Madras High Court
T.R. Rajagopalan vs Usha Rajagopalan on 24 January, 1997
Equivalent citations: I(1998)DMC558, (1998)IMLJ181
JUDGMENT Sathasivam, J.
1. The husband who obtained a decree for divorce in M.O.P. No. 167 of 1983 on the file of VI Assistant Judge, City Civil Court, Madras under Section 13(1)(iii) Hindu Marriage Act and lost before the lower. Appellate Court in C.M.A. No. 153 of 1987 on the file of (he XI Additional Judge, City Civil Court, Madras, has filed the present Second Appeal before this Court,
2. The case of the appellant as seen from the petition filed by him before the Trial Court is briefly stated hereunder;
The petitioner (husband) and the respondent (wife) were married on 14.5,1967 at Sirkazhi. The respondent was very aggressive and at times violent, both with the petitioner and the member of his family, and the attitude of the respondent increased day-by-day causing embarrassment to the petitioner and the members of his family. The petitioner came to know that the respondent had attack of epilepsy and was not of sane mind even at the time of her marriage. The petitioner lived with the respondent inspite of the above said disease and she had given birth to a still born child on 7th November, 1975. Thereafter the life of the petitioner had become hell. The respondent will loose her mental balance and will also run away from the house abusing and threatening the people at the time of such attack. The petitioner was informed that giving birth to a child may cure her disease and therefore, the petitioner managed to live with her. The respondent gave birth to a female child Selvi Deepa on 10th November, 1977. Even after the birth of the female child, the unsound mind or disorderly mind of the respondent did not improve. The respondent had several attack of epilepsy followed by psychomotor effects on 14th April. 1978 and became very violent, aggressive and abusive. The respondent had also attack of fits and also lost her mental equilibrium. The respondent was taken to Dr. Gnanaseelan and he diagnosed the disease as mental disorder due to epileptic attack. She was also given treatment by 11 other eminent doctors. The petitioner has to protect the respondent from destroying herself and destroying the others at the time of attack of fits. In fact the respondent has attempted to commit suicide by taking 20 guardinal tablets, leaving a suicide note in Madras in petitioner's mother's residence since she had a severe attack of epilepsy followed by psychomotor on the night of 14th January, 1982. The respondent was kept at her sister's house at Madras and after discharging her from hospital she was sent alongwith the brother of the petitioner. The petitioner and the respondent resided from 12th January, 1982 to 15th January, 1982 at the residence of his mother in T. Nagar, Madras, It is the further case of the petitioner that he cannot live with the respondent since she is suffering from unrecoverable mental disorder followed by psychomotor from 1978 onwards. The petitioner has been sending a sum of Rs. 150/- per month for the maintenance of the respondent. With these averments, the petitioner prayed for a decree for dissolution of the marriage.
3. The case of the respondent (wife) as seen in the counter is briefly stated hereunder:
From the date of marriage, she was discharging her duties as house-wife by being affectionate with all members of the family of the petitioner. The respondent has denied the allegations that she was antagonistic, aggressive either with the petitioner or with the members of the petitioner's family. The respondent gave birth to a still born child by means of cessarian operation on 7th November, 1975 and again gave birth to a female child on 10th November, 1977. After the birth of Selvi Deepa, the petitioner was transferred to Madras as Lecturer and the respondent alongwith Deepa was living with him for three years in Madras leading a happy normal life. The petitioner had developed his attitude to marry another woman and started ill-treating the respondent. The respondent had fits in April, 1978 after delivering the child Selvi Deepa, and the same was diagnosed by the doctors as due to injury on the head of the respondent which was caused by the beating given by the petitioner. The respondent had not been affected by any mental disorder at any time before her marriage. No doctor had diagnosed her to be unsound mind or having psychomotor effects. The respondent had one attack on 14th January, 1982. She was allowed to stay with her sister at Gopalapuram and thereafter taken to Coimbatore on 22nd January, 1982 and then she was sent to Thirunelveli on 23rd January, 1982 and she is concentrating her studies in Hindi; We life of the petitioner has not become miserable due to the act of the respondent as contended by him. The petitioner is not entitled to ask for the divorce and the petition is not maintainable and the same is liable to be dismissed.
