concurrent findings

and have rejected the prayer of the appellant to grant decree of divorce under Section

13(1)(i-a) and (iii) of the Act and, therefore, this Court under Article 136 of the

Constitution of India cannot interfere with the said findings unless it is established that

the findings recorded by the trial Court and the High Court are perverse.

Arguing further, he submitted that the findings of the trial Court are based on the

consideration of the entire evidence and well reasoned and in similar circumstances, this

Court refused to interfere with the concurrent findings of fact arrived at by the Courts in

Savitri Pandey vs. Prem Chandra Pandey (supra).

We have given our thoughtful and anxious consideration for the rival submissions

made by the respective counsel appearing on either side.

The appellant filed a petition for divorce under Section 13(1)(i-a) and (iii) of the

Act on the ground of mental and physical cruelty. It is also her case that on account of

Paranoid Schizophrenia that the respondent was suffering from, the appellant could not

be reasonably expected to live with the respondent. Section 13 (1)(i-a) and (iii) are

reproduced hereunder:

"13. Divorce - (1) Any marriage solemnized, 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 decree

of divorce on the ground that the other party-

(i) has, after the solemnization of the marriage, had

voluntary sexual intercourse with any person other than his or her

spouse; or

(i-a) has, after the solemnization of the marriage, treated

the petitioner with cruelty; or

* * * * *

(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) the expression "psychopathic disorder" means a

persistent disorder or disability of mind (whether or not including sub-

normality of intelligence) which results in abnormally aggressive or

seriously irresponsible conduct on the part of the other party, and

whether or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable

form of leprosy; or

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(v) has been suffering from venereal disease in a

communicable form; or

(vi) has renounced the world by entering any

religious order; or

(vii) has not been heard of as being alive for a period

of seven years or more by those persons who would naturally have

heard of it, had that party been alive.

Explanation - In this sub-section, the expression

"desertion" means the desertion of the petitioner by the other party to

the marriage without reasonable cause and without the consent or

against the wish of such party, and includes the wilful neglect of the

petitioner by the other party to the marriage, and its grammatical

variations and cognate expressions shall be construed accordingly.

(I-A) Either party to a marriage, whether solemnized

before or after the commencement of this Act may also present a

petition for the dissolution of the marriage by a decree of divorce on

the ground -

(i) that there has been no resumption of

cohabitation as between the parties to the marriage for a period of one

year or upwards after the passing of a decree for judicial separation in

a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal

rights as between the parties to the marriage for a period of one year

or upwards after the passing of a decree for restitution of conjugal

rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the

dissolution of her marriage by a decree of divorce on the ground -

(i) in the case of any marriage solemnized

before the commencement of this act, that the husband had married

again before such commencement or that any other wife of the

husband married before such commencement was alive at the time of

the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the

time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of

the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu

Adoptions and Maintenance Act, 1956 (78 of 1956) , or in a

proceeding under section 125 of the Code of Criminal Procedure, 1973

(2 of 1974) (or under the corresponding section 488 of the Code of

Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case

may be, has been passed against the husband awarding maintenance

to the wife notwithstanding that she was living apart and that since the

passing of such decree or order, cohabitation between the parties has

not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not)

was solemnized before she attained the age of fifteen years and she

has repudiated the marriage after attaining that age but before

attaining the age of eighteen years.

Explanation - This clause applies whether the marriage

was solemnized before or after the commencement of the Marriage

Laws (Amendment) Act, 1976.

It is not in dispute that the marriage has lasted hardly for five months and was

never consummated on account of the fact that the respondent was incapable of

performing his matrimonial obligations. The appellant has examined herself as PW-1.

She has specifically stated in her deposition that the marriage was not consummated at

all. It has further come out in her deposition that she accompanied the respondent at

AIIMS and met Prof. Dr. Prema Bali, Sexologist and Marriage Counsellor. In her

deposition, it had also come out that the Doctor informed her that the respondent

cannot perform the marital obligations. She was also informed by the said Doctor that

the respondent was a Psychopathic case and he has no power of concentration. She

was also informed that the disease is of incurable in nature. The appellant has further

deposed that respondent kept on sleeping for three days immediately after

solemnization of marriage and the appellant was told that she should not disturb him. It

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was further stated in her evidence that on 4.7.1993, the appellant was blamed for the

respondent's illness and was mercilessly beaten up and on the same day the

respondent consumed "Baygon Spray" to commit suicide and he was taken to Aashlok

Hospital, Safdarjung Enclave by the appellant and her brother.

