Kerala High Court
Babu P.P vs Beena K.M on 21 March, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 15TH DAY OF MARCH 2017/24TH PHALGUNA, 1938
Mat.Appeal.No. 306 of 2005 ( )
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AGAINST THE ORDER/JUDGMENT IN OP 1037/2002 of FAMILY COURT,ERNAKULAM
DATED 21-03-2005
APPELLANT/PETITIONER IN O.P.NO.1037/2002:
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BABU P.P., AGED 42, S/O.PARAMU,
PULICKAL HOUSE, PATTERIPURAM, ALUVA.
BY ADVS.SRI.V.K.GOPALAKRISHNA PILLAI
SRI.REJI GEORGE
SMT.ANUPAMA JOHNY
RESPONDENT(S)/RESPONDENT:
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BEENA K.M., AGED 36,
D/O.MADHAVAN, REPRESENTED BY NEXT FRIEND AND FATHER
MADHAVAN KANAPILLY, PADI, ELOOR NORTH, UDYOGAMANDAL P.O.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DG
A.M.SHAFFIQUE &
K.RAMAKRISHNAN, JJ.
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Mat.Appeal No.306 of 2005
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Dated this the 15th day of March, 2017
J U D G M E N T
A.M.Shaffique, J.
This appeal is filed by the petitioner in O.P.No.1037 of 2002. The original petition was filed seeking divorce under Section 13 (1) (iii) of the Hindu Marriage Act, 1955 on the ground that the respondent was suffering from mental illness of such a nature that the petitioner was unable to live with her. The short facts in the original petition would disclose that the petitioners marriage was on 18.04.1990 and a female child was born on 14.03.1991. According to the petitioner, after the birth of the child she had shown some signs of mental disorder. She was aggressive and used to attack the petitioner and his mother. Another child was born on 29.03.1996. After the second child was born she had been taken for treatment for the mental disorder. On account of her aggressive nature she attacked the neighbours. She had destroyed the household articles. At last she was taken to Medical College Hospital, Thrissur and treated for mental illness. According to the doctor she is suffering from M.A.No.306/2005 2 schizophrenia, a kind of mental disorder. Petitioner submits that he is unable to live with her. At the time of filing the original petition, she was residing with her parents. Respondent entered appearance and raised objections to the allegations against her. According to her the allegations of mental illness were not correct and she had only some form of tension and the other allegations were baseless. According to her she was forcibly taken to the hospital alleging that she was attacking the petitioner and his mother. According to her petitioner has deserted her and she was not suffering from any mental disorder. Before the Family Court, three witnesses (PW1 to PW3) were examined as petitioner's witnesses and the respondent was examined as RW1. Petitioner relied upon A1 to A3 and X1, X2 are marked as court exhibits.
2. On a consideration of the factual and legal aspects involved in the matter, Family Court found that the petitioner had not proved that the respondent was suffering from mental disorder of such a nature by which he was unable to live with her. Accordingly, that original petition was dismissed.
M.A.No.306/2005 3
3. The learned counsel for the appellant submits that sufficient evidence was available in the case to substantiate that the respondent was suffering from schizophrenia, which is a mental disorder of such a nature that the petitioner was unable to live with her. The petitioner had already lost about 14 years with the respondent and there is no reason why he should continue with the same. It is also contended that the children are with the petitioner and one of the daughters has been given in marriage. It is further submitted that the evidence of PW2 doctor categorically proved the aforesaid facts. The fact of mental illness had been wrongly appreciated by the court below, on a finding that the illness could be controlled by medication.
4. Though notice was served on the respondent, none appeared. The short question to be considered in the appeal is whether the evidence adduced in the case for grant of divorce was sufficient to grant a decree as prayed for the petitioner/appellant. Section 13(1) (iii) along with explanation
(a) and (b) reads as follows:
"Sec.13 (1) (iii): has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such extent that the petitioner M.A.No.306/2005 4 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.
5. In order to claim divorce on the ground of mental illness what is to be proved is that the unsoundness of mind should be incurable or the person suffering continuously or intermittently from mental disorder of such an extent that the petitioner cannot reasonably be expected to live with the respondent. In the explanation what is mental disorder which includes schizophrenia. PW1 is the petitioner himself. He has stated in his evidence regarding the nature of mental disorder and the manner in which the respondent was during their marital life and the fact that she was having a mental disorder which was found out only at a later stage. PW2 is the neighbour who supports the stand taken by the petitioner. PW3 is the doctor who had examined the M.A.No.306/2005 5 respondent at Medical College. In his findings he submitted that he had given Ext.A1 certificate and case sheet was also produced as Ext.X1 and X2. After the referring to the certificate issued by him and case sheet produced it is evident that she was suffering from severe mental illness which amounts to schizophrenia. In the chief examination he further says that, as per the history, every time she discharged constant medication was being prescribed. He further states that if she does not have the disease she can lead a normal life and that she requires constant medication and treatment. During the cross examination he further states that the six years prior treatment history was mentioned by the person who had accompany the respondent. Further he deposes that if the symptoms are arrested she could lead a normal life. He further deposes that he had treated the patient from 22.05.1997 to 28.05.1997, 22.06.1997 to 04.07.1997 and 10.07.2000 to 16.07.2010 as an inpatient. His further deposition would show that the problem had occurred after the delivery which amounts to post partem psychosis and it is not mentioned in the case sheet of the respondent. In his further cross- M.A.No.306/2005 6 examination it is submitted that the schizophrenia is incurable and constant medication is required including constant follow ups. Material evidence produced in the case would show that constant treatment shall given to the respondent. The Family Court did not take into confidence the evidence of PW3 doctor for the reason that he deposed that if constant medication is given she can lead a normal life. On consideration of the factual circumstances involved in the matter it is rather apparent that this is a case where recurring attacks of mental disorder, which is not of a curable nature. Even going by the statute Section 13(1)(iii) clearly indicates that if the mental disorder is not curable and if the petitioner is not in a position to live with her, divorce can be granted. Mental disorder includes schizophrenia also. This is a clear finding of the doctor who had treated the respondent. Even going by the evidence of RW1, she submitted that on a particular day she was immediately irritated and through a stone towards her home. Even according to her she had some problem but that is due to tension.
6. In a case of like nature the court is expected to M.A.No.306/2005 7 look into the medical evidence available on record and unless there is some materials to indicate that the evidence of the Doctor cannot be believed or the opinion is unbelievable in the court is expected to take not of such evidence and take a final decision in the matter.
7. In the case on hand there is clear evidence for the fact that she was suffering and even according to the doctor it is incurable. The fact that it can be controlled by medication is not the the criteria to be looked into while considering such a case. What is to be taken is whether there is recurring attacks of schizophrenia and whether the petitioner is unable to live with the respondent or not. In the case on hand the evidence of PW1 it is stated that he has been suffering all along the last 14 years and at this stage he is unable to live with her and he filed this divorce petition.
8. We are of the view the sufficient evidence is available before the Family Court to grant a decree of divorce on the ground stated in the petition and the Family Court was not justified in dismissing the original petition. Accordingly, this appeal is allowed as under:
Judgment in O.P.No.1037 of 2002 of the Family Court, M.A.No.306/2005 8 Ernakulam is set aside. The decree of divorce in O.P.No.1037 of 2002 is allowed. The decree for desolation of marriage of petitioner and the respondent is passed.
Sd/-
A.M.SHAFFIQUE, JUDGE Sd/-
K.RAMAKRISHNAN, JUDGE TRUE COPY P.A.TO JUDGE DG