Punjab-Haryana High Court
Madhu Ranjan vs Shruti Sharma on 16 January, 2015
Author: S.S. Saron
Bench: S.S. Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.M-91 of 2004 (O&M)
Date of Decision: 16.01.2015
Madhu Ranjan ..... Appellant
Versus
Smt. Shruti Sharma ..... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MS. JUSTICE NAVITA SINGH
Present: Mr. M. L. Sarin, Senior Advocate with
Ms. Ankita Sambyal, Advocate for the appellant.
Mr. R. C. Setia, Senior Advocate with
Mr. Vishal Ranjan, Advocate for the respondent.
S.S. SARON, J.
The appeal has been filed by the appellant-husband Madhu Ranjan against the judgment and decree dated 19.02.2004 passed by the learned Additional District Judge, Jagadhari whereby his petition seeking dissolution of the marriage between the parties by a decree of divorce has been dismissed.
The marriage between the parties was solemnized at Yamuna Nagar on 19.04.1998 according to Hindu rites and ceremonies. After marriage the parties lived at Karnal. The marriage was consummated. It is stated to be a simple marriage. From the marriage the parties had a son who was born on 09.06.1999. He is residing with the respondent-wife. According to the appellant, he is a young person and working as Deputy Manager in Maruti Udyog Ltd., Gurgaon. He is a simple AMIT KAUNDAL man and the marriage between the parties was also solemnized 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -2- in very simple manner. After marriage the parties resided at Karnal and the marriage was consummated. Both it is stated are young and handsome. They were very happy. The appellant loved his wife very dearly. His parents also had great love and affection for the respondent. It is alleged that the appellant had on 21.04.1998 gone to the market at Karnal with his wife (respondent). In the market, the respondent complained that she was not feeling well and wanted to take rest. Therefore, they suddenly returned home. On returning home, the respondent, it is alleged, started behaving in an abnormal manner by taking deep breaths; besides, running in and out of the house for almost two hours. The appellant and his family members were worried and they called a doctor. The respondent, however, after about two hours became normal. During the same night, the parents of the respondent were informed about the incident. They came on the next morning and informed that there was nothing wrong with the respondent and that it was merely on account of change of environment. They represented that every thing would settle down after some time. After meeting them, they returned back. The parties planned to go to Shimla for their honeymoon on 24.04.1998. They took a bus from Karnal to Chandigarh. From Chandigarh, they were to catch a bus for Shimla. During journey in the bus, the respondent, it is alleged all of a sudden started laughing and then weeping. She stood up from her seat and made strange gestures creating a highly awkward and unbearable AMIT KAUNDAL situation, which was very bad. The parties reached Chandigarh 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -3- and got down from the bus then instead of proceeding to Shimla, the appellant took her to his friends house namely Harpreet Singh at Mohali where he was residing with his wife Mrs. Neetu. There also the respondent behaved in an abnormal manner. Compelled by the circumstances that had occurred, the parties had to return to Karnal the same night by cancelling their programme for Shimla. The parents of the respondent were again called and they came on the following morning. They again represented that there was nothing wrong with their daughter and it was only due to changed environment. The father of the respondent stated that the respondent had never gone out of the house so she was nervous in their presence. Dr. J. C. Bhatla, a Psychiatrist of Karnal was consulted who advised some counselling and medicines. The parents of the respondent, however, stated that there was no need to consult a doctor or give counselling or medicines. The appellant was employed as Deputy Manager in Maruti Udhyog Ltd. at Gurgaon. The parents of the respondent emphasised that the respondent be taken with him to Gurgaon. Therefore, in the first week of May, 1998, he took her to Gurgaon where they resided at House No.155, Sector-7, Gurgaon. There also the respondent had occasional fits. She would often run from the house at odd hours and the appellant used to bring her back. She locked herself in the store of the house in the evening on 16.05.1998. She was taken out after 1½ hours with the help of their neighbours who were AMIT KAUNDAL called. Thereafter the respondent fought with the appellant and 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -4- tore his shirt and cried for entire night without any reason on 26.05.1998. In the morning she begged pardon for her abnormal behaviour. The parents of the respondent were informed regularly. Initially they were cooperative. However, as things were getting out of control, so the appellant requested for consulting a doctor. This was refused with anger by her parents and they forbade him from going to a doctor. It was with great difficulty that doctors were consulted who advised that such a patient can recover after birth of a child. The respondent was kept under the consultation of Dr.Shobha Nar of Gurgaon and with her treatment the respondent showed some improvement and the appellant felt satisfied. During this period the parents of the respondent cooperated with the appellant and this was the reason that things continued keeping against hope that the respondent would recover. Parents of both sides were very nice and extended cooperation, love and affection in all respects. The parents of the respondent suggested that the younger sister of Shruti (respondent) namely Stuti be married with the younger brother of the appellant namely Neeraj saying that this would go a long way in helping the respondent with her ailment and psychology. The said suggestion was agreed by all. The marriage between Neeraj, the younger brother of the appellant and Stuti, younger sister of the respondent, was solemnized on 19.02.1999. Everyone at home was happy with the marriage.
