Jharkhand High Court
Utpal Hazari vs Maya Hazari on 3 July, 2018
Equivalent citations: AIR 2018 JHARKHAND 198, 2018 (4) AJR 8, (2018) 4 JCR 99 (JHA), (2019) 1 CIVILCOURTC 460, (2019) 3 DMC 8, AIRONLINE 2018 JHA 120
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
1
Appeal from Original Decree No. 59 of 2012
(Against the judgment and decree dated 03.02.2012 and 09.02.2012
respectively passed by the learned Principal Judge, Family Court, and Ranchi
in Matrimonial Title Suit No. 46 of 2007)
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Utpal Hazari .....Appellant
Versus
Maya Hazari ......Respondent
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For the Appellant: Mr. Indrajit Sinha, Advocate
For the Respondent : None
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CORAM:HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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By Court: Heard learned counsel for the appellant. Despite service of notice
on two previous occasions and again through special messenger of the Court, respondent refused to accept notice. As such, respondent has remained unrepresented.
2. Appellant is the husband aggrieved by the dismissal of his Matrimonial Title Suit No. 46 of 2007 by the judgment and decree dated 03.02.2012/09.02.2012, passed by the learned Principal Judge, Family Court, Ranchi, whereunder, learned court refused to dissolve the marriage between the parties on the grounds of cruelty and mental disorder under section 13(1)(i-a)(iii) of the Hindu Marriage Act. 1955.
Case of the petitioner/appellant
3. The parties entered into marriage on 29.07.1983 at Dhanbad according to Hindu religious rites and customs. Petitioner alleged that the brother of the respondent who was the intermediary and his relatives deliberately concealed the hereditary bio-polar disorder of their family. The marriage was consummated but afterwards he found her extraordinarily emotional, stubborn and sentimental. She remained callous and indifferent towards him and appeared to be dissatisfied with his family atmosphere. She refused to perform matrimonial obligations towards her in-laws. A son was born out of the wedlock in 1984 but she failed to mend her ways. At times, she used to become furious and insult him in presence of his friends and relatives. She often used to abuse him as "Ass", "Dog", "Monkey" etc. Her cruelty increased day by day. He could not fathom the reasons. On much persuasion, she agreed to visit doctor for treatment of her behavior. However, her condition did not improve. Their only child died in the year 2 2000 in unfortunate circumstances. However, his death did not evoke any significant emotional change in her behavior. Subsequently, she was taken to Dr. P.K. Choudhary, a renowned psychiatrist in Ranchi, in the year 2003, who diagnosed her as a patient of chronic schizophrenia which had the tendency to show violent behavior at times if not controlled. She undertook medicine after great persuasion and the attacks of schizophrenia became of less intensity. However, she refused to take medicine anymore and became more unstable bordering on insanity. She perhaps bore hallucination that petitioner had illicit relationship with each and every female member including his own 60-year old sister. Her behaviour was surprisingly normal towards everyone else. The neighbours also used to take advantage of her unstable behavior and often provoked her to harass the petitioner more with malafide intention. She even denied cooking food and any household work. Again Dr. P.K. Choudhary was consulted, who categorically told him that she is suffering from incurable disease, which can only be controlled through proper medication but cannot be cured. The respondent had become more furious despite all his efforts and medical care and it was difficult to live with her. He was forced to leave the home on 5.3.2007 and is presently living a vagabond life. Petitioner has become apprehensive of any unwarranted incidence that may occur, hence, the instant suit was filed on the grounds of cruelty and mental disorder.