4. The petitioner examined himself as PW 1 and one Dr. Ramani was examined as PW 2. The petitioner has also marked Exhibits Al to A38 in support of his contention. Likewise the respondent (wife) was examined as RW 1 and her father was examined as RW 2. She also marked Exhibits Bl to B16 in support of her defence. Learned VI Assistant City Civil Judge, on the basis of the oral and documentary evidence, after holding that the petitioner has proved his case, allowed the petition and granted decree for divorce.
5. Aggrieved against the decree of divorce, the respondent-wife has filed an appeal in C.M.A. No. 153 of 1987 before the XI Additional Judge, City Civil Court who in turn, after reappraising the whole evidence and in the light of several documents filed by both the sides, disagreed with the conclusion arrived by the Trial Court, allowed the appeal and dismissed the petition filed by the husband. Against the decree of the Appellate Court dismissing his petition for divorce, the unsuccessful husband has filed the present appeal before this Court.
6. I have heard Mr. N.D. Bahaty, learned Counsel appearing for the appellant-husband and Mr. P. Seshadri, learned Counsel appearing for the respondent-wife.
7. For convenience, I refer the husband as petitioner and the wife as respondent in this appeal also.
8. The fact that the petitioner and the respondent were married on 14th May, 1967 as per the Hindu rites as Sirkahzi, is not disputed. The wife had given to a still born child on 7th November, 1975 and there was cessarian operation for her on that occasion. It is also an admitted fact that the wife had given birth to a female child Selvi Deepa on 10th November, 1977. Even according to the wife, she is suffering due to epileptic attack and is undergoing treatment for the same. However, according to the petitioner, his wife should have such ailment from the date of her birth, while it is the case of the respondent-wife that she had such an attack only due to the beating of her husband on her head after giving birth to Selvi Deepa on 14th November, 1977. Exhibit Al is the prescription given by Dr. K. Jaganathan, Professor of Neurology, Madras Medical College dated 1st December, 1979 in connection with the ailment of the appellant. At this juncture it is to be mentioned that the marriage took place on 14th May, 1967. Exhibit A2 is the E.E.G. report taken on 3rd August, 1978 with regard to the ailment of the appellant. Exhibit A3 in the Blood Test report dated 19th December, 1979 of the respondent prepared at T. Nagar Clinical Laboratory, Madras. Exhibit A4 in the letter dated 29th December, 1979 given by Dr. Jeevankumar addressing to Dr. Pranesh, the Neurologist telling the details about the ailment of the respondent-wife. A perusal of above exhibits, more particularly. Exhibit A4 clearly shows that the respondent was suffering due to epilepsy for the past one and half years. Exhibits A5 to All are various medical prescriptions and chits given by respective doctors. Exhibits A12 to A25,27,29,31 and 32 are the letters between the petitioner and the respondent and also the father of the respondent. In view of the controversy involved in this case after hearing the arguments of both the Counsel, I have carefully perused the abovesaid letters which disclose that the respondent is suffering due to her ailment, probably after giving birth to a female child Deepa, and not earlier as contended by the petitioner. The above conclusion is also further strengthened by perusing Exhibits A33 to A38 which are letters, notices, reply notice, etc., between the petitioner and the respondent. There is also no definite and positive evidence on the side of the petitioner to show that the respondent was having such ailment in the year 1977, that is prior to giving birth to female child Selvi Deepa. I also carefully perused the oral evidence of PW 2 Dr. Ramani and the connected prescription and medical chits which show that the respondent is suffering due to psychomotor epilepsy, more particularly, the evidence in this case would show that the respondent was suffering from the said ailment after the birth of the Second female child in the year 1977 though the marriage took place in the year 1967 that is on 14th May, 1967.