The appellant had to go to Japan on an assignment AMIT KAUNDAL from the company from April, 1999 to August, 1999. The 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -5- respondent was six months' pregnant at that time. While in Japan, the appellant was constantly in touch with the respondent on telephone; besides, letters were also exchanged. During this time, the respondent shuttled between Karnal and Yamuna Nagar. While she was at Karnal, the appellant's parents had to face a rough and tough time because the respondent had fits. The respondent had an abnormal behaviour from 09.06.1999 to June, 2000 as she had fits on a number of occasions which were manageable. The appellant had to shift his residence to Flat No.31, Park View Appartment, Sector 15, Phase-II, Gurgaon on 01.05.2000. Hardly a month had passed, the health of the respondent deteriorated. She again started running out of the house during nights. She even threw the child of the parties mercilessly on the floor without knowing its consequences. The child wept uncontrollably and it became a difficult situation. The parents of the respondent were called and all that had happened was shown to them. They were requested to get consultation from a senior psychiatrist but they did not agree and refused to cooperate. The condition of the respondent was deteriorating day by day but the respondent's parents went away and the appellant was in a great fix as the respondent was not cooperative. The parties were going in their car in the evening on 28.10.2000. The respondent opened the window of the car and was about to jump out of the car in a fit along with the child. The tragedy was avoided by the appellant in a very skilled manner. AMIT KAUNDAL The appellant went to meet his uncle (Satish Chander Sharma) 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -6- at Kurukshetra University sometime in the second week of November,2000. While retuning back at about 7.00 P.M, the respondent asked the appellant to stop the car at the University gate. The respondent came out of the car and created an ugly situation. She started weeping and abusing and a crowd gathered. The appellant on this called his uncle who came running there and took them to his house. The respondent was again managed to be shown to Dr. J.C. Bhatla at Karnal on 15.11.2000 who referred her to be taken to P.G.I. at Chandigarh or AIMS at Delhi. The respondent, however, did not cooperate and refused to be consulted by any doctor and take any medicine. The parents of the respondent were called and they came very late at night on 15.11.2000. They held out threats to the appellant and his parents of dire consequences. They said that they would themselves get the respondent consulted from Dr. Kesho Ram of Yamuna Nagar who was M. D. in Psychiatry. They also disclosed that the respondent was under his treatement before marriage. The parents were also asked as to why they concealed this fact from them at the time of marriage but they kept silent. The respondent remained at Yamuna Nagar till March, 2001. During this period, the appellant visited her at Yamuna Nagar several times. He requested them that she be got consulted at PGI, Chandigarh for treatment. However, whenever the question of treatment arose, they become furious. The father of the respondent also started using unparliamentary language AMIT KAUNDAL and threatened the appellant with dire consequences. The 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -7- mother and aunt of the respondent took her to Pune in the end of March,2001 where Neeraj, younger brother of the appellant, was staying with Stuti. They left the respondent there. The appellant and his parents brought the respondents back to Gurgaon on 7/8th May, 2001. The respondent then become very serious and her behaviour was not controllable. Dr. Rajesh Kumar Nagpal, M.D., PGI at Delhi was consulted. He checked the respondent and she was found to be suffering from paranoid schizophrenia and informed that she could behave quite unpredictable. He prescribed medicines for her but the respondent refused to take any medicine without the permission of her parents. The said fact was again brought to the notice of the parents of the respondent and the appellant also called sister of the respondent namely Stuti and Neeraj from Pune who came in the morning of 03.06.2001. The respondent on the same evening on 03.06.2001 brought a knife from the kitchen and was about to stab the child. She was checked with force and then she ran out of the house and threatened that she would kill everybody. The things were highly out of control and the situation was panicky. The appellant called the parents and brother of the respondent. The father and Shri Anirudh brother of the respondent came in the morning on 04.06.2001. Both of them saw that the situation was beyond control. They took the respondent to Yamuna Nagar and promised that she would be got admitted in a proper hospital at Yamuna Nagar or at PGI, AMIT KAUNDAL Chandigarh. The respondent was residing at Yamuna Nagar since 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -8- 04.06.2001. The appellant went twice to know about her welfare and further asked for her treatment but the appellant was illtreated and was not allowed to meet her. The said facts it is stated amount to cruelty, mental and physical which has not been condoned by the appellant. The factum of disease which the respondent had not disclosed at the time of marriage. Neither the respondent nor her parents disclosed that the respondent was suffering from mental disorder before marriage. Things had been tactfully and fraudulently concealed. A resume of the facts submitted it is mentioned clearly establishes that the respondent had been suffering intermittently from mental disorder of such a kind and to such an extent that the appellant could not reasonably be expected to live with her. The disability of mind of the respondent was of such a nature which results in abnormally aggressive or seriously irresponsible conduct on her part. It is submitted that the mental disorder had completely arrested the development of her mind and she suffers from inability to manage her affairs. The things had reached to such an extent that the appellant could not safely live with the respondent and he had apprehension in her company. The fact that the respondent was suffering from mental illness had been concealed and was kept as a top secret at the time of marriage. The respondent was suffering from the disease before her marriage and this information was wilfully suppressed and had it been disclosed, the appellant would not have married her. The AMIT KAUNDAL consent of the appellant had been obtained by fraud and 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -9- misrepresentation.
In the circumstances, matrimonial relief of divorce is claimed by the appellant on the ground that the respondent has been incurably of unsound mind and has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the appellant could not reasonably be expected to live with the respondent.