Respondent's case
4. She stated that the suit is not maintainable. It was filed without any specific cause of action and attracted the provisions of Order VI Rule 2 of the C.P.C. She further pleaded that the plaint was fit to be rejected in terms of Order VII Rule 11, 13 and 14 of the C.P.C. The ingredients of cruelty had not been disclosed and the stage etc. at which it surfaced, was also not made out. She had never been assessed as a patient of unsound mind for a long period or treated in a Mental Institution to establish the case of cruelty. The grievances raised by the husband were normal incidences of married life due to his unpleasantness towards the conduct of his wife. She had been caged in a single room flat of an apartment without sufficient means to maintain her status as a wife of a prominent official of C.C.L., who had a handsome salary of Rs. 25,000/- , besides other amenities. She had passed 25 years of long married life with him and never raised any objection or expectation. However, the premature unnatural death of her son was the turning point in the life of the spouses. Other allegations are, therefore, absurd, unfounded and frivolous. Allegations of bio-polar disorder 3 and its hereditary nature are all bogus. Respondent is the victim of the violence of the petitioner. The solitary bond of spouse's life was snatched away on the unnatural death of her only son who committed suicide. In spite of that petitioner's lifestyle did not get affected. He has maintained his routine and is surrounded by his friends and yes-man. The atrocities of the petitioner increased after he shifted from Dhanbad where their life was beautiful. She is a person from a sound background and a cultured lady, having sufficient knowledge and efficiency in other extracurricular activities like embroidery, stitching, arranging feast etc. As such, the suit is fit to be dismissed.
5. Learned family court framed the following issues for determination, based on the rival pleadings of the parties:
I. Whether the suit is maintainable?
II. Whether the petitioner has got valid cause of action?
III. Whether the respondent has treated the petitioner with cruelty?
IV. Whether the respondent is suffering from mental illness?
V. To what other relief or relief's the petitioner is found to be entitled
to be passed?
6. Altogether five witness, namely, Samar Chatterjee P.W.1, Shivajee Dey P.W. 2, Birendra Kumar Mehta P.W. 3, Amit Ranjan Roy P.W. 4 and Utpal Hazari i.e. petitioner himself P.W. 5 were examined on behalf of the petitioner apart from Dr. P.K. Choudhary, who was examined on commission.
Petitioner exhibited the following documents:
Exhibit-X to Exhibit.-X/9, photocopies of Medical Prescription dated 06.07.2010, and Exhibit-Y, the original certificate dated 1.3.2007, issued by Dr. P.K. Choudhary.
Respondent did not examine any witnesses despite several opportunities given to her. No documentary evidence was also adduced on her behalf. Learned family court, thereafter proceeded to decide the issue nos. III and IV together. The evidence of the petitioner's witnesses have been discussed in detail. The evidence of the doctor Dr. P. K. Choudhary, who was examined on commission by Pleader Commissioner, Rakesh Kumar Jha, was also discussed in detail. Plaintiff witness P.W. 1, the friend of the petitioner since childhood, in his statement, deposed about the marriage on 29.7.1983 and referred to their sad and conjugal life due to the behaviour of the respondent. The unnatural death of the child did not change her behavior. She was examined by doctor who opined about her 4 mental ailment prior to her marriage. Petitioner had got himself transferred to Ranchi for her treatment but she refused to take medicine and her cruelty increased. Other incidences about smoking in balcony and abuses on the petitioner, on which, he was forced to leave his house on 5.3.2007 has also been stated by him. In his cross examination, he has claimed having seen the prescription of doctor and cash memo of medicines but the learned family court found that he had not disclosed as to when he had seen the petitioner taking the respondent to Dr. P. K. Choudhary, dates, month etc.. He had not accompanied the petitioner on such instances. He was a Class- III employee working at Darbhanga House in Audit Department. Learned family court did not find him competent to speak about the mental illness of the respondent prior to the year 2000 or 2003 as petitioner was transferred to Ranchi in the year 2004 itself.
P.W. 2 Shivajee Dey is neighbor and friend of the petitioner, who also supported the case of the petitioner and deposed about the abuses, improper behavior of the respondent towards him. He also stated about her mental illness and her treatment by a doctor at the behest of the petitioner. In his cross examination, he stated about meeting the respondent in 1992 when she had gone with petitioner to Chennai during treatment of the wife of P.W. 2. Learned family court did not find from his statement that the behavior of the respondent was abnormal at that time. P.W.3 Birendra Kumar Mehta stated having gone twice to Dr. P. K. Choudhary in January 2005 with the petitioner. He also stated about the respondent trying to jump out of the Tempo and that she was not taking medicine as per advice. She was suffering from schizophrenia illness and was out of control. He has seen scratches in the face of the petitioner in office. He found her torture at him. In his cross examination, he admitted about provision of treatment from C.C.L., when the patient is referred outside, in such circumstances. This witness had, however, not proved any paper to show that the doctor of C.C.L. had referred the respondent outside for treatment. He had, however, spoken that she was taken to the clinic of Dr. P.K. Choudhary in Bariyatu in January 2005 but could not remember the date , time etc. Family court considered him as a tutored witness.
