Kerala High Court
Joykutty Mathew vs Valsamma Kuruvilla on 17 October, 1989
Equivalent citations: AIR1990KER262, I(1991)DMC479, AIR 1990 KERALA 262, (1989) 2 KER LT 742
JUDGMENT Jagannadha Raju, J.
1. M. F. A. No. 774 of 1987 is an appeal filed by the husband-petitioner against the judgment in O.P. (Div.) No. 13 of 1984 dismissing his Petition for a declaration that the marriage is a nullity and void under the Indian Divorce Act, 1869. The O. P. was filed on 10-11-1984 and was dismissed on 6-7-1987. The main grounds on which the relief is sought are that the wife, Valsamma Kuruvilla, was impotent before the marraige that she was impotent at the time of the marriage which took place on 17-5-1982, and subsequently she continued to be impotent. She refused to have sexual relations with her husband and she showed avowed aversion to sexual life. It is also claimed that she was a lunatic before the marriage, at the time of the marriage and she continued to be so.
2. The O. P. was resisted by the counter petitioner-wife. She denied all the allegations and claimed that the marriage was arranged at the instance of the parents of the husband, who had known her for some years and that the petitioner and herself talked to each other for half an hour and then only consented to marry each other. Subsequently the marriage was celebrated. They lived happily as husband and wife having sexual life as and when anyone of them or either of them desired it. She claims that on the very first night of marriage, the marriage was consummated and that they had sex and that they continued to have sexual life whenever they were together. They went on a pleasure trip visiting various places along with one Kumar, a friend of the petitioner, and his wife, and that they lived a happy married life. During the period from 6-8-1983 to 25-9-1983 they had immense conjugal bliss and during that time she became pregnant and subsequently she delivered a female child prematurely on 17-4-1984. The child died after living for two months and eight days.
3. Considering the elaborate manner in which the Petition and counter are drafted, it would be unnecessary to reproduce the pleadings in elaborate detail in this appeal judgment. The gist of the pleadings given above is sufficient for appreciating the controversies involved in the dispute between the parties.
4. On the basis of the above pleadings, the learned District Judge framed the following points for determination :
"1. Whether counter-petitioner was impotent on the date of marriage and continued to be so on the date of the filing of this Petition?
2. Whether the counter-petitioner was a lunatic on the date of the marriage?
3. Whether the petitioner is entitled to the relief claimed in the Petition?"
After an elaborate consideration of the evidence the court came to the conclusion that the evidence adduced proved that the counter petitioner was not impotent as alleged by the petitioner and that she was not impotent at the time of the marriage or subsequently or at the time of filing the O.P. The court also came to the conclusion that there was no iota of evidence in this case to prove that the counter-petitioner was a lunatic at the time of her marriage and that she continued to be so. She is a normal girl. She never had any signs of lunacy or idiocy. In view of the findings recorded on points 1 and 2 the learned District Judge dismissed the Petition, filed by the husband, under Section 18 of the Indian Divorce Act. Aggrieved by the same M.F.A. No. 774 of 1987 was filed by the husband.
5. M. F. A. No. 752 of 1987 is an appeal filed by the wife against the order in I.A. No. 46 of 1987, a Petition filed for alimony pendente lite, pending O. P. No. 13 of 1984. The Court dismissed the Petition with the remark that the petitioner is not entitled to get any alimony. In the course of the order it was stated that she has got an income of Rs. 879/- per month and she has no dependents, while the husband has to maintain his aged parents. The learned District Judge did not go into the ingredients of Section 36 of the Indian Divorce Act, under which the Petition was filed. It is the claim of the appellant-petitioner (wife) that while she is getting a salary of Rs. 879/- per month, her husband working in National Petroleum Construction Company in Abudhabi is drawing a monthly salary of Rs. 10,000/- and that he is provided free accommodation and free messing. Considering the pecuniary circumstances of the wife alimony at the rate of Rs. 1,000/- per month should be granted and Rs. 5,000/- should be granted towards expenses in the matrimonial litigation. She claims that unless the alimony is granted as prayed for, she would not be able to fight the numerous litigations that have been launched against her by her husband.
