Kerala High Court
Benny Mathew vs Philomina on 13 December, 2000
Equivalent citations: I(2002)DMC541
JUDGMENT K.A. Mohammed Shafi, J.
1. This O.P. is filed by a Christian husband to declare his marriage with the respondent is a nullity under S. 19 of the Indian Divorce Act.
2. The petitioner marrried the respondent on 8.2.1987, in accordance with Christian rites and ceremonies. It was an arranged marriage. After marriage, they lived together in the house of the petitioner for 3 days and thereafter in the house of the respondent for 3 days. Subsequently, they went to Indore. The petitioner has contended that after 4 weeks of living in Indore, the respondent showed signs of mental illnesss and therefore she was taken to a Homoeo Doctor at Indore who said that she may be suffering from home sickness. The parents of the petitioner was informed and her father, mother and sister went to Indore and gave some medicines to the respondent. When the condition of the respondent was improved, the father and sister returned first. Subsequently the mother also returned. Again she became ill. As she insisted that she should be taken back home, the petitioner took the respondent to the native place in train. While travelling in train, the respondent informed the petitioner about her mental illness and treatment by Dr. Ramachandran, Thiruvananthapuram much prior to her marriage with the petitioner. The petitioner contended that after reaching the native place, it was confirmed by consulting the doctors that the respondent was suffering from mental illness and she was undergoing continuous treatment for the illness before and at the time of marriage. According to the petitioner, the respondent and her relations played deliberate fraud upon him in not disclosing the mental illness of the respondent to him before the marriage. Therefore, he contended that his consent for the marriage was obtained by the respondent and her relations by playing deliberate fraud upon him. He also contended that in case he was informed of the mental illness of the respondent he would not have consented for the marriage. Therefore, he sought for a declaration of his marriage with the respondent as nullity under S.19(3) and proviso to S. 19 of the Indian Divorce Act on the ground that the respondent is insane and his consent for the marriage was obtained by playing deliberate fraud upon him.
3. The respondent has contended that she is hot suffering from any mental illness and she has suffered a mild mental depression, when she did not succeed in getting an employment after her graduation. Hence for that she has consumed very small dose of medicines. According to her, she was completely cured of the illness thereafter. But when she went to Indore along with the petitioner after marriage, as she was far away from her native place, various difficulties arose. According to her, the climate and food habits were changed. There was no servant to assist her. She was in the early stage of pregnancy. Her parents and relations were far away. Nobody in Indore knew her language and therefore she had to suffer some mental anxiety. She further contended that the petitioner without taking her to the Phychiatrist and Gynaecologist, took her to the Homoeo Doctor who said that she may be suffering from home sickness. She further contended that she is not suffering from any mental illness and there was no mental illness before or at the time of marriage, so as to enable the petitioner to claim nullity of marriage under S. 19(3) of the Indian Divorce Act. She has also contended that absolutely no fraud is played by her or her relations in obtaining the consent of the petitioner for the marriage and therefore the petitioner is not entitled to claim a decree for nullity of marriage on the ground of playing fraud in obtaining his consent under the proviso to S. 19 of the Indian Divorce Act.
4. PW's 1 to 6 were examined and Exts. A1 to A7 were marked for the petitioner. RW's 1 and 2 were examined for the respondent.
5. In order to obtain a decree of nullity of marriage under S. 19(3) of the Indian Divorce Act, either party should be a lunatic or idiot at the time of the marriage. Slight mental illness or mental disorder is insufficient to obtain a decree of nullity of marriage under S. 19(3) of the Indian Divorce Act. The mental condition should be such that it cannot be reasonably expected to live together as husband and wife. In the decision reported in Abraham Jacob v. Usha K. Mammen (1984 KLJ 593), this Court held that if the Court is satisfied on the evidence on record that one of the spouses was not at the time of marriage possessed of sufficient capacity of mind to understand the nature of the contract of marriage and the duties and responsibilities which gave rise to between the parties as husband and wife, then the marriage may be annulled on the ground that one of the spouses was not of sound mind.
6. In the decision reported in Usha v. Abraham Jacob (1987 (2) KLT 582) a Division Bench of this Court observed as follows:
"The marriage is a civil contract as well as a religious sacrament. The voluntary consent of both parties is necessary for a valid marriage. The contract of marriage is simple and it does not require high decree of intelligence to comprehend. The test is whether a person in question was capable of understanding the nature of the contract or whether his menial condition was such that he was incapable of understanding it. In order to ascertain the nature of the contract of marriage, a man must be mentally capable of appreciating that it involves responsibilities normally attaching to marriage. The parties of marriage must be able to comprehend the significance of the promise and vows that flow from such transaction. There is a strong presumption that such consent has been given. The burden of proof on party attempting to impeach a marriage on the ground of want of consent is heavier than in the case of impeaching acommercial contract. The petitioner must show that because of the mental disorder, the other spouse was unable to know the nature and consequence of his or her acts. A mere weakness of intellect, mild mental retardation or physchic inability will not justify an annulment of marriage".
