Patna High Court - Orders
Santosh Kumar vs Ragini Devi on 26 June, 2014
Author: Navin Sinha
Bench: Navin Sinha, Jitendra Mohan Sharma
Patna High Court MA No.903 of 2010 (5) dt.26-06-2014 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.903 of 2010
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Santosh Kumar s/o Sri Kedar Bhagat, R/O Village- Kasil, P.O. Murhan,
P.S. Goradih, District- Bhagalpur.
.... .... Appellant/s
Versus
Ragini Devi W/o Santosh Kumar D/O Mithilesh Chaudhary, R/O
Village- Sahkund, P.O. Sahkund, P.S. Sahkund, District- Bhagalpur.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Pravin Kumar Sinha
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE JITENDRA MOHAN
SHARMA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
5 26-06-2014The present appeal arises from the judgment dated 5.10.2010 passed by Principal Judge, Family Court, Bhagalpur in Matrimonial Case No. 129 of 2007 dismissing the appellant‟s application for divorce under Section 13(1) of the Hindu Marriage Act, 1955 (hereinafter called „the Act‟).
The appellant pleaded that the respondent was suffering from epilepsy and mental problems because of which she misbehaved and abused the appellant. She was short tempered. She would leave cooking food or taking meals for days and looking after family affairs. Treatment had not proved fruitful. She left matrimonial home voluntarily in absence of the appellant. Desertion had continued for over two years without reasonable Patna High Court MA No.903 of 2010 (5) dt.26-06-2014 2 cause.
The respondent appeared and contended that she was harassed for dowry. She did not suffer from epilepsy or any mental disease.
The Principal Judge held that there was no evidence in support of the plea for any mental illness or epilepsy against the respondent. The medical prescriptions sought to be relied upon in support proved neither mental disease nor epilepsy. Being short tempered did not qualify as a mental disease. The suit was dismissed.
Learned Counsel for the appellant submitted that the respondent was suffering from epilepsy. Her behavior was not cordial as a daughter-in-law. She had deserted the appellant without cause for a period over two years. The marriage was dead. It was not possible for the appellant to live with her. Divorce may therefore be granted.
Under Section 13 of the Act one of the grounds for divorce is that the other spouse was incurably of unsound mind or had been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent.
"Mental disorder" has been explained to mean mental illness, Patna High Court MA No.903 of 2010 (5) dt.26-06-2014 3 arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.
Section 12 of the Act provides that a marriage can be declared voidable if consent was obtained by fraud. But in such a case, the Suit must be presented within one year of discovery of the fraud.
The parties were married on 10/05/2001. It is not the case of the appellant that the respondent was suffering from epilepsy from prior to the marriage and it was concealed from him. No other nature of mental illness has been mentioned much less evidence led in support of the same by the appellant. The learned Family Judge rightly held that being short tempered did not classify as a mental illness. It is more of a personality trait. Different persons react differently in identical situations.
The appellant acknowledges that the alleged mental condition of the respondent was known to him soon after 10.05.2001. He did not take any steps till he filed Matrimonial Case No. 153 of 2006. It was dismissed in default. He took no steps to revive the Suit and filed a fresh Suit being Matrimonial Case No. 109/2007, which was also dismissed for non prosecution. Thereafter he filed the present Case for divorce Patna High Court MA No.903 of 2010 (5) dt.26-06-2014 4 again.
It was for the appellant to prove his case by leading evidence either with regard to mental illness, epilepsy or desertion. A mere statement in the plaint without supporting evidence is not proof to grant a decree. In certain cases oral evidence may be sufficient. Yet in other cases, medical evidence may be required especially when it relates to a medical condition of the spouse seeking divorce on that ground. If medical evidence or proper medical evidence is not forthcoming the allegations may not stand proved. The appellant sought to produce medical evidence by way of prescriptions which did not prove his case.
Epilepsy is a medical condition about which several myths have existed. With the advance of medical science it is now considered a controllable and at times a curable medical condition. It is only in extreme cases of life threatening attacks that surgery is also now resorted to. If the respondent was suffering from epilepsy nothing prevented the appellant from having her properly medically treated. There is no other evidence of any unbecoming conduct much less a course of conduct to hold that it was not possible for the appellant to live with the respondent. Refusal to cook etc. cannot constitute cruelty but fall in the category of normal wear and tear of a married life.Patna High Court MA No.903 of 2010 (5) dt.26-06-2014 5
We see no error in the reasoning of the Family Court on facts that the evidence led by the appellant that the respondent was compelled to leave the matrimonial home because of the conduct of the appellant and that he could not take advantage of his own wrongs.
We therefore find no reason to interfere with the order under appeal.
The appeal is dismissed.
(Navin Sinha, J.)
singh/- (Jitendra Mohan Sharma, J.)
U T