6. We shall first deal with M. F. A. No. 774 of 1987, the main appeal filed by the husband against the dismissal of the O. P. On behalf of the appellant learned counsel urged that the evidence produced before the Trial Court clinchingly proved that the wife was a lunatic before the marriage and she was a lunatic at the time of the marriage and suppressing this fact, the petitioner's consent for the marriage was obtained and the marriage was performed. Subsequently also she was treated for lunacy and she continued to be a lunatic. He claims that evidence of PWs 1 to 4 and 6 and Exts. A1 to A10 establish that the respondent was suffering from schizophrenia and it is incurable and hence the marriage should have been dissolved. He further contends that there is ample evidence to show that she is impotent in the sense that she never wanted to have sexual life and she never allowed him to have conjugal relations. Only on one occasion he could manage to have sex with her by putting her under sedation. When she learnt that he had sex with her, she became hysterical and started abusing him. Thus it is established that she is impotent and she continue to be impotent as she has no willingness to have sex with her husband. The third argument urged on behalf of the appellant is to the effect that fraud was played on the appellant and his consent was obtained by suppressing material facts about the mental health and attitudes of the wife.
7. On behalf of the respondent wife, Shri Giri contends that all the allegations of the appellant are not true. There is abundant evidence to show that they had normal sex relations from the date of the marriage to the date of the filing of the O.P. whenever they were together. The fact that they went on a pleasure trip during August, 1983 to September, 1983 is an indication of the fact that they had a happy married life and immense con-jugal bliss. During that time she became pregnant and subsequently she delivered a female child in April, 1984. The very fact that she became pregnant is proof positive of the fact that she is not impotent. She never had any apathy for sex life with her husband. The fact that she conceived and delivered a female child destroys the theory of impotence. She is fertile and fecund and the events have proved that they had normal happy married life and that the marriage was fruitful. Shri Giri submits that the numerous letters exchanged between the spouses clearly demonstrate that they were fond of each other and that the husband was always anxious to be with his wife though he was working in a foreign land. A person who found his wife unresponsive and averse to sex would not have written such letters. The theory of having sex with her by giving her sedation is a myth. Shri Giri further contends that there is absolutely no evidence to show that the wife was a lunatic or that she had mental deficiency. At the most the evidence only establishes that whenever something unhappy or untoward happened she was terribly upset. She being very much emotionally attached to her father was always upset whenever her father became seriously ill. There is absolutely no evidence to show that she was treated for lunacy or schizophrenia. Shri Giri further contends that even if it is assumed for the sake of argument that she had some psychological problem occasionally even then it is not sufficient for Court to dissolve the marriage. Section 19 of the Indian Divorce Act contemplates that it must be positively proved that the wife is a lunatic or idiot at the time of the marriage, There is absolutely no evidence to establish such a plea. He further contends that the plea of fraud raised in the appeal grounds cannot be for the first time, because no such plea was taken in the O.P. It was not the allegation of the petitioner that any fraud was played on him for obtaining his consent for the marriage. His parents were anxious to have this alliance; they made enquires; common relations and friends participated in the pre-marriage negotiations and after the parties to the marriage had a free talk and interview, both of them agreed to marry each other. After marriage, they lived happily whenever the husband was here on leave. The plea of fraud cannot be accepted.
8. The points that arise for determination in this appeal are: (1) whether the respondent-wife was a lunatic or idiot at the time of the marriage; in the alternative, if she had any psychological problem, does it justify granting a decree for nullity of marriage; (2) whether the respondent-wife was impotent at the time of the marriage and whether she continued to be so at the time of institution of the petition under Section 18 of the Indian Divorce Act; and, (3) whether any fraud was played on the petitioner-husband for obtaining his consent for the marriage.
