Rajasthan High Court - Jaipur
Murlidhar Agrawal vs Smt Preeti on 17 April, 2017
Author: Ajay Rastogi
Bench: Ajay Rastogi
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 2988 / 2008
Murlidhar Agrawal son of Shri Ganpat Lal Ji Agarwal,
aged about 33 years, resident of Bhagirath Bhawan,
Brahmpuri, Ajmer (Rajasthan)
----Applicant-Appellant
Versus
1. Smt. Preeti wife of Shri Murlidhar Agarwal
daughter of Shri Babu Lal Goyal, C/o Babu Lal
Jagdish Chand Goyal, In front of Bohra Gali, Tatore Marg,
Nimuch (MP)
2. Shri Babu Lal Goyal son of Shri Shambhu Lal Ji Goyal,
C/o Babu Lal Jagdish Chand Goyal, in front of Bohra Gali,
Tagore Marg, Nimuch (MP)
----Non-Applicants-Respondents
_____________________________________________________ For Appellant(s) : Shri Bihari Lal Agarwal, Advocate. For Respondent(s) : None present.
_____________________________________________________ HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 17th/04/2017 (Per Hon'ble V.K.Vyas,J.) The appeal has been preferred against judgment and decree dated 13.6.2007 passed by learned Judge, Family Court, Ajmer in Matrimonial Case No.205/2003 whereby he dismissed the petition filed by appellant u/s 12(1), Hindu Marriage Act, 1955 (hereinafter to be referred as "the Act").
(2 of 11) [CMA-2988/2008] Brief facts of the case are that on 12.06.2003 appellant submitted an application u/s 12(1) of the Hindu Marriage Act, stating inter alia that marriage between appellant and respondent No.1, was solemnized at Ajmer on 22.01.2003. Behaviour and attitude of respondent No.1 was abnormal from very beginning. She used to behave in fearful manner. Many times, she tried to commit suicide by jumping from window of first floor to ground floor. She also used to move her neck by giving a violent jerk by spreading her hair on head. She was not in a position to discharge her marital obligations. The behaviour of respondent No.1 is very dangerous and injurious to the health. She was suffering from an acute disease of schizophrenia prior to marriage and she was under treatment of Dr. Shiv Gautam. When the fact of misbehave and abnormal attitude of respondent No.1 was brought to notice of respondent No.2, father of respondent No.1, he admitted that treatment is going on and a Kabuliatnama (Ex.P-5) was executed on 7.5.2003 by him and mother of respondent No.1, wherein they admitted the fact that acute disease of schizophrenia was not disclosed to appellant before marriage and respondent No.1 was being treated since long prior to her marriage under Dr.Shiv Gautam.
It was also averred in the application that respondent No.1 was taken to temple of Mehandipur Balaji. She was also taken to Dr. M.M. Mathur during period from 7.5.2003 to 13.5.2003. Marriage was an outcome of fraud. Respondents submitted separate written statements and averred that appellant and his parents demanded dowry of Rs.2,00,000/- and on non-
(3 of 11) [CMA-2988/2008] fulfillment of demand, false allegations were levelled against them. Respondent No.1 is M.Sc. (Chemistry). During period from 22.1.2003 to 13.5.2003, sexual intercourse took place between appellant and respondent No.1. Rejoinder was filed on behalf of appellant and all the allegations levelled against him were refuted and it was averred that no sexual intercourse took place between appellant and respondent No.1 as appellant was very much afraid of abnormal attitude and dangerous behaviour of respondent No.1. She was taken to Dr. M.M. Mathur along with all old prescription slips. After examining, Dr. Mathur issued certificate and respondent No.2 taken away his daughter. On the basis of pleadings, following issues were framed by learned trial Judge :
"1& vk;k vizkFkhZ ;k la[;k & ,d fookg ls iwoZ gh fltksQjsfu;k uked xEHkhj ekufld chekjh ls ihfM+r jgh gS\ 2& vk;k vizkFkhZ ;k la[;k& ,d dk fookg izkFkhZ ds lkFk rF;ksa dks fNikrs gq, /kks[kk nsdj Ny ls fd;k gS\ 3& vk;k izkFkhZ o vizkFkhZ ;k la[;k& ,d ds e/; fnukad& 22-1-03 dks gqvk fookg
j) o 'kqU; ?kksf"kr fd;s tkus ;ksX; gS\ 4& vk;k izkFkhZ vizkFkhZ ;k dze&,d ds fo:) fookg dks 'kqU; ?kksf"kr fd;s tkus dh fMdzh ikus dk vf/kdkjh gS\ 5& vuqrks"kA"
Three witnesses were examined on behalf of appellant whereas four were examined on behalf of respondents. Seventeen and six documents were exhibited on behalf of appellant and respondents, respectively. After hearing both the parties, learned trial Judge by impugned judgment dismissed the petition.