9. Now we have to consider whether the said ailment, namely, psychomotor epilepsy can make the respondent of unsound mind continuously in order to attract Section 13(1)(iii) of the Hindu Marriage Act. As rightly observed by the lower Appellate Court the evidence PW 2 who is competent to speak about the ailment has deposed that a person who is suffering due to psychomotor cannot said to be of unsound mind always, but it can be said that such person will be of unsound mind only during the time of attack. Apart from referring the experts evidence, namely PW 2 it is useful to ascertain the exact meaning the ailment, namely psychomotor epilepsy as found in Fishbaing's illustrated Medical and Health Encyclopaedia at page 546 which is extracted hereunder :
"In psychomotor epilepsy the victim experiences a brief clouding of consciousness during which he repeatedly performs some meaningless act, or babbles incomprehensibly. Attempts at physical restraint may provoke aggressiveness. These attacks last a few minutes, and when the person 'comes to his senses' he has no memory of the occurrence."
10. The perusal of expert evidence coupled with the meaning given by the abovesaid author clearly discloses that the said psychomotor epilepsy will give an experience of a brief clouding of consciousness during the time when some meaningless act may be performed by the affected person but it cannot be said that such person was of unsound mind even during such attack which will be only for few minutes during which the attack will exist. As observed and quoted by the lower Appellate Court from the Medical Code Pharmacology and Pharmacotherapentics by R.S. Satoskar and S.D. Bhandarkar that epilepsy should be considered as an illness and not a social stigma and that marriage may be permitted, provided the other partner is not an epileptic and has a normal E.E.G. In those circumstances, it is not safe to come to the conclusion that ailment of psychomotor epilepsy due to which the respondent is suffering can be termed as continuous unsound mind as per the provisions referred above in the Act. A further reading of Section 13(1)(iii) of the Hindu Marriage Act discloses that any marriage solemnised whether before or after the commencement of the abovesaid Act, on a petition presented by either the husband or the wife, can be dissolved by a decree of divorce on the ground that the other party has been of incurable unsound mind or has been suffering continuously or intermittently from mental disorder of such kind and for that the petitioner cannot object to live with the respondent. As stated earlier even though she had such ailment I am of the opinion that considering the oral and documentary evidence available in this case, it is not safe to come to the conclusion that the petitioner-husband had proved his case for divorce as per Section 13(1)(iii) of the Hindu Marriage Act.
11. It is also relevant to mention the various letters written by the petitioner-husband to his wife prior to the filing of the said petition which have been marked as Exhibits Bl to Bll. As rightly pointed out by the lower Appellate Court in some of the correspondence the petitioner himself has admitted that the respondent will be alright in 4 years, if she is given treatment. As stated earlier, some of the letters written by the petitioner which were marked as Exhibits Bl to B10, clearly show the intention of the petitioner that he wants to marry another girl. Exhibit B2 is relevant and the same is extracted below in order to ascertain the truth behind the filing of the present divorce petition.
"I have decided to marry the girl whom I loved. She has also given her consent. Hence I would like to have all relationships out with you. If you want to have this done according to law, well I am prepared to face that. You know that I am living only for her. If you want me to be alive, allow me to go on with my proposal."
May God bless you, and me to have my endeavour successfully finished which is my ultimate aim.
I don't want to have anybody to meet me and negotiate in this matter.
In Exhibit B3 dated 22nd January, 1976 the petitioner has threatened the respondent for not sending consent letter for divorce. Again in Exhibit B5 dated 11 th January, 1976 the petitioner has threatened the respondent for not sending consent letter. In Exhibit B7 dated 28th February, 1978 the petitioner has also threatened the respondent in the following manner :
"....How many times have I to tell you that you are not wanted here. If you come here I will just end my life. That is certain. I want you to understand clearly that I don't want to live with you. I am not afraid of anything. Though I am not going to marry anybody else I am not going to live with you. That is certain."
The above Ex. B7 coupled with the conclusion reached by the petitioner on the ailment of the respondent and the conduct of the petitioner as seen from the above referred letters, I am in entire agreement with the conclusion reached by the lower Appellate Court that the petitioner has not made out a case for divorce under Section 13(1)(iii) of the Hindu Marriage Act. As rightly pointed out by the lower Appellate Court it is the duty of the husband to bear with the circumstances by giving adequate treatment and by showing affection to her. In those circumstances, I am in entire agreement with the conclusion reached by the lower Appellate Court and I am unable to accept any of the arguments advanced by the learned Counsel for the petitioner-husband. Consequently, this appeal is liable to be dismissed.
12. In the result, the appeal is dismissed. However, there will be no order as to costs.