P.W. 4 was an office colleague of the petitioner who was posted at Dhanbad. He stated about the treatment of the respondent under Dr. P.K. Choudhary. She had left her medicines in 2007 as a result of which her illness aggravated. However, the petitioner's in-laws did not provide any help. He used to regularly visit the house of the petitioner. During cross 5 examination, he admitted that he was a friend and had read up to Class -IX with him. He also tried to support the case of the petitioner regarding her treatment under Dr. P.K. Choudhary and that she was suffering from schizophrenia. However, he could not share any details of date, month and year of such disclosure by the doctor. This witness was also treated as a tutored witness by the learned family court. P.W.5, petitioner himself supported his case as made out in the plaint. According to him, on increase in her aggressive behavior, and despite her unwillingness, he managed to take her to Dr. P. K. Choudhary in the year 2004, who found her suffering from mental illness. He also stated about the behavior of the respondent earlier and the scratches that he had incurred as a result of her torture. He, however, had not disclosed, as to who had accompanied him to the clinic of Dr. P.K. Choudhary. Exhibit-Y, a certificate by the doctor, dated 1st March, 2007, was exhibited by him. He had not filed any exhibit or any chit of paper to show that she was suffering from mental ailment before the sudden death of his child in the year 2000. Learned family court observed, from his evidence that it was evident that prior to 2003 there was no dispute between the spouses and there were no complaints about the mental ailment of the respondent. She had gone with him to Chennai in the year 1992 for helping P.W. 2 during treatment of his wife. Apart from that, if she was suffering from 1983 to 2000, he should have filed any chit of paper to prove that. Therefore, his evidence was not worth-believing regarding her ailment prior to marriage or till 2000 or even between the year 2000- 2007.
7. Dr. P. K. Choudhary was examined on 6.7.2010 on commission. He stated about his professional qualification being MBBS and MD, Psychiatrist, DPN. He was a permanent Consultant of Davis Institute of Psychiatry. He stated about the classical symptoms of schizophrenia in his deposition which renders a patient suffer from behavior of suspicion, whispering, becoming violent, aggressive and sometimes silent, deluded, sentimental, destructive, abusive, uncontrolled and even with suicidal tendencies. Schizophrenia may be hereditary but the patient can be controlled by giving medicines. The ten prescriptions dated 25.03.2005, 08.01.2005 or 2004 (faint), 31.10.2004 (faint), 22.08....(faint and illegible), 01.07.2004 or 2005 (faint), 10.05.2004 or 16.05.2004 (faint), 23.03.2004, date illegible, 03.12.......(faint and illegible) and 06.11.2003 ( illegible), were admitted by him as being in his own writing and bore his signature. Learned family court, however, found some of the documents faint.
6Learned family court also doubted these documents as they did not contain age and parentage of the respondent on it. This witness in his cross examination had stated that the patient had come her own and she was not produced forcibly, hence, her signature was not obtained on any prescription. In his cross examination, he further stated that diagnosis is not written all the time in prescription in case of mental ailment and medicines are prescribed for curing the illness. He also mentioned about the diagnostic pachocemetary test for full investigation of such patient. He also stated that patient suffering from acute symptoms can be hospitalized after admission. He remembered the name of the respondent as it was not a common name. He further remembered that they had a child who had died in a road accident. Learned family court treated this statement as exaggeration. This witness, on cross -examination, in para 23 , also stated that respondent could have suffered mental setback on account of the death of her only son.
8. The learned family court thereafter recorded his difference with his learned predecessor on the point of examination of the respondent at specialized hospital like RINPAS as in his opinion, it could be violative of Article 20(3) of the Constitution of India. That no party could be compelled to be a witness against himself. Learned family court found that the petitioner was trying to create an evidence in his favour to prove mental ailment though he had failed to do so. The learned family court on analysis of the material evidence on record answered these two issues against the petitioner. It also referred to a number of judgments of different High Courts on the point of mental disorder and cruelty. Mental disorder in terms of Section 13(1) (iii) should be of such an extent that petitioner could not be reasonably expected to live with the respondent and that it should not be of a curable nature. These issues were decided against the petitioner/ appellant herein.