In her cross-examination, the appellant has stated that though they were studying

together in the Engineering College, however, there were no special meetings between

them except meeting in the class. It has also come on record that there was no intimacy

between the appellant and the respondent. The appellant has emphatically denied the

allegation about the intimacy between the appellant and the respondent prior to

marriage w.e.f. 1987. She also stated on oath that it was a marriage though of her

choice but solemnized only after her parents had given the consent. In the cross-

examination, the respondent has not been able to shake or destroy the case of the

appellant.

In support of her case, PW-2, J.S. Saxena \026 father of the appellant, was

examined. He supported the appellant's case and corroborated her evidence. Even in

the cross-examination of PW-2, there is no material change or inconsistency.

With regard to the grant of cruelty, there is deposition of the appellant and her

father on record which clearly establishes and proves that the appellant was treated with

cruelty by the respondent and his mother. With regard to the plea of mental insanity i.e.

Section 13(1)(iii), the appellant adduced the evidence of Dr. D.S. Arora, Medical

Superintendent, Aashlok Hospital as well as Dr. Kuldeep Kumar of Safdarjung Hospital.

Dr. D.S. Arora, a summoned witness produced the entire record pertaining to the

respondent. He exhibited the case of the respondent maintained by Dr. C.R. Samantha.

Dr. D.S. Arora identified the signatures of Dr. C.R. Samantha and proved Ex. PW-3/1.

The original record of respondent was produced in the Court. Dr. D.S. Arora also

proved the prescriptions \026 Ex. PW-3/2 and Ex. PW-3/3. Ex. PW-3/5 was the prescription

written by Dr. D.S. Arora and it was bearing his signatures. The entire medical history

and record of the respondent pertaining to his medical illness, his visit and admission to

Aashlok Hospital on 4.7.1993 and discharge on 7.7.1993 as well as the case history of

the respondent maintained by Dr.C.R. Samantha were duly proved and exhibited.

According to the medical record, the respondent was admitted with reference to a case

of Psychopathic and depression for the last fortnight, now admitted for disturbed

consciousness. He was suggested to take Triperidol medicine. The other prescription

has been authored by Dr. D.S. Arora who stated that the respondent had consumed

"Baygon Spray". It was also specified that the respondent is a known case of

depression. Medicine 'Triperidol' was suggested to be administered to him. With regard

to the consumption of "Baygon Spray", a stomach wash was carried out upon the

respondent and he was administered injections 'Atropine', and 'Dextrose-1/V and PAM 1

to 1/V. The evidence of Dr. D.S. Arora and the record signed by Dr. C.R. Samantha are

admissible in evidence and has been legally proved. The evidence of Dr. Kuldeep

Kumar of Safdarjung Hospital also establishes the case of mental insanity and the fact

that the respondent was a case of Paranoid Schizophrenia. The said Doctor produced

the original record and made necessary deposition. He had brought the originals during

his examination and it is recorded that the respondent had visited the Psychiatric Ward

on 12.12.1992 along with his mother. Dr. Abhyankar also recorded about the history of

respondent's illness. It was also recorded by the said Doctor that the respondent suffers

from delusion of persecution and reference effect and on the physical examination it

had been observed that the respondent has clear systematized delusion of persecution

and reference and, therefore on the review it is clear that the respondent is suffering

from Paranoid Schizophrenia. The medical record of the respondent maintained by the

Safdarjung hospital (Outdoor Patient Department) has been established that the

respondent visited Hospital on 21.12.1992 and was advised for psychological testing. It

was observed in a medical sheet that the respondent was initially diagnosed for

psychosis. However, on subsequent visits and after detailed examination it has been

confirmed that he suffers from Paranoid Schizophrenia.

The appellant has also produced on record a communication dated 9.5.1994

addressed by Professor Dr. Prema Bali, who was working in the Institute of Sexology

and Marriage Counselling. Dr. Prema Bali is the relative of respondent and she has

communicated to the appellant that the respondent has a psychiatric problem as his

case is a case of Paranoid Schizophrenia.