Learned counsel Shri Bihari Lal Agarwal submitted that learned trial Judge has decided Issue No.1 in favour of appellant to the extent that respondent No.1 was suffering from disease of schizophrenia prior to her marriage. But, it has wrongly held that appellant could not prove that disease "schizophrenia" is a serious (4 of 11) [CMA-2988/2008] disease. In the facts and circumstances of the case, this finding of learned trial Judge is wholly erroneous and unwarranted. Respondent No.1 was suffering from the disease since more than 13 years. She was not able to discharge her marital obligatations. The disease is un-curable and acute one. Certificate (Ex.P-9) issued by Dr. M.M. Mathur, Kabuliatnama (Ex.P-5) executed by respondent No.1 and letters written by respondent No.1 are substantiating these facts.
Learned counsel further submitted that learned trial Judge has found Issue No.2 proved in favour of appellant and despite, dismissed the petition on the ground that marriage was consummated. Learned trial Judge observed that appellant did not plead in his petition the fact about non- consummation of marriage and did not consider the pleadings of appellant made in rejoinder. In rejoinder, the averments made by respondent No.1 in written statement were rebutted by the appellant. The finding of learned trial Judge that during the period from 7.5.2003 to 13.5.2003, both husband and wife must have cohabited, is based on surmises and conjectures. AW-1 appellant has stated in his examination in chief that no physical relations were established during wedlock and he has not been cross examined on this point. On the contrary, respondent No.1 has not stated a single word about it in her examination in chief. Only in cross examination, when a suggestion was given, she stated it to be false that no relation of husband and wife could be established between them.
Learned counsel further submitted that Prakash Kumar Bachlaus versus Smt. Chanchal @ Jaya, 2007(1) DNJ (Raj.) 394 (5 of 11) [CMA-2988/2008] was relied upon by learned trial Judge in holding necessity to prove that at the time of marriage, one of the parties was suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. This judgment has been set aside by Apex Court on 10.9.2014 while deciding Civil Appeal No.2030/2008.
Learned counsel for appellant has further submitted that Apex Court has held in Vinita Saxena versus Pankaj Pandit, (2006) 3 SCC 778 that "paranoid schizophrenia" is a serious mental disorder. He further relied upon Alka Sharma versus Chandra Sharma, I (1992) DMC 96, R. Sankaranarayanan versus Anandhavalli, AIR 1998 Madras 198, Thulasi Bai versus C.V. Manoharan and Others, I (1990) DMC 61.
Despite valid service, nobody has appeared on behalf of respondents.
We have given thoughtful consideration to the submissions made on behalf of appellant and gone through all the material available on record.
The instant petition has been preferred by appellant for declaration of his marriage with respondent No.1, annulled by decree of nullity u/s 12(1)(c) of the Act. Sub-section (c) of Section 12 (1) of the Act reads as follows :
"12. Voidable marriages. - (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :-
(a) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx;
(6 of 11) [CMA-2988/2008]
(b) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx;
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restrain (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
(d) xx xx xx xx xx xx xx xx xx xx xx xx xx xx.
(2) xx xx xx xx xx xx xx xx xx xx xx xx xx xx-
(a) xx xx xx xx xx xx xx xx xx xx xx xx xx xx-
(i) xx xx xx xx xx xx xx xx xx xx xx xx xx xx
(ii) xx xx xx xx xx xx xx xx xx xx xx xx xx xx;
(b) xx xx xx xx xx xx xx xx xx xx xx xx xx-
(i) xx xx xx xx xx xx xx xx xx xx xx xx xx;
(ii) xx xx xx xx xx xx xx xx xx xx xx xx xx
(iii) xx xx xx xx xx xx xx xx xx xx xx xx.