Learned family court thereafter proceeded to answer the remaining issues also against the petitioner. Issue nos. I & II were decided against him and it was held that petitioner had himself deserted his wife and thereby neglected her. Therefore, he had no valid cause of action for filing the suit. He could not take advantage of his own wrong. Therefore the suit was not maintainable. Issue No. V was also decided against the petitioner. The suit was accordingly dismissed. Learned family court however directed the petitioner to pay maintenance of Rs.3000/- per month regularly in future to the respondent.
79. Learned counsel for the appellant has assailed the findings of the learned family court on a number of grounds. He submits that the approach of the learned family court is fallacious. A continuous reading of the entire judgment would show that the learned family court has proceeded in a manner to suspect each of the petitioner's witness including the medical witness, who had unambiguously deposed about the mental disorder of the respondent. Learned family court had stretched the principles of proof in a family court proceeding by ignoring the specific mandate prescribed under section 14 of the Family Courts Act, 1984. As per Section 14, a family court may receive as evidence any report, statements, documents, information or matter that may, in its opinion assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. The respondent had not disputed her examination by PW Dr. P.K. Choudhary at any point of time. She did not deny that she was taken to the doctor for treatment and medicines were also prescribed. Dr. P.K. Chouhdary, on his part, had described the condition of the respondent and suggested that she was suffering from a disease which could be said as schizo effective disorder. Such diseases are controllable by continuous medication but may relapse if medicines are not taken regularly. The Doctor's evidence was unimpeachable as he also remembered her name and that their son had died an unnatural death. He had also spoken about the fact that such mental illness could result out of the unfortunate, unnatural death of her son. There was no reason for the learned family court therefore to doubt the Exhibits- X to X-9 only on account of the fact that it did not bear the age or parentage of the respondent. Such prescriptions normally avoid mentioning the ailment in particular as it might further demoralize the patient undergoing treatment. The fact that the respondent had undergone treatment and taken medicines which are prescribed for treating mental disorder, therefore cannot, be denied. Evidence of the oral witnesses taken together with the medical expert's and documentary evidence were sufficient to establish that the respondent was suffering from a serious mental disorder which could be termed as schizophrenia or schizo effective disorder. The petitioner could not be reasonably expected to live with the respondent .Her other acts also amounted to cruelty, may be propelled by her mental disorder. All these witnesses are consistent in their statement and therefore, should not have not been discredited.
10. On the other hand, though the predecessor of the learned family 8 court had allowed the prayer of the petitioner to get the respondent examined in RINPAS but the learned family court was unjustified in recording his difference. Unwillingness on the part of the respondent to get herself examined at RINPAS could have led to adverse inference against her. As such, the learned family court completely misread the provisions of Article 20(3) of the Constitution of India and erroneously applied it to differ with the direction of the predecessor family court. Article 20(3) of the Constitution of India applies where a person is made to depose as a witness in a criminal proceeding where his statement could be used for his self-incrimination. That is a constitutional guarantee provided in a totally different context and does not apply to civil proceedings like family court proceedings. Learned family court therefore fell in serious error. Learned counsel has summarized his arguments by submitting that the entire evidence on record adduced by the petitioner, both oral and documentary and that of the medical witness where sufficient to establish the grounds of mental disorder of such a nature where the petitioner could not reasonably be expected to live with the respondent. The parties were married in 1983 and have been living separately since 2007. All the emotional bonds have dried up. No purpose would be served in maintaining the legal tie when the emotional ties have dried up. The impugned judgment therefore deserves to be set aside. Taking a holistic view of the matter, the marriage may be dissolved as it has now irretrievably broken down. The appellant is living separately and the respondent is also living singly in the house of the appellant. Both are now elderly and there are no chances of their reunion.