On notice respondent appeared and filed her written statement. The fact of the marriage between the parties and they having a child were admitted. It is stated that the parties are educated. It is denied that the marriage was solemnized in a simple manner or that no dowry was given in the marriage. Rather a sum of Rs.8.00 lacs was spent on the marriage by the parents of the respondent. Even thereafter cash and other articles were given many times; besides, on the demand of the appellant and his near relatives a Maruti 800 car was given to the appellant though it was purchased in the name of the appellant. The amount, however, was spent by the parents of the respondent by way of demand draft and some through cash. It is admitted that the appellant is a young person and working as Deputy Manager in Maruti Udhyog Limited, Gurgaon. It is, however, denied that he is a simple man. Rather he had all bad habits. It is stated as incorrect that the appellant is a simple man. In fact he had all bad habits which have been detailed in the additional pleas taken by the respondent. After marriage the AMIT KAUNDAL parties resided at Gurgaon and the marriage was consummated. 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -10- It is stated that the parties are young and handsome couple and they lived happily till the marriage of Stuti Sharma, younger sister of the respondent, who was married with the younger brother of the appellant on 19.2.1999. Thereafter their relations became strained. The allegations of the respondent's intemperate behaviour as alleged, it is stated are cock and bull story. It is denied that the respondent complained that she was unwell on 21.04.1998 nor they went to the market as alleged. It is stated as incorrect to suggest that the respondent had taken deep and long breaths in an abnormal manner and started running. It is also denied that during the night the respondent's parents were informed who came on the following day at Karnal. No such incident ever occurred as alleged. It is stated as incorrect to suggest that the appellant ever planned to go to Shimla on a honeymoon. Rather when the respondent asked him as to when they would go for a trip then he informed that when he gets his leave travel concession (LTC) from his company, then they would go for a honeymoon. The respondent in a good faith thought that the appellant might have planned to go on a honeymoon on availing leave travel concession. Therefore, she never pressed him or even dared to press him because it was too early due to a new marriage. The date '24.04.1998' alleged by the appellant, it is stated, is a false creation of mind only to fit the case in four corners of law. It is denied that the respondent ever travelled with the appellant to Chandigarh or Mohali in a AMIT KAUNDAL Bus. The respondent even did not know Harpreet Singh and his 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -11- wife Neeta. It seemed that these names had been inserted intentionally and deliberately to create evidence. Since the respondent never visited Chandigarh or Mohali in the company of the appellant, therefore, the question of seeing the house of the appellant's friend did not arise. It is stated what to talk of abnormality and similarly the question of returning back to Karnal without honeymoon trip is denied. It is stated as incorrect to suggest that she was immediately taken to Dr. J.C. Bathla nor the appellant ever went to any Psychiatrist because there was no problem of any kind whatsoever with her. The respondent, it is stated, is well educated and B.A. (Hons) In English and M.A. English. Before marriage she was working as an English Lecturer at Aggarsain College, Jagadhri and DAV Girls College, Yamuna Nagar and her student career was throughout brilliant. Her results were meritorious and her students even gave good results. Had the respondent been a patient of Schizophrenia and a patient of psychopathic disorder, then certainly she could not have taken complete education; besides, she would not have served the best Institutions of Yamuna Nagar as Lecturer. There would have been some complaints and abstentions during her career. This according to the respondent shows the mala fide intention of the appellant to create a false evidence to put pressure on her and her family members to get a divorce through the back door, which is impermissible in law. The respondent, it is stated, never got any fit of any kind whatsoever throughout AMIT KAUNDAL her life what to talk of occasional fits as alleged. It is stated that 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -12- the respondent resided in the company of the appellant at Gurgaon but it is emphatically denied that she had ever ran from the house at odd hours. If a patient was of psychopathic disorder, then he/she could not know what is odd hours and what is exact hours and she or he would act at any hour and not particularly at odd hours. It is stated as incorrect to suggest that she had ever shut herself in a store on 16.05.1998 as alleged. It is also stated as incorrect that on 26.05.1998, she ever fought or tore away the shirt of the appellant as alleged or that she ever created a fuss or any abnormal behaviour as alleged. Therefore, the question of informing the parents of the respondent did not at all arise. Had this been the situation then certainly a Panchayat/ Biradari would have been convened either by the appellant or by the respondent, which was not so in the case. It is also stated as incorrect that she was ever taken to Dr. Shobha Nar for mental disorder. Rather she visited her i.e. lady doctor Shobha Nar due to her daily routine check up of pregnancy. The parents of the appellant never cooperated with the respondent and her parents. It is stated as correct that the respondent's parents put forth the suggestion that Stuti, real younger sister of the respondent, be married with Neeraj, younger brother of the appellant. This was not on account of intention of any treatment of the respondent because there was no necessity for such a treatment as the respondent has been hale and hearty. It was rather in the hope that the family was tolerable and Neeraj was in service and the AMIT KAUNDAL couple would live happily, like the couple of the respondent. It is 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -13- stated that though there were some demands of dowry, these were ignored. It is stated that had the respondent been a patient of mental disorder as alleged then no prudent man and family would take the risk of marriage of their son with the sister of such a patient because some times this disease may be hereditary and may be present or would come in Stuti also. This showed that till the marriage of Stuti, younger sister of the respondent, with the younger brother of the appellant everything was alright and there was nothing abnormal. It is admitted that from April 1999 to August 1999 the appellant was at Japan. The respondent was pregnant and both were in constant touch with each other and letters were also exchanged between them. Had the respondent been a patient of mental disorder then certainly there would have been recitals of the disease in these letters also. It is submitted that the appellant shifted his residence in Gurgaon due to expiry of the lease period of two years. It is emphatically denied that the respondent ever threw the child mercilessly on the floor as alleged. Rather till date the respondent was keeping her child with her with all love and care and the appellant had never bothered to see or care for his child. Had the respondent not been looking after the child properly, then certainly the appellant would have filed a petition for taking custody of the child as well. It is stated as incorrect to suggest that the parents of the respondent ever asked the appellant to consult any doctor regarding the mental disorder and neither did AMIT KAUNDAL such a question arise as the respondent was not having any such 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -14- problem of mental disorder as alleged. It is stated as totally incorrect that the respondent ever opened the window of the car and tried to jump from the running car along with the child on 28.10.2000. It seemed that this fact had been mentioned in a manipulated manner to show that the respondent was a mental case. The story of Kurukshetra is also denied as incorrect. However it is stated as correct that an uncle of the appellant was residing at Kurukshetra and he had inquired regarding the academic qualification of the respondent from Kurukshetra University, Kurukshetra before marriage. It is stated as incorrect that the parents of the respondent threatened the appellant and his family members of dire consequences. Had it been so, then certainly the respondent and her parents would have initiated litigation against the appellant but the