It would be pertinent to observe that there is no evidence whatsoever adduced by

the respondent or on his behalf. In fact, after recording of the examination-in-chief and

part cross-examination, the respondent refused to come in the witness box and ran

away. The observation has been made by the trial Court in the proceedings.

A RESEARCH ON THE DISEASE

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"Schizophernia is one of the most damaging of all mental

disorders. It causes its victims to lose touch with reality. They often

begin to hear, see or feel things that aren't really there (hallucinations)

or become convinced of things that simply aren't true (delusions). In

the paranoid form of this disorder, they develop delusions of

persecution or personal grandeur. The first signs of paranoid

schizophrenia usually surface between the ages of 15 and 34. There

is no cure, but the disorder can be controlled with medications.

Severe attacks may require hospitalization.

The appellant has filed Annexures L,M,N,O,P and Q which are

extracts about the aforesaid disease. The extracts are sum and

substance of the disease and on a careful reading it would be well

established that the evidence and documents on record clearly make

out a case in favour of appellant and hence appellant was entitled to

the relief prayed. In the memorandum and grounds of Appeal, some

salient features of the disease have also been specified. Some of the

relevant part of the extracts from various medical publications are

reproduced herein below:

What is the disease and what one should know?

* A psychotic lacks insight, has the whole of his personality

distorted by illness, and constructs a false environment out of his

subjective experiences.

* It is customary to define 'delusion' more or less in the following

way. A delusion is a false unshakeable belief, which is out of keeping

with the patient's social and cultural background.' German

psychiatrists tend to stress the morbid origin of the delusion, and quite

rightly so. A delusion is the product of internal morbid processes and

this is what makes it unamenable to external influences.

* Apophanuous experiences which occur in acute schizophrenia

and form the basis of delusions of persecution, but these delusions

are also the result of auditory hallucinations, bodily hallucinations and

experiences of passivity. Delusions of persecution can take many

forms. In delusions of reference, the patient feels that people are

talking about him, slandering him or spying on him. It may be difficult

to be certain if the patient has delusions of self-reference or if he has

self-reference hallucinosis. Ideas of delusions or reference are not

confined to schizophrenia, but can occur in depressive illness and

psychogenic reactions.

Causes

The causes of schizophrenia are still under debate. A chemical

imbalance in the brain seems to play a role, but the reason for the

imbalance remains unclear. One is a bit more likely to become

schizophrenic if he has a family member with the illness. Stress does

not cause schizophrenia, but can make the symptoms worse.

Risks

Without medication and therapy, most paranoid schizophrenics

are unable to function in the real world. If they fall victim to severe

hallucinations and delusions, they can be a danger to themselves and

those around them.

What is schizophrenia?

Schizophrenia is a chronic, disabling mental illness

characterized by:

* Psychotic symptoms

* Disordered thinking

* Emotional blunting

How does schizophrenia develop?

Schizophrenia generally develops in late adolescence or early

adulthood, most often:

* In the late teens or early twenties in men

* In the twenties to early thirties in women

What are the symptoms of schizophrenia?

Although schizophrenia is chronic, symptoms may improve at

times (periods of remission) and worsen at other times (acute

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episodes, or period of relapse).

Initial symptoms appear gradually and can include:

* Feeling tense

* Difficulty concentrating

* Difficulty sleeping

* Social withdrawal

What are psychotic symptoms?

Psychotic symptoms include:

* Hallucinations: hearing voices or seeing things

* Delusions : bizarre beliefs with no basis in reality (for

example, delusions of persecution or delusions of grandeur)

These symptoms occur during acute or psychotic phases of the

illness, but may improve during periods of remission.

A patient may experience

* A single psychotic episode during the course of the

illness

* Multiple psychotic episodes over a lifetime

* Continuous psychotic episodes

During a psychotic episode, the patient is not completely out of

touch with reality. Nevertheless, he/she has difficulty distinguishing

distorted perceptions of reality (hallucinations, delusions) from reality,

contributing to feelings of fear, anxiety, and confusion.