11. We have considered the submissions of the learned counsel for the petitioner-appellant at length, gone through the impugned judgment and also the relevant material evidence on record. The preceding narrative refers to the rival pleadings of the parties and also the evidence brought on record by the petitioner. Petitioner/appellant has sought a decree of divorce almost after 25 years after his marriage on the grounds of mental disorder of the respondent as conceived under section 13(1) (iii) of the Hindu Marriage Act apart from the grounds of cruelty. The entire pleadings and evidence taken together, however, do not show that prior to unfortunate death of their only son in 2000, the appellant had any basis to allege such a serious mental disorder of the respondent. Appellant has tried to build up his case right since the inception of their marriage in 1983 of the mental illness of the respondent. However, their conjugal life appeared to be normal as their son was born in 1984 and they continued living 9 together as a family at Dhanbad. The petitioner has not been able to show any such conspicuous instances of mental disorder of the respondent during the period 1983 till 2000. It rather appears that after the unfortunate death of their only son in 2000 at the age of 16 years, the family had to shift to Ranchi and instances of change in her behavior became apparent to him. Though the respondent was treated by a Doctor specialized in psychiatry during the period 2003-05 but, the doctor never found it necessary to admit her for treatment as an indoor patient. As such, her behavior, if at all unstable, may be not of such a nature which could be said to be violent or aggressive requiring hospitalization. On the other hand the sequence of facts go to show that she might have suffered emotionally on the death of her only son in unfortunate circumstances. She might have felt that the appellant was responsible for such an unfortunate incidence. It is not uncommon that such unfortunate incidences in a small family may result in change in behavior and mental status of any of the suffering parents.
The plea of mental disorder for seeking divorce in terms of Section 13(1) (iii) of the Act of 1955 should be substantiated with cogent evidence to establish that the respondent was suffering from incurable unsoundness of mind or her mental disorder was so continuous or intermittent to such an extent that petitioner could not reasonably be expected to live with the respondent. Findings of mental disorder, as such, causes stigma against the party concerned. It should not be easily rendered unless weighty circumstances and evidence are adduced by the petitioner. In the facts of the present case, we do not find that the evidence on record were of such a nature that the plea of mental disorder raised by the petitioner was established to the hilt.
We, however, do not approve the approach of the learned Family Court in the manner in which the evidence of the medical expert has been treated. Under Section 12 of the Family Courts Act, 1984, it is open to a Family Court to secure the services of a medical expert or such person (preferably a women were available) whether related to the parties or not, including a person professionally engaged in promoting the welfare of the Family as the Court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by the Act. A perusal of Section 14 of the Family Courts Act also makes it clear that Family Court is entitled to receive as evidence any report, statement, documents, information or matter that may in its opinion assist it to deal effectually with a dispute, 10 whether or not the same is otherwise relevant or admissible under the Evidence Act, 1872. The scheme of the Act, therefore, suggests that the rigors of the Evidence Act, do not apply on all fours, in a proceeding before the Family Court. In the present case, respondent had not disputed having gone for treatment to the Dr. P.K. Choudhary, who had examined her for some unstable behaviour between 2003-05. Merely on account of the fact that certain details of age or parentage were not recorded on the prescription, the evidence of the doctor should not have been out rightly discarded.
12. Learned Family Court at the same time fell in error in recording a difference with the opinion of its predecessor on the point of examination of the respondent in a specialized hospital, on the ground that it would be hit by Article 20(3) of the Constitution. Article 20(3) of the Constitution prevents self-incrimination. Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. The present case was not in relation to any offence or criminal proceeding. Therefore, reliance thereupon by the learned Family Court was totally misplaced.
On the basis of the analyses of the materials on record we may say that circumstances beyond the control of the parties such as the death of their only son in unfortunate circumstances may have led to the present situation. But, the petitioner definitely could not seek dissolution of the marriage on such a serious ground of mental disorder of the respondent which do not find established on the weight of the evidence on record. The marriage between the parties, therefore, cannot be dissolved on the ground that it might have been irretrievably broken down. As such, we do not subscribe to the view urged by the learned counsel for the appellant.
13. Having scrutinized the pleadings and evidence on record and on a conspectus of the entire facts and circumstances, in the ultimate analysis, we do not find any reason to set aside the impugned judgment. Accordingly, the instant appeal stands dismissed. Decree accordingly.
(Aparesh Kumar Singh,J) (Ratnaker Bhengra,J) Jharkhand High Court, Ranchi Dated 3rd July, 2018 Sharda/SB/ NAFR