respondent and her parents kept on waiting that good senses might prevail on the appellant. It is stated as incorrect to suggest that the parents of the respondent ever informed the appellant that the respondent was ill before the marriage. It is also stated as incorrect that the parents of the respondent took the respondent back to Yamuna Nagar for the purpose of treatment in March 2001. The respondent, however, went to Pune on a pleasure trip to see her younger sister and bother in law and not due to any other reason. It is stated as incorrect that she was given treatment from Dr. Rajesh K. Nagpal at Delhi. It seemed that the appellant got some manipulation of the ingredients of Section 13 of Hindu AMIT KAUNDAL Marriage Act to prove his case by playing foul play. The 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -15- respondent had travelled from Yamuna Nagar to Pune in a train and then back from Pune to Delhi also by train and had she been mental then certainly she could not travel by train properly. This showed the mala fide of' the appellant. It is stated as incorrect that any incident of trying to stab the child ever happened on 03.06.2001. It is stated that it is the appellant who had deserted the respondent without any sufficient cause. He had snatched away all her 'streedhana', gifts and dowry articles and left the respondent and her minor child at Yamuna Nagar at God's mercy. It is stated as incorrect that the respondent was brought to Yamuna Nagar by her father and brother Anirudh. In the additional pleas, it is stated by the respondent that the actual facts were that the marriage between the parties was solemnized at Yamuna Nagar according to Hindu rites and ceremonies on 19.04.1998. The marriage was solemnized in a befitting manner and a sum of Rs.8.00 lacs was spent by her parents because the appellant was B.Tech (Mechanical) and was permanently employed in Maruti Udhyog, Gurgaon. The parties lived happily till 19.02.1999 and even some more time. During this period the appellant and his parents and near relatives raised some demands, which were fulfilled by the respondent and her parents. A Maruti 800 car was also given to the appellant and it was got registered in his name. The amount, however, was given by the respondent's father some by way of demand draft and some through cash. Seeing the attitude of the appellant and the AMIT KAUNDAL service prospects of his younger brother namely Neeraj, the 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -16- respondent's father thought it better to settle the younger sister of the respondent with the younger brother of the appellant. The marriage between them was also solemnized in a very befitting manner by ignoring some demands of dowry of the appellant and his family members taking into consideration that it was a common practice. Had the respondent been a patient of mental disorder, it is stated, then certainly the appellant and his family members would not have engaged Neeraj with the younger sister of the respondent namely Stuti because no prudent man would take such a high risk. This according to the respondent showed that the appellant had manipulated the things according to his wishes. It is stated that the true facts were that the appellant and his father daily consumed alcohol and whenever the respondent asked the appellant not to take alcohol at home because they are Brahmins and in their Sanskriti, the same was not allowed, then the appellant would give a severe beating to the respondent and this had happened many a times. On one occasion due to criminal attitude of the appellant and the beating, the respondent had a miscarriage on 31.10.2001. This though was a criminal offence under Section 314 of the Indian Penal Code but the respondent never felt that the appellant would leave the respondent at the mercy of God. Not only this, it is alleged, that the appellant started bringing his girl friend at the house and clearly informed the respondent that he could not leave her company. The respondent asked the appellant a AMIT KAUNDAL number of times regarding the whereabouts of the girl so that 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -17- she may go to her house and ask her not to ruin her life. Instead of giving her address, the appellant started creating mental and physical torture for the respondent. He last left her at Yamuna Nagar on 04.06.2001. Thereafter, he had manipulated the false story of mental disorder and as such the appellant could not take benefit of his own wrong. The respondent and her parents even after 04.06.2001 tried their level best to tackle the situation and asked the family members to keep the respondent with him at his place of posting but he flatly refused to keep her. He asked the father of the respondent that he would get a divorce soon and marry another girl. Thereafter he filed the present false and frivolous petition for taking divorce which was impermissible in law.
On the pleading of the parties, the learned Additional District Judge framed the following issues:-
"1. Whether the respondent is suffering from mental disorder of such a kind and to such an extent that the petitioner (now appellant) cannot reasonably be expected to live with the respondent? OPP
2. Relief."
In order to establish his case, the appellant examined himself as PW-1; besides, he examined his father Shri Harish Chander Sharma as PW-2. He also examined his uncle Satish Chander Sharma as PW-3; besides, he examined Dr. Renu Bhatia from Delhi as PW-4. The appellant and his father deposed on the AMIT KAUNDAL lines as taken in the petition. Satish Chander Sharma (PW-3) 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -18- deposed regarding the incident that had occurred at Kurukshetra.
Dr. Renu Bhatia (PW-4) tendered her affidavit in evidence in which it is deposed that she is M.Phill and consulting clinical Psychologist with 14 years of experience as Consulting Clinical Psychologist. She had been working with Dr. Rajesh Kumar Nagpal MD (PGI) who was a Consultant Neuro Psychologist and Psychotherapist. Dr. Rajesh Kumar Nagpal and she herself were practicing at Delhi. She had personally examined Mrs. Shruti Sharma i.e. the respondent on 22.05.2001. She was referred to her by Dr. Rajesh Kumar Nagpal, MD vide prescription slip dated 21.05.2001. She had worked with Dr. R. K. Nagpal and was conversent with his handwriting. The original prescription slip had been seen by her which was Ex.P-1. She had personally and thoroughly examined the patient Mrs. Shruti Sharma and her test report was Ex.P-2 which was signed by her and was prepared under her instruction. It was issued after having consultations with Dr. Rajesh Kumar Nagpal. In cross-examination it is stated by Dr. Renu Bhatia (PW-4) that she prefixed the word 'Doctor' before her name because she had undergone clinical training. However, she could not sight any instructions by which she has been authorized to use that word. She could not tell whether she could prefix the word 'Doctor' before her name or not. She did M.Phill from Central University of Psychiatry, Ranchi University in 1987. The test that was conducted by her in the present case was known as Projective Test. In this test, they show the patient AMIT KAUNDAL photographs of some object. It was a conformity test. She did 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -19- not conduct any test to check the IQ of the patient. Schizophrenia, it is stated, was of five-six types. She could not say that in Modi's Medical Jurisprudence, it has been reported that if there was disorder in secretion from sex glands, it may lead to schizophrenia. It is stated as incorrect that she had given her report Ex.P-2 falsely at the dictates of the appellant to help him. It is also stated as incorrect that the respondent was hale and hearty and was not suffering any such disease as had been informed by her. A perusal of the report Ex.P-2 shows that the respondent was administered the Rorschach Psychodiagnostic Test. The test behaviour of the respondent has been mentioned as cooperative during testing but became restless midway and desired to leave the room. Besides, bizarre responses, space responses, confabulation and contamination were observed in the protocol. The test findings are mentioned that productivity was less than average within average reaction time. Her organizing and synthesizing capacity was poor. Reality contact was diminished with decline in ego strength. She was unable to empathize with human beings and unable to conform to social norms. The conclusions are mentioned that there were less number of responses, low productivity, bizarre responses, contamination, confabulation and space responses suggestive of schizophrenia with paranoid features. Therefore, according to Dr. Renu Bhatia (PW-4), the respondent was a patient of schizophrenia with paranoid features.