9. Point No. 3: A perusal of the elaborate petition filed by the husband clearly shows that there are only allegations about her impotence and insanity and that there is no allegation about any fraud being played or his being made to agree for the marriage by suppressing any facts from him. He never pleaded fraud as a ground for setting aside the marriage. In fact in paragraph 5 of the O.P. it was specifically alleged that in May, 1982 when he was on leave proposal for the marriage was mooted through common'relations and friends and eventually the marriage was fixed and the marriage was solemnized on 17-5-1982 at the Salem Marthohia Church, Kuriannoor. There is no whisper of any allegation of fraud. In fact the allegations in the counter clearly indicate that the petitioner's parents were very much interested in having the respondent as a daughter-in-law and as the wife of the petitioner and they took the initiative in fixing up the marriage even white the petitioner was in U, A.E. Her father objected to the marriage being fixed without the parties seeing each other and expreesing their consent for the marriage. The evidence now reveals that the petitioner's mother was often seeing the respondent as they used to travel by the same bus, when the respondent was going to the school. She made enquiries from the girl and then the parents of the petitioner took the initiative and fixed the marriage, after petitioner met the respondent and talked with her and then expressed his willingness. The plea of obtaining by fraud has no legs to stand. Such a plea cannot be raised at the appellate stage, when there is no foundation for it in the pleadings. We hold this point against the appellant.
10. Point No. 2: In the O.P. the petitioner gives an elaborate history of the so called efforts made by him to have sexual relations with the respondent and he claims that the wife repulsed his aproaches for conjugal relations. On the other hand, the evidence reveals that they had normal happy married life and they were having sex as and when either of them desired it. The very fact that even according to the petitioner she became pregnant and she delivered a female child is an indication that she is not impotent. She had no physical deformity or infirmity to cohabit. The evidence now reveals that during the period of his long stay on leave from 6-8-1983 to 25-9-1983, the petitioner and the respondent went on a pleasure trip along with the petitioner's friend Kumar and his wife. They visited Bangalore, Madras, Mahaballipuram, and several other places. Ext. B29 photo album and the numerous photographs in it clearly indicate that they had a happy enjoyable married life. If really the girl was averse to married life and sex with the petitioner, we do not think, he would have taken his wife on such a pleasure trip. The contents of the numerous letters which are extracted in the judgment of the trial Court clearly show that they had immense liking for each other and the petitioner expressed his intense desire to be with her and to always see her. Exts. B7 to B25 clearly indicate that she had no aversion against physical intimacy with him and the respondent was having happiness and expectations of an ordinary happy married life, and the petitioner was expressing his happiness and expectations due to his marriage with her. These letters clearly indicate that the spouses were corresponding regularly and they reflect their sincere devotion to each other and longing for each other's company. There is absolutely no material to substantiate the allegation that she was not cooperative to have sexual life.
11. It should also be remembered that the theory of his having sex with her by putting her on sedation by giving her two calmpose tablets appears to be an invention made to explain away the pregnancy of the respondent and the birth of a female child. This theory of his having sex with her against her wishes cannot be believed. The very fact that she conceived and delivered a female child is a positive proof of the fact that she is not impotent and that she is fertile and fecund. We hold on point No. 2 that the appellant failed to establish that the respondent was impotent or that she had aversion to have sexual relations.
12. Point No. 1 : There is some evidence in this case to show that on certain occasions the respondent consulted psychologists and psychiatrists. Pws. 2, 3 and 6, the doctors, who speak about this aspect, never stated that she had serious mental disorder. In fact Exts. A1 to A9 do not give the nature of the illness. They only stated that certain medicines were prescribed. PW 2, Dr. Devadas, clearly stated that he knew the respondent for the last 12 years and he referred her to the Mental Hospital at Trivaridrum because he was informed that she was suffering from schizophrenia. She was perfectly alright be-fore the marriage, at the time of the marriage and subsequently also. Sometimes as a result of phenotheazine drugs schizophrenia like reactions may come and. sometimes temporary mental distress may cause reactive schizophrenia. The witness stated that when the respondent's father was admitted in Velloore Hospital, she was upset and at that time he had to examine her. Similarly she might have had some mental upset after the delivery. At the time of her delivery her father was in the hospital. PW 3, Dr. Easwaran, deposed that a premature delivery may result in psychosis after delivery and the gynaecologist referred the patient to him and at the relevant time her father was admitted in Vellore Hospital and she was very much distressed at that time. He never stated that she was suffering from chronic schizophrenia. He only stated that he treated her for three weeks. PW6 Dr. Santha Kumar speaks about Ext. A2 and his examining the patient-respondent in 1975 December. He clearly stated that the medicines mentioned in Ext. A2 are not medicines which are meant exclusively for schizophernia. They are prescribed fof all types of mental disorders. According to him, schizophrenia is the name for a long number of discords and Escazine may be used for all emotional problems.