The disorder can prove dangerous for some - especially when

symptoms of paranoia combine with the delusional symptoms of

schizophrenia. In fact, doctors say paranoid schizophrenics are

notorious for discontinuing the treatments which help control their

symptoms.

The Indian Drug Review has specified the Drug Trifluoperidol

as a sedative and tranquilizer. With regard to administration it has

been suggested that it is given to patient suffering from Schizophrenia.

Incidentally this drug was being administered on medical advice to the

respondent."

In our view, the trial Court failed to appreciate the uncontroverted evidence of the

appellant who had proved the case on every count. It has been established beyond

doubt by the Medical doctors who had deposed as witnesses and brought the original

medical record of the respondent that the respondent is suffering from mental disorder.

Further ground for grant of divorce on the plea of mental insanity/mental disorder is

different than cruelty. The appellant, in our view, had proved beyond doubt that the

respondent suffered from mental disorder and that the appellant suffered cruelty by and

at the behest of the respondent.

Learned single Judge of the High Court failed to appreciate that in the absence of

any evidence led by the respondent, the appellant's evidence had to be relied upon and

on the basis of the evidence, the decree for divorce was bound to be granted in favour

of the appellant. The appellant had also given specific instances of cruelty which clearly

establish that she had a reasonable apprehension that it will be harmful or injurious for

her to live with the respondent.

LEGAL PROPOSITION ON THE ASPECT OF CRUELTY

It is settled by catena of decisions that mental cruelty can cause even more

serious injury than the physical harm and create in the mind of the injured appellant such

apprehension as is contemplated in the Section. It is to be determined on whole facts of

the case and the matrimonial relations between the spouses. To amount to cruelty,

there must be such wilful treatment of the party which caused suffering in body or mind

either as an actual fact or by way of apprehension in such a manner as to render the

continued living together of spouses harmful or injurious having regard to the

circumstances of the case.

The word 'cruelty' has not been defined and it has been used in relation to

human conduct or human behaviour. It is the conduct in relation to or in respect of

matrimonial duties and obligations. It is a course of conduct and one which is adversely

affecting the other. The cruelty may be mental or physical, intentional or unintentional.

There may be cases where the conduct complained of itself is bad enough and per se

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unlawful or illegal. Then the impact or the injurious effect on the other spouse need not

be enquired into or considered. In such cases, the cruelty will be established if the

conduct itself is proved or admitted.

The cruelty alleged may largely depend upon the type of life the parties are

accustomed to or their economic and social conditions, their culture and human values

to which they attach importance. Judged by standard of modern civilization in the

background of the cultural heritage and traditions of our society, a young and well

educated woman like the appellant herein is not expected to endure the harassment in

domestic life whether mental, physical, intentional or unintentional. Her sentiments have

to be respected, her ambition and aspiration taken into account in making adjustment

and her basic needs provided, though grievances arising from temperamental

disharmony. This view was taken by the Kerala High Court in the case reported in AIR

1991 Kerala 1.

In 1993 (2) Hindu L.R. 637, the Court had gone to the further extent of observing

as follows:

"Sometime even a gesture, the angry look, a sugar coated joke,

an ironic overlook may be more cruel than actual beating"

Each case depends on its own facts and must be judged on these facts.

The concept of cruelty has varied from time to time, from place to place and from

individual to individual in its application according to social status of the persons

involved and their economic conditions and other matters. The question whether the

act complained of was a cruel act is to be determined from the whole facts and the

matrimonial relations between the parties. In this connection, the culture,

temperament and status in life and many other things are the factors which have to

be considered.

The legal concept of cruelty which is not defined by statute is generally

described as conduct of such character as to have caused danger to life, limb or

health (bodily and mental) or to give rise to reasonable apprehension of such

danger. The general rule in all question of cruelty is that the whole matrimonial

relations must be considered, that rule is of a special value when the cruelty consists

not of violent act but of injurious reproaches, complains accusations or taunts. It

may be mental such as indifference and frigidity towards wife, denial of a company to

her, hatred and abhorrence for wife or physical, like acts of violence and abstinence

from sexual intercourse without reasonable cause. It must be proved that one

partner in the marriage however mindless of the consequences has behaved in a

way which the other spouse could not in the circumstances be called upon to

endure, and that misconduct has caused injury to health or a reasonable

apprehension of such injury. There are two sides to be considered in case of cruelty.