AMIT KAUNDAL
The respondent in her defence examined Dr. Raj 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -20- Kumar, Principal of the Maharaja Aggarsen College, Jagadhari was examined as RW-1. He tendered his affidavit in evidence. According to Dr. Raj Kumar (RW-1), the respondent was working in their college i.e. Maharaja Aggarsen Mahavidhyla, Jagadhari as English Lecturer under the self financing scheme from 07.07.2003 continuously till date of deposing the affidavit i.e. 19.09.2003. According to him, during the stay of the respondent in the college, her work and conduct had been quite good and she was a good and competent teacher. There was no complaint of any kind whatsoever against her. They had issued experience certificate Ex.R-1 in this regard to her. In cross-examination it is stated by Dr. Raj Kumar (RW-1) that he knew the father of the respondent who was the Principal of DAV Senior Secondary School, Yamuna Nagar. He knew him for the last seven-eight years being Principal of the school. It is stated that he had not brought any record of medical leave of the respondent. He voluntarily stated that the respondent did not avail any medical leave. As per the time table, the respondent takes three-four period in a day with breaks in these period. One period, it is stated, is of forty-five minutes.
Both the medical doctors i.e. Dr. Kesho Ram Gupta (RW-2) and Vikram Bharti (RW-3) examined by the respondent stated that after her examination that they found no psychiatric illness in the respondent and she was normal.
The respondent also examined her father Mam Chand AMIT KAUNDAL Sharma (RW-4), who tendered his affidavit in evidence which is 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -21- deposed on the lines of the written statement of the respondent. It is stated that he spent a sum of Rs.8.00 lacs on the marriage and also gave cash and other articles a number of times thereafter. He also purchased a Maruti car in the name of the appellant though some amount was paid by him by way of demand draft and some through cash. It is stated that the respondent was hale and hearty and had no problem of any type of mental disorder what to talk of schizophrenia and she had never acted abnormally in her whole life. The appellant and his father it is stated consumed alcohol daily and gave a severe beating to his daughter Shruti a number of time. The appellant left his daughter and her son Sudhanshu alias Madhav of Yamuna Nagar on 04.06.2001 entirely at God's mercy.
The learned Additional District Judge considered the evidence and material on record and held that Dr. Renu Bhatia (PW-4) was not a qualified doctor and she was M.Phill. Her statement was held to be of little value. The test conducted was held to be not a reliable test to judge the mental disorder. A reference was made to Oxford Text Book of Psychiatry by Michael Gelder and others third edition at page 42, that the projective tests such as Rorschach Tests were not recommended to assess the mental status of a patient because their validity had not been established. It was also held that the report of Dr. Renu Bhatia (PW-4) which is dated 22.05.2001 showed that there was no medical evidence on the file for the period prior to that. Some AMIT KAUNDAL documents had been placed on the file prior to that. Some 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -22- marked documents had been placed on the file but those could not be read in evidence for want of proof. It was held that it could not be believed that the respondent remained critically ill during her stay with the appellant for a period of three years and during this period she was not got examined by any qualified Psychiatrist nor any such Psychiatrist had been examined. On the other hand, the respondent had examined two qualified Psychatrists. Both were holding Masters Degree in Psychiatry. They had stated that the respondent was not suffering from any mental ailment and she was normal from all angles and there was no reason to disbelieve them. The mental status of the respondent, it was observed, could be judged from the fact that she was highly qualified holding a Masters Degree in English. She was a Lecturer in a College and was imparting education to the satisfaction of all as had been stated by Dr. Raj Kumar, Principal (RW-1). Had she been suffering from acute mental disorder. It was not possible for her to receive such high qualification and teach students in a college. She had also given birth to a male child. Accordingly, the petition of the appellant is dismissed.
During the pendency of the appeal, a Division Bench of this Court of which one of us (S.S.Saron, J) was a Member, passed a detailed order on 30.11.2004 for medical examination of the respondent by a Board of Doctors to be constituted by the Medical Superintendent of the Post Graduate Institute of Medical AMIT KAUNDAL Science (PGIMS), Chandigarh to examine the respondent with 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -23- regard to her alleged illness of paranoid schizophrenia and submit a report in this regard. The learned Senior counsel appearing for the appellant had contended that the petition for divorce was filed on the solitary ground that the respondent-wife was suffering from mental disorder of such a kind and to such an extent that the appellant could not reasonably be expected to live with her. It was inter alia contended that the appellant had in fact submitted an application dated 21.05.2003 for medical examination of the respondent by expert doctors of the Post Graduate Institute of Medical Sciences, Chandigarh. The filing of such an application was necessitated as the three doctors who were summoned by the Court at the instance of the appellant had though been duly served but they did not appear to testify. It was submitted that the application had erroneously been dismissed by the learned trial Court vide order dated 25.07.2003. Learned Senior counsel appearing for the appellant had contended that this Court may order medical examination of the respondent wife in the light of the observations of the Supreme Court in Sharda v. Dharampal, AIR 2003 SC 3450.