7. In the decision reported in Ram Narain Gupta v. Smt. Rameshwari Gupta (AIR 1988 Supreme Court 2260), the Supreme Court considered the question of divorce in the ground of unsoundness of mind under S. 18(1)(3) of Hindu Marriage Act and observed as follows:
"The context in which the ideas of unsoundness of '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 as that the spouse seeking relief cannot reasonably be expected to live with the other. Ali mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify the dissolution of a marriage few marriages would indeed, survive in law".
8. In this case the evidence regarding mental illness of the respondent adduced through PW1, PW4 and PW5 only go to show that the respondent was suffering from mild mental illness from the year 1993 onwards. PW5, the psychiatrist who treated the respondent and issued Ext. A2 series prescriptions prescribing medicines to the respondent purchased as per Ext. A3(a) & Ext. A3(b) Bills has deposed that he was prescribing medicines for psychotic ailments. In Cross Examination, he has deposed that he was prescribing only Tracin from 16.3.1994 and the last prescription shown to him was dt. 19.12.1995. He has further deposed that the respondent was taking only small maintenance doze of medicines. He has also deposed that he has not advised the respondent not to marry. The evidence on record only go to show that the respondent was suffering from only a mild form of mental illness and the doctor has prescribed only a small maintenance doze of medicines from 1994 onwards.
9. There is absolutely no evidence on record to establish that the respondent was suffering from any such virulent form of mental illness at the time of marriage. PW1 has deposed that before the marriage, his father and mother had met her. He has also deposed that he has also talked to the respondent before marriage. He has further deposed that either during the betrothal or at the time of marriage or during the period the petitioner and respondent lived together in the native village after marriage, nobody has found the respondent suffering from or suspected any symptom of mental illness in her. He as also deposed that till 4 weeks after he reached Indore along with the respondent, there was no such mental problem. PW3 the father of the petitioner has also deposed that he has seen the respondent before marriage but it do not occur to him that he was suffering from any mental illness. The evidence of PW's 1 and 3 also establish that the petitioner was not suffering from any sort of mental illness entitling the petitioner for decree of nullity of marriage with the respondent under S. 19(3) of the Indian Divorce Act.
10. Therefore, the claim for decree of nullity of marriage with the respondent on the ground that the respondent was a lunatic at the time of marriage under S. 19(3) of the Indian Divorce Act has to be rejected.
11. The petitioner has contended that he was not informed by the respondent and her relations that she was suffering from mental illness, he would not have consented for the marriage. Therefore, he claims for declaration that the marriage between the petitioner and the respondent is null and void under the proviso to S. 19 of the Indian Divorce Act for obtaining his consent for the marriage by playing deliberate fraud upon him. It has been held that concealment of vasectomy operation from the wife is concealment of a material fact in obtaining consent of the wife for the marriage by playing deliberate fraud. It is also held that non-disclosure of the insanity of self or the father and brother of one of the parties to the marriage will amount to fraud in obtaining consent for marriage. Non-disclosure of a fact which is fundamental and material to the marriage to the other spouse will amount to playing fraud in obtaining consent for the marriage. But non-disclosure of some fact, which will not affect the marital life of the parties cannot be considered as fraud within the ambit of fraud under the proviso to S. 19 of the Indian Divorce Act.
12. In this case, it is clear from what is stated above that the respondent was suffering from slight mental illness before the marriage. Neither the petitioner nor his relations suspected that the respondent was suffering from any mental illness either at the time of marriage or after marriage. The Doctor who treated the respondent has also deposed that he was giving only very small maintenance doze of medicines to the respondent after 1994. He has also deposed that he did not advise the respondent not to marry. Under such circumstances, it cannot be contended that the failure of the respondent and her relations to disclose to the petitioner that she suffered slight mental illness before marriage is fraud coming under the proviso to S. 19 of the Indian Divorce Act. in the decision reported in Abraham v. Usha K. Mammen (1984 KLJ 593), this Court also held that eventhough the parents of the respondents were aware of the mental and intellectual deficiency of their daughter, it may well be that they had a hope that her condition will improve after some time especially after marriage and they cannot be held guilty of active concealment and it cannot also be said that they owed a duty to tell the prospective bride groom that the girl proposed for marriage to him is deficient in mental and intellectual capacity. In this case as it is clear that the respondent had suffered from mental abrasion before the marriage and it was cured at the time of marriage. It cannot be said that there was any active concealment on the part of the respondent and her parents in non-disclosure of the fact to the petitioner before the marriage amounting to fraud in obtaining his consent for the marriage. Therefore, it is clear that the contention of the petitioner that the respondent and her relations deliberately concealed the fact that the respondent was suffering from mental illness before the marriage and obtained his consent for the marriage by playing deliberate fraud upon him is not sustainable since the evidence on record does not reveal that there was active concealment of any material or fundamental facts regarding the married life between the petitioner and the respondent in this case. Therefore, the petitioner is not entitled to a decree of nullity of his marriage with the respondent under proviso to S. 19 of the Indian Divorce Act.
It is clear from what is stated above that the petitioner is not entitled to any relief in this Original Petition. Hence this Original Petition is dismissed.