13. Numerous witnesses examined on behalf of the respondent clearly deposed that there was absolutely no abnormality for the respondent and that she was a normal girl. CPW1 is a co-teacher. CPW2 is a person who took part in the marriage and attended the marriage. He did not see anything abnormal in the behaviour of the respondent either before the marriage or at the time of the marriage or after the marriage. The respondent as CPW3, gives elaborate evidence and speaks about her having a slight mental upset whenever her father fell ill critically and whenever she was faced with disappointment. She spoke about 1975 events and the events that look place in 1984. Her evidence clearly shows that she is alright and there is nothing wrong with her in 1984. Dr. Prabhakaran as well as Dr. Santha Kumar certified that she was alright. CPW4 is the Headmaster of the school where the respondent was working. CPW5 is a person who was consulted by the parents of both the bride and bridegroom for fixing this alliance. CPW6, a neighbour, speaks about the normal life and behaviour of the respondent. CPW8, the Vicar, who officiated at the marriage, CPW9, the Headmaster and CPW10, the Assistant Educational Officer, clearly certify that she is normal and her work is satisfactory. CPW11, the person who appointed her as a teacher, clearly stated that after interviewing her, being satisfied with her performance, he appointed her.
14. In addition to the voluminous oral evidence, which proves that she is perfectly normal, there is a glaring fact that she had consistently a good academic record and she passed her examination and she was working satisfactorily, as a teacher for the last several years before the marriage and she continued to work as a teacher after the marriage. This evidence destroys the theory of her being a lunatic before the marriage or at the time of the marriage.
15. Assuming for a moment that she had some mental problem or psychological problem, can it be said that the petitioner-appellant is entitled to a decree for nullity. Section 19 of the Divorce Act contemplates that to grant a decree for nullity of marriage either party should be a lunatic or idiot at the time of the marriage. Courts have held that a combined reading of Sections 18 and 19 clearly postulate that the discretion is vested in the Court and the word used in the two Sections is may and not shall. While Section 19 of the Indian Divorce Act contemplates positive proof of the fact that a party should be a lunatic or idiot so as to give a decree for nullity of marriage, Section 13 of the Hindu Marriage Act prescribes a slightly lesser standard. Section 13(1)(iii) reads as follows:
"13(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband of the wife, be dissolved by a decree of divorce on the ground that the other party has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouses: 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."
There is an Explanation added to Clause (iii) which reads as follows:
"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 abnormality aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment."