Learned Senior counsel appearing for the respondent strenuously contended that the respondent was not suffering from any mental disorder of paranoid schizophrenia and the ground had been taken by the appellant only as a ruse to get divorce from his wife. It was submitted that the brother of the appellant was married to the sister of the respondent and the AMIT KAUNDAL said marriage was solemnized ten months after the marriage 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -24- between the parties to the present petition. Learned Senior counsel for the respondent was, however, agreeable to the medical examination of the respondent by a panel or a Board of Doctors to be constituted by the PGI, Chandigarh.
The Supreme Court in Sharda's case (supra) has held that a Matrimonial Court has the power to order a person to undergo medical test and passing of such an order is not in violation of the right of the personal liberty under Article 21 of the Constitution of India. Medical examination of a party it was held can be ordered by a Court either suo motu or at the instance of the party. The said power, however, is to be exercised if the appellant had a strong prima facie case and if there is sufficient material before the Court. It was noticed that the appellant in order to substantiate his case, had summoned four doctors, one of them was examined and the other three though served did not appear for giving their evidence. One of them had send his request for adjournment. The second refused to appear and the third did not appear despite service. Therefore, it was held that there was a strong case of seeking medical examination of the respondent by a panel of doctors of the Psychiatry Department of PGI, Chandigarh. This in fact was not opposed by the learned Senior Counsel for the respondent and he rather expressed full willingness of the respondent to undergo the medical examination. It was accordingly directed that the respondent shall appear before the Medical Superintendent of PGI, AMIT KAUNDAL Chandigarh who was to constitute an appropriate Board of 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -25- Doctors to examine the respondent in respect of her alleged illness of Paranoid Schizophrenia and submit a report in this regard.
The report of the Medical Board comprising of Prof. P. Kulhara, Head, Department of Psychiatry, Chairman; Dr. S. Chakraborty, Assistant Professor, Department of Psychiatry, Member and Dr. R. K. Sharma, Deputy Medical Superintendent, Member constituted to examine the respondent has been received. The respondent appeared before the Medical Board. A detailed history was taken and she was examined by Dr. Subo Chakraborty, Assistant Professor, Department of Psychiatry. A detailed personal history, family history, educational history, occupational history and marital history of the respondent were obtained from her, her father and mother. To supplement the history, attempts to contact her husband Mr. Madhu Ranjan Sharma (appellant) were made though in vain. It is mentioned that it appeared that four years ago i.e. two years after her marriage, she had an abortion. Following this abortion, she came to her parent home, and then the whole process to seek divorce from her was initiated. This course of action to seek divorce from the respondent on grounds of mental illness in her was commenced by her husband. It was alleged that the respondent was mentally ill. It was further claimed that the respondent had been examined by a Clinical Psychologist and possibly three Psychiatrists. This was denied in the lower Court by the AMIT KAUNDAL respondent as well as her parents. They also denied this during 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -26- her examination is Psychiatry OPD. The respondent Smt. Shruti Sharma appeared before the Medical Board along with her father on 13.01.2005 and was subjected to detailed mental status examination. During examination by the Medical Board, she was found to be pleasant, cooperative and communicative. She was well oriented to time, place and person, had reasonable power of abstraction and thinking, behaved appropriately and responded to questions promptly and fittingly. She denied having any symptoms of mental illness such as disturbance of sleep and appetite, disturbance emotions, mood, thinking and cognition etc. She informed the Board that she was coping well with her life, her son and her job. The Board was informed that she was working as a Teacher in a local college. The Board was unable to elicit any abnormality on examination with reference to her mental-cognitive functioning. The Medical Board also examined her Psychological Test Report which also corroborated absence of any psychological or psychiatry disturbance. The Board gave its opinion as follows:-
"The Medical Board is of the opinion that during examination, Mrs.Shruti Sharma did not display any abnormality to warrant diagnosis of any psychiatric illness, therefore, the Medical Board is of the opinion that she does not suffer from any diagnosable mental illness at this moment in time. Taking into consideration her current life situation and the way she AMIT KAUNDAL is coping with her life, her child and her job, it is 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -27- unlikely that she has a psychiatric illness or had a psychiatric illness in the past.
The Medical Board sincerely hopes that the Hon'ble Court finds these observations of some assistance to it. The Medical Board further assures the Hon'ble Court that it would be willing to offer any assistance or advice as and when required to do so with reference to the mental state of the respondent."
The above opinion conclusively establishes that the respondent is not suffering from any mental disorder which may be said to be of such a nature that the appellant cannot reasonably be expected to live with her. The opinion that has been given by the Medical Board can be read in evidence keeping in view the spirit of Section 14 of the Family Courts Act, 1984 which envisages that a family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assisted to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. The said provision has softened the rigours of the Indian Evidence Act in the matter of admissibility of documents and is not restricted by the rules of relevancy for admissibility of documents that is provided. The provisions of the Family Courts Act have been enacted with a view to promote conciliation in and secure speedy settlements of, disputes relating to marriage and family affairs and for matters AMIT KAUNDAL connected therewith. The present dispute being a matrimonial 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -28- one relating to family affiars. The spirit of the said provisions which are applicable in Family Courts can be applied in all family disputes before a matrimonial Court as well and in this Court in appeal as an appeal is a continuation of the original proceedings. There is no reason whatsoever to doubt the report of the Medical Board of PGI, Chandigarh which is an expert body on the matter of assessment of mental disorder of a patient.
Learned Senior counsel appearing for the appellant, however, has contended that the respondent in fact has been incurably of unsound mind and has intermittently been suffering from mental disorder of such a kind and to such an extent that the appellant cannot reasonably be expected to live with her. It is submitted that at the time of examination by the Board, the respondent may not be suffering from the fit and, therefore, the Board has given the opinion by which no abnormality could be detected even though it is there. In order to appreciate the contention of learned senior counsel for the appellant, the provisions of Section 13 (1) (iii) of the Hindu Marriage Act, 1955 may be noticed, which reads as under:-
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) XXX AMIT KAUNDAL
(ii) XXX 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -29-
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder or such a king 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 or intelligence) which result 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 It may be noticed that in the present case, the appellant had set up a case of mental disorder of unsoundness of mind. However, nothing has been shown or placed on record so as to hold that the respondent is of unsound mind or suffering from mental or psychopathic disorder. Mere allegations had been made in the petition which are not supported by any cogent or convincing medical evidence. The only expert examined by the appellant was Dr. Renu Bhatia PW-4 but the learned trial Court AMIT KAUNDAL has held that she was a M.Phil. and was not a medical 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -30- practitioner; besides, the test conducted by her was held to be improper.