From the appellant's side, ought this appellant to be called on to endure the

conduct? From the respondent's side, was this conduct excusable? The court has

then to decide whether the sum total of the reprehensible conduct was cruel. That

depends on whether the cumulative conduct was sufficiently serious to say that from

a reasonable person's point of view after a consideration of any excuse which the

respondent might have in the circumstances, the conduct is such that the petitioner

ought not be called upon to endure.

As to what constitute the required mental cruelty for purposes of the said

provision, will not depend upon the numerical count of such incidents or only on the

continuous course of such conduct but really go by the intensity, gravity and

stigmatic impact of it when meted out even once and the deleterious effect of it on

the mental attitude, necessary for maintaining a conducive matrimonial home.

If the taunts, complaints and reproaches are of ordinary nature only, the court

perhaps need consider the further question as to whether their continuance or

persistence over a period of time render, what normally would, otherwise, not be so

serious an act to be so injurious and painful as to make the spouse charged with

them genuinely and reasonably conclude that the maintenance of matrimonial home

is not possible any longer.

The modern view of cruelty of one spouse to another in the eye of law has

been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of England

Vol.12, 3rd edition page 270:-

"The general rule in all kinds of cruelty that the whole

matrimonial relations must be considered and that rule is of special

value when the cruelty consists not of violent acts, but of injurious

reproaches, complaints, accusations of taunts. Before coming to a

conclusion, the judge must consider the impact of the personality and

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conduct of one spouse on the mind of the other, and all incidents and

quarrels between the spouses must be weighed from the point of view.

In determining what constitutes cruelty, regard must be had to the

circumstances of each particular case, keeping always in view the

physical and mental condition of the parties, and their character and

social status."

This Court in Dastane vs. Dastane AIR 1975 SC 1575 observed as

under:-

"The Court has to deal not with an ideal husband and an ideal

wife, (assuming any such exist) but with the particular man and

women before it. The ideal couple or a mere ideal one will probably

have no occasion to go to a matrimonial court or, even if they may not

be able to drawn their differences, their ideal attitudes may help them

overlook or gloss over mutual fault and failures.

Marriage without sex

The Division Bench in the case of Rita Nijhawan vs. Balkrishan Nijhawan in

AIR 1973 Delhi 200 at 209 observed as follows:

"Marriage without sex is an anathema. Sex is the foundation

of marriage and without a vigorous and harmonious sexual activity it

would be impossible for any marriage to continue for long. It cannot

be denied that the sexual activity in marriage has an extremely

favourable influence on a woman's mind and body. The result being

that if she does not get proper sexual satisfaction it will lead to

depression and frustration. It has been said that the sexual relations

when happy and harmonious vivifres woman's brain, develops her

character and trebles her vitality. It must be recognized that nothing is

more fatal to marriage than disappointment in sexual intercourse."

Section 13(1)(iii) 'mental disorder' as a ground of divorce is only where it is of

such a kind and degree that the appellant cannot reasonably be expected to live with

the respondent. Where the parties are young and the mental disorder is of such a

type that sexual act and procreation of children is not possible it may furnish a good

ground for nullifying the marriage because to beget children from a Hindu wedlock is

one of the principal aim of Hindu Marriage where sanskar of marriage is advised for

progeny and offspring. This view was taken in AIR 1991 MP 205.

This Court in Digvijay Singh vs. Pratap Kumari, AIR 1970 SC 137 has held

as follows

"A party is impotent if his or her mental or physical condition makes

consummation of the marriage a practical impossibility. The condition

must be one, according to the statute, which existed at the time of the

marriage and continued to be so until the institution of the

proceedings. In order to entitle the appellant to obtain a decree of

nullity, establish that his wife, the respondent, was impotent at the time

of the marriage and continued to be so until the institution of the

proceedings."

Lord Denning in Sheldon v. Sheldon (1966) 2 All ER 257,

"The categories of cruelty are not disclosed. Each case may be

different. We deal with the conduct of human being who are not

generally similar. Among the human beings there is no limit to the kind

of conduct which may constitute cruelty. New type of cruelty may crop

up in any case depending upon the human behaviour, capability to

tolerate the conduct complained of. Such is the wonderful realm of

cruelty."