Conditions prescribed in clause (ii) of Section 5 of the Hindu Marriage Act, are as follows :
"5. Conditions for a Hindu marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx.
(iii) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx;
(iv) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx;
(v) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx.
(7 of 11) [CMA-2988/2008] Learned trial Judge, while deciding Issues No.1 and 2, has given a finding that respondent No.1 was suffering from disease of "schizophrenia" prior to her marriage with appellant and the consent for marriage was obtained from appellant deceitfully, not disclosing the fact of the disease and as such a fraud was played for obtaining consent of appellant.
A co-ordinate Bench of this court in Prakash Kumar Bachlaus's case (supra) has observed as follows :
"21. xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The Court will examine the matter with all possible care and anxiety."
Since the above judgment of co-ordinate Bench of this court has been set aside on 10.9.2014 by Apex Court in Civil Appeal No.2030/2008, the observations made therein are of no help to respondent.
On the contrary, in Vinita Saxena's case (supra), Apex Court while making a research on disease "paranoid schizophrenia" has observed in para no.28 as follows :
"28. xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx "Schizophrenia is one of the most damaging of all mental disorders. It causes its victims to lose touch with reality. They often begin to hear, see or feel things that aren't really there (hallucinations) or become convinced of things that simply aren't true (delusions). In the paranoid form of this disorder, they develop delusions of persecution or personal grandeur.
(8 of 11) [CMA-2988/2008] The first signs of paranoid schizophrenia usually surface between the ages of 15 and 34. There is no cure, but the disorder can be controlled with medications. Severe attacks may require hospitalisation. The appellant has filed Annexures L, M, N, O, P and Q which are extracts about the aforesaid disease. The extracts are sum and substance of the disease and on a careful reading it would be well established that the evidence and documents on record clearly make out a case in favour of the appellant and hence the appellant was entitled to the relief prayed. Xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx."
In para no.42, Apex Court has further hold as follows :
"42. Section 13(1)(iii) "mental disorder" as a ground of divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible, it may furnish a good ground for nullifying the marriage because to beget children from a Hindu wedlock is one of the principal aims of Hindu marriage where sanskar of marriage is advised for progeny and offspring. This view was taken in Alka Sharma v. Abhinesh Chandra Sharma, AIR 1991 MP 205."
In R. Sankaranarayanan's case (supra), it has been held by Madras High Court that when wife is suffering from schizophrenia and the fact was not disclosed to husband or parents before marriage, it tantamounts to committing a fraud for obtaining consent of the husband for marriage and having such a situation respondent would be entitled for decree for dissolution of marriage.
In Alka Sharma's case (supra), Madhya Pradesh High Court has held that u/s 12, a spouse can avoid a marriage if the (9 of 11) [CMA-2988/2008] other party is found to be not in order mentally so as to take up the marital and likely parental obligations.
In view of above, when it is proved that respondent No.1 was suffering from "paranoid schizophrenia" from prior to marriage, it can be construed that in such a situation, the marriage could not have been consummated and procreation of children was not possible.