If we read Section 19 of the Divorce Act in comparison with Section 13 of the Hindu Marriage Act, we find that under the Hindu Marriage Act even lesser mental disorders and mental illnesses are made a ground for divorce, while the Indian Divorce Act insists upon a much stricter standard of a party being a lunatic or idiot at the time of the marriage. This difference in the language of the two statutes contemplates a much more stricter proof and proof of a greater mental disorder than the one which would suffice for obtaining a decree for divorce under the Hindu Marriage Act. Abraham Jacob v, Usha K. Mamrnan, 1984 Ker LJ 593 : (AIR 1985 NOC 217) is a decision by one of us, P. C. Bala-krishna Menon, J. dealing with Section 19(3) of the Indian Divorce Act. His Lordship observed that lunatic or idiot is not defined in the Act, but the definition given to the term 'lunatic' in Section 3(5) of the Indian Lunacy Act, 1912 is adopted by the Indian Divorce Act. Under this definition an idiot is also a lunatic and is of unsound mind. His Lordship dealt with a case where a Marthpmite Christian girl, as in the present case, was found to be mentally deficient and the Court as a matter of fact found that the wife was subnormal in her mental and intellectual faculties and the various answers given by her in cross-examination would indicate that she was not possessed of sufficient capacity of mind to understand the nature of the contract qf marriage and the duties and responsibilities that gave rise to between the parties as husband and wife. On the basis of the fact that she is sub-normal intellectual and that she does not understand the consequences of a marriage and the responsibilities arising out of her marriage, His Lordship granted a decree for nullity of marriage. In Usha Abraham v. Abraham Jacob, (1987) 2 Ker LT 582 : (AIR 1968 Kerala 96) the single Judge decision just now discussed has been reversed by a Division Bench of their Lordships, John Mathew and Balakrishnan, JJ. In paragraph 16 after making reference to some of the utternances made by the appellant in her cross-examination, the Division Bench came to the conclusion that all these answers only indicated that the appellant was slightly feeble minded and only confirms the findings in Ext. X1 report and then observed (at P. 104 of AIR):
"....., feeble mindedness of the appellant is not of such a nature that she was unable to know the nature and consequences of her acts. As stated in the various decisions quoted above, the contract of marriage is a simple one and it does not require a comprehension of high degree to understand its implications.
Marriage is an engagement between man and woman to agree to live together and love one another as husband and wife to the exclusion of all others, and from the evidence adduced in this case it is clear that the appellant knew the object and purpose of marriage when she entered into the marriage. In this case lunacy or idicoy of the appellant is not proved and it is also not proved that the appellant was incapable of understanding the true nature and Consequences of the act when she entered into marriage."
On the facts so found the Division Bench set aside the Judgment of P. C. Balakrishna Menon, J. in Abraham Jacob, v. Usha K. Mamman, 1984 Ker LJ 593 : (AIR 1985 NOC
217). The Division Bench did not accept the liberal view expressed by the learned single Judge.
16. If we Judge the facts of the present case, we find that the respondent in this case stands on a higher footing. She is a girl who had a good academic, record. She passed S.S.L.C. and then underwent teacher's training and then she has been working satifactorily as a teacher for the last several years. To say that she is unable to understand the significance of the marriage and the obligations and responsibilities of the marriage is meaningless. There is absolutely no proof of the fact that she was in any way mentally deficient or of subnormal intellect. The theory of lunacy appears to be an invention of the petitioner for the purpose of securing a decree of nullity of marriage.
17. The appellant's counsel relied upon Tarlochan Singh v. Jit Kaur, AIR 1986 Punj & Har 379, a decision under Section 13 of the Hindu Marriage Act. In that decision the facts narrated in paragraph 3 clearly show that Jit Kaur was insane both before and after the marriage. She was violent, tore her clothes, attempted to kill herself and injure others. He could not control her. The medical evidence also revealed that her condition is an acute condition and that her family had a history of insanity, both her father and eldest sister suffered from mental sickness. The evidence of Dr. Ravinder Mohan Sharma indicated that in 1980 she was administered electric shocks and she was discharged from the hospital on request and not as fully cured. In such a background of facts, the court rightly held as follows :
"....., there can be no escape from the conclusion that the husband cannot reasonably be expected to live with his wife whose mental, state as stands spelt out by the evidence on record must clearly be held to be at least of the state requisite to justify a decree for divorce, if not annulment of the marriage."
On facts this decision is completely dis-
tinguishable. The condition of respondent in the present case cannot be compared to the condition of Jit Kaur.
18. Ram Narain v. Smt. Rameshwari, AIR 1988 SC 2260 is the latest and leading decision of the Supreme Court dealing with schizophrenia as a ground for grant of divorce under the Hindu Marriage Act. After refer-ring to the various judicial authorities and medical text brooks, the court observed in paragraph 10 at page 2264 as follows :
"10. 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. All mental abnormalities are not recognised as ground 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."