Spouses owe rights and duties each to the other and in their relationship they

must act reasonably. In every case where cruelty exists it is possible to say that the

spouse at fault has been unreasonable. The list of cruelty, therefore, should be

breach of the duty to act reasonably, whether in omission or commission, causing

injury to health. Such a list avoids imputing on intention where in fact none may

exist. Further all such matters are foresight, desires, wishes, intention, motives,

perception, obtuseness, persistence and indifference would remain relevant but

merely as matter of evidence bearing upon the requirement to act reasonably or as

aggravation of the matters charged.

We can also take note of the fact that the respondent had filed a revision against

the order of the trial Court's direction for setting up of a medical Board to examine the

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respondent. At the time of hearing, this Court directed the counsel for the respondent to

ascertain from the respondent as to whether he is willing to submit himself for medical

examination. However, the respondent refused to submit himself for medical

examination and go before the medical Board. This would but confirm the contention of

the appellant that the respondent is suffering from Paranoid Schizophrenia and that this

Court can draw adverse inference in view of the conduct of the respondent.

In the case of Smt. Uma Rani vs. Arjan Devi (supra), it has been held that

unsoundness of mind may be held to be cruelty.

In the case of Harbhajan Singh Monga vs. Amarjeet Kaur (Supra), it has been

held that attempt to commit suicide by one spouse has been found to amount to cruelty

to other.

The observation made by this Court in the case of Shobha Rani vs. Madhukar

Reddi, AIR 1988 SC 121 can be reproduced to appreciate the facts and circumstances

of the case on hand. It reads as follows:

"There has been a marked change in the life around us. In

matrimonial duties and responsibilities in particular, there is a sea

change. They are of varying degrees from house to house or person

to person. Therefore, when a spouse makes complaint about the

treatment of cruelty by the partner in life or relations, the Court should

not search for standard in life. A set of facts stigmatized as cruelty in

one case may not be so in another case. The cruelty alleged may

largely depend upon the type of life the parties are accustomed to or

their economic and social conditions. It may also depend upon their

culture and human values to which they attach importance. The

Judges and lawyers, therefore, should not import their own notions of

life. Judges may not go in parallel with them. There may be a

generation gap between the Judges and the parties. It would be

better if the Judges keep aside their customs and manners. It would

be also better if Judges less depend upon precedents."

Humane aspects which this Court should consider:

? The appellant was 24 years of age when she got married.

? The marriage lasted for four to five months only when she was compelled

to leave the matrimonial home.

? The marriage between the parties was not consummated as the

respondent was not in a position to fulfil the matrimonial obligation.

? The parties have been living separately since 1993. 13 years have

passed they have never seen each other.

? Both the parties have crossed the point of no return.

? A workable solution is certainly not possible.

? Parties at this stage cannot reconcile themselves and live together

forgetting their past as a bad dream.

? Parties have been fighting the legal battle from the year 1994.

? The situation between the parties would lead to a irrefutable conclusion

that the appellant and the respondent can never ever stay as husband

and wife and the wife's stay with the respondent is injurious to her health.

? The appellant has done her Ph.d. The respondent, according to the

appellant, is not gainfully employed anywhere.

? As a matter of fact, after leaving his deposition incomplete during the

trial, the respondent till date has neither appeared before the trial Court

nor before the High Court.

The facts and circumstances of the case as well as all aspects pertain to

humanity and life would give sufficient cogent reasons for us to allow the appeal and

relieve the appellant from shackles and chain of the respondent and let her live her own

life, if nothing less but like a human being.

In our view, the orders of the Courts below have resulted in grave miscarriage of

justice to the appellant who has been constrained into living with a dead relationship for

over 13 years. The resultant agony and injustice that has been caused to the appellant,

it is a fit case for interference under Article 136 of the Constitution of India and reversa

l

of findings of the Courts below which have resulted in grave miscarriage of justice.

In the result, the civil appeal stands allowed. There will be a decree for divorce in

favour of the appellant-wife and against the respondent-husband. The order of the trial

Court as affirmed by the High Court, stands set aside. There will be no order as to

costs.