Respondent No.1 has averred in para no.14 of the written statement as follows :-
"14. ;gka ;g mYys[k djuk mfpr gksxk fd vizkFkhZ;k fookg ds i'pkr 22- 1-03 ls yxkrkj 13-5-03 rd izkFkhZ ds lkFk jgh vkSj lgokl fd;kA izkFkhZ dk ;g dFku fd mlus vizkFkhZ;k ds lkFk lgokl ugha fd;k fcydqy >wB gSA "
Appellant submitted a rejoinder to the written statement, wherein he averred in para no.6 as follows :
";g fd tokc izkFkZuk i= dh pj.k la[;k 14 esa of.kZr rF; vlR;] eux<Ur ,oa cscqfu;knh gksus ls vLohdkj gSA izkFkhZ us vizkfFkZ;k ds lkFk dHkh Hkh lgokl ugha fd;kA izFke jkf= dks vizkfFkZ;k dk vlguh; o dzwj] vlkekU; O;ogkj ns[kdj izkFkhZ vR;Ur Mj x;k o izkFkhZ o vizkfFkZ;k ds e/; gqvk fookg dUT;we ¼miHkksx½ ugha gqvk] rFkk uk gh izkFkhZ us vizkfFkZ;k ds d`R; dks {kek fd;k rFkk vizkfFkZ;k dk ;g dguk fd fnukad 22-01-2003 ls yxkrkj 13-5-2003 rd vIkzkfFkZ;k izkFkhZ ds lkFk jgh o lgokl fd;k] furkUr >wBkl] eux<Ur] feF;k ,oa "kaM;a=dkjh dFku gSA vizkfFkZ;k fookg ds i'pkr~ rhu&pkj fnu gh izkFkhZ ds ?kj jgh vkSj bl nkSjku mlds valrqfyr] vlkekU; o dzwj O;ogkj ds dkj.k gh og uhep pyh x;h o fnukad 7-5-2003 dks vizkfFkZ;k ds ekrk&firk vizkfFkZ;k dks ysdj vtesj vk;s o vizkfFkZ;k dh chekjh dh ifpZ;ka crkbZ o nh rFkk dcwfy;rukek Hkh fy[kdj fn;kA rRi'pkr~ Hkh vizkfFkZ;k dh ekufld fLFkfr esa dksbZ ifjorZu ugha gksus ds dkj.k izkFkhZ us vizkfFkZ;k dks fnukad 9-5- 2003 dks vtesj esa MkW- ,e-,e- ekFkqj dsk fn[kk;k o mldh chekjh dh fgLVªh crkbZ o MkWDVj us vizkfFkZ;k dk ijh{k.k dj viuh bykt iphZ nha vizkfFkZ;k dh ekufld fLFkfr esa dksbZ ifjorZu ugha gksus ds dkj.k fnukad 13-5-2003 dks vizkfFkZ;k vius ekrk&firk ds lkFk izkFkhZ ds ?kj ls pyh x;h o t;iqj tkdj MkW- f'koxkSre ls bykt djok;k rRi'pkr~ uher pyh x;hA bl izdkj vizkfFkZ;k dk dFku fd fnukad 22-1-2003 ls 13-5-2003 rd yxkrkj izkFkhZ ds lkFk jgh vkSj lgokl fd;k] furkUr >wBk o "kaM;a=dkjh gSA ;gka ;g dguk mfpr gksxk] fd izkFkhZ o vizkfFkZ;k ds e/; dHkh Hkh lgokl ugha gqvk gSA"
In rejoinder submitted to the written statement of respondents, the appellant has refuted the fact about consummation of the marriage. Rejoinder is also a part of (10 of 11) [CMA-2988/2008] pleadings. Therefore, view of the trial Judge in this regard cannot be affirmed.
We have gone through statements of AW-1 Murlidhar and NAW-1 Preeti recorded by trial court. AW-1 Murlidhar has stated in examination in chief that he was frightened from behaviour and attitude of Preeti and no intercourse ever took place between them and no marital relations could be established. There is no cross examination on the above point. It was not stated in examination in chief of NAW-1 Preeti that marriage was actually consummated. Only in cross examination, NAW-1 Preeti has stated false the statement that marital relations between her and husband were not established. NAW-1 Preeti has not stated in her examination in chief that during the period from 7.5.2003 to 13.5.2003, any physical relations established between the spouses. No question suggesting such fact was asked in cross examination of AW-1 Murlidhar. After going through the evidence available on record, the finding of learned Trial Judge that despite knowledge of serious mental disorder, both the spouses lived together from 7.5.2003 to 13.5.2003 and during that period, they must have cohabited and as a result the marriage has been consummated, is completely without foundation and utterly baseless.
The marriage in the instant matter, is found proved to be based on consent obtained fraudulently from appellant and without disclosing the fact of serious mental disorder of the bride and as such, the marriage is voidable one. The appellant has proved the ground mentioned in section 12(i)(c) of the (11 of 11) [CMA-2988/2008] Act in his favour. Therefore, he deserves a decree of annulment of the marriage.
In the result, the appeal is allowed. The judgment and decree dated 13.6.2007 of learned trial Judge is set aside. The marriage solemnized on 22.1.2003 between appellant and respondent No.1 is hereby declared null and void and accordingly dissolved. No cost.
(VIJAY KUMAR VYAS)J. (AJAY RASTOGI)J. Chauhan/