19. If we examine the present case in the light of the principle enunciated by the Supreme Court, we find that what the respondent suffered is only a minor psychological problem and there is absolutely no occasion where she was violent or behaved in a manner which caused an aprehension in the minds of the husband that it would be difficult and unsafe for him to live with her. The theory of lunacy is invented for the purpose of securing a decree for nullity of marriage. It should also be remembered that the Indian Divorce Act requires a stronger and much stricter standard than the Hindu Marriage Act for granting a decree for nullity of marriage. For the various reasons given above, we hold Point No. 1 against the appellant.
20. M.F.A. No. 752 of 1987 is an appeal filed by the wife against the dismissal of I. A. No. 46 of 1987 in O.P. (Div.) No. 13 of 1984. The petition was dismissed on 6th July, 1987. Section 36 of the Indian Divorce Act reads as follows :
"36. Alimony pendente life.-- In any suit under this Act whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit.
Such petition shall be served on the husband, and the Court, on being satisfied of the truth of the statement therein contained may make such order on the husband for payment to the wife alimony pending the suit as it may deem just;
Provided that alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be."
Under this Section the wife alone is entitled to present a petition for alimony pendente lite and the proviso to the Section stipulates that alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of order. The language of the Section is very significant in the sense that it does not disentitle the wife who has independent means of income from seeking relief under Section 36. We may contrast Section 36 with Section 24 of the Hindu Marriage Act. Under that Section a wife who has sufficient independent income is disentitled from seeking maintenance pendente lite. There is absolutely no justification for the Court rejecting I.A. No. 46 of 1987.
21. The point that arises for consideration in this appeal is whether the appellant-wife is entitled to maintenance pendente lite and the costs of litigation.
22. Point: It is argued on behalf of the wife by Shri Giri that the husband is receiving a salary of 1200 Dhirhams while he was on shore duty with free board and accommodation, and that he gets a salary of 2340 Dhirhams while he has on off-shore duty. For the purpose of this appeal, even if we take a conservative view and consider the husband being on, on-shore duty for a greater period, under no circumstances he is likely to get less than Rs. 4,000/- per month. Salary certificates have been filed in the Court to certify this fact. It is now on record that the wife receives as a teacher a salary of Rs. 879/- per month. Considering the huge income which the husband is receiving and considering the paltry sum of the salary which the appellant-wife is receiving as a teacher, it is just and proper that alimony pendente lite should be granted and she should also be granted the litigation expenses of Rs. 5,000/-.
23. The next point is the quantum of alimony. Taking his on-shore duty salary as the basis, even if we grant Rs. 500/- per month as alimony pendente lite, it will not be a burden for the husband. It is less than the statutory one-fifth prescribed under Section 36. Considering all the facts of the case we feel that the appellant-wife should be granted alimony pendente lite at the rate of Rs. 500/-per month. She should be granted Rs. 5,000/ -towards litigation expenses, considering the fact that the husband dragged her to Court not only in the matrimonial proceedings, but also in other proceedings which have now commenced.
24. In the result M.F.A. No. 774 of 1987 is dismissed with costs. The judgment of the trial Court is hereby confirmed.
25. M.F.A. No. 752 of 1987 is allowed. The order of the trial Court dated 6-7-1987 in I.A. No. 46 of 1987 is hereby reversed. I.A. No. 46 of 1987 stands allowed. The petitioner-wife is entitled to maintenance pendente lite at the rate of Rs. 500/- per month for the period from 10-11-1984 to 6-7-1987, the period of pendency of O.P. in the trial Court (32 months). She is also entitled to maintenance pendente lite during the pendency of the appeal, M.F.A. No. 774 of 1987 for the period from 22-10-1987 to 17-10-1989, that is for a period of 24 months at the same rate. Thus she will be entitled to Rs. 28,000/- towards alimony pendente lite. She is further entitled to Rs. 5,000/- towards litigation expenses. The respondent-husband is granted four months' time to pay the amount. In case he fails to deposit the amount in the lower Court within four months from today, the appellate-wife will be entitled to execute the decree and realise the amount with subsequent interest at 9% per annum from today, that is 17-10-1989. Each party shall bear its own costs in this appeal.