As against this, the respondent examined two doctors i.e. Dr. Kesho Ram Gupta, M.D. Psychiatry, Brij Puri, Yamuna Nagar, RW-2. Dr. Kesho Ram Gupta, MD Psychiatry, Brij Puri, Yamuna Nagar (RW-2) tendered his affidavit in evidence in which he deposed that he had examined the respondent on 08.03.2003 for psychiatric examination purposes. He examined the respondent from all angles and no abnormality of any kind whatsoever was detected in her. She was normal from all angles. He had seen the original slip issued by him. The attested copy of the same was Ex.R-2. In cross-examination it is stated that he was MD Psychiatry. He treat patents suffering from mental disorder and was running his hospital since 1990. It is stated as correct that his clinic-cum-hospital is located in front of DAV Senior Secondary School, Yamuna Nagar. It is stated as correct that father of the respondent was Principal in that school and he knew him for the last four-five years. Shruti (respondent) had come to his hospital for psychiatric examination. A patient is referred to PGI if he could not handle him. It is stated that there was no need to conduct any projective test on the respondent, therefore, it was not conducted. He did not conduct any IQ test of the respondent since it was not required. He conducted only history and mental status examination of the hospital. It is stated as correct that the medicines olanzapine and AMIT KAUNDAL Trihexyphenieyl is prescribed to a patient of schizophrenia which 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -31- is prescribed to a patient in number of conditions. He voluntarily stated that he has not prescribed any such medicines to the respondent.
Dr. Vikram Bharti, Bharti Psychiatric Hospital, Yamuna Nagar (RW-3) tendered his affidavit in evidence in which he deposed that he examined the respondent on 28.05.2003 for psychiatric evaluation. He examined the patients from all angles and no psychiatric illness of any kind was found in her. The patient was normal from all angles. He issued a certificate to the patient Shruti Sharma (respondent). He had seen the original and attested copy which was Ex.R-3. In cross-examination it is stated that he was MD, DNB (Psychiatry). He was running his clinic-cum-hospital for the last more than one year. The respondent when she came to him in his hospital informed her that her divorce petition was pending in Court and she wanted to get her mental status examined. She was accompanied by her father at that time. He did not her father earlier. Thereafter, the father of the respondent met him two-three times. He did not conduct any projective test on the respondent. He also did not conduct any IQ test. It is stated as incorrect that in patients of schizophrenia fits occur occasionally. The symptoms of schizophrenia have been mentioned are suspiciousness, talking to self, laughing and weeping by self and at time the patient becomes non-communicative and does not respond. A patient suffering from schizophrenia can study and can be qualified. At AMIT KAUNDAL the time when the respondent came to him she was having 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -32- previous record of her clinical psychologist and he had gone through the record and mentioned this fact in his record. He conducted only mental status examination on the respondent. They could manage all the patients of schizophrenia in their hospital and it is not needed to send them to PGI. In a single examination he could find out whether a patient was suffering from schizophrenia or not.
Therefore, it may be noticed that there is evidence of two doctors produced by the respondent who both had found the respondent to be normal; besides, the Board of Doctors of PGI, Chandigarh, has also found the respondent to be normal with no abnormality in her. Even otherwise the Supreme Court in Kollam Chandra Sekhar v. Kollam Padma Latha, 2013 (4) R.C.R. (Civil) 655, has held that disease of Schizophrenia is not of such a nature that it would make the life of husband miserable and the husband was held not entitled to seek dissolution of marriage. The disease of Schizophrenia was explained in the said judgment. A reference was made to the case of Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 wherein the Supreme Court had in detail examined the issue of Schizophrenia. It was also held that the facts in the said case were different from the facts and evidence on record with the case that was being dealt with. Therefore, the observations made in the judgment in Vinita Saxena's case (supra) for grant of decree of dissolution of marriage under Section 13 (1) (ia) and Section 13 (1) (iii) of the AMIT KAUNDAL Hindu Marriage Act could not be applied to the fact situation of 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -33- the case it was dealing with. However, what was said in Vinita Saxena's case (supra) on the issue of the disease of schizophrenia were noticed as follows:-
"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.
Apophanous 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 AMIT KAUNDAL 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -34- 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 AMIT KAUNDAL 2015.02.06 14:15 illness characterised by:I attest to the accuracy and
authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -35-
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 episodes, or period of relapse).
Initial symptoms appear gradually and can
include:
Feeling tense
Difficulty in concentrating
Difficulty in 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 AMIT KAUNDAL 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -36- 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...."
In the present case as has already been noticed, the respondent is stated to be leading a healthy life. She appeared as her own witness as RW-5 and tendered her affidavit in evidence. She has deposed that she is hale and hearty and had no problem of any type of mental disorder what to talk of schizophrenia. The allegations in the petition had been denied. She was cross-examination at length. However, nothing unusual has been brought out from her cross-examination which would suggest that she was in any manner abnormal. Besides, she has done well in her studies and is working as an English Lecturer in a College. Her Principal Dr. Raj Kumar (RW-1) has deposed that during her stay in the college, her work and conduct was quite good. She was a good and competent teacher and there was no complaint of any kind whatsoever against her.
Learned Senior Counsel for the respondent has placed reliance on Sona Bala Bora and others v. Jyotirindra Bhatacharjee, (2005) 4 SCC 501, wherein it has been held that AMIT KAUNDAL 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -37- proof of unsoundness of mind need not be proved only by medical evidence and can be proved by conduct also. However, in the said case, it was held that burden of proof lies on the party who sets up the plea of unsoundness of mind and the burden is discharged by proving at least by balance of probabilities. The said case related to the execution of deed of transfer which it was alleged an outcome of an unsound mind. It did not relate to grant of matrimonial relief of divorce on the ground of unsound mind.
The other case cited by learned Senior Counsel for the appellant is Naveen Kohli v. Neelu Kohli, JT 2006 (3) SC 491. The said case related to grant of divorce on the ground of cruelty. The question considered was whether irretrievable breakdown of marriage may be a ground for granting divorce. The question of irretrievable breakdown of marriage is admittedly not a ground of divorce under the Hindu Marriage Act. Therefore, this Court is not to go into the said question.
Learned Senior Counsel for the appellant has, however, contended that keeping in view the long separation and the fact that the marriage has irretrievably broken down, this Court may grant matrimonial relief of divorce to the appellant as the chances of the parties living together are absolutely remote.
We, however, are unable to agree with the said contention as there is no such ground under the Hindu Marriage Act by which matrimonial relief of divorce can be granted on the ground of irretrievable break down of marriage. In Darshan AMIT KAUNDAL Gupta v. Radhika Gupta, (2013) 9 SCC 1 divorce was sought by 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -38- the husband on the grounds of cruelty and unsound mind/mental disorder of wife. The husband had alleged that the cumulative effect of mental disorientation and intemperate/aggressive/ erratic behaviour of the wife was of such order and extent that he could not reasonably be expected to live with her and living with her would result in subjecting himself to cruelty. The wife had suffered brain damage and severe cognitive deficiency immediately after she was subjected to cesarean operation for delivery of child. However, according to opinion of medical expert by virtue of therapeutic and neuro-psychological rehabilitation measure she had recovered to a considerable extent so much so she finally had only mild to moderate cognitive deficiencies and moderate intelligence. The experts opined that she expected normally emotional responses and was able to discharge her matrimonial obligations. Though she would have recovered a lot more, had she got emotional support from her husband which she did not get. It was held that there was no evidence to show the wife alleged intemperate, aggressive, erratic behaviour such as shouting and screaming without provocation or cause, getting up at mid-night and not allowing husband to sleep etc. as alleged. No grounds for grant of divorce were held to be made out. As regards irretrievable breakdown of marriage, a reference was made to the case of Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379 wherein the Supreme Court held as follows:-
AMIT KAUNDAL 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -39-
"10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.
11. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent.
12. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for Parliament to enact or amend the law and not for the courts. Hence, AMIT KAUNDAL 2015.02.06 14:15 we do not find force in the submission of the I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -40- learned counsel for the appellant.
13. Had both the parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13-B of the Act, but in this case the respondent is not willing to agree to a divorce."
Therefore, in the facts and circumstances of the case it was not possible to grant a decree of divorce on the ground of irretrievable breakdown of marriage.
In the present case as well the position is somewhat similar that is the respondent has expressed her desire to live with her husband (appellant).
Learned Senior Counsel has also placed reliance on the case, Durga Prasanna Tripathy v. Arundhati Tripathy, JT 2005 (7) SC 596. The said case relates to divorce on the grounds of cruelty and desertion. In the said case, the allegations of cruelty were held to be established by the family Court which were, however, reversed by the High Court. The Supreme Court held that since there was irretrievable breakdown of marriage, the family Court was justified in granting the decree of divorce and the High Court erred in reversing the same. A reference has also been made to the case of Satish Sitole v. Ganga (Smt), (2008) 7 SCC 734 in which case the husband had contended that there was irretrievable breakdown of marriage and technicalities of law should therefore not come in the way. The Supreme Court made AMIT KAUNDAL efforts to break the deadlock between the parties but no solution 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -41- could be found. Both the parties had expressed their desire for dissolution of the marriage. They had remained separate for fourteen years out of sixteen years of marriage. The Supreme Court was convinced that any further attempt at reconciliation would be futile and it would be in the interest of both the parties to severe the matrimonial ties since the marriage had broken down irretrievably.
Therefore, it is sought to be made out and contended that divorce can be granted where marriage had irretrievably broken down. It may, however, be noticed that in Durga Prasanna Tripathy's case (Supra) the ground of cruelty was held to be established and the fact of irretrievable breakdown of marriage was taken as an additional factor which impelled the Supreme Court to allow the appeal and grant divorce. The irretrievable breakdown of marriage can be taken as an additional factor where other grounds for grant of matrimonial relief as provided by the statute are made out but not as an independent ground or where the grounds provided by the statute are not made out. In Satish Sitole's case (Supra) the parties had themselves expressed their desire for grant of divorce and the Supreme Court in exercise of its plenary jurisdiction under Article 142 of the Constitution had dissolved the marriage.
Lastly learned Senior Counsel has referred to Vinita Saxena vs. Pankaj Pandit, (supra) which has been considered in the case of Kollam Chandra Sekhar v. Kollam Padma Latha, AMIT KAUNDAL (supra).
2015.02.06 14:15I attest to the accuracy and authenticity of this document chandigarh FAO No.M-91 of 2004 (O&M) -42-
From the above said facts and circumstances, it is evident that the appellant has not been able to establish and prove his case of the respondent being of unsound mind or that she has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that he cannot reasonably be expected to live with her. As against this, the evidence produced by the respondent is cogent and convincing to dislodge the case of the appellant; besides, the Board of Doctors of the PGI, Chandigarh has conclusively held that there was no abnormality in the respondent.
In the circumstances, there is no merit in the appeal and the same is accordingly dismissed.
(S. S. SARON) JUDGE (NAVITA SINGH ) 16.01.2015 JUDGE A.Kaundal Note: Whether to be referred to the Reporter : Yes AMIT KAUNDAL 2015.02.06 14:15 I attest to the accuracy and authenticity of this document chandigarh